Recommended Client/Architect Memorandum of Agreement 2000 EditionPublished by: Architects Council of Zimbabwe PO. Box 3592, Harare tel/ lax 746826 April 2000ARCHITECTS (CONDITIONS OF ENGAGEMENT &SCALE OF FEES) BY-LAWS 40) 400) 4.2)a) 4.20) 5.) 5.0)(a) S.No) 5.2) 9%) 9.4b) 8.1.829 OF 1980 (as amended by $.1.222 of 1994. & 5.1426 of 1999) PRELIMINARY. Title * ‘These by-laws may be cited as the Architects (Conditions of Engagement and Scale of Fees) By-laws, 1980. Interpretation of terms In these by-laws “architect” means.a person registered as an architect in terms ofthe Act; “building” means any building or proposed building, and includes any alteration of, or addition existing building : PARTI GENERAL DUTIES OF ARCHITECTS Goneral duty In addition to the duties imposed by these by-laws, it shall be the duty of an architect to and to prepare, the design of any proposed building and, if so required by his client, to su construction ofthe building and to provide such additional services referred to in these required by his client Subcontractors ‘Anarchitect may recommend to his client that a specialist subcontractor be engaged for execution of part of the work required by his client. Where a subcontractor is engage by his client, an architec, unless itis otherwise spec bbe responsible for the direction, integration and general supervision ofthe works subcontractor: and ‘ensure that the subcontractor accepts sole responsibility for any design undertaken by Variations and emergencies An architect shall ensure that - ‘before initiating any stage of his duties referred to in Part lhe has the necessary. before deviating in any material respect from a design approved by his client, he has’ thereto: Provided that, ifany such alteration is necessary'as a matter of urgency for co to comply with any enactment, the architect may authorize such alteration, and shall without delay. Where an architect becomes aware of any likely variation in the expenditure estimated period within which any work for his client will be completed, it shall lient thereo! forthwith, Supervision ‘Where an architect is required to supervise the constriction of any work ith petiodie supervision and inspection ofthe work as is necessary to ensure th accordance with the provisions of the contacts relating thereto, but, unless it supervision by the architec shall not be required Resident Architect Where an architect has agreed with his client that a resident architect: ‘constant supervision of any works, the architect shall, unless its othe ‘employment ofthe resident architect and for his remuneration on a time shall be recovered from his client, Clerk of works ‘Where a clerk of works is to be engaged by his cient, the architect shall suitable person, and shall advise that any person so engaged will bee ‘management of the architec, and remunerated by the client Consuittants Where a consultant is engaged by his client an architect shall, make it clea tha the consultant i responsible forthe work ent advise the client that the payment ofthe fee ofthe consultant it9A. 9B, 9B.) 9B.) 10. 104) 104) 1040) 104@) 1040) 1048 it n@) 1.) ne m@) Te) no 2 2) 12.0) Re) 14a) 13.) Copyright in plans, etc Before conclutling a contact with his client an architect shall ensure that the contract makes provision for the vesting of copyright in any plans, drawings and other work done in pursuance ofthe contrat. Limitation of Architects Litility ‘Anarchitet shall ensure that in any contract he enters into with his lent, his ability for negligence or other ‘misconduct in te course of his professional duties is limited toa five-year period after - Completion of work under the contractor ‘occupation ofthe building to which the contrat relates; avhichever i the late Provided that no such limitation shall apply to the architec’ ability for design defects w human lie. endanger PARTI SPECIFIC DUTY OF ARCHITECTS Project Bee pepsin ching nwa fhe nib be he uty fen tchitect o- hold preliminary discussions with his cient for the purpose of determining the requirements and scope of the commission; prepare a brie, outlining the requirements and planning proposals including the necesity or otherwise of appointing any specialist consultant or clerk of works: Advise on the form in which the project isto proceed advise on town planning, and building by-law legislation and on the financial limitations set by the client; prepare design draivings, which shall show the general layout, design, construction, outline specification and {ost of the work sulfcient forthe purpose of obtaining the approval ofthe dient; ‘obtain the approval of his client ofthe design, specification, construction and cost of the work before proceedling to working drawings Contract ‘The architect shall proceed to contract stage as follows - prepare working drawings, details, schedules and other documents necessary for the complete carrying out ‘ofthe works; and. co-ordinate the work of any specialist consultants employed, and supply them with all information required by them to complete theit part of the work; and ‘ensure that all necessary by-law and other building approvals have been received: and call for, and receive, any tenders required, and advise on their acceptance; and prepare for signature any contract documents requited in connexion with the work; and select and recommend a suitable person for appointment as clerk of works. Supervision ‘Wheve an architect is required to supervise the construction of any works, he shall be responsible - {or approving the programming for the progress of the wark set By the contractor; and until the works are completed, for making such periodic visits to the site as may be necessary to enstire ‘that the provisions of the contract relating to the construction of the works are fulfilled, co-ordinating the ‘work of specialist consultants, and issuing any certificates of progress or other certificates which may be required; and for rendering such assistance as may be required to the contractor in handing over the building to a client ina state suitable for occupation; and. for presenting the final accounts relating to the werk. PART IIL FEES CHARGEABLE ‘The fees provided in this Part shall not be lower than the scale and variations referred to in the First, Second, Third, Fourth and Fifth Schedules. 13.(1%a) No architect shal charge afee thats lower than the fees prescribed in this part. 1B.) 40) 14) The architect shall inform his client and obtain his formal acceptance, before he renders the service concerned, of the feos which he intends to charge, whether the fees are in excess of those referred to in subsection (1) or not Genera fes Subject to the provisions ofthis Part the ee for designing and supervising the construction of any building shall be a percentage ofthe final cost of the works according, tothe fe scale shown inthe First Schedule and the variations to it as shown inthe Second Schedule. ‘The final cost ofthe works shall include the cost of the mechanical, electrical and other services which are an integral part ofthe design14.) The fees referred to in the First and Second Schedules shall be calculated in accordance with the provisions of the Schedules on the percentage of - 14.G)(a) the final cost of the complete work; or 14,G)(b) when payments are to be made before the fina cost can be ascertained - (i) anestimate by the architect or quantity surveyor for the complete work: (@ the lowest bona fide tender for the complete work, excluding any amount in that tender in respect of contingencies, ifno contract is entered into; (it) the contract sum; Provided that, when work is executed wholly or in part with old materials, or where material, labour or carriage is provided by the client, the percentage shall be calculated as ifthe works had been executed wholly by a contractor supplying all labour and new materials at such rates as were applicable at the time when the work was executed. 14.(4) The fees payable in respect of any stage of the work of an architect shall be calculated according to the provisions of the Third Schedule, which the architect may require to be paid at the end of the appropriate stage, except the fees for preparation ofthe brief, which shall be payable on the acceptance of such services; Provided that, in the case ofa large contract, the architect may require interim payments to be made, 14.6) Where the work of an architect relates to buildings which fall into more than one category, the fees shall be calculated in accordance with the provisions of that section in respect of each category: Charges on a time basis 15. Where any fees or charges are tobe calculated on a time basi, they shall be calculated according to the provisions of the Fourth Schedule. Work normally performed by a specialist consultant 16(1) The fee referzed to in section Ld shall not cover work performed by an architect which is normally performed by a consultant. 16.2) Where an architect, atthe request of his client, performs work which is normally performed by a consultant, he shall charge for that work in accordance with the sealeof fees normally charged by members of the professional body concerned, Projects comprising two or more contracts 17, Wherea projet undertaken by an architects covered by two or more contracts, the fes shall be calculated separately in respect ofthe work covered by each contact. Partial series or commissions 181) Where an architect peavides only pat of the sezvices normally provideel by an architect, the fee for that part shall be calculated on a pro rata basis; Provided tha, if only a part ofthe normal service on any stage is provided, the fee for that part shall be calculated on atime bassin terms ofthe provisions of the Fourth Schedule 182) Where an architect has been paid his fee in respect of a commission which has been terminated or deferred. if tht commission is subsequensly resumed 18,2)(a) without substantial alteration within two years ofthe termination, the fe so pai to him shall be xegasdel as Payment on account txvards the total fee de, based on the final cost ofthe projects oF 18,2)(6) with substantial alteration, whether caused by changed statutory conditions or otherwise, within two yeass thereof, or aftr a lapse of more than ovo years, the commission shall be regarded as a neve one, ness the architect and his client age thatthe additional work shall be charged on a time basis in tems of the provisions of the Fourth Schedule 18,3) Where work which has been included inthe origina building contract has subsequently been omitied She fee chargeable shal, notwithstanding such omission, be seventy-five per centum ofthe final fee calculate = terms ofthis Partin respect ofthe work included in the original buileling contract. 18 (4) Where one architect is commissioned to take over work which was not completed by soe other Seso= uring or alter any of the stages detailed in the Third Schedule, he shal, for his professional serrces Chane ‘2 minimum fee calculated in accordance with the provisions of the First Schedule, increased by ashame of tocenty per centur on each ofthe stages stil to be completed. ‘Travelling and subsistence charges 19,{1) Where an architect requires payment in respect of any transport expenses incurred By Rei es = employee of his, they shall be calculated as follows ~ 19{1(a) in respeet of travel by air ral, sa, hired or fare-paying vehicle, the actual cost of the Ean 19,()(0) in respect of transport by motor-vehiele, the rate ixed from time to time by theese 19.2) Any charge made by an architect in respect of subsistence whilst he oF is emplone= Saeces Se Bes ‘ordinary place of residence shall be calculated on the basis of the actual expenses Scares Ss Sess See employee, as the case may be. 19.3) _Inadition to travelling and subsistence charges in terms of subsections (I) and (2) an atest es Se according to the circumstances on a time basis in terms of the provisions of the Fourth the hours, including time caused by delays, during which he or his employee, as the case = Se == aSeese1914) 20 20a) 20(b) 2010) 20(€) 20(e) a 22.0) 22.0b) m4, 25a) 25.0) 2310 21d) 2510) 23.9 Big) 25h) 2.) from his ordinary place of business or residence, whichever is applicable. Except by prior arrangement with the client, the charges in terms of subsection (1), (2) and (3) shall be based ‘on reasonable costs, having regard to the nature of the journey involved. Expenses Inaddition tothe fees referred to elsewhere inthis Part an architect shall recover from his client the charges for any of the following expenses which he has incueved on his behalf - printing and reproduction of any document, map, model, photograph or other record for communication to Bnd between consultants, the clients, contractors, subcontractors and suppliers telephone trunk-calls and cables; excessive postage on packets or parcel delivery; the cost of any research, test, investigation, specialist advice and advertising for tenders which has his client's approval; {Sts payable oa local authority or Government department, any search fee and any similar disbursements Valuation of buildings Where an architect makes a valuation for the replacement of any building, the fees charged by him shall be in accordance with the provisions of the Fifth Schedule, with a minimum fee of two hundred dollars, exclusive of any expenses or charges mentioned in section 19. Arbitration fees Where an architect is appointed as an arbitrator for any dispute in terms of these by-laws, he shall charge ~ if there is more than one arbitrator, on a time basis in terms of the provisions of the Fourth Schedule; ithe is the sole arbitrator on the basis of two hundred dollars per hour, with a minimum of two hundred and forty dollars. Expert witness Where an architect is called to give evidence before any court or tribunal as an expert witness, he shall charge om a time basis in terms ofthe provisions of the Fourth Schedule, depending on the complexity of the problem Feasibility studies Where an architect undertakes, on behalf ofa client, feasibility studies involving a preliminary technical or ‘economic appraisal ofa project in order to enable the client to decide whether and in what form he shall proceed with the project, he shall charge an additional fee for such studies, which shall, unless otherwise agrved with the client, be calculated on a time basis in terms ofthe provisions on the Fourth Schedule, depending on the complexity of the problem. Specialist and other services Where an architect undertakes any of the following services, the services shal be agreed to ancl defined in ‘writing, and remuneration therefore shall be in addition tothe fees elsewhere enumerated in this Part, and shal be calculated on atime basis in terms ofthe provisions ofthe Fourth Schedule - advising as to the selection and suitability ofthe ste: negotiations as tothe site and buildings sf any; the preparation of addtional drawings necessitated by a material alteration in, or in addition to, the client's instructions, or altering the working drawings and specification in consequence thereof prior tothe commencement ofthe work; altering drawings or preparing new drawings and promoting other services involved in consequence of variations or additions required by the client after the commencement of the work; making extra drawings forthe clients or contractor's use, drawings for and negotiating with ground landlords, tenants, adjoining owners, public authorities, licensing authorities or other services in respect of servitude, Iitigation, arbitration or valuations, bankruptcy, negligence of parties, force majeur; any survey or investigation of an existing building: any inspection of building work in progress not refered to elsewhere in these regulations; any specialist consultant architectural services, including the design of residential, industrial or commercial layouts any interior or furniture or special joinery design, shop-fttings or exhibition work Work outside Zimbatroe Where an architect engages to perform work in respect of a building to be erected outside Zimbabwe, he shall, in respect of the work undlertaken outside Zimbabwe, adhere, as far as possible, to the fees provided for in this Pact. Extraordinary foes ‘Where an architect undertakes any services for which fees are not adequately provided in this Par, he shall apply to the counel for guidance in respect ofthe fees which he should chargeLr: | PARTIV GENERAL, Termination of agreement 28 Anarchitect shall ensure that any agreement entered into with a client provides for - 28(a) the termination thereof at any time by either party on the giving of reasonable notice; and * 28(b) the remuneration ofthe architect in accordance with the provisions of Part III for services rendered prior to ‘ the termination of the agreement. “ Disputes 29.1) Anarchitect may agree with his client that any difference or dispute which they may have shall be referred to the council for a ruling, subject tothe following provisions - 29,{4)(a) the reference shall be by way of submitting a joint statement of undisputed facts, plus separate statements of disputed facts; 29,1) the parties shall agree in writing to accept the ruling of the couneil as final and not subject to appeal. 29,2) Anarchitect shall ensure that, in his agreement with his client, provision is made that where any difference or dlispute arising out ofthe requirements of these by-laws cannot be determined in accordance with the peeiionsofmbeeston (0), lb bite fox mito by » person need been te pte and that - 29.(2Xa) either party may give to the other a written request to agree on the appointment of an arbitrator; 29.20) if, after fourteen days from the request referred to in paragraph (a), there is no agreement, the chairman of couneil may, atthe request of either party, nominate an arbitrator Repeat 30. The Architects (Conditions of Engagement and Scale of Fees) By-laws, 1976, published in Rhodesia Government Notice 977 of 1976, are repealed. FIRST SCHEDULE (Section 14) ‘THE FEE SCALE NIB. This scale and the Schedules refer to the Jowest fees which may be charged by an architect for his services, for which the clients formal acceptance is required. See subsections (1) and (2) of section 13. 12% 1% 10% 9% 8% % = I I | I I | I 250xCPI 500 xCPI 1ooxcPt = 20n0xCPI 3000xCPI $000xCPI S080 where CPI = National Consumer Price Index “All tems" at the Base Date of 1990SECOND SCHEDULE (Section 14) VARIATIONS TO THE FEE SCALE Type of building Fee Buelling-house ‘The fee scale +30 per centum Hospitals, nursing-homes, clinics laboratory complexes__The fee scale +20 per centum ‘or similar buildings requiring extensive specialised services Indusrial buildings where the architec is the principal agent The fee scale, but may be reduced by not more than 20per centum,depending on the proportion of open repetitious or storage space Industrial buildings where the architect is not the Fourth or Third Schedule by agreement principal agent Housing schemes ~ (@) for each prototype building in detached, semi- The foe scale detached, terraced or flatted form (b) for identical repetitions of (a) and re-use of One per centum of contract cost or estimated cost documentation without site-and-services drawings (©) supervision of (b) Third Schedule, 1,5 per centum of contract cost (4) site-and-service plans Six per centum of site-and-service costs per unit {) design of general layout, modifications to the Fourth Schedule time charges, drawings and documentation of (a) (9) Iandseaping, sewerage and road works As consultants Alterations and additions to existing buildings ‘The fee scale + up to 50 per centum, ata discretion, depending on circumstances. ‘THIRD SCHEDULE (Section 14(3)) FEES BY STAGES PROJECT ‘Twenty-five per centum of total fee, made up as follows - (a) brief five per centum of total fee (b) preliminary design ten per centum of total fee {) inal design ten per centum of total fee CONTRACT Flity per centum of total fee ‘Working drawings, schedules and contract documentation SUPERVISION ‘Twenty-five per centum of total fee Issuing interim and final certificates, architec’s Instructions and further drawings FOURTH SCHEDULE (Section 15) TIME CHARGES Salaried staff Fifteen cents per hour for each hundred dollars of gross annual salary of the employee concerned Partners or principals ‘Not less than twvo times the National Consumer Price Index “All Items” from the Base Date of 1990, in $ per hour, as applies for the month prior to that in which the service is being performed. FIFTH SCHEDULE (Section 21) VALUATION FEES Not exceeding $200 000, $1 per $1 000 Exceeding $200 000 but not exceeding $500.00 $21K)_ plus 50c per $1 000 in excess of $200 000 ‘Exceeding $500 000 but not exceeding $1.000000 $350. plus 37.5c per $1 000 in excess of $500 000 Exceeding $1 000 000 $550. plus 25c per $1 000 in excess of $1 000.000MEMORANDUM OF AGREEMENT BETWEEN CLIENT AND ARCHITECT FOR USE WITH ARCHITECTS (CONDITIONS OF ENGAGEMENT AND SCALE OF FEES) BY-LAWS, §.1.829 OF 1980 (as amended by 5.1222 of 1994 & 5.1426 of 1999) This Agreement is made on the day of (aay) (rvonth) (year) (hereinafter called “the Client”) and of (physical address): (hereinafter called “the Architect”) NOW IT IS HEREBY AGREED that upon and subject to the Architects (Condition of Engagement and Scale of Fees) By-laws $11. 829 of 1980, as amended by S.1. 22 of 1994 and S.1. 426 of 1999, (hereinafter called the ‘By-laws’), including the Schedules (hereinafter called the ‘Schedules’), which conditions and. scale shall be the sole basis of an Architects appointment, and the Architect shall not accept any other payment or consideration for the duties entrusted to him: 1. That the Architect will perform for the Client the services listed below: in respect of (description) at (location): 2. The Client will pay the Architect for these services on the following basis (as indicated in the Schedules):Time charges where applicable will be charged on an hourly rate for principals in accordance with the By-laws: a) at (inirnue 2) times the National Consumer Price Index "All Ttems” from the Base Date of 1990, in $ per hour, as applies for the month prior to that in which the service is being performed, or b)_at the rate of $ ss per hour [delete either a) or B) ©) Time charges for salaried staff will be calculated as set out in the Fourth Schedule (Section 5). Where time charges are likely to be incurred for specialist services, the Architect will obtain the Client's approval before proceeding with such services It's recorded that the National Consumer Price Index “All Items” at WaB ees (date) (dex) ‘Travelling time will be charged by the Architect as follows: a) at times the National Consumer Price Index “All Items” from the Base Date of 1990, in $ per hour, as applies for the month prior to that in which the service is being performed, or b) attherate ofS per hour. [delete either a) or 6) or both if not applicable. Interim payments for fees as become due to the Architect shall be made as follows: In addition to the professional fees payable as set out above, the following charges will be made for services rendered directly in connection with the project, and will be invoiced on a monthly basis:- i, Travelling Expenses will be charged generally as set out in Clause 19 of the By-Laws, save that Motor vehicle transport will be charged at the prevailing rate per kilometre travelled as published by the AutomobileAssociation of Zimbabwe from time to time. ii, Plotting, printing and reproduction of documents and drawings will be charged at current commercial rates iii, All other expenses will be charged as indicated in Section 20 of the By-laws. [Other known expenses may be indicated betow:]10, 12. 13 M4, 16. Ww. Additional fees may become due where the Architect is involved in extra work over and above that normally involved in the project, contract and supervision stages for reasons beyond the Architect's control. Any of the following is likely to involve extra work and expense: i. the need to revise drawings & specifications or other documents due to changes in interpretation or enactment or revisions of laws, statutory or other regulations; ii, changes in the Clients instructions, or delays by the Client in providing information; iii, delays in the building contract operations; delays resulting from defects or deficiencies in the work of the contractor, sub-contractors or suppliers; default, bankruptcy or liquidation of the contractor, sub-contractors or suppliers, ‘The Architect undertakes to advise the Client before proceeding with such additional work, fees for which shall be charged ona time basis. Sales Tax will be charged as required by law at the prevailing rate, Payment of all accounts is due upon presentation, Interest on all overdue accounts will be payable by the Client at the rate chargeable to the Architect from time to time in respect of it’s overdraft facility by Bank Limited. In the event that payment is not received within 60 days of the date of presentation of an invoice, the Architect shall be entitled upon giving seven days written notice, to suspend all further work on the project until payment is received. The Architect shall not be held liable for any loss or damage of whatever nature which might be suffered as a consequence of the suspension of the Architect's services for non-payment of fees In the event that it becomes necessary for the Architect to instruct legal practitioners to recover any debt due to it by the Client, then in those circumstances the Client shall be liable to reimburse the Architect in full all legal practitioner and Client fees incurred, and all collection commission payable by the Architect to the legal practitioner in terms of the Law Society By-laws. Specialist consultants will be appointed as required, as indicated in the By-laws. All consultants will be responsible for the work entrusted to them and the payment of their fees will be the responsibility of the Client. The copyright in any drawings, designs and specifications, and in the work executed from them. shall remain the property of the Architect. ‘As required in the By-laws, it is recorded that the Architects's liability is limited to a five year period after completion of work under contract, or occupation of the building, to which the contract relates, whichever is the later, provided that no such limitation shall apply to the Architect's liability for design defects which endanger human life. In the case of a Client which is a limited liability company, it undertakes promptly to notify the Architect of any change in the composition of its board of directors, or any change in the identity of the beneficial owners of its issued share capital should such change have the effect of ‘materially altering the identity of the individuals or companies who effectively control the ‘majority of such issued share capital. ‘The Client confirms that no other architect has been commissioned for any work which forms a part of this project. Any difference or dispute arising out of this Agreement shall be referred to arbitration by a single arbitrator, such arbitrator to be appointed by the agreement of the parties within fourteen days of the declaration of the dispute or, failing such agreement, to be appointed by a) the Chairman for the time being of the Architects Council, or 3) the Presiden ofthe Instn of Architects of Zimbabwe; or ©) other.. RLS SET RTTS [delete as necessary]18, This Agreement may be terminated by either party on not less than fourteen days’ written notice being given to the other party 19. Any notice required to be given in terms of this agreement shall be delivered to the applicable physical address recorded above. Additional Clauses may be added here AS WITNESS the hands of the parties the day and year first above written for the Client Name... Capacity . Witness Name for the Architect Name Capacity Witness . Name . THIS COPY TO BE RETAINED BY THE CLIENT