Experience Area A - Project Initiation and Predesign Flashcards
1
Q
What Acts apply to “Project Inititation and Predesign”?
A
- CGA 1993
- Copyrights Act 1994
- FTA 1986
- RAA 2005 and RAR 2006
2
Q
What were the NZIA Guide to Architects Charges 2007 and why should they be no longer used?
A
A guide to the fees a client can expect to pay for core services provided by an NZIA architect member, once the project scope and related architect’s services are adequately defined.
benchmark for NZIA architect members when calculating their fees
Beucase it is seen as ‘cartel’ or insider trading, and can be used to fee cut (although fee cutting is dangerous)
3
Q
How should you treat the fee if it is a complex project or includes additons/alterations.
A
Where the Client’s project is highly complex, or calls for specialist skills, or includes alterations and additions, your architect may need to allow for extra fees, typically in the order of** 1.5% to 5.0% **over the usual percentage rate.
4
Q
How are fees broken up for the different stages (as percentages)?
A
The portion of the Architect’s fee that may be reasonably assigned to each stage may fall within the following ranges :
Predesign : 2% to 10% median 5%
Concept and Prelim : 4% to 18% median 12%
Developed : 5% to 20% median 13%
Detailed : 30% to 50% median 45%
Procurement : 1% to 20% median 4.5%
Admin and Obs : 5% to 33% median 25%
5
Q
What are the different types of fees for Architect’s Charges?
A
Lump Sum, Time Charge, or Percentage Fee bases, or a combination
6
Q
What are LumpSum Fees?
A
- Lump Sum Fees are determined by pre-estimating and agreeing on the cost of resources for each section of the Architect’s services.
- Establishing Lump Sum fees is challenging at the project’s outset without a clear understanding of the client’s requirements.
- This fee structure may be realistic once the design is developed and agreed upon, for example, after completing sketch plans.
7
Q
What are Time Charge Fees?
A
- Time Charge Fees are applied when the extent of services cannot be easily determined beforehand.
- These fees are calculated by multiplying hours of service by the agreed hourly rate for each service provider, with expenses added.
- The Architect should provide an estimate of the total cost of agreed services calculated this way, but it should not be considered a cap if services are extended beyond the estimate due to circumstances beyond the Architect’s control.
- The Architect must keep full records of time spent
8
Q
What are Percentage Fees?
A
- Percentage Fees are calculated by multiplying the adjusted Cost of the Contract Works by the agreed percentage fee rate.
- The adjusted Cost of the Contract Works includes the cost of everything designed, selected, or laid out by the Architect and others, carried out by the contractor as stated in the contract.
- For fee calculation, the cost of old materials is considered as if new, and the cost of goods/services provided by the Client is calculated as if provided by the contractor.
- If the final Cost of the Contract Works is undetermined, the most recent estimate approved by the Client is used for fee calculation.
9
Q
When should Lump Sums be used? When should they not be used?
A
Dont use when unsure of the scope.
Can be based on previous expierience of similar projects
10
Q
When should Time Charge be used? When should they not be used?
A
When the extent of services cannot be easily determined beforehand.
Typical for early and late stages of the project - because of uncertainty in these projects
Can always use Time Charge
11
Q
When should Percentage Fees used? When should they not be used?
A
Generally percentage can always be used.
More useful when there is some certainty to the project scope
There should be right to revise this fee basis if the construction value changes
12
Q
Why should you always have a written contract?
A
Terms of Engagement are part of the Architects Code of Ethics
Prevents disputes from arising
Record of what was agreed
Clauses to limit your liability
General clarity
WHAT ELSE
13
Q
If a client changes the AAS with their lawyer what should you do?
A
Client generated conditions can pose liability and insurability issues for the
architect.
Check with your lawyer
14
Q
What are the differences between the 6 year contractual liability and the 10 year long stop.
A
the contractual liability of the architect is limited in time to 6 years after the breach of contract or contract completion
For claims to which the Building Act 2004 applies the long-step period is 10 years (if in negligence)
In other words:
Limited to 6 years from discovery (but extended to) Ten year-long stop for “reasonable discoverability” (under Building Act)
Contract vs Tort vs Legislation
In contract it is six years from the date of the act or omission.
In tort it is six years from the date the damage is discovered or ought to reasonably have been discovered.
The Building Act 2004 (legislation) provides that no civil action may be commenced more than 10 years after the date of the act or omission, referred to as a “long stop”.
Members should not accept any extension to the time limit beyond the 6 year duration required for contract claims. Any more may mean that claims arising in the extended period are uninsured.
If the client agrees to the 6 years in contract then that is binding, however
Limitations Act 2010 – for building related matters the time scales generally are:
Limited to 6 years from discovery (but extended to)
Ten year-long stop for “reasonable discoverability” (under Building Act)
https://smithpartners.co.nz/litigation/limitation-periods/
6 years and 10 years run in parallel
15
Q
How long should you keep your doucments for?
A
Case law between BNZ,Wellington City Council and BECA as a third party- NZACS recommends for 12 years’
Would say 15 years because of Limitations Act 15 year long stop
16
Q
What are the three legislations in relation to most construction related liability limtations?
A
Building Act 2004
Limitations Act 2010
Weathertight Homes Resolution Services Act 2006 (WHRS)
17
Q
What is the limitations of liability (in regards to quantum/money) in the AAS?
A
$250,000
18
Q
WHat is the minimum professsional indemnity insurance you should carry under the AAS?
A
Not less than $250,000
19
Q
If the client requires longer than six years of PI and more than $250K what should you do?
A
Where a client wants a longer period than six years, or a greater amount than $250k, the
client has to request that, and the architect agree, and the specific terms need to be
inserted in Section E7 Special Conditions.
This will also change your professional indemnity (typically 6 years after project completition). So Architect will immeditely need to talk to insuer (NZACS)
The AAS notes that “If a greater amount of insurance indemnity is required by the Client, the cost of the additional amount will be at the Client’s expense”
20
Q
What “late knowledge extension period” for the limitation period of 6 years?
A
+ 3 years from date of discovery (doesnt need to be next to the 6 year period)
All claims will expire 15 years after the date of the act or omission. This is known as the long stop.
READ THIS AGAIN!!! (last section)
https://smithpartners.co.nz/litigation/limitation-periods/
21
Q
What is the difference between Torts, Crimes and Contracts?
A
Torts - Civil Wrong (common law presidence-based)
Crimes - Criminal wrong, legislation based (police are often involved)
Contracts - agreements, mix of common law and legislation
22
Q
Does NZACS Cover you for more than 6 years? (regarding “late knowledge extension period)
A
yes
For as long as you are in architectural practice, professional indemnity insurance should be maintained.
Once you cease practice you will need to need to consider continuing with a “run-off “PI Insurance policy. This can extend your previous cover, but with an ever-reducing annual premium which recognises your lessened risk exposure.
23
Q
I am an architect working for a non-architectural firm. Does my firm need Professional Indemnity Insurance that specifically covers architects/architecture?
A
Yes; Professional Indemnity Insurance would still be required. If you are an NZIA member you are eligible to apply for the NZACS insurance cover in your name. It won’t include your employer, but it will provide cover to you and any legal liability that you may have in your role as the architect.
24
Q
Should you tell your clients how much PI insurace you have?
A
The PI cover you actually have in force – and the terms of that cover – is a confidential matter between you and your insurers: clients have no right to access that information, and you have no obligation to disclose it unless required to do so by the discovery processes as part of court proceedings. Indeed, insurers will be VERY UPSET if you divulge those terms to others!
25
Will NZACS cover past projects?
Yes Professional Indemnity Insurance covers your past work, although restrictions can apply to past work before you first took out a Professional Indemnity policy – refer retroactive date.
Provided you maintain current professional indemnity insurance, claims notified under the current insurance can be in relation to services you provided years before.
What is a retroactive date?
This is a condition under ‘claims made’ policies and is applied by insurers to restrict cover for past work. The insurance cover provides indemnity for services provided from the ‘retroactive date’ onwards. If there are no restrictions on past services, the retroactive date will be shown as being ‘unlimited’.
26
How long do I need to maintain Professional Indemnity Insurance cover?
For as long as you are in architectural practice, professional indemnity insurance should be maintained.
Once you cease practice you will need to need to consider continuing with a “run-off “PI Insurance policy. This can extend your previous cover, but with an ever-reducing annual premium which recognises your lessened risk exposure.
27
If you have limited your liability for 6 years in the AAS do you need to worry about the 10 year long stop?
Yes because of the "late knowledge discovery period" might fall outside the 6 year period
AAS notes if there are specific time limitations imposed by law, those would still be applicable (ie 10 year long stop and the 3 year late knoeledge period)
In case of any loop holes a plantiff brings forward to the 6 year period noted in the contract - case law
28
If you are engaged for limited services (without administration and observation) what should you put in your contract cover letter? NZACS recommendation
You should have a note saying what you are not liable for or what the extent of your work is (what you are doing and what you arent)
(check Oratia AAS)
Eg:
You have commissioned us to prepare only drawings sufficient to obtain a building consent and not to observe the contractor carrying out and completing the project. As a consequence we will not be liable to you (in contract, tort or otherwise) for any claim, damage, liability, loss or expense incurred by you arising in any way in relation to the Contractor not carrying out or completing the contract works as required by you or stated in your projects construction contract.
OR
As you have commissioned us to only:
prepare drawings sufficient to obtaining a building consent, and
attend the site as requested to clarify construction details and to check the quality of finish, we will not be observing the contract or carrying out or completion inspections.
As a consequence of this limited service we will not be liable to you (in contract, tort or otherwise) for any claim, damage, liability, loss or expense incurred by you arising in any way in relation to the Contractor not carrying out or completing the contract works as required by you or stated in your projects construction contract.
29
What is Limited Services/Partial Services?
Agreement to provide architectural services less than the full scope outlined in NZIA AAS (usually not procurement, administration and obs)
30
Does Limited Services mean more risk? Why or why not?
(a) The Client and the Contractor may change critical details and substitute materials without the Architect’s knowledge.
(b) There may then be no certainty that the construction complies with the Architect’s documentation or related consents.
(c) The Architect may be asked to certify works which have not been subject to adequate observation. Do not sign/ certify any works if full scope of services not undertaken.
31
What are the general steps when approached with Limited Services?
- Promptly confirm the scope of work in writing, adhering to the Registered Architects Code of Ethics. Clearly outline inclusions, exclusions, and limitations of responsibilities and services.
- Use appropriate conditions in the Agreement for Architectural Services (AAS) to restrict liability in limited services contracts. Include NZIA pro-forma disclaimers covering defined services, limited obligations, reduced liability, and outlining risks and client responsibilities.
- Only undertake work for which you are qualified and have secured fees.
- Adhere strictly to the agreed-upon scope of work; clarify and communicate any differences in services to clients.
- Refrain from site visits, certifications, or recommendations unless engaged for a full-service contract.
- Clearly define and charge for additional services; outline any added responsibilities or liabilities in writing.
- Resist pressure to commit to anything beyond your responsibility or commission.
- Do not sign Practical Completion certificates or authorize payment for work not personally verified.
- Provide and explain an agreement with a suitable fee structure, justifying any higher charges.
- Avoid giving instructions to parties not under your engagement.
- Safeguard against risks in documents not prepared by you.
- Foster and maintain professional relationships.
- Stamp documents as 'LIMITED SERVICES' for clarity.
32
When apporached with Partial Services what should you put in your AAS?
In the Special Conditions include a disclaimer
Refer to PN3.107
33
With Limited/Partial Services what should you explain to the clients?
- Additional workload/ costs/ responsibilities/ risks involved for the clients
- Notify client of their responsibility to ensure contractor compliance with docs/
consents
- Advise the client that they have a contractual duty to advise the purchaser of the building
that there was a limited service agreement, and if the client is a limited company, then the
directors will become jointly and severally liable to the architect for any subsequent loss
suffered by the Architect as a consequence of the limited service
- Remain available to clients for queries – use a disclaimer to limit liability and obligations
34
What should you ask yourself when presented with non-standard terms of consultant agreement?
Get a lawyer!!!!
Ask yourself:
“Does this clause require me to contract for a service, risk or liability beyond those in AAS 2008?”
Then ask yourself are there any sneaky words in the contract
Be careful of Seemily innocent words! eg. highest standard etc
Ask yourself is something worded to Indemify the client/ Hold harmless. You should ot accept anything above common law liability
Dont agree to for examples:
“The Architect will indemnify and hold harmless the Client from all claims arising from the architect’s performance or service on the project.”
More preferable wording:
“The Architect shall be liable to the Client for any reasonably foreseeable claims to the extent caused by any negligent act error or omission in the performance of the services by
the Architect”.
35
Does your professional indeminity insurance include coverage for performance guanrantees or warrenties to clients or other parties?
No!
Many non-standard agreements contain Deeds of Covenant and Deeds of Warranty appended to the contract for services.
Be very wary of such Deeds as they often do not limit your duty of care or your liability.
36
What should you do right before in intial kick-off meeting?
Do your homework.
Who will be there and who is calling the shots.
Give an agenda to the parties
Gather as much information on the project as possible before the meeting (if the contract is signed)
At the meeting clarify the following: parameters, schedule, budget, and decision chain.
37
As a metaphor what is a contract and what is PI Insurance?
A good contract is like the fence at the top of a cliff.
Professional indemnity and other forms of liability insurance cover are like the ambulance at the bottom of a cliff.
38
What should a properly drafted fee prososal include?
* Identify the nature of the Client's project;
* Record the scope of the services to be provided (usually design and/or observation) and for
further clarification the services that will not be provided.
* The timing and/or duration of the various parts of the Service.
* The deliverables for each part of the services – e.g. plans, elevations, sections,
perspectives etc.
* The Fee to be rendered for each part of the Service and if appropriate;
* The timing of the payment of the Fee.
39
Is an oral agreement okay?
No get it in writing. Oral agremetns are enforcable but disputes can arise very easily
40
What is a "consideration" in contract law?
a mutual exchange of values under the contract
41
What is the most common reason for disputes of contracts?
what is it that both parties have agreed to do (offer and acceptance)
42
If there is significant changes to the fee prosoal after negotiations with client, what should you do?
should prepare and forward a fresh fee proposal to the Client for acceptance.
43
If changes are minor after negotiations about the fee prososal with client, what should you do?
If changes to the original proposal are minor, the Member can and should document them in a supplementary letter, confirming the contract in terms of the original fee proposal, subject to the supplementary letter.
44
If i client prepared contract insists a higher standard of professional competence than the common law standard of reasonable skill, care and diligenc, what is a good argument against this?
My insurance does cover such wording (eg highest standard) and if something does go wrong my insurance won't cover the costs that the client is seeking.
45
Why should you avoid words like "arising out of" "in connection with" in a contract?
The reason is they change the common law test. The common law test requires the breach of contract to cause the loss. Words like "arising out of" require only a looser connection between breach and loss so extend Members' exposure.
The preferable words in substitution would be “to the extent caused by”. As an example: “Where the consultant breaches this agreement the consultant is liable to the Client for reasonably foreseeable damages to the extent caused by the breach.”
46
What is a deed of continuity?
A Deed of Continuity may be requested for the Architect or Sub-consultant to complete services if the main agreement is terminated. (if you are not the head consultant)
Members should ensure the deed doesn't extend liability or the scope of work beyond the original contract, maintaining original terms and limitations.
47
What is a Duty of Care Deed?
A principal may require a contractor under a design and build contract to procure such a deed from a sub-consultant for the benefit of the principal (that you the Architect have duties towards the client not just the contractor)
Alternatively, a Principal may require an Architect to agree that they owe duties to parties other than the principal, eg, financiers or future tenants.
Architects should ensure there are no terms in a duty of care deed that extend liability or the
scope of work beyond the original contract of engagement.
Particularly that there are no higher standards of care or warranties, and that the limitations within the original contract of engagement are carried over into the duty of care deed.
48
In a deed of novation what should you ensure?
Members should ensure there are no terms in a deed of novation that extend liability or the scope of work beyond the original contract of engagement.
In particular, they should ensure there are no higher standards of care or warranties and that the limitations within the original contract of engagement are carried over into the deed of novation.
49
What should you include in any certification you give?
“The Architect has used all reasonable care and skill in the preparation of this certificate and it is provided in accordance with, and subject to, the Architect’s professional services agreement with
the Principal. It is given solely for the benefit of the Principal (acting impartially between the Principal and the Contractor) and cannot be relied upon by any other party.”
This recommended added clause is important as Members will also be aware that often banks and project managers, to name but two, often rely on signed off Practical Completion Certificates for the release of funds.
50
What should any disclaimers you provide include?
(a) A statement of the purpose for which the document was prepared.
(b) Identification of the person for whom the document was prepared and that it was prepared on specific instructions.
(c) A statement of who may rely upon the report.
(d) A statement that the professional accepts no responsibility to persons other than those statedabove and that the professional does not contemplate the use of the report by any other purpose.
51
What are the key differences between AAS and CCCS?
NZIA's AAS contract offers standardized terms for architect engagement, aligning with NZCIC Guidelines, and is suitable for use by all NZIA members, including government clients.
CCCS is recommended for general use for procuring and providing professional consultancy services. The
general contract conditions are intended to be increased or adapted to suit by using the special conditions
section.
52
How does SGA set their fees? Give a brief explanation
Depends on project and stage
Time charge
Percentage
Lump Sum
Percentage:
Total fee is based on Cost of Contract Works + Other Consultant+Council Fees
This value is then multiplied by a base percentage (15%) in the case of Oratia.
To get stage value a stage percentage is multipled by values above
i.e.
Construction/Consultant/Council Cost X Base Percentage X Stage Percentage
SGA essentially takes the values suggested in Guide to Architects Charges 2007 and multiplies by 1.5x
53
What is a SFA?
Engineering New Zealand, with ACENZ and other key stakeholders, has developed standard contractual
documents to support their members to follow recognised professional practice when engaging with clients on
commercial matters.
**The Short Form Agreement (SFA) is a two-page document acceptable for use on small to medium projects as
risk and responsibility are reasonably shared between the parties.**
54
IPENZ vs ACENZ
Association of Consulting Engineers New Zealand (ACENZ) replaced Institution of Professional Engineers New Zealand (IPENZ)
55
What does CCCS stand for?
Conditions of
Contract for Consultancy Services
56
When would you use CCCS over AAS?
Not sure! Perhaps MOE agreement.
Be aware of differences including default insurance provisions
57
What is Novation?
"Novation" means replacing one party to the agreement (the Client) with another party (the Builder).
The Architect and Clients roles are then undertaken by the Architect and Contractor respectively.
This may be done when the inital design phase is over once the client needs and intent are defined through sufficient doucmentation that can be priced
A hotel might be an example of this
58
What is the aim of Novation?
- Clients, particularly developers and their financiers, often seek single-point responsibility for design, documentation, and construction phases.
- Banks may consider developer clients and large projects as risky, leading to Novation, creating a direct relationship between the financier/bank and the builder.
- Novation establishes a tripartite agreement between the client, bank, and builder, with the original client becoming a third party.
59
What is the benefit of Novation agreements?
The Builder's proximity to market prices allows for more accurate pricing, offering a perceived advantage over a Quantity Surveyor (QS).
60
When may Novation take place?
Can happen after tending/pricing and a builder has been selected.
61
Does the client lose all control in a Novated Contract?
No the client gets to have input through Scheduled design reviews. (more than a Design Build contract)
62
What is a deed in a Novated Contract situation?
A deed of novation is an agreement that is used to transfer one party's rights and obligations under a contract or agreement to a new third party. The terms of the agreement remain the same.
63
What are some risks assocaited with Novation?
The Builder may lack experienced staff for effective design management.
Builders, lacking detailed pricing due to incomplete documentation, may take cost risks and rely on tendering, leading to potential redesign issues.
64
What should you do when entering into a contract involving Novation?
Seek Legal Advice
65
What four seperate contract documents may be invlolved in Novation?
* Consultant agreement
* Deed of Novation
* Building contract
* Deed(s) of covenant
66
What should a Novation consultant agreemnt cover?
This should cover the normal conditions of engagement and scope of work the Architect is to perform, both prior to and after novation.
67
What should you remeber about Liability in a Novated consutlant agreement?
It is important that the Consultant does not incur additional liability in signing these documents.
CHECK WITH A LAWYER BEFORE SIGNING
68
If you anticipate novation is coming, what should you consider?
* If you are agreeable to Novation
* Who the Tenderers / Builder might be and their experience
* When Novation will occur
* Adequacy of fee
* Payment provisions and security and liability will pass from principal to contractor
* Amendment to the consultant agreement by the contractor
* Conflict between the consultant agreement and the building contract and ongoing duties to the original Client
* Variations
* Security against performance; Insolvency
* Copyright; Disputes
* Consultant's risk in respect of construction rectification cost; Professional indemnity
69
What is a Deed of Novation?
A deed of novation is an agreement in which one party's rights and obligations are transferred to a new party.
This deed brings the three parties together – the principal, the consultant and the building contractor.
It normally sets out the conditions of Novation and covers such items as responsibility for payment of fees and liability issues between the principal and the contractor.
70
What Should you be aware of in a Building Contract in Novation?
This is the contract between the principal and the contractor but may be affected to the extent this contract talks about consultants roles
Where you are required in your Consultant agreement
to undertake responsibilities under the Building Contract, do view the relevant sections of this as it may be in effect part of your agreement.
71
What is a Deed of Covenant?
use of the word „Covenant‟ is commonly forbidden in PI Insurance policies
The deed of covenant, part of Novation, mandates the consultant's impartiality among all parties. Despite payment by the builder post-Novation, the consultant's duties to the client under the covenant can be influential in quality negotiations with the builder.
72
What are Quality reports in Novation?
It is not uncommon for consultants to be required to prepare monthly reports during the construction phase.
Conflict of interest can easily arise between expectations of the Client and the Builder.
It's essential to exercise care and independent judgment, making these reports a powerful tool for addressing concerns.
73
Shoudl you Certify payments if you are in a Novated Consultant Agreement?
Consultants who have been Novated are unlikely to certify payments to the contractor or certify Practical Completion due to conflict of interest.
You will likely not be administrator to the contract too??
They usually conduct defects inspections at the time of practical completion and may certify the achievement of Practical Completion for the relevant works.
74
What are the Thresholds for the use of the SFA and CCCS?
Consultancy values:
SFA < $50K
CCCS > $50K
75
What is the recommended PI and Public Liability insurance for CCCS?
Public Liabiliy: No less than $5,000,000 per occurance
PI: five times the fee with a max of $2,000,000 (except in respect of weather tightness claims where the maximum aggregate amount payable shall be five times the fee with a maximum limit of $250,000.)
76
What is the recommended PI and Public Liability insurance for SFA?
Public Liabiliy: no less than $2,000,000 per occurrence
PI: five times the fee with a maximum value of $500,000. (except in respect to weather tightness claims where the maximum aggregate amount payable shall be five times the fee with a maximum limit of $250,000.)
77
What is the recommended PI and Public Liability insurance for AAS?
Public Liability: Public Liability insurance for a sum not less than $1,000,000, subject to the various terms,
PI: Indemnity Insurance for a sum not less than $250,000
78
How are disputes treated in SFA/CCCS vs AAS?
SFA/CCCS:
If a dispute arises, the parties will initially attempt to resolve it in good faith. If a resolution isn't reached within a reasonable time, they'll consider mediation or alternative resolution methods. If the dispute persists, either party can refer it to arbitration under the Arbitration Act
The MOE one has a time limit of 10 days
AAS:
If disputes between the Client and the Architect are not resolved within 10 working days, either party can initiate mediation. If mediation doesn't result in a settlement within 30 working days, the dispute may proceed to arbitration or, in the absence of an agreement, be taken to the courts for resolution.
79
AAS VS CCCS - why do architects use AAS (what is different about AAS VS CCCS)?
AAS is specifically designed for architectural services. CCCS is recommded for general use for procuring and providing professional consultant services. The general contract conditions are inteded to be increased or adapted to suit by using the special conditions section. Whereas the AAS is already specific to Architecutral services.
80
Side by Side what are the main differences between AAS and CCCS?
CCCS more definitions as applied to more uses.
CCCS names key personnel
CCCS includes duty of care etc which are covered in the code of ethics
IP (Copyright)
AAS need less reasons to terminate contract
AAS Profits upon suspension - loss of profits due to termination
Default insurance provisions
Disputes and dispute timelines
(this is from another person so study properly)
81
What are the 4 parts of the AAS?
Part A - contract agreement (including special conditions)
Part B - scope of services
Part C - fees
Part D - general conditions
82
What are the parts of the CCCS?
(In order)
Form of agreement
General conditions
Appendix A-G covering scope, fee, personnel, insurance
Specific/Special Conditions
83
What are the difference in copyright between CCCS & AAS?
AAS - architect retains copyright and grants client a conditional and non-exclusive right to use for scope of the project only.
CCCS - client and architect share new copyright (not pre-existing IP)
84
How does CCCS vs AAS treat IP?
AAS: Architect maintains, client has license to use
CCCS: Joint IP for perpetuity for new IP, License for pre-existing IP
85
What is the SPA?
Agreement for Architects Services for one off smaller
projects where fees are less than $5000.
The Agreement is ideally suited for projects such as Bulk and Location Studies, Masterplanning, Feasibility Studies, one off Concepts and Expert Witness engagements.
The agreement is not to be used for residential or commercial build projects as there is no Scope of Services Section \
Cannot find this agreement so may have been discontinoued?
86
Differences between AAS SF and AAS Standard?
One used for smaller or less complex projects
Generally all the General Conditions (part D) are the same
Standard has Part C1 and C2 to seperate Architect and Sub-consultant Consultant Fees (more consultants on list)
Standard has more detailed descriptions of scope of services (more rows)
Not as many references to bonds (presumly not needed for smaller projects)
87
What is Liability under Common Law vs Under AAS?
Common Law:
Unlimited level of liability
Joint and Several Liability (all parties responsible for Liability)
Duration of liability limited by the 10 year Long Stop
Under AAS:
Nature of duty of care agreed with insurable language:
Liability can be to an agreed limit
Proportionate liability
Duration of liability limited to 6 years + 10 year longstop
88
What is Proportionate versus Joint and
Several Liability
Joint and several - each party can be held fully responsible (last person standing)
Proportionate - only the portion you were responsible for
Joint and Several Liability - COMMON LAW
If the client suffers a loss because of a default caused by more than one party (e.g., architect and engineer), the client is entitled to sue either the architect or the engineer to recover the whole of their loss. The client can choose to simply sue the party with the deepest pockets. And if one party cannot pay then it goes to the other party
Proportionate Liability - UNDER AAS
How can it be right for an architect to foot the bill for losses that were caused by another party. Clause 10.5 (proportionate) reverses the common law presumption of joint and several liability and the architect can only ever be liable for their fair share of the losses suffered.
89
Under Common Law who owns copyright of the work?
The “Commissioning Rule” provides that, where an original work is created on a client’s instructions for a fee (or other reward), then the client owns the copyright in the work.
Under AAS, the ownership of the copyright is by the architect with a licence to allow the client to use for the purposes of the project.
90
Is there such a thing as a Performance Bond or Retensions on Fees in a Services Agreemetn such as the AAS?
Yep - more likely to occur on larger projects. Similar to SCC performance bond. (This will be a special condition added)
If client asks for one can be disussed and agreedd as part of engagement.
Retention more preferable than a bond.
A retention avoids the requirement of getting a bond from Bank (often need to offer collateral).
There is also the problem of multiple bonds being held against a practice.
91
What is an property encumberance?
Basically conditions. Covenant, Interest Document, Easement etc.
92
What are the primary steps in resolving disputes according to AAS?
1. Attempt resolution within 10 Working Days.
1. If unsuccessful, proceed to mediation.
1. Mediation should occur within 30 Working Days.
1. Can go into Arbitration if agreed
93
What are the additional steps if mediation fails in architectural dispute resolution?
1. Parties may agree to Arbitration.
1. In case of no agreement, either party can refer the dispute to the Courts.
94
What actions can the Architect take in the event of a dispute, and what are the consequences?
In the event of a dispute, the Architect may on expiry of the 10 Working Day resolution
period and on 2 Working Days’ notice in writing to the Client suspend its obligations under this Agreement.
Architect not liable for losses during the suspension.
95
How are Services Materials handled during a dispute in architectural contracts?
Client cannot use relevant Services Materials during the dispute.
Architect not liable for losses due to the Client's inability to use Services Materials.
96
How was the Oratia estimate calculated?
Dave, based on his experience and the the project brief, determined the project to involve a 150m2 dwelling with a retrofit of the existing building to create a minor dwelling.
The budget estimate was based on the ground floor area multiplied by a square meter rate, based on recent similar projects. Other line items, such as drainage systems were given appropriate rates and quantities. Additional costs, such as development contributions and demolition/retrofit, were factored in as percentages of estimated contract works price
97
What is the difference between a PIM, LIM and Property File?
A PIM is a report that contains information about special features of the land and existing utility services on your property.
A LIM report is a summary of information that council holds on a property. Includes rates information
All the documents the council has. A Property File provides documents not included in a LIM report, such as:
- building and resource consent documents
- any correspondence with us about the property.
98
If a client says they have a budget of 1 M dollars whats the first question you should ask?
Is this including or excluding GST? Council or consultant costs?
99
How might you advise your client if they want you to provide a cost estimate for the project?
Architect is not a specialist in this area. PN1.211.
Engage a QS.
100
What is a waiver of subrogation? How does it relate to vicarious liability?
Waiver of subrogation - precludes an insurance company from recovering any loss from a negligent third party.
Vicarious liability - i.e. An employer could be held accountable for negligent actions by their employee.
101
What happens during initial client contact and meetings?
What information are you looking for?
Introduction
Client Background – Who is your client rep?
Brief - Scope of work
Site info – Surveys, Geotechnical Info
Budget – Total? GST?
procurement method
need for warrenties
102
What is a companion policy and how does it cover you when you move companies? What about if you don't work at an NZIA or architectural practice anymore?
Companion policies are additional policies that you can get htrough NZACS. Eg public liability, statutory liability, employment liability
103
What is an easement?
Right to cross or otherwise use someone elses land registered on the title
104
What does reasonably practicable mean?
Reasonably expected based on your professional experience.
The reasonable person refers to a hypothetical person who demonstrates average judgment or skill.
Often to do with duty of care
In terms of H&S:
Assess likelihood verses severity.
Find control measures to eliminate or minimise risk.
Greater the harm, the greater the action required.
105
What does it mean for a business to be ‘in trade’?
Companies or businesses working with different kinds of products or services which are sold for consumers, business or government purposes.
106
Define PL insurance, what does it cover?
Public Liability insurance protects you and your business against the financial implications if you are found liable for loss or damage to other people's property, or cause illness or injury that is not covered by the Accident Compensation Commission (ACC).
107
Can Architects make payment claims under the CCA?
From 1 September 2016 the Construction Contracts Act 2002 (CCA) will apply to design, engineering and quantity surveying work. This means architects, engineers and quantity surveyors can expect to be subject to the payment and adjudication regimes in the CCA.
108
What are four groups that building “Use” falls under?
- crowd activities - cinemas
- sleeping activities - aged care
- working, business or storage activities - hairdressers
- intermittent activities - car parks
109
What should occur if the client requests a Design coordination statement?
Refer to proforma on PN 1.227
