SAMPLE COPY ONLY NOT FOR USE. Client / Architect Agreement (Short Form 2011 Edition) Client Details. Contact Name:

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1 Client / Architect Agreement (Short Form 2011 Edition) Client Details Name: Address: ACN/ABN: Telephone: Contact Name: Facsimile: Use this clause if Client is an individual Client signature: Witness signature: Date: Use this clause if Client is a company Signature of sole director / director: Signature of director / secretary (Leave blank if not appropriate) Date: Architect Details 1 Witness name and address: Name: ACN/ABN: ABR : Address: or Builder Practitioner # : State: Contact Name: Telephone: Facsimile: Use this clause if Architect is individual Architect signature: Witness signature: Date: Use this clause if Architect is company Signature of sole director / director: Signature of director / secretary (Leave blanck if not appropriate) Date: Project Details Description of Project (include site address): Witness name and address: 1 The names of individual members and directors who are architects are set out in Schedule ArchiTeam Client Architect Agreement Client Architect 1

2 1 Architect 1.1 Responsibilities The Architect: 1.2 Entitlements will perform the Services set with reasonable skill and care and in conformity with the normal standards of the practice of architecture; the Architect will perform the Services as agent for the Client, except where the Architect is appointed to provide contract administration services, in which case the Architect must act impartially; will assist in the provision of all relevant information based on the Project Brief to a Cost Consultant engaged by the Client for the preparation of the Costs of Works for the Project; will not make any material alteration to, addition to or omission from the Services without the written consent of the Client except in case of urgency during construction, in which case the Architect must subsequently notify the Client promptly; will maintain accurate records of disbursements and expenses pertaining to the Services on a generally recognised accounting basis and will make those records available for inspection by the Client at mutually convenient times; and will keep the Client informed of the progress of the Project by way of regular meetings, reports and other means and answer questions and give advice in connection with the performance of the Services on a reasonable basis. The Architect: is entitled to: 2 Client 2.1 Responsibilities The Client: (i) charge fees for the Services as agreed under clause 6 and submit regular invoices for progressive payment of the fees due to it under this Agreement; (ii) charge interest at the rate in accordance with clause 6.2; and (iii) suspend provision of the Services where payment is outstanding in accordance with clause 6.2; retains the right to suspend the Services while any asbestos or hazardous or toxic substances are removed from the Project site and until the Client retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic substances/materials and warrant that the site is in full compliance with applicable laws and regulations; retains the right to suspend the Services while any of the circumstances referred to in clauses 8 to 8 exist; and will not be liable for any consequential or other damages arising as a result of any suspension of the Services whilst asbestos or hazardous or toxic substances / materials are removed. appoints the Architect as its agent for the Project, except where the Architect is appointed to provide contract administration services, in which case the Architect must act impartially; will liaise with the Architect to prepare a Project Brief and time frame for the completion of the Project and will provide all necessary instructions and information for the development of the Project Brief; will work co-operatively with the Architect, make decisions and provide required information and relevant instructions within a reasonable time to ensure efficient and satisfactory progress through all stages of the Project; will inform the Architect of variation to the Architect s scope of Services in accordance with clause 5.3; (g) permits the Architect to take photographs, videos or other media of the Project site during all stages of construction; allows the Architect to publicise the Project for marketing purposes, provided that the Architect will not publicise the location of the Project; (h) (i) (j) will use the Design only for the Project and the site for which it was intended and will not use the Design for any other purpose without the prior written consent of the Architect; will pay the Architect: (i) the fees and expenses provided in this Agreement, including interest where applicable; and (ii) all amounts due at the date of termination in accordance with this Agreement; acknowledges that the Architect s entitlement to fees and reimbursement of expenses is not conditional upon the completion or success of the Project; will engage appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove any asbestos or hazardous or toxic substances / materials and warrant that the site is in full compliance with applicable laws and regulations; 2011 ArchiTeam Client Architect Agreement Client Architect 2

3 (k) (l) is responsible for the provision of all legal, survey and other particulars concerning the Project, including particulars of existing structures, services and features, sub-surface conditions and adjoining sites and structures and for the provision of specialised advice that is not usually provided by Architects; and acknowledges that the Budget may be exceeded if there are any changes to the Design or Project Brief. 3 Consultants The Client has at its own cost, engaged the following consultants to perform services in connection with the Project. The Architect is authorised to direct/instruct the consultants listed below in order to expedite the project: A Costs Consultant to advise the Client in respect of the Costs of Works for the Project; 4 Scope of Services 4.1 The Architect will provide the following Services set out in Part A of Schedule The Architect will not provide any of the services set out in Part B of Schedule 1. 5 Budget and Cost of Works 5.1 The Client has engaged a Costs Consultant to advise in respect of the Cost of Works for the Project. The Client acknowledges that the Architect is not responsible for preparing the Budget or Cost of Works. 5.2 As at the date of this Agreement: The initial estimate of the Cost of Works is $ The Budget is $ 5.3 If the Client varies the Services to be provided by the Architect, the Client must complete a variation instruction in the form set out in Schedule 2 and submit it to the Architect. Any Additional Services or increase in the level of Services provided by the Architect will be charged at the Architect s hourly rates. 6 Fees 6.1 Payment for Architect Services The Client agrees to pay to the Architect: a deposit of $ payable prior to commencement of the Services, with the deposit to be deducted from the balance of the Architect s fees in equal instalments; all fees properly charged by the Architect for the performance of the Services by the Architect under this Agreement. Tax invoices will be rendered by the Architect on basis 2 ; plus additional fees on the basis of the time charge rates set out in this Agreement (or as otherwise agreed), where: (i) (ii) 6.2 Suspension of Services any Additional Services are performed; and/or the time for performance of the Services by the Architect under this Agreement extend beyond the Sunset Date. Each invoice rendered by the Architect is required to be paid in full within 14 days from the date of the invoice. If payment for the invoiced amount is not received by the Architect in full at the end of that 14 day period, the Architect will issue a reminder notice. If payment is not received within 7 days from the date of the reminder notice issued under clause 6.2, the Architect may suspend provision of the Services for such period that payment (including any interest charged in accordance with clause 6.2) remains outstanding. The Architect is entitled to charge interest at the interest rate set from time to time under the Penalty Interest Rates Act 1983 (Vic) from the due date of payment where payment is outstanding for more than 7 days until the time the payment is made. 6.3 Method of charging fees 2 If none stated it will be on monthly basis 2011 ArchiTeam Client Architect Agreement Client Architect 3

4 The Architect s fees will be determined on the basis of a percentage of the Cost of Works, a lump sum fee or an agreed hourly rate. A combination of two or more of the fee methods may be used to determine the fees for services provided by the Architect. The various methods of charging fees are set out in Part A of Schedule 4. The Client agrees that where the Architect is required to provide any town planning services, the Architect will charge fees at hourly rates. The fees may vary if there is a change in the scope of the Services or the Project Brief. All fees are exclusive of GST. 7 Expenses In addition to all fees due to the Architect under this Agreement, the Client is responsible for all expenses and outgoings incurred by the Architect in relation to the Project including but not limited to the expenses set out in Part B of Schedule 4. 8 Limitation of liability To the maximum extent permitted by law: (g) subject to the remainder of this clause 8, the Architect s total liability to the Client under this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, is limited to $ ; the Architect has no liability to the Client or any other person in respect of any indirect, consequential or special losses, including but not limited to, loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement; the Architect has no liability to the Client or any other person in respect of any matter arising directly or indirectly from or in respect of asbestos, asbestos fibres or derivatives of asbestos; the Architect has no liability to the Client or any other person in respect of any matter arising directly or indirectly from or in respect of ionising radiation or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or from the radioactive, toxic, explosive or other hazardous properties of any explosive nuclear device or assembly or a nuclear component thereof; the Architect has no liability to the Client or any other person in respect of any matter arising directly or indirectly from or in respect of the actual, alleged or threatened discharge, dispersal, release or escape of smoke, vapours, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon any property, land, the atmosphere or any watercourse or body of water (including groundwater); the Architect has no liability in respect of the Services after the expiration of three years from the completion of the Services; and if any part of this clause is void as a result of section 68 of the Trade Practices Act 1974 (Cth), or equivalent state or territory legislation, then the Architect s liability for a breach of condition or warranty is limited to: (i) supplying the relevant Services again; or (ii) payment of the cost of having the Services supplied again. 9 Goods and services tax 9.1 Capitalised expressions set out in this clause have the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act Unless this Agreement provides otherwise, and subject to this clause, any consideration provided for under this Agreement is exclusive of GST. If a party makes a Taxable Supply under this Agreement for a consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply. A party s right to payment under this clause is subject to a valid Tax Invoice being delivered to the Recipient. 9.3 To the extent that one party is required to reimburse another party for costs incurred by the other party, those costs do not include any amount in respect of GST for which the other party is entitled to claim an Input Tax Credit. 9.4 To the extent that any Consideration payable to a party under this Agreement is determined by reference to another amount, the GST exclusive amount of the other amount must be used. 10 Intellectual Property 10.1 The Architect retains copyright in the Design and all other plans, drawings and documents (together, Documentation ) prepared by the Architect in relation to the Project. The Architect grants the Client an express, but revocable, licence to use the Documentation for the purposes of the Project on the site for which it was intended, subject to the following: no licence is granted or implied under this Agreement other than the express licence; 2011 ArchiTeam Client Architect Agreement Client Architect 4

5 the licence will be revoked automatically if any amount due to the Architect under this Agreement remains unpaid. The licence will be reinstated upon the Architect s receipt of all overdue payments; and the licence is automatically revoked upon the occurrence of any event or action by the Client or a third party that changes the Client s ownership or legal interest in the site in any way or the insolvency or bankruptcy of the Client, in which case the Client may request in writing the Architect s consent to reinstate the licence (such consent not to be unreasonably withheld) On completion of all Services under this Agreement, and on full payment of all amounts due to the Architect under this Agreement, including after termination of this Agreement, the licence becomes irrevocable in respect of use of the Design for the Project / Site The licence is an express licence valid only in respect of the Project / Site only. The Client must obtain the express written consent of the Architect to use the Documentation in relation to any other project, site or development. The Architect may in its discretion refuse such consent or only provide consent upon receipt of proof that any necessary planning, building or other authority approvals have been obtained to use the Documentation for a different project or site. The Architect may in its discretion charge the Client a licence fee to use the Documentation for a different project or site. 11 Termination 11.1 This Agreement may be terminated by either party on the expiration of 20 days notice given in writing The Architect may terminate this Agreement with immediate effect if any payment due to the Architect remains unpaid for 21 days or more Upon termination under clause 11.1 or 11.2 the Architect is entitled to: payment for Services provided under this Agreement, including any interest charged under clause 6.2 up to and including the date of termination; reimbursement for any expenses reasonably incurred by the Architect in contemplation of performing the balance of the Services as set out in this Agreement; and an amount equivalent to the loss of profits reasonably estimated by the Architect to be incurred by it as a result of the early termination of this Agreement by the Client. 12 General conditions Despite anything expressed or implied elsewhere in this Agreement, the Architect and the Client agree that: (g) (h) the Architect is not responsible for ensuring the completed Project complies with any building contract, but when engaged for contract administration services, is required to instruct the building contractor regarding requirements of the building contract according with the contract terms; the Architect gives no guarantee or assurance that the Design or completed Project will satisfy the applicable requirements of any relevant local authority or that any necessary planning or related authority approvals will be granted; any natural materials used in the Project may change in appearance or dimension following exposure to use or climatic conditions and this is typical for such materials; the scope of the Architect s services does not include any services in relation to asbestos, other hazardous materials or any other site contaminant; upon completion of the Project, the Client is responsible for ongoing and regular maintenance of the Project, including its systems, finishes and equipment; this Agreement will be governed by the laws of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of that State; nothing in this Agreement will render ineffective, or reduce, any protection at law from liability which the Architect is entitled to in the state or territory of the applicable law; and this Agreement supersedes all prior agreements relating to the Architect s services for the Project, and applies to all services provided by the Architect before the formal execution of this Agreement. 13 Dispute resolution If a dispute arises between the parties under or in connection with this Agreement, the parties will make every effort to resolve the dispute by mutual negotiation. If the parties are unable to resolve the dispute, then any party may by notice in writing advise the other party that it seeks to have the dispute resolved by mediation. Within 21 days of such notice, the parties may refer the matter to a mutually agreed mediator. In the event that an agreement cannot be reached on an appropriate mediator, any party may refer the dispute to a mediator appointed by the Law Institute of Victoria. Nothing contained in this clause 13 will deny a party the right to seek injunctive relief from an appropriate Court where failure to obtain such relief would cause irreparable damage to the party concerned. These dispute resolution procedures will not apply to events giving rise to the immediate termination of this Agreement where such events are clearly specified in this Agreement and there is no legitimate dispute as to the interpretation of their meaning or factors giving rise to such events nor will these procedures apply to any dispute concerning the Architect s fees ArchiTeam Client Architect Agreement Client Architect 5

6 14 Notices 14.1 A notice, consent, approval or other communication (each a Notice ) under this Agreement must be signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and: delivered to that person s address; sent by pre-paid mail to that person s address; or transmitted by facsimile or to that person s facsimile number or address A Notice given to a person in accordance with this clause is treated as having been given and received: if delivered to a person s address, on the day of delivery if a Business Day, otherwise on the next Business Day; if sent by pre-paid mail, on the third Business Day after posting; and if transmitted by facsimile to a facsimile number and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day; and if sent by to the correct address, on the day of sending the if a Business Day, otherwise on the next Business Day For the purpose of this Agreement the address of a person is the address set out on the front of this document. 15 No set-off or counterclaim Notwithstanding any term, whether express or implied, in this Agreement or course of conduct to the contrary, payments under this Agreement must be made by the Client without set-off or counterclaim and free and clear of, and without, any deductions whatsoever. 16 Assignment and novation The Client acknowledges that the Architect may assign, transfer or novate its interest in this Agreement. The Client may not assign, transfer or novate its interest in this Agreement without the Architect s written consent. 17 Definitions 17.1 In this Agreement: Additional Services includes any changes and/or revisions to Services which have been provided by the Architect upon a variation instruction given by the Architect under clause 5.3; (g) (h) (i) (j) (k) Agreement means this agreement and includes any special conditions; Budget means the amount determined by the Client as being the Budget for the Project, based on the Costs Consultant s advice as to the Cost of Works; Business Day means any day other than a Saturday, Sunday, bank holiday or public holiday in Victoria; Cost of Works means the final cost of all work designed, specified or scheduled by the Architect, including all work designed, specified and/or scheduled by consultants co-ordinated by the Architect as advised by the Costs Consultant and set out in clause 5. For the avoidance of doubt, Cost of Works does not represent the total cost of the Project; Costs Consultant means the quantity surveyor, builder or other costing specialist engaged by the Client to determine the Budget and the Cost of Works; Design means the design, including all design concepts, drawings and documents, prepared by the Architect in connection with the Project under this Agreement; Project means the project identified at the beginning of this Agreement. Project Brief means the brief setting out the Client s parameters and requirements for the Project developed by the Client in consultation with the Architect. The Project Brief does not form part of this Agreement; Services means the architectural services provided by the Architect under this Agreement and includes any Additional Services which the Architect is engaged to provide under this Agreement; Site means the location of the Project; and (l) Sunset Date as agreed with the Client ArchiTeam Client Architect Agreement Client Architect 6

7 Schedule 1 Scope of Architectural Services PART A The Architect will provide the following Services in respect of the Project (strike out where not required). Core Architectural Services 1. Pre-design stage The Architect will: Provide recommendations as required in relation to fees and for the appointment of consultants. Inspect the Project site and assess general site conditions and constraints. Undertake a preliminary analysis of authority regulations and requirements and advise Client. Obtain the Client's approval to prepare sketch design. Other 2. Sketch design stage The Architect will: Arrange and attend meetings with the Client, relevant authorities, consultants and others as reasonably required. Prepare sketch drawings including sketches, diagrams and other information explain the Design to the Client. Prepare Design briefs for consultants. Liaise with cost consultants in the preparation of the preliminary cost estimate. Prepare preliminary selections of materials and finishes. Obtain the Client's approval to proceed with Design development. (g) Obtain the Client's approval to prepare town planning application/development approval as required. (h) Other 3. Detailed design stage The Architect will: Develop the approved sketch design into a final design solution. Arrange and attend Client meetings as reasonably required. Co-ordinate the design work undertaken by consultants within the architectural design. Provide schedule of proposed materials and finishes. Obtain the Client's approval to proceed with construction documentation. Other 4. Building permit stage Prepare drawings at an appropriate scale including plans, elevations and sections, together with other details and schedules to enable statutory approval to construct the Project. Co-ordinate and collate the work of all consultants with the architectural drawings. Submit documents to the building surveyor for building approval. Other 5. Tender documentation stage The Architect will: Prepare a list of prospective tenderers for approval by Client. Provide recommendations to the Client on the preferred method of tendering. Call tenders. Prepare tender documents and issue to all tenderers. Respond to enquiries from tenderers. Close and assess the tenders. (g) Negotiate with the preferred tenderer to obtain an offer acceptable to Client. (h) Prepare a report and recommendation of tenderer s offer for acceptance by Client. (i) Prepare the contract documents. (j) Arrange for the signing and execution of the contract documents by both parties. (k) Other 2011 ArchiTeam Client Architect Agreement Client Architect 7

8 6.1 Contract Administration Stage The Architect will: Undertake periodic site inspections, check work in progress regarding design quality control, materials selections and performance as described in the contract documents. Review documentation and other submissions by builder and/or contractor. Provide builder/contractor supplementary details and information. Provide builder/contractor instructions to clarify the contract documents where required. Administer variations and obtain Client approvals. Attend site meetings and other meetings as required. (g) Provide the Client with regular reports regarding time, cost and progress of the works. (h) Assess builder/contractor s progress claims and issue progress certificates. (i) Assess builder/contractor s claims for extensions of time. (j) Adjust prime cost and provisional sums and other monetary sums included in the contract documents. (k) Co-ordinate consultants as required. (l) Prepare defects lists prior to practical completion. (m) Issue instructions to the builder/contractor for work required to achieve practical completion including rectification of any defects. (n) Inspect rectification of defects and issue notice of practical completion. (o) Other 6.2 Post-Construction Services Assess the final contract account. Coordinate the rectification of any defects found in the works including the issue of instructions to the builder/contractor and, if required advising the Client of rectification of any defective work by others. Inspect the works and prepare final defects listing. Issue the final certificate on completion of all defects and outstanding work. Non Core Architectural Services 7 Town Planning/Development Approval Services (g) (h) (i) (j) 8 Digital Renderings Prepare the necessary documents for a planning application in relation to the Project. Assist the Client with lodging the planning application. Prepare detailed site analysis and streetscape drawings to comply with local authority requirements. Prepare detailed shadow diagrams to comply with local authority requirements. Assist the Client in the co-ordination of a planning consultant and other specialist advisors as required for a planning application. Prepare report on the design intent as required in support of, and to justify, the application. To the extent agreed with the Client, meet and liaise with local planning authority and other related authorities, adjoining owners and or interest groups and undertake negotiations on behalf of the Client in relation to the Project. To the extent necessary, attend hearings and give evidence at planning tribunals associated with the planning application. Assist the Client in obtaining the required planning approvals. Other Prepare detailed 3D rendered images of the Project. Provide realistic streetscape perspectives by the superimposing of 3D rendered images of proposal into existing site context. Other 9 Existing Condition Surveys Provide detailed drawings showing all existing buildings, visible services and finishes. Prepare existing conditions drawings in digital format. Other 2011 ArchiTeam Client Architect Agreement Client Architect 8

9 10 Non Core Documentation (g) Assist any Client-appointed programmer (or programmer appointed by selected construction manager/builder/contractor) in the preparation of agreed program trade documentation packages. Provide parts of the works in trade package format. Provide matching specification for each trade package. Provide a set of standard preliminaries suitable for inclusion with all trade package documentation. Co-ordinate Client appointed consultants in the preparation of trade package documentation for specialist sections of the works. Assist Client-appointed contractor/ construction manager/ project manager in responding to queries from trade contractors. Other Excluded Services list services that Architect is not providing here: Landscaping Interior design Interior decorating 2011 ArchiTeam Client Architect Agreement Client Architect 9

10 Schedule 2 Date: Dear Sir/Madam, Re: Variation of Services instruction We refer to the Client / Architect Agreement dated We wish to vary the Services or increase the level of Services provided by the Architect under that Agreement as follows: Authority is hereby given to Architect to proceed with the providing Services described above. We agree to pay the Architect fees at its usual hourly rates for performing the above Services, in addition to the fees provided under the Agreement. Please contact us if you have any questions or would like to discuss any of the above. SIGNED (CLIENT) SIGNED (ARCHITECT) DATE DATE 2011 ArchiTeam Client Architect Agreement Client Architect 10

11 Schedule 3 # If the Architect is a partnership, list the names of all members of the partnership who are architects # If the Architect is a company, list the names of all directors of the company who are architects The above is not necessary if the Architect is a sole practitioner ArchiTeam Client Architect Agreement Client Architect 11

12 Schedule 4 Part A - Fees 1. Percentage Fees (tick if applicable) (Based upon the Cost of Works of $ ) The total fee will be % and will be apportioned as follows for each stage of the Services provided in respect of the Project: Pre-design stage Sketch design. Detailed design... Final design. Building permit Tender documentation... Contract administration.. Post-construction Construction Documentation. 2. Lump Sum Fees (tick if applicable) The lump sum fee is based upon the Cost of Works sum of $ to be performed by the Architect. Pre-design stage $ Sketch design. $ Detailed design.. $ Final design $ Building permit...$ Tender documentation.. $ Contract administration. $ Post-construction.. $ Construction Documentation... $ and has been assessed on the scope of Services 3. Hourly Rate Fees (tick if applicable) Where the fee is to be calculated on the basis of agreed hourly rates the Architect must provide, upon request, substantiation of the charges. This section should be completed for all projects and used as a basis for additional fees. Where the Architect is required to provide any town planning services, the Architect will charge fees at hourly rates. The hourly rate fees are: Principal/Director $ Senior Architect $ Architect $ CAD Technician $ Other $ Part B Expenses ( to be reimbursed by Client) (g) (h) (i) (j) (k) (l) all fees, taxes, levies or charged paid to authorities advertisements and notices preparation of submissions and attendance at planning appeals hearings special presentation material, models, perspectives other consultants fees rental of special equipment electronic CAD data transfers and CAD file conversions photographic records air freight and courier services provision of documents other than to Client for Client s own use provision of building contracts site survey and detailed measure up of special features, building and/or site ArchiTeam Client Architect Agreement Client Architect 12

13 (m) travel time charged at $ per hour (n) vehicle use beyond 30km from the Architect s office charged at $ per kilometre (o) interstate travel, includes accommodation, airfares, taxis, parking costs etc (p) other 2011 ArchiTeam Client Architect Agreement Client Architect 13

14 Schedule 5 Special Conditions include any special conditions here, attach a separate sheet where required 2011 ArchiTeam Client Architect Agreement Client Architect 14