BUILDING CONTROL TERMS & CONDITIONS OF APPOINTMENT
1.0. All Building Control Certification Limited is the ‘Approved Inspector’ hereinafter referred to as ALL BUILDING CONTROL of Registered Office Kemp House, 152/160 City Road, London EC1V 2NX.
1.1. ALL BUILDING CONTROL shall provide the services with reasonable skill, care and diligence, and with due regard to the Construction Industry Council’s Code of Conduct for Approved Inspectors and, the Building Control Performance Standards as approved and accepted by government.
1.2. It is noted that the appointed Approved Inspector is the Building Control Body for the work subject to the Form of Agreement and the main objective is to ascertain that building works complies with the requirements of the Building Act 1984 and current Building Regulations.
1.3. ‘The Client’ in the context of these Terms of Appointment is taken to be the person or company who is having the work carried out, and in the case of a company, the company will provide a named person as point of contact. The Client or his Agent will normally contract with ALL BUILDING CONTROL for the provision of services hereunder referred to.
1.4. The client shall inform us in writing if they do not authorise us to sign the Initial Notice on their behalf otherwise we shall do so and serve this upon the relevant Local Authority at the earliest opportunity.
1.5. On receipt of our signed appointment form we will commence work. If we start acting for you at your verbal request, you agree that you are bound by these Terms of Business.
1.6. We reserve the right to refuse any appointment, for example: if the works are outside our preferred geographical area; if we believe that we do not have the technical or manpower resources to deal with your instructions properly or; if we become aware of a conflict of interest or of a failure to comply for some other reasons.
1.7. We reserve the right to terminate the appointment if it is appearing to us there is a fundamental or repudiatory breach of contract (such as non-payment of fees) or that for other such reason we are not able to discharge our function properly as a Building Control Body.
1.8. Unless specifically contracted to do so, ALL BUILDING CONTROL is not being engaged to determine if the Clients own contractors and consultants design and/or build prescriptively to either the Approved Documents, British or European Standards or other such guidance documents.
1.9. We do not use encrypted email and therefore, communications between us are not “private and confidential”. You agree to accept this risk. Further, when we email others on your transaction or matter, we may well copy you in. You agree that your email address can be revealed in this way to all recipients of the email.
1.10. Any liability accepted by ALL BUILDING CONTROL under this appointment relates only to the statutory duties of an Approved Inspector as defined within the Building Act – no additional liability should be inferred.
1.11. The Client shall be responsible for the Project’s compliance with the Building Regulations and the Services do not include managing the Project to ensure that compliance is achieved. Whilst ALL BUILDING CONTROL shall take such steps as are reasonable to enable it to be satisfied as to the Project’s compliance with the Building Regulations, (and if so satisfied, issue a Final Certificate) a final certificate is not a representation that every aspect of the Project has been checked and complies with Building Regulations.
1.12. Unless we have otherwise stated in writing to you, our project file will be considered closed and archived 3 months after issuing the Final Certificate. You authorise us to store electronic filed documents generally or remotely. If we retrieve such items from storage at your request or need to deal with any matters arising, we reserve the right to charge for such retrieval. We may also charge for any work necessary to re-familiarise ourselves or provide comment or copies of documents pertaining to the project file.
1.13. The Terms of Appointment shall not be construed as an offer of services or part of any contract for services in subsequence
2. Clients Obligations, Fee Basis and Additional Works
2.0. The client will provide reasonably accurate estimates for ‘cost of works’ (labour and construction) and ‘time programme’ (including details of any proposed ‘phasing’) and proposed and existing plans for which ALL BUILDING CONTROL may base their fee quotation on. ALL BUILDING CONTROL reserve the right to amend the fee where plans were not originally submitted for pricing or charge additional fee if the estimates change or are found to be inaccurate such that it does result in additional work for ALL BUILDING CONTROL. Should any of these estimates change by more than 10% then we reserve the right to charge additional fee at a rate of £95 per hour + vat in continuation of the contract until the works on site are complete. Alternatively, if the change is known or anticipated at some point after signing this contract the client shall endeavor to inform ALL BUILDING CONTROL such that ALL BUILDING CONTROL may propose an additional lump sum extra ee. If there is any dispute regarding the estimated ‘cost of works’ the RICS cost information figures shall be referred to in determining the estimate.
2.1. The Client shall supply such information to ALL BUILDING CONTROL at such times as is reasonably required for the delivery of the services, including previous history of the site, planning conditions, listing of premises, local Acts of Parliament and outstanding enforcement actions insofar as it impinges on the Terms of Appointment.
2.2. The Client shall provide drawings and specifications including site and block plans showing all public services on or within 6 metres of he boundaries, and in sufficient detail to facilitate the proper serving of Initial Notices, Sewer Consultation, Fire Service Consultation and any other legal documents as may be necessary.
2.3. The Client shall notify ALL BUILDING CONTROL in writing of any agent appointed to act on behalf of the Client and of any change or dismissal of the agent or change or dismissal of contractor.
2.4. The Client shall notify ALL BUILDING CONTROL in writing and in sufficient time of any instruction to vary the services such that, for example, sufficient time is allowed for Amendment Notice to be issued to the Local Authority.
2.5. The Client shall make available during normal working hours proper access to the site for ALL BUILDING CONTROL or his appointed Agent or servant to carry out inspections of work.
2.6. The Client shall notify ALL BUILDING CONTROL at identified stages of work, or shall instruct the Contractor to do so on his behalf, with regard to any issued Inspection Notification Framework but at stages not less than: commencement; excavation for foundations and; project completion stage.
2.7. Notwithstanding the Inspection Notification requirements above, the Client shall keep us informed of live site progress every month and for slow or on-hold site progress every 3 months. This can be most easily done via the Book Inspection function on our website.
2.8. Where a project has been dormant or on-hold (i.e. where a single inspection has been undertaken for planning lock-in, where the appointment fee was not paid or where works simply stopped for whatever reason then the Client shall notify us of the intention to restart where it falls outside of the times listed above – a positive confirmation of receipt from us for bringing a project off-hold must be sought from us.
3. Assignment and Sub-Contracting
3.0. The Client shall not assign the whole or any part of this Agreement without the consent of ALL BUILDING CONTROL whereby such consent shall not be unreasonably withheld.
3.1. ALL BUILDING CONTROL may Sub-Contract any part of the service and further reserves the right to assign the work to a third party where necessary but shall not exceed the rate previously quoted and for meetings, conferences, site visits and such like where two or more of our staff are required to be in attendance, we reserve the right to charge for all of them.
3.2. A person or company who is not a party to this Agreement has no rights under the Contract (Rights of Third Parties) Act to enforce any term of this contract but this does not affect any right or remedy of a third party which exists or is available apart from that act, but this provision shall not apply in respect of any Sub-Contractor appointed or nominated by ALL BUILDING CONTROL.
4. Fee Payment
4.0. Where an Initial Notice is rejected because the contractor has deemed to have commenced work before the 5 day notice period discharges whereby the notice becomes invalid all fees as invoiced will remain due in full, however no additional invoices will be raised.
4.1. The Client shall pay ALL BUILDING CONTROL for the performance of the service(s) the fees and charges in such installments as are set out in the Fee Proposal letter. All fees and charges under this Agreement are exclusive of Value Added Tax which if due shall be paid at the prevailing rate concurrently in addition.
4.2. The Client shall reimburse in addition any costs incurred in the way of disbursement fees paid to local authorities in obtaining permissions under Local Act(s) and a separate fee for administering such applications will be requested by ALL BUILDING CONTROL in writing prior to undertaking work in relation thereto on behalf of the Client.
4.3. Where the Client intends to withhold payment of any amount stated in ALL BUILDING CONTROL’s invoice, the Client must give written notice to ALL BUILDING CONTROL not later than 5 days before the final date for payment, stating the amount to be withheld and the grounds for withholding payment.
4.4. In the event that the Client is in default over payments of amounts at the final date for payment ALL BUILDING CONTROL may suspend performance of any or all of the services, site inspections and Plans Checking and and a Final Certificates may not be issued. This right is subject to ALL BUILDING CONTROL first giving the Client not less than 7 days’ written notice of such intention and stating the grounds for suspension.
4.5. The right to suspend performance shall cease when the Client makes payment of the amount due and advices in writing that payment has been made. Any such period of suspension shall be disregarded for the purpose of contractual time limits previously agreed for the completion of the services. Such suspension shall not be treated as a suspension under Clause 7 below.
4.6. ALL BUILDING CONTROL shall notify the Client in writing as soon as it becomes reasonably apparent that any work additional to the subject of this Agreement will be required.
4.7. Where ALL BUILDING CONTROL is involved in additional work because of: Abortive pre-arranged site visits; Changes in the scope of the work and/or; Changes in the program of the work and/or; Changes instructed to the services and/or; The commencement of adjudication, arbitration or litigation, the Client shall pay to ALL BUILDING CONTROL additional fees calculated (unless otherwise agreed) on the revised cost of the works, or at an hourly rate identified in Fee Basis above.
4.8. ALL BUILDING CONTROL is not liable for appointment or payment of any Consultant who may need to be appointed to prove compliance with building regulations.
5. Professional Indemnity Insurance
5.0. ALL BUILDING CONTROL is required to comply with the guidelines issued by the MHCLG in respect of the maintenance of Professional Indemnity Insurance via an Approved Insurance Scheme pursuant to Section 47(6) of The Building Act.
5.1. ALL BUILDING CONTROL shall on written request of the Client provide evidence that the insurance is properly maintained but this can also be viewed via the CICAIR register of Approved Inspectors at any time.
5.2. ALL BUILDING CONTROL shall immediately inform the Client if the insurance referred to above ceases to be available.
6.0. The copyright in all documents prepared by ALL BUILDING CONTROL in providing the services shall remain the property of ALL BUILDING CONTROL. Subject to payment by the Client of the fees properly due to ALL BUILDING CONTROL under this Agreement ALL BUILDING CONTROL grants to the Client an irrevocable non-exclusive royalty-free license to copy and use the documents for any purpose related to the project but ‘documents’, in this context expressly excludes working documents such as our standard letter templates, site report notes.
6.1. Notwithstanding Clause 6.0. ALL BUILDING CONTROL shall not be liable in any way for any use of the documents for any purpose other than that for which they were prepared and provided by ALL BUILDING CONTROL.
7. Suspension and Termination
7.0. If the Client materially breaches its obligations under this Agreement, or fails to respond to any notification of a breach of building regulations, ALL BUILDING CONTROL may serve on the Client a notice specifying the breach and requiring it remedy within 28 days, and if the Client thereafter fails to remedy that breach within that period ALL BUILDING CONTROL may terminate this Agreement by giving written notice to the Client. This would inevitably also result in the Final Certificate not being available and/or the Initial Notice being canceled by ALL BUILDING CONTROL.
7.1. If either party: Commits an act of bankruptcy or has a receiving or administrative order made against it, and/or; Goes into liquidation and/or; Becomes insolvent and/or; Makes any arrangement with its creditors the other may suspend performance of the services or may terminate the appointment by giving written notice to the Client and these rights are in addition to those granted to ALL BUILDING CONTROL under Clause 4 above.
8. Consequences of Suspension and Termination
8.0. If performance of the services has been suspended under Clause 4 or Clause 7 above or the Agreement has been terminated pursuant to the provisions of Clause 7 above:
a. The client shall pay ALL BUILDING CONTROL any instalments of the fees due to ALL BUILDING CONTROL up to the date of suspension or termination together with a fair and reasonable proportion of the next following instalment commensurate with the services performed by ALL BUILDING CONTROL.
b. Unless the agreement has been terminated by the client because of a material breach by ALL BUILDING CONTROL the client shall pay ALL BUILDING CONTROL within 28 days of written demand the consequential costs necessarily incurred as a result of the suspension or termination.
8.1. Termination of the agreement shall be without prejudice to the rights and remedies of the parties.
9.0. In the event that the client has a complaint in respect of the performance of ALL BUILDING CONTROL’s service under this agreement, without prejudice to any other remedy available under this agreement, they shall be entitled to have access to the complaints handling procedure (CHP) maintained by ALL BUILDING CONTROL, written copies of which are available upon formal request and any such complaint should be lodged with ALL BUILDING CONTROL within 28 days of discovery of the need to complain.
9.1. Should ALL BUILDING CONTROL not deal with the complaint or the complainant is dissatisfied with the outcome of such complaint, further reference may be made to the register at the Construction Industry Council, 26 Store Street, London, WC1E 7BT but only when the CHP has been exhausted.
10.0. Any dispute arising under this agreement, including those for more than £50,000 and/or those where adjudication would not apply, may be referred at the instance of either of the parties to be determined by an arbitrator. The person who is to act as an arbitrator shall be agreed between the parties within 28 days of the one giving written notice of his wish to refer the decision to an arbitrator or, failing agreement at the end of that period, shall be a person appointed by the President or Vice-President of the Chartered Institute Of Arbitrators at the instance of either party. The arbitration shall be conducted with regard to the Construction Industry Model Arbitration Rules current at the time of entering this agreement.
11.0. The liability of ALL BUILDING CONTROL to the client for any breach of this agreement and/or negligence shall be limited to such sum as would be just and equitable for ALL BUILDING CONTROL for the loss or damage suffered on the basis that all other consultants and any subcontractors who have a liability shall be deemed to have provided contractual undertakings to the client on terms no less onerous than those applying in the case of this agreement and shall be deemed to have paid to the client such sum as it would be just and equitable for them to pay having regard to the extent of their responsibility for such loss or damage.
11.1. ALL BUILDING CONTROL shall not in any event be liable to the client under any circumstances involving fraud or fraudulent misrepresentation for any economic or special or consequential damage or loss including (but without prejudice to the generality of the foregoing) commercial and financial loss additional or remedial construction or reconstruction costs loss of interest profit income utility market or business opportunity whether or not ALL BUILDING CONTROL had knowledge that such damage might be incurred.
11.2. Unless otherwise agreed the total liability of ALL BUILDING CONTROL shall not exceed the lesser amount of either; the professional indemnity insurance cover required by virtue of clause 5.0 above or, ten times the fee paid to us.
11.3. No action or proceeding for any breach of this agreement shall be commenced by either party after the expiry of the period of limitation.
11.4. ALL BUILDING CONTROL accept no liability, economic or special or consequential damage or loss including (but without prejudice to the generality of the foregoing) commercial and financial loss additional or remedial construction or reconstruction costs loss of interest profit income utility market or business opportunity, arising from a failure by them to reasonably be able to obtain or maintain the insurance referred to in Clause 5.0 above.
11.5. ALL BUILDING CONTROL are not responsible or liable for ensuring the performance of or standard of workmanship of any contractor or subcontractor.
11.6. The client shall look only to the Approved Inspector and not any individuals should they consider there has been a breach of this contract and the client agrees not to pursue and claims in contract, in tort (including negligence), for breach of statutory duty or otherwise against any such individuals as a result of carrying out its obligations under or in connection with this contract at any time (refer contract (Rights of Third Parties Act 1999).
12.0. Any notice to be given under this Agreement shall be in writing and delivered by hand or sent by recorded delivery post to the address shown in this Agreement or to such other address as the other party may have specified from time to time by written notice to the other.
12.1. Such notice shall be deemed to have been received on the day of delivery if delivered by hand and otherwise on the next working day.
12.2. Where under this Agreement an act is required to be completed within a specified period of days after or from a specified date, the period shall begin immediately after that date. Where the period would include a day which is a Christmas Day, Good Friday or a day which under the Banking and Financial dealings Act 1971 is a bank holiday, that day shall be excluded.
13. Cancelation of Initial Notice
13.0. ALL BUILDING CONTROL may either cancel the Initial Notice by sending a Notice of Cancelation to the local authority or allow it to cease to be of effect in the following circumstances: After a formal notice of contravention has been served and no significant action has been taken by the client to remedy the contravention within 3 months of issue of the Notice of Contravention; ALL BUILDING CONTROL is prevented in its reasonable opinion from carrying out its legitimate functions as Approved Inspector for the Project by undue restrictions imposed on them by the client or its agents including failing to give ALL BUILDING CONTROL reasonable access to inspect works: Failure on the part of the client to submit sufficient plans or details (e.g. structural calculations) to demonstrate compliance in any other way in a reasonable period of time to enable us to fulfill our function as an Approved Inspector without undue pressure or risk; Non-payment of any fees due to ALL BUILDING CONTROL (either in part or whole).
14.0. Copies of site inspection notes are available on request however these may or may not be redacted or adjusted prior to them being supplied.
14.1. Where requested to do so we can write a ‘comfort letter’ in support of your dealings with Freeholders, Managing Agents, Financial Institutions and these are charged at £45.00+vat per letter and we hold no liability to any third party for their reliance on such letters.
14.2. We have no objection to utilizing project collaboration software or and/or web/cloud based file sharing where a separate folder named ‘All Building Control’ is made and the plan submission placed in there for a single stage check.
14.3. We will not nor can we be expected to continuously dip in and out of your system to see what has been revised or added to. We also remind you of data protection in respect of the contents of these folders and your obligation to safe-guard that data.
14.4. If you email links to files or ftp serves (especially time expiring ones) you are expected to ensure this has been seen and downloaded by us by way of acknowledgment of further information letter we may issue.
14.5. If you are requested to send in test, witnessing and commissioning certificates toward the end of a job (especially where these involve multiple plots or flats) we will not take responsibility for issues arising nor should we be expected to administer multiple emails. Please collate them at your end then forward them as a single email in a sensible and intelligable format.