Standard Terms of Business

CONDITIONS OF ENGAGEMENT AND TERMS OF BUSINESS 2020

of Boughton Butler ltd Crucible Terrace Norton Worcester WR5 2DQ

FOR PLANNING CONSULTANCY AND ARCHITECTURAL SERVICES

[Revised 12/12/19]

DEFINITIONS

The Firm shall mean Boughton Butler Ltd including work legitimately conducted under the trading name BOUGHTON BUTLER practicing as Architects and Town Planners. The Firm is bound by the Architects Registration Board: Code of Conduct.
Calculation of Periods of Notice shall include days that are holidays and Saturdays and Sundays.
Calculation of Days of Work shall make allowance for weekends and statutory holidays.
Working Day means any day except for a statutory holiday or Saturday or Sunday. Hours of work are working days Monday - Friday 8.30am – 5.30pm.
The Employer shall mean an individual acting in a personal capacity, or a company or other body giving instructions to the Firm. Employer shall have the same meaning as principal contractor in the context of the Housing Construction Grants and Regeneration Act, in which the Firm will be deemed to have the status of a subcontractor.
Satisfactory Service shall mean the quality and efficiency of service that would normally be expected of an architect in professional practice having regard to the circumstances pertaining.
Fee Agreement shall mean the written agreement concerning fees, or confirmation in writing by either party of proposals, and where amended, any written confirmation of those amendments.
Drawings shall include designs conveyed by any media, including paper, email, digital files on magnetic media. Designs shall include representations of designs in any media including models, three dimensional images and digital models.
The Contracting Parties: Boughton Butler Limited (The Firm) and Client (of whom Instructs the firm).
SCOPE OF WORK
The work of the Firm will relate to professional services related to matters of Town and Country Planning, design and procurement of buildings and alteration or conversion of buildings and related structures, and general development advice. Such work may include negotiation of planning legal agreement and similar matters on behalf of the Employer, negotiation on matters concerning historic buildings and building conservation including the making of planning applications. Development shall mean development as used in the Town and Country Planning Acts.
Unless specified elsewhere in writing the scope of services to be provided are those commonly provided by a planning consultant or architect having regard to the nature of the project. Services will be defined on the ‘Schedule of Services to be provided’.
Where no schedule of services has been specifically agreed in writing the services provided as architectural services under this agreement will be for ‘Normal Services’, being work stages 0-7 inclusive as defined by the Royal Institute of British Architects. Where the instructions require professional planning advice (whether or not architectural services are also required) Fees will be charged either separately for the planning work or as a fee for combined services. Fees will not be subject to deduction if any part or parts of the service there scheduled is not required.
The scope of services may be increased by agreement at any time. After commencement of work under this
agreement the scope of services may not be reduced by the Employer without the written consent of the Firm except in the case of unsatisfactory performance by the Firm under Clause 33(a). Where additional services are those normally carried out by the profession of planning consultant these will be charged at the relevant hourly rates unless or until agreed otherwise.
The Firm does not undertake to be specialists in structural design, conservation of buildings, services design, landscape design, cost planning, or project management, but has experience and ability in all these areas. Where such work falls within the scope of instructions we will work within our proper level of competence and, if appropriate, the Employer shall engage a specialist consultant to provide assistance to him in carrying out those instructions. Such additional appointments are necessary for large or complex projects and should be seen as complementary to the services of an architect and do not constitute a variation to the terms of engagement.
We do not undertake to act in matters relating to questions of title and other legal rights, nor in matters of Health, Safety or on the applicability of legislation to any proposed development. It is a presumption of our appointment that the Employer has and will continue to take proper legal advice on all matters concerning his proposals and any opinions or comments made by the Firm on such matters are deemed to be made without responsibility.
Unless specified in writing to the contrary at commencement of work by the Firm the appointment of the Firm for any architectural services shall be for the whole of the services defined as RIBA Normal Services. For the purposes of this clause ‘specified in writing ‘ shall mean a specific statement that services are to be limited to particular work stages. Such limitations shall not be inferred from uncertainty as to the level of fees that will be charged for later work-stages.
The Employer will not make unreasonable demands or act in such a way that the health, safety or well being of the employees of the Firm and its owners are endangered. Refusal by the Firm to act in a way that in the opinion of the Firm would create such danger is not a breach of the terms of this agreement, but may be grounds for notice of termination by the Firm.
DUTIES OF CARE; RESPONSIBILITIES
The Firm will exercise proper care in carrying out the instructions of the Employer and will use its best endeavours to facilitate the objectives of the brief provided by the Employer within the legal and proper constraints of professional practice.
The Firm will undertake the services to be provided in a professional and competent manner and the principal, directors and staff will conduct themselves in a professional and polite manner in carrying out work on behalf of the Employer.
The Firm will seek to uphold the Code of Professional Conduct of the Architects Registration Board of the United Kingdom and the Royal Town Planning Institute as appropriate.
The Employer will respond to the reasonable requests of the Firm for information that The Firm requires to carry out its duties, and will appoint other competent consultants whose services may be necessary to carry out the work.
The Employer will promptly pay all accounts in accordance with the Terms of Business provided and by accepting these conditions of engagement agrees to indemnify the Firm against all claims arising from the consequences of failing to make such payments including suspension of work by the Firm or other consultants.
TERMS OF BUSINESS
The Firm will submit accounts to the Employer calculated in accordance with the fee agreement, including interim accounts from time to time. Such accounts become due and payable upon the receipt by the Employer or on the 7th day of posting by the Firm if earlier.
The Employer shall notify the Firm in writing of any objection, proposed deduction or proposed variation in the account no later than the 14th day as defined above giving full and specific details of the grounds of objection or proposed variation or deduction in the account, failing which the account becomes due, payable and collectable as a debt in full without deduction. The Employer will then make payment within the specified payment period which shall be seven days (21 days from the date of posting) unless agreed otherwise in writing.
The Firm reserves the right to charge interest at 4% over base rate calculated from the due and payable date on all amounts remaining unpaid 28 days from the due and payable date and add this to the fees due.
On completion of services or upon service of a notice of termination by either party the Firm will calculate a final account for the professional services provided together with all additional charges properly due and render it to the Employer.
Where the Employer terminates the services of the Firm other than under the circumstances defined in clause 33, or where the Employer disposes of his interest in the site before the completion of services initially instructed under this agreement (which shall mean the services as defined in clause 15) the Firm shall be entitled to recompense for loss of opportunity arising from the premature curtailment of the work.
It is agreed that where a satisfactory appointment is received by the Firm from another party so that work can be resumed without loss then this shall reduce or remove the obligation of the Employer to recompense the Firm under clause 26.
Warranties: in the event that the Employer indicates at any time after commencement of services that he wishes to novate the services of the Firm to another party. The Firm does not undertake to agree terms with any party or that the original agreement may be curtailed or substituted in any way.
Collateral warranties: where the Employer requires the firm to enter into such an agreement after commencement of services (the terms of such an agreement not having been agreed prior to commencement of services) then the Firm reserves the right not to enter into any agreement or to enter into a collateral warranty agreement, only on terms that are acceptable to the Firm, having sought appropriate legal advice.
The Firm will charge an additional fee for the provision of such a warranty and require reimbursement of all
related expenses. The Firm will usually consider entering into a ‘standard’ JCT Form of Collateral Warranty
for a fee equivalent to one quarter of one percent of the construction cost.
SUSPENSION OF SERVICES
Where the Employer fails to make payment in accordance with the Terms of Business of the Firm, the Firm may at its discretion serve notice on the Employer of a suspension of work. The notice shall be issued by any reasonable means and have effect on the seventh day from the date of service. The suspension of work may include all work being undertaken by the Firm for the Employer at the discretion of the Firm.
If payment of outstanding monies is made in full within 14 days of the date of service of notice of Suspension the Firm will resume work without delay. If payment of all outstanding monies at the effective date of the notice is made more than 14 days from the date of service of notice of Suspension of Work The Firm will resume work as soon as practically possible or as otherwise agreed.
If payment in full is not made within eight weeks of the date of invoice the Firm may without notice terminate services by issuing a Notice of Termination of Service and recover all monies due as a debt, which may include damages and costs of recovery.
TERMINATION
The Services provided by the Firm will be terminated on completion of all services or as described in clauses 28, 29, 30 above.
Where the Employer has failed to provide instructions or information necessary for the Firm to carry out its services the Firm shall give written notice that it is unable to proceed and provide the reason. Provided always that the Employer has not provided the information that is the subject of the notice the Firm may at any time thereafter issue Notice of Termination of Services.
The Employer may terminate the appointment of the Firm in the following circumstances;
Where in the opinion of the Employer the Firm has failed to provide satisfactory performance, provided always that the Employer has given written notice of the failure and allowed opportunity for the defective performance to be rectified by the Firm, and provided always that the termination is not vexatious or unreasonable.
Where the Firm has advised the Employer of an inability to provide satisfactory service due to reasons outside the control of the Firm.
Where it has not been possible to obtain planning or other statutory permission necessary for the development. Providing always that the Employer has paid fees due for that work stage without deduction.
Where the Employer wishes to terminate the employment of the Firm for any reason other than the grounds given in clauses 33 the Firm shall be entitled to have two weeks notice of termination and the Firm will calculate the final account for services as if the work stage block (as set out in clauses 40 and below ) in progress at the date of the service of the notice of termination was complete provided always that acceptance of termination shall not prejudice rights of the Firm under clause 26 of this agreement .
DESIGN RIGHTS AND COPYRIGHT
The Firm will retain without exception all Design Rights and Copyright for its work until released in writing and any release shall be specifically restricted to the purposes contained in the fee agreement. Multiple uses of any design or part of Design by the Firm will require the specific consent of the Firm and may require additional payment.
Design Rights and Copyright may not be assigned except with the agreement of the Firm.
The Firm will release Design Rights and Copyright for work carried out under this agreement on final payment of all monies due to the Firm by the Employer under this agreement except where there are reasons to believe that the Design is to be used other than that intended by this agreement.
This agreement shall in no way restrict or limit the rights of the Firm to obtain redress for any infringement of Design Rights and Copyright, however caused.
The Firm reserves the right to obtain redress for any infringement of Copyright and Design Rights by any party except where those rights have been released by the Firm to that party.
For the avoidance of uncertainty in the context of allegations of infringement of Design Rights belonging to the Firm:
possession of drawings or design produced by the Firm shall be construed as evidence of copying where it may reasonably be alleged that there is demonstrable similarity in any design, or in any substantial part of a design belonging to the Firm, of work shown on such drawings by the person or persons in possession of those drawings. Possession shall also mean the opportunity to inspect such drawings or design or copies thereof in the possession of others at any time between the preparation of such drawings or design by the Firm and the date of the infringement.
CALCULATION OF FEES
Except where specified in writing the following Work Stage Blocks as defined by the RIBA shall be used as the basis for calculation of fees due:
- Work stages 0-2 representing 35% of gross fees for normal services
- Work stages 3-4 representing 40% of gross fees for normal services
- Work stages 5-7 representing 25% of gross fees due for normal services
Accounts proportionate to the progress of work within each block of work stages will be rendered at intervals of (but no greater frequency than) one month at the discretion of the Firm. Lump Sum Fees shall include normal disbursements unless specified to the contrary. Other costs and charges paid on behalf of the client will be charged at cost. The Firm reserves the right to make an administration charge where the Employer requires the Firm to make payments of behalf of the Employer.
Normal disbursements are travel other than long distance travel (travel may be charged dependant on the location of the meeting) and air travel, telephone calls and postage other than courier, first issue printing of drawings, transmission by electronic and magnetic media, copying of documents except as below.
The following will be charged at extra cost as set out in the attached Disbursement Cost Sheet: Courier charges, copying of documents other than the first issue of each drawing or revision of drawing. Multiple copying of schedules and tender documents. Issue of drawings to contractors and subcontractors additional to the first two copies of each drawing or revision. Special presentations, fees to other consultants and surveys. Legal fees and other costs pursuant to the provision of any legal agreement or warranty by the Firm.
Unless otherwise stated, all fee proposals are estimated fees and the Firm retains the right to review the estimated fees at any time. Any work over and above any agreed estimate fee will be charged at an hourly rate based on the following:
Director - £150/hour AB & £120/hour DS
Architect/senior Planner- £80/hour
Assistant - £60/hour
CONTINGENCY FEES
Where it is agreed that the Employer will pay fees (or additional fees) contingent upon the grant of planning permission or like circumstance any one of the following events shall render the Employer liable to make payment without delay:
The grant of such consent by the issuing of a decision notice by the LPA whether subject to conditions or not.
The making of a resolution to grant consent by the LPA (local planning authority) subject to a legal planning agreement.
(c) The issue of a favourable appeal decision in favour of the proposal by the DETR whether or not subject to conditions.
(d) Instructions given by the Employer that have the intent or purpose of delaying any of the above events.
Except where specified to the contrary ‘consent’ shall mean a consent for Development applied for under the
Town and Country Planning Act 1990. Any additional Consents required or applied for under the Regulation Listed Building Regulations, Conservation Areas and Consents to Display Advertisements, or Licences or permits that may or may not be required before development may commence shall not be material to the payment of contingency fees by the Employer.
For the purposes of calculation of interest due on any accounts that remain unpaid the due and payable date for contingency fees shall be the date of the event given in clause 45.
INSURANCE
The Firm shall hold a minimum of £2 million Professional Liability Insurance, or a larger amount if agreed by the Contracting parties, however the level of insured sum shall never be less than the value of the project. The minimum insured sum shall be no less than £250,000 for each and every claim.
The Firm shall maintain a period of no less than 6 years of run-off cover for each ARB member.
Should a complaint arise, the Firm shall notify the Insurer of a pending or present complaint. The Firm shall take measures, where viable to resolve any complaint with the Contracting party.
DISPUTES
Should a dispute arise between the Contracting Parties, the Firm shall seek to resolve these in the first instance without the need for any dispute resolution procedures (e.g. arbitration), however should the need arise the Contracting Parties shall agree an Arbitration panel or company to undertake the resolution process.

END

Issue 12/12/19