the contract described in the present agreement:

Transcription

1 si a Contract relating No to Architects Services 2003 Concerning the project: The client name / address: (Client) awards the architect name / address: schweizerischer ingenieur- und architektenverein the contract described in the present agreement: (Service provider) 1 société suisse des ingénieurs et des architectes società svizzera degli ingegneri e degli architetti swiss society of engineers and architects 1 The service provider is a member of * SIA (Swiss Society of Engineers and Architects), subdivision: other professional associations (abbreviations not permitted): t +41 (0) f +41 (0) The service provider is registered in the Swiss Register of: * Architects A Architects B Technicians C 1 SIA 1002 copyright by SIA Zurich

2 1 Contractual basis and order of priorities in the event of discrepancies 1 * This contract and its appendices in accordance with the list on page 11 2 * The service provider s tender with service description dated: Both finalized on: 3 * The job description, including the provisions of the contract relating to the project, dated: Finalized on: 4 * The statistical values Z1 and Z2 for the calculation of the average man-hours accumulated (T m) published by SIA. * Status at the conclusion of the contract: Status: 5 * SIA 102 (2003 edition) 6 * 7 * In the event of any discrepancy between the documents which form the basis for the contract, the respective documents shall apply in the order in which they are listed above. In the event of a discrepancy between documents of the same ranking, the more recent document shall take precedence over the older document. SIA 102 (2003) shall be used to determine the definition of the terms employed. 2 SIA 1002 copyright by SIA Zurich

3 2 Services and remuneration of the service provider 2 Services The services of the service provider * are described in his tender dated: (finalized on: ) include the following basic services, pursuant to Art. 4 et seq. of SIA 102: Preliminary project Study of solution options and rough estimate of costs of works % Preliminary project and cost estimate % % Construction project Construction project % Detailed studies % Cost estimate % % Permit-obtaining Permit-obtaining procedure % procedure Invitation to tender, Invitation-to-tender plans % comparison of quotations, Invitation to tender and application for contract award of the contract % % to be awarded Construction planning Implementation plans % Works contracts % % Implementation Design management % Construction management and cost control % % Commissioning, Commissioning % completion Documentation about the building structure % Management of guarantee work % Final cost settlement % % Total basic services % * include the following services to be agreed separately in accordance with Art and Art. 4 of SIA 102 (2003): * are agreed as follows: 3 SIA 1002 copyright by SIA Zurich

4 2 Basis for calculating fees * Remuneration based on the costs of the works, in accordance with Appendix 6. The calculation of fees based on the costs of the works, in accordance with Art of SIA 102 (2003) is based on: * the final cost settlement the cost estimate the following calculation of the costs of the works: The fees are calculated based on the costs of the works. The final fees according to the final cost settlement are also calculated with the values average time required in hours (T m) and projected time required (T p) related to a certain contract and not based on the actual time spent on the project. Probable costs of the works, which will be the basis for calculating the man-hours required: CHF Surcharge for transformation in %: In accordance with the type of work with the degree of difficulty n: Proportion of service q in %: Adjustment factor r: For an adjustment factor different from 1.0, the following circumstances are taken into account: Team factor i: The factors different from 1.0 must appear in the calculation of the fees (Appendix 6). Justification for a factor i different from 1.0: 4 SIA 1002 copyright by SIA Zurich

5 Factor for special services s: The factors different from 1.0 must appear in the calculation of the fees (Appendix 6). For a factor different from 1.0, the following circumstances are taken into account: * Remuneration based on time spent The calculation of the fees based on time spent is based on * qualification categories (applicable fees in accordance with Appendix 4) salaries, with the following surcharge rate: average hourly rate with the adjustment factor a for Phases 31 = 32 = 33 = 41 = 51 = 52 = 53 = and the average hourly rate T = CHF * Remuneration based on the agreed price (fixed price) The remuneration based on the agreed price (fixed price) is calculated as follows: * lump sum price (without price increase) total price (with price increase) 5 SIA 1002 copyright by SIA Zurich

6 2.3 Method and amount of remuneration The client pays for the services set out in the present contract as follows: Estimate of fees in CHF General description of services based on the costs based on time of the works required Agreed amount Basic services: Additional services to be agreed separately: Total fees of the architect (excluding VAT): VAT at the present rate of % * Calculation of the fees in accordance with Appendix 6 3 Remuneration of secondary costs and the costs of third-party services The method of remuneration is as follows: * Based on * Based on * As a man-hours agreed percentage required amount of the total fees estimate in CHF in CHF * lump sum price Type of secondary costs and costs of third-party services: * total price invoiced, in accordance with Art. 2.3 Travel time: Travel expenses: Total (excluding VAT): VAT at the present rate of % 6 SIA 1002 copyright by SIA Zurich

7 4 Remuneration of services not yet specified The services which have not yet been completely specified at the conclusion of the contract are indicated below: The parties shall agree on the content and scope of these services prior to their implementation. These services will be remunerated as follows: * based on man-hours required, in accordance with the rates mentioned in Appendix 4 5 Adaptation of remuneration to increase in the costs The fees, with the exception of agreed lump sum prices, will be subject to an adaptation to increases in the costs as follows: The remuneration for secondary costs and the costs of third-party services will be subject to an adaptation to increases in the costs as follows: 6 Terms of payment The payments shall be as follows: * on the basis of periodic invoicing by the service provider for the services rendered and the costs of third-party services. The claimable amounts must be paid within days of the invoice date; * in accordance with the schedule in Appendix 5. The payments shall be made on the due date. 7 SIA 1002 copyright by SIA Zurich

8 7 Degree of accuracy of information on the costs When giving information on the costs, the service provider will respect the following degree of accuracy: * as indicated in Art. 4 of SIA 102 (2003), i.e.: cost estimate (preliminary project): 15% margin of error detailed cost estimate: 10% margin of error * in accordance with the detailed agreement in Art Deadlines * Agreed deadlines: * The deadlines are listed in Appendix 1. 9 Project organization * Project organization (participants in the project and their contractual relations): * The participants in the project and their contractual relations are set out in Appendix 2. 8 SIA 1002 copyright by SIA Zurich

9 10 Data exchange and storage * Data exchange and storage: * The provisions concerning the exchange and storage of data are set out in Appendix Agency and proxy Provided that it does not cause any major delay or any serious financial loss to the client, the service provider shall be entitled to represent the client provided that the sums do not exceed CHF CHF (excluding VAT) individually or (excluding VAT) overall In this regard, the service provider shall be authorized to: * conclude or amend contracts with third parties accept and take delivery of third-party services instruct third parties. Generally, the service provider shall be authorized * to deal with the authorities and to submit requests to them. 12 Insurance The service provider is covered by: * professional indemnity insurance professional indemnity insurance for partnerships Coverage for physical injuries and damage to objects, goods and equipment: CHF Cover for damage to the works: CHF Insurance company: Policy No.: 9 SIA 1002 copyright by SIA Zurich

10 13 13 Jurisdiction in the case of litigation and applicable law Mediation * In the event of a dispute, mediation shall take place before any legal proceedings in the courts or in arbitration. * Designated mediator: * The mediator will be chosen in case of need. 13 Jurisdiction The courts at the domicile/seat of * the service provider the client shall have jurisdiction. * The arbitral tribunal shall be governed by SIA Applicable law Swiss law shall apply to all matters relating to the present contract. 14 Special provisions The following special provisions shall prevail, as the case may be, over all other provisions of the present contract and its appendices: 10 SIA 1002 copyright by SIA Zurich

11 (Art. 14 continued, special provisions) originals of the present contract have been drawn up and signed. Place and date: Place and date: The client: The service provider: Appendix Extract from SIA 102 (2003) governing architects services and fees (Art. 1), dated and signed by the parties. List of Appendices Appendices* dated and signed by the parties: 1 * Deadlines 2 Organization of the project (participants in the project and their contractual relations) 3 Provisions concerning the exchange and back-up of data 4 Fee and rates of fees at the date of the signing of the contract 5 Payment schedule 6 Calculation of fees based on the costs of the works SIA 1002 copyright by SIA Zurich

12 Art. 1 General Contractual Terms and Conditions (extract from SIA 102, 2003) 1 Applicable law and order of precedence 1 Conclusion of the contract 1.3 Duties of the architect 1.4 Rights of the architect The legal relationship between the contract partners is based on the following: the contract concluded, the present SIA Regulation insofar as it is declared as applicable by the partners, Swiss law. The contract shall be concluded in writing, verbally or by corresponding means. Due diligence The architect shall safeguard the client s interests, especially the achievement of his goals, to the best of his knowledge and skills, and shall perform the contractually agreed services while giving consideration to the generally acknowledged rules of his specialist discipline. Duty to represent client s interests The architect shall not accept any personal favors from third parties such as company owners and suppliers. He shall treat knowledge gained from handling the order confidentially and shall not use it to the client s detriment..3 Representative of the client.31 The contents and scope of the powers of representation of the architect shall be governed by the contract..32 In case of doubt, the architect shall obtain the client s directives for all legal measures as well as for significant schedulerelated, qualitative, or financial arrangements..33 The architect shall legally represent the client toward third parties such as authorities, companies, suppliers, and other agents with regard to activities which are usually directly related to the completion of the order. All oral and written warnings shall be forwarded without delay and in writing to the client..34 As a defense against damage and danger, the architect shall be authorized and under the obligation to take all reasonable measures, or arrange for them to be taken, in urgent cases even without obtaining the client s consent. Copyright The architect shall retain the copyright on his work. The term work refers also especially to drafts and parts of work if they involve intellectual creations with an individual character. Publications The architect shall be authorized to publish his work provided this shall not damage the client s interests. He shall also be authorized to be mentioned as the author in relevant publications of the client or of third parties..3 Engaging third parties for fulfillment of the contract The architect shall be authorized to engage third parties at his own expense for fulfilling his contractual obligations. Subject to the compulsory provisions of Swiss law this order of precedence also applies in the event of a conflict of individual provisions. The signing of a written contract and the written recording of amendments to the contract are recommended..4 Official decrees Official decrees containing negative decisions, restraints or conditions shall be brought to the attention of the client immediately in order to guarantee him the opportunity to resort to legal remedies..5 Duty of warning.51 The architect shall draw the client s attention to consequences of his directives, especially with regard to schedules, quality and costs, and warn him of any inappropriate arrangements and demands. If the client insists on his directives despite warning, the architect shall not be held responsible for the consequences. The written form is recommended for such warnings..52 If the client persists in disregarding safety rules despite warning, the architect shall be allowed to resign from his assignment in order to rule out his liability also toward third parties. In this case, he shall not be liable to pay compensation for damage to the client on the grounds of untimely cancellation..6 Accountability Upon request, the architect shall at all times account for the conduct of his business and shall hand out all documentation and materials which he has contractually agreed to create in the framework of the agreed fee payments..7 Keeping of documents The work results shall remain the property of the architect. They shall be kept as originals or in some other suitable and usable form for ten years from completion of the order..4 Payment on account, guarantees, advance payment The architect shall be entitled to claim payment on account amounting to at least 90% of the contractually performed services. The balance of the fees for the services performed shall be due for payment upon the client s receipt of the final account. The payment of the fees for management, organization and supervision or correction of defects shall become due upon expiry of the warranty period (time limit for making claims) in accordance with standard SIA 118 (Regulation) if the architect has performed the services incumbent on him. The architect shall be entitled to claim a reasonable advance payment to secure his fees. 12 SIA 1002 copyright by SIA Zurich

13 1.5 Duties of the client 1.6 Rights of the client 1.7 General project management 1.8 Extension of deadlines and rescheduling of dates 1.9 Liability 1 Art. 101 Terms of payment The invoices shall be paid within thirty days from receipt. The fees shall be commensurate with the services performed. The full fee agreed upon shall only be owed for the services performed in accordance with the contract. Instructions The client shall not issue direct instructions to third parties. He shall otherwise notify the architect in good time and in writing. Instructions The client shall be authorized to issue instructions to the architect. If the client insists on a directive despite warning, he alone shall bear the consequences. Payments made to third parties engaged In case of payment difficulties of the architect or should serious grounds exist, the client shall be authorized to make direct payments to a third party engaged by the architect (Art. 4.3), thereby discharging the architect of all obligations. However, he shall consult all those involved in advance. The general project management tasks are outlined in Art. 3.4 of this Regulation. If a party does not perform the agreed services on schedule, it may be put in default by the other party by written warning. This shall defer by a reasonable period of time the deadlines and scheduled dates for the warning party which the warning party has committed itself to observe. The warning party reserves the right to make additional claims arising from such a default. Liability of the architect 1 In the case of culpably defective contract fulfillment the architect shall compensate the client for the damage caused. This shall apply especially in case of violation of his obligations to exercise due diligence and to represent the client s interests, in case of non-observance or violation of acknowledged rules of his specialist discipline, in case of inadequate coordination or supervision, in case of inadequate cost recording and noncompliance with deadlines or scheduled dates agreed upon in a binding manner. 2 Where the achievement of the client s goals depends on circumstances for which the architect cannot be held responsible, the architect cannot be blamed for the non-achievement of a goal of the client as a result of these circumstances. This shall apply particularly also to decisions of third parties which cannot be predicted with certainty, for example the granting of permits or loans. 3 The architect shall not be held liable for the services performed by independent third parties who are in a direct contractual relationship with the client. 4 The architect shall be held liable according to Art. 101 of the Swiss Code of Obligations 1 for activities of third parties he has himself engaged. 5 If the client demands to engage a certain third party despite the architect s warning, the architect shall only be held liable for proper instruction and supervision of the third party. Swiss Code of Obligations, liability for acts of auxiliary persons 1 If an obligor, even though authorized, has performed an obligation, or exercised a right arising out of a legal relationship, through an auxiliary person, such as a co-tenant or an employee, the obligor must compensate the other party for any damages caused by the act of the auxiliary person. 2 This liability may be limited or excluded by prior agreement. 3 If the party making the waiver is employed by the other party, however, if liability arises out of the conduct of a business that is carried on under an official license, such liability may at most be waived for simple negligence..3 Payments to third parties engaged The client shall notify the architect in good time and in writing of any payments that have been made directly to third parties..4 Loss prevention and control The client shall take all reasonable measures in good time to prevent the occurrence or escalation of a claim. If, as an exception, he files direct complaints in respect of defects to one or more companies or suppliers, he shall notify the architect of this immediately and in writing..3 Duplicates of work results The client shall be entitled to have duplicates made of the work results which the architect has committed himself to produce. He shall compensate the architect for the associated expenses..4 Utilization of the architect s work results On payment of the fees, the client shall be entitled to utilize the architect s work results for the agreed purpose. Liability of the client in case of non-observance of deadlines and scheduled dates The client shall compensate the architect for any extra costs incurred as a result of his non-observance of deadlines and scheduled dates. The architect reserves the right to claim additional compensation for damage..3 Interruption of work.31 In case of an unforeseen interruption or an interruption of uncertain length or a substantial delay in performing the contract, the architect shall be entitled to claim compensation for the damage caused to him if the responsibility for the interruption or the delay lies with the client..32 However, if after completion of a planning phase the client defers the commencement of the next phase, he is not liable to compensate the architect..33 If the delay calls for additional services when work is resumed, the fees for this work shall be agreed upon in writing before the work is resumed. 13 SIA 1002 copyright by SIA Zurich

14 10 Value-added tax 11 Statute of limitations 12 Premature cancellation of the contract 13 Mediation 14 Jurisdiction The value-added tax shall be stated openly in the contract and in all invoices and accounts. It shall be paid by the client at the rate applicable at the point of time of service performance in addition to the fees, secondary costs, and agreed compensation for third-party services. General statute of limitations Claims arising from the contract shall come under the statute of limitations within ten years, starting from the point of time of the damage-inducing action. In case of defective work 1 Claims arising from defects of the building structure shall come under the statute of limitations within five years. This period shall start with the acceptance of the work or part of the work. Notice of such defects may be given at any time during the first two years following acceptance. Upon elapse of this period, notice of defects shall be given immediately after detection. Any damage caused by delayed notice of defects shall be borne by the client himself. The legal consequences of premature cancellation of the contract shall be governed by the provisions of the Swiss Code of Obligations. If the client makes an untimely cancellation, the architect shall be entitled to claim a surcharge in addition to his fees for the contractually performed work. The surcharge shall amount to 10% of the fees for the part of the order withdrawn or more if the damage is demonstrably higher. An untimely cancellation by the client shall exist especially if the architect has not given any justified occasion for the cancellation and the cancellation is detrimental to him with regard to the point of time and the arrangements that he has made. If agreed upon in writing, a mediation procedure shall be opened for any disputes arising from the present contract (including those concerning the validity of the contract, its legal effectiveness, amendment or cancellation). The judgment of any disputes arising between the contracting partners shall be within the competence of the regular courts. 2 In case of expert opinions, the statute of limitations shall be determined on the basis of the Swiss Code of Obligations..3 If the architect makes an untimely cancellation, the client shall be entitled to claim compensation for the damage demonstrably caused. However, if agreed upon in writing, such disputes shall be settled by a court of arbitration according to Guideline SIA 150 (guideline for procedures at a court of arbitration). 14 SIA 1002 copyright by SIA Zurich st edition

15 * Appendix 6 Calculation of fees based on the costs of the works (excluding VAT) Coefficients in accordance with the indications of SIA: Z1: Z2: Costs of the works B (in Swiss francs), which will be the basis for calculating the man-hours required: The fees are calculated in accordance with the following costs of the works: Cost estimate of the works for the phases: Final cost settlement for the phases: Other agreements for the phases: p = Z1 + Z2 = 3 B T m = B p n q r = Key Tm average time required in hours Tm, x average time required per phase Tp projected time required in hours B costs of the works in Swiss francs, which will be the basis for calculating the man-hours required p basic factor for accumulated man-hours n degree of difficulty q proportion of service in % r adjustment factor i team factor H fee in Swiss francs Hx fee in Swiss francs per phase s factor for special services h quoted hourly rate T m,x x i = T p T p x h x s = H x 31 Preliminary project Study of solution options and rough estimate of costs of works % Preliminary project and cost estimate % % h h CHF/h CHF 32 Construction project Construction project % Detailed studies % Cost estimate % % h h CHF/h CHF 33 Permit-obtaining procedure Permit-obtaining procedure % h h CHF/h CHF 41 Invitation to tender, Invitation-to-tender plans % comparison of quotations, Invitation to tender and award of the contract % % h h CHF/h CHF application for contract to be awarded 51 Construction planning Implementation plans % Works contracts % % h h CHF/h CHF 52 Implementation Design management % Construction management and cost control % % h h CHF/h CHF 53 Commissioning, Commissioning % completion Documentation about the building structure % Management of guarantee work % Final cost settlement % % h h CHF/h CHF Total basic services % Total projected time: h Total fees: CHF SIA 1002 copyright by SIA Zurich

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