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1 CLIENT- ARCHITECT AGREEMENT This client-architect agreement is published by the Namibia institute of architects and is copyrighted EDITION: ** ARTICLES OF AGREEMENT SCHEDULE OF FEES DEFINITIONS STANDARD SERVICESCONDITIONS SUPPLEMENTARY SERVICES THE SCHEDULE OF VARIABLES 1. All pages and annexures should be numbered consecutively. 2. Enter description of project. 3. Enter description, location and registered number of the site/s as stated in the cadastral description in the title deeds. 4. Where the client or architect is a registered company, the signature should be authorized by the company s board of directors and a certified copy of the resolution should be appended hereto. CLAUSE 1: ARTICLES OF AGREEMENT This agreement, comprising pages numbered 1 to **¹ including any annexure appended hereto, is hereby entered into by and between THE CLIENT Address **and** THE ARCHITECT Address** The client wishing to carry out a project comprising² ** Situated at³ ** It is agreed that the client hereby appoints the architect and the architect accepts the appointment to carry out the architectural services covered by the standard services for the aforesaid project all as defined herein, on the conditions and for the fees and disbursements set out herein. Thus done and signed at ** this**day of**20** CLIENT S SIGNATURE ** Capacity ** Name in block letters** Witness: Name in block letters ** Signature ** Thus done and signed at ** This ** day of ** 20 ** ARCHITECT S SIGNATURE 4 ** Capacity ** Name in block letters ** Witness: Name in block letters ** Signature ** CLAUSE 2: SCHEDULE OF FEES For the rendering of his professional services on the aforesaid project it is hereby recorded that the architect s fee for standard services shall be as set out below. For standard services ** 2.1. TIME CHARGES Any work undertaken by the architect on a time charge basis shall be reimbursed to him by the client at the following rates: Principals, partners or directors N$ ** per hour and increased by ** per cent on each anniversary of this agreement. Registered professional staff 17,5c per hour per N$100 or part thereof of gross annual remuneration. Other salaried professional and technical staff 15c per hour per N$100 or part thereof of gross annual remuneration DISBURSEMENTS In addition to the professional fees stated above the following costs incurred in connection with the project shall be reimbursed to the architect by the client. Typing, printing and reproduction of drawings at current commercial rates or purchase cost of all documents and drawings. Photocopies at current commercial rates

2 Maps, models, photographs including progress photographs necessary for administering the building contract agreed to or requested by the client at a price agreed to between the parties. Long distance and overseas telephone calls, cablegrams, telegrams, telefaxes and telexes at actual costs. International postage and local and international freight charges at actual cost. Premiums on any special insurances required by the client. Cost of structural chemical or other tests. Traveling and subsistence expenses beyond a 25 km radius from the architect s office in accordance with the current index of costs per kilometer prepared by the Automobile Association of Namibia for a 2000cc car and / or first class air fares for principals, economy class air fares for staff. Traveling time will be charged up to a maximum of eight hours per working day. Where an overnight stay is involved, 3-star accommodation, meals, out-of-pocket expenses and any other expenses incurred in traveling to and from the ultimate destination. Other as agreed ** CLAUSE 3: DEFINITIONS In this agreement, unless inconsistent with the context, an expression or word to which a meaning has been assigned in the Architects Act, 1979 (Act 13 of 1979) and any amendments thereto, shall bear the same meaning, and 3.1. addition means the enlargement of the architectural area of an existing building by way of additional building work thereto; 3.2. administer means the services provided by an architect in terms of a contract for the erection of a building; 3.3. alteration means any change of an architectural, structural, mechanical or electrical nature made to an existing building and includes any portion of an existing building altered as a result of a new extension to such building; 3.4. architectural area means the sum of the areas of the several floors of a building including basement, mezzanine and intermediate floored tiers and penthouses of headroom height, measured from the exterior faces of the exterior walls; 3.5. architect means the person or persons so named in the Articles of Agreement, who shall be registered with the Namibia Council for Architects and Quantity Surveyors and who shall be a member or members of the NIA, or the partnership or the incorporated company so named in the Articles of Agreement which shall comply with the rules published in terms of the Architects Act, 1979 (Act 13 of 1979); 3.6. as-built drawings shall mean the working drawings, amended as necessary on completion of the project, which show the works as actually built; 3.7. building scheme means a design proposal for the erection of a building or group of buildings, including all ancillary services, site works and other appurtenances; 3.8. building contract means the current edition of the Agreement and Schedule of Conditions of Building Contract approved and recommended by the Namibia Institute of Architects, the Institute of Namibian Quantity Surveyors and the Construction Industries Federation of Namibia; 3.9. client means the person, body corporate or public utility corporation or company established by or under a special Act of Parliament or any state, regional or similar authorities engaging the architect to perform any of the services set out herein as designated in the Articles of Agreement; completion of the project means the date of the issue of the Certificate of Final Completion referred to in the building contract; consultant means any person engaged by agreement between the client and the architect to provide specialized advice on any aspect of a project and shall include inter alia a registered quantity surveyor, a professional engineer, a registered town and regional planner or a landscape architect; cost of the works means the final cost of all work executed, including the cost of the electrical, mechanical and any other specialist services and site works forming an integral part of the project and in respect of which the architect renders the co-ordinating services, provided that the cost of the work shall include the actual or estimated cost of any materials, labour or carriage donated or supplied at reduced cost; and the actual or estimated cost of any work excluded from the contract and in respect of which the architect has rendered services described in Clause 4; and any penalties, in terms of a building contract, which may have been deducted from the payments to the contractor; and Value Added Tax (V.A.T); and shall exclude the fees and disbursements of the architect, quantity surveyor, engineer or other consultants; and the remuneration of the client s site staff, except where the client is the builder; inspection means such periodic visits to, or in connection with, the works by the architect as are necessary to determine that the work is proceeding generally in accordance with the requirements of the building contract between the client and the contractor, and for him to provide on-site clarification and further information as may be required during progress of the work, and together with any consultants, - - 2

3 approving samples of materials and workmanship and scrutinizing the contractor s and any subcontractor s shop drawings for conformity with the documentation prepared by the architect and consultants; private practice means the practice of a person who performs the work of a registered architect for a fee other than a salary and for that purpose holds out as a registered architect and places the services rendered at the disposal of the public, for reward; project means a building scheme or commission for the carrying out of all or part of the work for which an architect is commissioned; shop drawings means drawings prepared by a contractor, sub-contractor or other person for the purposes of co-ordinating and executing construction work; specifications means written descriptions or schedules of requirements as to materials, workmanship, equipment, manufacture, methods of installation, design and performance criteria; working drawings means graphic representations, including plans, sections, elevations, site plans, construction details, service co-ordination information, schedules and such details and representations as are within the reasonable competence of a registered architect, which are sufficient to indicate the scope of the works for the purposes of the execution of the project; works means a building scheme as executed or in the course of construction. CLAUSE 4: STANDARD SERVICES 4.1. Stage 1 APPRAISAL AND DEFINITION OF THE PROJECT Receive, appraise and report on the client s requirements with particular regard to site information, planning and statutory requirements. Advise the client on the need for the appointment of consultants and procedures to meet his requirements including methods of contracting and on any supplementary service (Clause 6), which may be required Stage 2 DESIGN CONCEPT Advised by any consultants appointed, prepare a design showing space provisions, planning relationships, standards of materials intended to be used and standards and suitability of services, in sufficient detail to enable the design to be approved by the client. Advise the client on the feasibility of the project as designed, the estimated cost, budget, time schedule and statutory requirements and on supplementary services Stage 3 DESIGN DEVELOPMENT After approval of the design, develop it sufficiently to co-ordinate the work and services of consultants and specialists who have been appointed. Discuss the design with the statutory authorities concerned. Review the budget and time schedule Stage 4 TECHNICAL DOCUMENTATION AND APPROVALS Prepare drawings and documentation for submission to local or statutory authorities for approval and working drawings, specifications and other technical documents necessary for the execution of the project. Correlate the work of any consultants in the preparation of the documentation. Attend any regular progress review meetings called by the client, the form, frequency and duration of which are to be agreed to and stated in the schedule hereto. Unless otherwise agreed herein, where meetings exceed four hours a month, the excess ranks for charges under supplementary services Stage 5 CONTRACT ADMINISTRATION AND SUPERVISION Call for tenders and/or negotiate the building contract where required. Advise the client regarding the award of the building contract and the completion of contract documents. Prepare the building contract documents and present same for signature by the parties thereto. Administer the building contract/s. Inspect the works. The form, frequency and duration of meetings and visits related to administering the building contract/s and inspecting the works will vary according to the nature and stage of the construction and the architect should clarify for the client the attention to be provided pursuant thereto, such to be stated in schedule hereto. On completion of the project, provide the client with as-built drawings

4 CLAUSE 5: CONDITIONS 5.1. ACT OF PARLIAMENT AND REGULATIONS The architect is obliged to abide by the Architects Act, 1979 (Act 13 of 1979) and any amendments thereto, the regulations framed in terms thereof and the constitution, regulations and rules of the Namibia Institute of Architects and Quantity Surveyors, and any amendments thereto CLIENT S REQUIREMENTS The client shall clearly and timeously specify his requirements, and provide relevant information, decisions and instructions to the architect when requested to do so by the architect. In the event that the client changes his requirements and that such changes involve any addition to the cost of the works, time schedule or professional fees, the architect shall advise the client promptly thereof and, in agreement with the client, confirm supplementary services in terms of Clause SITE DEFINITION Site boundaries and beacons shall be established on site by a registered land surveyor to be appointed in terms of Clause The land surveyor shall provide the architect with a survey drawing as described in Clause and any certificates related thereto LEGAL CONSTRAINTS RELATED TO A PROJECT The client shall provide the architect with the title deeds, diagrams, lease conditions and all other pertinent legal constraints related to the project, together with any professional legal advice thereon as may be necessary ARCHITECT S DILIGENCE The architect shall exercise reasonable diligence and skill in the performance of his professional services LIMITS TO ARCHITECT S RESPONSIBILITY Tenders Exceeding Estimates The architect in preparing tender or contract documentation undertakes to use his best endeavours to adhere to the approved estimate but does not guarantee that tenders will not exceed the estimate. In the event of the lowest tender exceeding the approved estimate by more than 15% solely due to the actions of the architect, the architect shall, if so required by the client and at no additional cost to the latter, make such changes to the design and/or specifications as to reduce the cost to within 15% of the approved estimate or to such higher amount as may be agreed to by the Client Consultant and/or Contracted Design Services The client shall not have the right of action against the architect arising from any loss or damage which the client may suffer arising from any negligence, delay, error or omission on the part of any other consultant. Where any design service is provided by a contractor, sub-contractor or other specialized trade, the architect shall not be responsible for any negligence, delay, error or omission of their part, or for any consequences thereof Failure of Materials, etc. The architect shall not be responsible for any material, component, system or workmanship failing to perform in accordance with the claims of the manufacturers, suppliers, contractors or sub-contractors Contractor s Responsibilities Each contractor, together with his sub-contractors, is directly responsible to the employer for due performance in terms of the building contract. The architect shall use his best endeavours by way of contract administration and inspection of the works to guard against delays, deficiencies or defects on the part of a contractor but shall not be responsible for, nor does he give any guarantee in regard to the foregoing, nor for a contractor s operational methods, techniques, sequences or procedures Checking of Shop Drawings and Approval of Samples Checking of shop drawings or approval of samples of equipment, materials or workmanship by the architect is precautionary and does not relieve a contractor or sub-contractor of responsibility for installation co-ordination, erection fit, patent errors or defects contained in shop drawings of latent/patent defects in equipment, material or workmanship, nor does it place responsibility upon the architect for the foregoing Time Limit to Architect s Responsibility No claim whatsoever shall be enforceable by the client against the architect arising out of or in respect of any services rendered by the architect under this contract or otherwise in connection with the carrying out of the project after three years has elapsed from completion of the project or suspension, postponement or termination in terms of Clause 5.16 and 5.17 hereof, irrespective of when such claim arises or when the client acquired knowledge of the facts from which the claim arises ARCHITECT S AUTHORITY TO MAKE CHANGES The architect shall not make any material alteration, addition or omission to the approved design without the consent of the client except when arising from an emergency or necessity during construction, in which case the architect shall notify the client as soon as possible of the action taken. For the purpose of this item a material alteration shall mean an alteration or variation the cost of any one of which exceeds the sum stated in the schedule hereto

5 5.8. INSTRUCTIONS TO CONTRACTORS Instructions to contractor/s related to the works shall only be given by the architect or his authorized representative CHANGES OF ARCHITECT S FIRM AND ASSIGNS Any changes of composition or status of the architect s firm shall not affect this agreement and, in so far as he is able, each partner or co-director binds himself, his successors or assigns to the other party to this agreement. Save as above, neither party shall assign, sublet or transfer his interest in this agreement without the written consent of the other INCAPACITY OF THE ARCHITECT In the event of the architect s death or physical or mental incapacity to fulfill his obligations, where he is not a member of a partnership or registered company, the procedure shall be as for Termination, as set out in Clause In the event of the architect s death or physical or mental incapacity to fulfill his obligations, where he is a member of a partnership or registered company, such other partners or the company, as the case may be, shall complete this contract COPYRIGHT, OWNERSHIP AND USE OF DOCUMENTS All documents prepared by the architect are copyright and remain his property. The client has the right to use of and benefit from authorized copies of documents for the sole purpose of this agreement, subject to his compliance with the terms and conditions set out in this agreement EMPLOYMENT OF CONSULTANTS Where the architect deems it necessary to obtain any specialized advice from consultants it shall be provided under his direction. Such services include, inter alia: land surveying, town planning, quantity surveying, engineering services including structural, mechanical and electrical services, landscape design or construction methods or procedures. Such consultants shall be selected by the architect in agreement with the client, and be appointed by the client. Each consultant shall sign individual agreements of employ with the client who will be directly responsible for the payment of consultant s fees in terms of the conditions of their engagement. Instructions to such consultants in relation to the project shall only be given by or through the architect PAYMENT The architect shall be entitled to render and be paid monthly interim accounts for the payment of fees and disbursements during the progress of standard services and any supplementary services. Such accounts shall be assessed by the architect, pro rata to the professional services rendered. The aggregate of the interim payments shall not exceed the total fee payable. Payment of each of the architect s accounts shall be due when rendered and shall be payable at the address of the architect as stated in the Articles of Agreement. Accounts not paid within 30 days of presentation shall accrue interest at a rate of 2 percent above the prime bank rate WTHHOLDING OF FEES Should the client allege a claim against the architect, a contractor or any other party involved in the project, such claim shall be dealt with in its own right and the client may not withhold payment of any part of fees or disbursements due to the architect on such account BUILDING CONTRACT DISPUTES Any dispute or difference which ay arise between the client or the architect on his behalf and the contractor, as defined in the building contract, shall, as set out therein, be decided by the architect as part of his standard services. However, for rendering any other professional service in connection with or arising out of any arbitration, litigation or dispute, such other service shall rank as a supplementary service and the architect shall be remunerated accordingly SUSPENSION OR POSTPONEMENT OF THE PROJECT The client may at any time instruct the architect to suspend or postpone work on the project. Immediately thereafter the architect shall be entitled to be remunerated in full for all of his services rendered and disbursements to the date of such instruction. Upon suspension or postponement of the project, the architect shall be paid in full all outstanding fees and disbursements, plus 7.5% on his total fees for his services due up to the effective date of suspension or postponement. If work on the project remains suspended or postponed for six months or more from the date of such instruction, the architect shall be entitled to assume that the project has been terminated by the client in terms of Clause and shall advise the client accordingly in writing by registered post. The architect shall not be precluded from recovering any damages he may sustain due to the suspension or postponement of the project TERMINATION This agreement may be terminated by either party on the expiry of thirty days notice in writing to the other party by registered post Termination by the Client Upon termination by the client the architect shall be paid in full all outstanding fees and disbursements, plus 7,5% on his total fees due for his services up to the effective date of termination

6 Within thirty days of receipt of payment of the above the architect shall deliver to the client one copy of each document prepared by him and any other documents or items that may or should be in his possession and not previously delivered to the client which, in the architect s opinion, may be relevant to the project Termination by the Architect Upon termination by the architect, the terms of the Clause shall apply; except that he shall only be entitled to fees and disbursements related to his services rendered up to the date of his notice of termination and no additional amount shall be due DISPUTE OR DIFFERENCE ARISING OUT OF THIS AGREEMENT Should any dispute or difference whatsoever arise at any time hereafter between the parties hereto concerning this agreement, or its construction or effect, or as to the rights, duties and/or liabilities of the parties hereto of either of them under or by virtue of this agreement or otherwise, or as to any other matter in any way arising out of the subject matter of this agreement, then either party hereto may declare a dispute by delivering the details thereof to the other party. Such dispute shall forthwith be referred to the arbitration and final decision of an arbitrator as nominated under clause 26 of the building contract LAW OF THIS AGREEMENT It is agreed between the parties to this agreement that the law of the Republic of Namibia shall be applicable to this agreement WHOLE AGREEMENT This agreement, including any annexure hereto, constitutes the whole of the contract between the parties and no variation hereof shall have any effect unless reduced to writing and signed by both parties SPECIAL TERMS To be used for any special terms, subject to Clause 5.1, agreed to at the time of signing the articles of agreement Material Alteration A material alteration in terms of Clause 5.7 shall mean an alteration or variation the extent of any one of which exceeds the sum stated in the schedule hereto Progress Review Meetings The form, frequency and duration of progress review meetings in terms of Stage 4 shall be as stated in the schedule hereto Administration/Inspection Visits and Meetings The form, frequency and duration of administration/inspection visits and meetings in terms of Stage 5 shall be as stated in the schedule hereto. CLAUSE 6: SUPPLEMENTARY SERVICES The following supplementary services are additional to the standard services referred to in Clause 4, and will rank for additional fees. Supplementary services may be required individually or in varying combinations, or as such together with standard services. They may be carried out by the architect or by him in collaboration with consultants. Supplementary services shall only be provided by prior agreement between the client and the architect and shall be confirmed in writing by the architect to the client stating the scope of services required and the fees related to each service commissioned SPECIAL STUDIES Studies for the Preparation of the Client s Brief Assistance to the client in preparation of his requirements with regard to matters relating to the client s purpose, use of building type or method of operation Site Selection, Survey and Location Studies Investigation and advice on the suitability of a proposed site for a given project, other than when being rendered on a current project under standard services. Investigation of the physical and chemical properties of the soil strata by means of trial holes, borings, probes, loading and laboratory tests. Preparation of survey drawings indicating beacons, servitudes, site features, levels, contours, flood lines, altitude, prescribed datum s and other relevant physical items. Research into factors affecting location of a proposed project and making recommendations thereon Technical, Economic and Environmental Feasibility Studies Investigation of and reporting on technical or economic feasibility or need for environmental studies with the object of assisting the client to decide whether to proceed and, if so, in what form Market Studies Identifying sales potential, letting prospects, etc Traffic Studies - - 6

7 Studies of pedestrian, vehicle and goods traffic generation and flow on site and in relation to its neighborhood or urban complex Operational, Plant and Production Layout Studies Research into and analysis of the client s organization or work flow or plant/production layout provided by others, in terms of building volume generation, provisions for expansion, installation, operating and maintenance procedures SPECIAL DESIGNS Town Planning Design Regional planning, town planning, urban design and township layout Master Site Planning Defining the considerations relating to and planning the layout of one or more future buildings to relate them, their services and circulations to a current project on the same site, the related professional services on the current project to be remunerated in the fees for standard services Landscape Design Design, preparation of documentation, calling for tenders for or negotiating a contract, administration of the contract and inspection of the execution of landscape work Promotional Material Preparation of brochures, models or other publicity material for the promotion of a project Art Work and Graphics Advice on or selection of art works, features or graphics. No additional fee for this service shall accrue to the architect where costs of art work or graphics form part of the cost of the works. Design and procurement of graphics, signs, logos or corporate identity material Purpose-Made Items Design/technical documentation of purpose-made components, elements, fixtures or fittings Interiors The design or selection, documentation and procurement of furniture and furnishings and any special finishes or fixtures related to interiors Plant Procurement Design, specification or co-ordination of the installation of machinery or equipment related to the use of the building such as required for manufacturing, treatment or processing EXISTING PREMISES Inspections, Surveys and Reports Inspections, preparation of survey drawings and notes and reports on existing buildings Demolitions Preparation of documentation for purposes of demolition, calling for tenders for or negotiating a contract, administration of the contract and inspection of the execution of the demolition work Alterations or Renovations Related to New Work Advice on, design, preparation of documentation, calling for tenders for or negotiating a contact, administration of the contract and inspection of the execution of alteration or renovation work included in building contract for new work Valuations Valuation of property or buildings for the purpose of insurance, rental, expropriation, taxation, etc., other than any valuation rendered under standard services on a current project Restorations Services in connection with inspection, measurement and any work related thereto, historic research, verification of authenticity or restoration of an existing building SPECIAL ADMINISTRATIVE/LEGAL SERVICES Local Authority Town Planning Schemes Applications for rezoning, change of use, amendment of town planning schemes or title conditions Negotiations Negotiation, including where necessary the preparation of documentation or models for the purpose thereof, with public authorities, adjoining owners or any other party for the purpose of obtaining consent for a project or pat thereof, or to effect changes of land use, or to obtain waivers Non-Standard Building Contracts Additional services arising out of the use of building contracts other than the building contracts as defined herein Co-ordination of Contracts Co-ordination of two or more individual simultaneous or consecutive building contracts on the same site or building Cost Checking Cost Plus or Managed Contracts Checking cost data provided by a contractor operating on a cost plus or managed contract

8 Extended Visits or Meetings Extended visits or meetings in excess of that stated in items and Extended or Constant Supervision Providing extended or constant supervision of the works by resident architect s representative or clerk of works Sectional Titles Preparation of documentation to meet the requirements of the regulations under the Sectional Title Act 1971, and any amendments thereto, the fee to be in accordance with the provisions of that Act. Fees under the aforementioned Act do not cover the following services, which shall rank as additional fees: Documentation covering common property allocation. Composite plans as required by local authorities. As-built drawings. Drawings or submission for approval to public authorities of deviations not previously approved. Copies of documents additional to those required to open the Register contemplated in that Act Default/Insolvency of Employer, Contractor or Nominated Sub-Contractor Professional services arising from default or insolvency of the employer, contractor or nominated sub-contractor as defined in the building contract Litigation and Arbitration Advice on or assistance in litigation or arbitration Damage to or Destruction of the Works Services arising out of damage to or destruction of the works or part thereof MAINTENANCE MANUAL Preparation of a manual for the maintenance of a building or its service installation SUPPLEMENTARY OR REVISED DOCUMENTATION Preparation of supplementary or revised documentation due to the exigencies of the project or to cater for supplementary or revised requirements arising subsequent to receipt of the client s instructions to proceed and the architect s work having been commenced 6.7. OTHER SERVICES As may be specified by the parties: ** CLAUSE 7: THE SCHEDULE OF VARIABLES Clause The value of a material alteration shall not exceed the sum of N$ ** Clause Stage 4: Progress review meeting shall be held for a maximum duration of ** hours at Intervals not of more frequently than ** Clause Stage 5: Administration/ Inspection visits shall be made for a maximum duration of ** hours, at intervals of not more frequently than ** Stage 5 meetings shall be held for a maximum duration of ** hours, at intervals of not more frequently than ** Clause 6 Supplementary services to be provided by the architect shall be ** - - 8

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