Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 76
Contract terms
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contractual arrangements. The Protocol now includes additional provisions in
relation to security reflecting PAS 1192-5. This includes a supplementary legal
agreement that can be incorporated into the PSC together with three appendices to
be completed with the information specific to the particular contract. The CIC BIM
Protocol can be downloaded from http://cic.org.uk/admin/resources/bim-protocol2nd-edition-2.pdf
Key watchpoints
• Agree the format for the output of digital data with the Client at the outset to
avoid incorrect assumptions.
• Consider the intellectual property rights embedded in your electronic files and
whether they should be released.
• If a BIM protocol is necessary, ensure that all the Design Team are working to
the same one.
• Ensure that all the deliverables and ‘data drops’ have been agreed.
• If none of the boxes are ticked [√], the default is PDF copies.
4.14 Supplementary Agreements
The RIBA Professional Services Contracts 2018 and their Schedules of Services
are designed to be used with suitable supplementary documents, i.e. Novation
Agreement, Collateral Warranty, Third Party Rights Schedule or any other documents
as specified in item M.
Before agreeing to enter into any Supplementary Agreements, it may be advisable
for the Architect/Consultant to take legal advice and discuss the issue with their
insurer or broker. When looking at Collateral Warranties the Architect/Consultant
should consider who the beneficiaries are, such as funders, purchasers, tenants,
and so on. The Client’s solicitor may require that each Collateral Warranty is
assignable so that the Client would be able to transfer the benefit of it should they
sell their interest to another party. The Architect/Consultant should endeavour to
limit the number of warranties to be issued to the first purchaser, tenant, etc. and
not subsequent parties to limit their ongoing liability or, at most, allow only one
assignment. Consider whether other parties might receive third party rights.
When completing the Contract, any Supplementary Agreements should be
numbered or lettered, and a copy attached as an appendix to the Contract.
Novation Agreements
Whether the Architect/Consultant is to be novated to another Client or to a
Contractor in a Design and Build contract, it is recommended, although not essential,
for a written Novation Agreement to be drafted. A Standard or bespoke Novation
Agreement can be used but they should include the template clauses quoted in
clause 4.7 of the RIBA PSCs and in the box in section 4.3 above.
The CIC produce a Standard form of agreement, the CIC Novation Agreement:
Ab Initio (2018) – for use where a consultant appointment is to be novated from
an employer to new Client (e.g. a Design and Build contractor) on an ‘ab initio’
basis. The Architect/Consultant should note that this agreement complies with
and incorporates exactly the same principles as set out in the template clauses in
clause 4.7.
Whilst it is anticipated that most Architect/Consultant novations would be required to
use an ‘ab initio’ form, the CIC also produce an alternative agreement, i.e. Novation
Agreement: Switch (2018) – CIC/NovAg/Switch.
Whatever form is proposed, legal advice should be sought when preparing the
documents as well as checking with professional indemnity insurers.
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