A - Project Initiation & Pre-design Flashcards
What standards where added to the code of ethics in 2017?
- terms of appointment
- client communication
- confidentiality
- registration of others
List the code of ethics (x17)
- uphold the law
- honesty and; fairness
- professional judgement
- skill, care and diligence
- obligations to report on risk
- misrepresentation
- conflicts of interest
- abuse of authority
- malicious criticism
- conflicts of professional appointment
- remuneration and; inducements
- professional reputation
- competence
- terms of appointment
- client communication
- confidentiality
- registration status of others
Expand on Ethic 49: Skill, care & diligence
Perform with skill, care & diligence. Advise recipients of risks if advice has not been followed.
1/ A registered architect must perform the architects professional activities with reasonable skill, care & diligence.
2/ A registered architect who becomes aware that the architect’s professional advice has not been followed, and considers that a failure to follow that advice may lead to significant harm, damage, or financial loss, must advise the recipient of the advice of the potential consequences
Expand on Ethic 56: Remuneration and inducements
Remunerations as per the agreement, do not offer or accept inducements that may create conflict of interest or gain unfair advantage.
A registered architect, in respect of the architect’s professional activities -
a) must be remunerated solely by the fees and benefits specified in the architect’s written terms of appointment of employment agreement, and
b) must not offer or accept any significant inducement that creates, or may create, a conflict of interest, and
c) must not offer any significant inducement to procure an agreement for services or gain an unfair advantage.
Expand on Ethic 58A: Terms of appointment
Professional services require written terms of appointment and instruction to proceed from the client.
1/ A registered architect must provide professional services only if -
a) written terms of appointment appropriate to the commission or services to be undertaken have been provided; and
b) the client, having agreed to the written terms of appointment, has provided an instruction to proceed.
What must written terms of appointment (Ethics 58A) cover?
Scope, responsibilities, fees and billing
2) The written terms of appointment must cover -
a) the scope of the work, and
b) the allocation of responsibilities, and
c) any limitation of responsibilities, and
d) fees, or any methods for calculating fees, and
e) how billing will occur
Expand on Ethics 58A: Client Communication
Ensure effective communications for quality, budget, cost, programme and issues are in place.
A registered architect must -
a) ensure that, where applicable, effective systems are in place during a commission to establish and monitor its quality, budget, cost estimates, and time line; and
b) advise the client in a timely manner of any significant issues that arise, or are identified at any time during the commission.
How might you “win” a project?
- word of mouth or referral
- interview
- design competition
- open tender sites
- existing relationship
- online portfolio
What are key aspects of your client liaison role?
- offer a professional service
- establish roles & expectations, obligations & responsibilies
- listen & observe
- perform and respond
- relationship is highest priorty
What might you consider to establish project context?
- topographic survey
- climate
- existing services & structures
- RMA, district plan status
- heritage
- geotechnical
- health & safety
- legal status CoT, easements
- what are the impacts of these to the project/ services?
- does your client own the site?
What are key aspects of a brief?
qualitative & quantitate aspects of the project
written live document
confirm and agreed
What forms of agreement are there?
NZIA AAS, SF AAS
ACENZ
CCCS
What are some key differences between CCCS & NZIA AAS?
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
CCCS Arch less reasons to terminate contract
AAS Profits upon suspension
What is novation?
Novation, in contract law and business law, is the act of – replacing an obligation to perform with another obligation; or. adding an obligation to perform; or. replacing a party to an agreement with a new party.
The burden and the benefit move across
How might you calculate fees?
- Lump sum
- Time charge
- Percentage fee
- Combination of above
What should you watch for in agreement special clauses?
Indemnity or Indemnify clauses or any other clauses which exceed your duty of care.
What should you be seeking during initial client contact meetings?
- brief
- budget
- “fit”
- enough information to set the parameters for the AAS
Client deadlines and expectations
What are the four parts of the AAS?
Part A - contract agreement (including special conditions)
Part B - scope of services
Part C - fees
Part D - general conditions
What is the CCCS?
Conditions of Contract for Consultant Services
What are the parts of the CCCS?
Form of agreement
General conditions
Specific Conditions
Appendix A-G covering scope, fee, personnel, insurance
What are the main differences between the CCCS & AAS?
Copyright
Default insurance provisions
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)
What actions of the architect are important in delivering limited (or partial) services?
- Highlight limits to the client and difference between full and partial services
- Ensure adequate fees
- remain available to clear up any problems with documentation produced even when no longer part of the project.
- stamp drawings with “limited services”
- add pro-forma clauses to clarify liabilities, responsibilities and processes.
What four aspects are required for a contract to be valid under contract law?
Offer
Acceptance
Consideration
Intent
What do you need to consider if you engage sub-consultants?
Check PI cover
Consider risks of supervising work & expertise outside your own knowledge
Use back to back terms that reflect your terms with client
Need to be sure they will be in business for 6 years after PC
health and safety
What are the professional indemnity insurance provisions under AAS vs CCCS?
AAS = 250K CCCS = 5x fee (min 500K, max 2M)
What are the public liability insurance provisions under AAS vs CCCS?
AAS = 1M
CCCS 2M or 10M
What are the ethical standards an architect must follow in relation to other architects?
a. acknowledge the contribution of other architects and not claim as his or her own the
IP or ideas of other architects.
b. not maliciously or unfairly criticise
c. conflicts of appointment must be made known to other appointed architects
d. an architect must notify another architect when asked to give an opinion on their work
(unless the opinion is part of any litigation).
What course of action should be taken before agreeing to provide services for a
project that another architect may have previously provided services for?
a. ascertain from the client whether another architect has been involved
b. request clients permission to contact previous architect to ascertain the following
1. fees have been paid
2. client is legally entitled to use info provided by previous architect
3. contractual arrangements are tidied up between previous architect and
client
4. any work produced has been returned if required by agreement.
What should be done if the client declines a request to contact the previous architect?
As a minimum written assurance should be obtained from the client that all legal and ethical
issues have been resolved.
What should be considered when setting up a joint venture agreement?
- Parties and Purpose
- the nature and duration of the association
- scope of work of each party
- management and who has the ability to act on behalf of the joint venture.
- Dispute resolution process
- Fee split.
- Liability, indemnity and insurance
- How the partnership and publicity refer to the parties in the JV
What areas of non-performance under an agreement for service might give an architect
cause to cease working for a client?
- non payment of agreed fees
- refusal to pay for increased services
- refusal to engage specialist consultants
- Unrealistic requirements regarding budget and time
- Client persistently bypassing the architect to deal with contractor or consultants.
- Clients insistence or persistent instruction that is in conflict with the architects
statutory or professional obligations. - Design conflict
- Personality conflict
- ill health
What would you do if you had the opportunity to work overseas?
- Assume everything is different especially modes of operation, contracts, laws and
regulation. - Discuss with other architects that have worked in that country
- Talk to NZ Trade and Enterprise
- Read practice note PN 3.114!
- Partnering with a local architect would be preferable.
What are 4 development risks and which should the architect/consultant team take on?
Technical (This risk to design team) (All others to client:) Feasibility Fitness of Purpose Development Risk
What are general project fee percentages?
4-6% commercial
9-15% residential
–> 18% complex alterations
What is Subrogation?
the substitution of one person or group by another in respect of a debt or insurance claim, accompanied by the transfer of any associated rights and duties.
What changes are coming in with respect to PI Insurance?
cladding exclusions ie ACP
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
What does ‘limited to parcels’ mean?
A title to land that is “limited as to parcels” means that at the time the first title was issued for that land, a guaranteed title could not be issued. This is because either the survey information was insufficient or there could have been someone else in adverse possession of part of the title.
What is a property encumbrance?
A property encumbrance is a restriction or limitation, such as an easement, mortgage, covenant, change or other liability, on the title of a property that impedes its use or transfer by giving someone else an interest or right in that property.
Outline the term ‘Mana Whenua’
- have historic and territorial rights over the land
- iwi and hapu who have these rights
- have a special cultural and spiritual relationship with the environment, which is a matter of national importance under the Resource Management Act
What is a project alliance, what is a management contract?
A Project Alliance is a commercial/legal framework between a department, as a ‘owner’-participant and one or more private sector parties as ‘service provider’ or ‘non- owner participants’ (NOPs) for delivering one or more capital works projects.
A management contract is an arrangement under which operational control of an enterprise is vested by contract in a separate enterprise that performs the necessary managerial functions in return for a fee. Management contracts involve not just selling a method of doing things but involve actually doing them
Can you build on an easement?
Legal grey area: No.
You must not obstruct the right to enjoy the easement.
What if your client is a trust?
You must take instructions from the trustees.
The instructor could be a nominated person if they have reasonable authority to bind the trust.
What would you do if the client will not share their budget?
Comply with Ethics - report on risk.
The budget is important for the architect to do their job
How can you better ensure client’s understand or are engaged in the process/project?
Establish key drivers behind the project.
Show options and have an audit trail.
COMMUNICATION is key.
Learn what YOUR client needs or wants to understand.
How might you set PI levels?
Think about the worst thing that you could be liable for. MDs rule of thumb: Consider 1/4 of that
What is a legal person?
The most common forms of legal persons are natural people (individuals) and companies.
A trust is not a legal person so any contract entered into must be with the Trustees, not the Trust.
A partnership is not a legal person in its own right, but is made up of legal persons (the partners) and is bound by commitments made by any one of them.
What diligence should you do about your client?
Are they a legal person?
Price for risk - do they listen, make decisions, efficiency, trust, pay bills?
When discussing budgets what should you do?
Never take ownership of cost
What are the risks of not having a signed agreement?
Refer 58A
Note also:
Without signed agreement you do not have unequivocal proof so would need to substantiate what you are entitled to.
Intent to be bound by paying invoices.
Commercial risks:
- liability - in absence of signed agreement you may have uncapped liability
- Insurance - you may be open to indemnity that you do not have insurance for.
- IP default to Copyright act
