Norden Farm Centre for Arts
The building contract was signed in December 1998. Although first drafted in December 1998 the artists' commission contracts were not signed until September 1999. It was necessary to resolve a number of issues in the intervening months before both the artists and the Client were happy to sign contracts.
Establishing Cost Certainty and procurement routes
The tender document included specifications for the commissioned works with the intention that the building contractor would be primarily responsible for delivering the commissions. The artists would oversee this work via the architects. However, the contractor was not able to provide an exact sum for all of the commissioned work because the specifications provided in the tender document were not detailed enough. A provisional sum was therefore included in the building contract for several aspects of the commissioned works subject to more detailed specification and costing by the artists and contractor respectively.
The artists then developed highly detailed specifications for their works in a language and style compatible with that of the contractor. Subsequent revised costings by the contractor were considerably over the agreed provisional sum within the building contract.
The team resolved this issue by reviewing the specifications and delineating elements that could be provided by the artists and those that could most effectively be provided/installed by the contractor. With this revised implementation plan works could finally be fully priced and within budget.
By the time the commission contracts were signed the commissioned works had been costed four times. Firstly by the artists, as part of the detailed designs. Secondly by the contractor in the form of a provisional sum in the tender document. Thirdly by the contractor after reviewing the artists' more detailed specifications and finally by the artists in an exercise to reduce costs by taking as many elements out of the building contract as possible and providing them directly and at much lower cost to the Client.
Cost certainty could only be achieved when every detail of how the works were going to be made and by whom had been specified. This level of detail was only available at the third costing, which proved too expensive. By redrawing the procurement route it was possible to bring the costs back within budget.
Establishing Contractual Compatibility with the main Building Contract
a) Contractual structure
During the research & development and design development stages, the artists were sub-contracted by the project art consultants, Artpoint on behalf of the Client. For the production stage Artpoint advised that the artists should be contracted directly by the Client. There was considerable discussion on this issue as the Client felt that this should be part of the role of the arts agency, and further that Artpoint should be responsible for professionally indemnifying the artists. Artpoint argued that this would not be appropriate, using the analogy that generally a Client would not expect an architect to sub-contract or indemnify a construction company, engineers, or other professionals . Also that it was not appropriate to expect artists or an arts agency to carry professional indemnity insurance as neither worked within the context of professionally affiliated institutions.
A contractual structure was finally agreed which mirrored the contractual structure between the Client, architects and building contractors. The Client would directly contract the artists for the commissioned work in the same way that the Client directly contracted the architects to project manage the building contract. The architects were described as the Project Manager (PM) and Artpoint as the Arts Manager (AM).
b) Terms and conditions
In the preparation of the commissions contracts Artpoint and the Client agreed that the available pro-forma contracts (the AN Commissions contract or the Professional Services Contract) would not be adequate - the AN because it lacked essential clauses standard to building contracts, and the PSC because it assumed parity in status between artists and other contractors.
As a result a new project-specific contract was drawn up by Frances Forward of Architecture for the Arts in collaboration with Artpoint and solicitor Nick Sharp. Nick Sharp has advised on the development of pro-forma contracts for visual artists published by AN (Artists' Newsletter) and as a practicing architect, Frances Forward's involvement brought an understanding of the detail required by the contractor to realise the artists' work.
Negotiating the new contract began with an examination of the terms and conditions included within the main building contract that were not part of standard artists' contracts. The artists' contract was then drafted to include these terms and conditions in a way that enabled the two contracts to operate smoothly alongside one another without placing unreasonable burdens on either the Client or the artists. The key clauses were as follows:
- Formal communication procedures. In the building contract all communication between the contractor and the Client is directed through the architect (Project Manager). In the artists' contracts all communication between the artists and the Client was directed through Artpoint (Arts Manager).
- Early warning procedures. The building contract included a formal procedure for notifying the other party of any event that might impact on the future delivery of the project, for example a potential delay or increase in cost. The purpose of this procedure was to enable both parties to address potential problems together at the earliest time. The same clause was included in the artists' contract.
- Variation events. Similarly, a formal procedure for agreeing any variation to the contract was included within the artists' contract. This required notification of a variation event to the other party and a meeting to agree any variation. Variation events were defined as any changes to the Schedule (specification of the artworks) or Programme (timescale). The Commissioner was only allowed to ask for a variation due to unforeseen project requirements and the artists only due to unforeseen technical or other difficulties.
- Quality management and defects. Again clauses were introduced into the artists' contracts mirroring those of the building contract. Quality management was established by the Arts Manager being responsible for 'signing off' the commissioned work against the contract Schedule (designs and artists' specifications). Defects clauses required the artists to 'make-good' any element of the work identified as unsatisfactory and repair any element of the work that failed within the first year. The defects clauses were only relevant to those aspects of the commissioned works directly supplied by the artists. All elements supplied by the contractor came under his contractual obligations.
- Compensation events. With this issue it was not possible to include the same terms within the artists' contract as in the building contract without placing unrealistic burdens upon the artists. It was agreed that the only compensation event (as they were defined in the building contract) that was relevant to the artists' contract was the event of delays. Here artists accepted that any delays caused by them to the building contract had far more serious consequences for the Client than vice-versa. The artists therefore agreed to work within the programme of the main building contract and accommodate any changes that were made to this if necessary. In the event no changes were required.
- Indemnity, insurance and liability. With item five the artists had toaccept a compromise. On this issue it was the Client who accepted the compromise.It was accepted by the Client that it was not reasonable to expect the artiststo provide professional indemnity insurance so none was included in the contract.The Client also agreed that it was proportionately less onerous on the Clientthan the artists to carry standard insurance policies such as Employers Liability,Public Liability and insurance against Loss or Damage to the work, and accordinglythese insurances were provided by the Client. The only indemnity offeredby the artists was that the commissioned work was original and did not infringeany copyright or any third party rights.
The project clearly illustrates the limitations of pro-forma contracts and the benefits of basing the structure and detail of the agreement upon open dialogue between commissioner and artist. In working through the contractual agreements from first principles, it became apparent that, of the problematic areas identified, only a number could ultimately be addressed and resolved contractually. Certain of the contested issues were resolved by working to eliminate as much risk as possible from the agreement. The contract schedule and attachments (stating the precise specifications of the production and installation of the commissions, the timetable for commissions etc.) were extremely detailed and critical to the agreements. In addition to the detailed written agreements, the team spirit and sense of trust between project partners created during the early stages of the project, proved invaluable in enabling the project to go ahead with a small degree of risk acceptable to all parties.
© Copyright Jane Connarty 2002.