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Writing Contracts for Architects

Disclaimers§THIS PRESENTATION IS NOT INTENDED TO ANDDOES NOT CONSTITUTE LEGAL ADVICE.§NO ATTORNEY-CLIENT RELATIONSHIP ISESTABLISHED AS A RESULT OF THE DISSEMINATIONOF THIS PRESENTATION.§ANY PERSONS SEEKING LEGAL ADVICE ON THESUBJECT OF THIS PRESENTATION SHOULD CONSULTTHEIR OWN LEGAL COUNSEL.§THIS PRESENTATION IS PROTECTED BY U.S. ANDINTERNATIONAL COPYRIGHT LAWS. REPRODUCTION,DISTRIBUTION, DISPLAY AND USE OF THEPRESENTATION WITHOUT WRITTEN PERMISSION OFTHE AUTHORS IS PROHIBITED.(After all, we are Attorneys).

PRE-CONTRACT CONSIDERATIONSA Current and Valid Architectural License isRequired to Recover a fee.n Any person acting in the capacity of an Architect butwithout the required license is liable for trebledamages, not to exceed 10,000, plus costs andattorney’s fees (CCP section 1029.8)nAn unlicensed Architect is not entitled to sue forservices rendered, unless the scope of work isincluded under Business and Professions Code,section 5537(Medak v. Cox, 12 Cal. App. 3d 70, 77, 90)

Contract Basics

PROFESSIONAL PRACTICE ACTBefore Commencing Work, an Architect Must Have:n A Written Agreement signed by Client and Architectwith professional information (License Number), with:nnA Description of services/scope of work.nThe means of compensation and payment.nA procedure for termination of the Agreement.Note: A client can agree in writing that the Architectcan commence work before the Agreement is signed;Services and payment terms can be implied fromprior similar projects for the same client.(Business and Professions Code, section 5536.22(a))nNote: Many Professional Liability policies requirewritten contracts as a condition of coverage.

PROFESSIONAL PRACTICE ACTSources of Written Contractsn AIA Forms of Agreementn AIA publishes Contract Documents for most situations (see2017 AIA Contract Documents list).n AIA standard contract forms are widely used, and consideredby many to be complete and balanced.n AIA standard contract forms have provisions that have beenjudicially interpreted and supported by case law.n Even AIA standard contracts must be evaluated to confirmthe Architect’s scope of work and responsibilities.n AIA standard contracts can be modified, sections added ordeleted to better match the intent of the Parties.n Specially Prepared Agreementsn Prepared by Owner (and counsel).n Pay close attention to clauses that favor Owner.

OWNER PREPARED AGREEMENTSRed Flags:n One Sided Indemnity ProvisionsnRequires Indemnification for All Claims except for Owner’s:nnnnSole negligence;nGross negligence; orn“To the maximum extent permitted by law”Architect’s obligation to defend starts at presentation ofclaim.Architect’s obligation to defend does not depend upondetermination of fault by trier of fact.Transfer of Architect’s Intellectual PropertynnClient requires ownership of plans.Client requires ability to assign rights to Architect’s services.

COPYRIGHT ISSUESSection 7 of B101- Owner Architect Agreement covers copyrights and licensesnWhat do you do if client demands CAD files? Need language relieving you ofliability, charge fee and limit how it’s used (Section 7.3- § 7.3.1- review languagerelease of liability at first two sentences- “In the event the Owner uses theInstruments of Service without retaining the authors of the Instruments ofservice ”) If you release the CAD files, important that release contains languagethat references 7.3.1.nHow do you make sure you get paid before you release any material? Now, theydon’t get the license until you get paid. Here is the new language:“Upon execution of this Agreement, the Architect grants to the Owner a nonexclusivelicense to use the Architect’s Instruments of Service solely and exclusively for purposes ofconstructing using, maintaining, altering and adding to the project, provided that theOwner substantially performs its obligations, obligations under thisagreement, including prompt payment of all sums when due, underthis Agreement. due pursuant to Article 9 and Article 11.”

COPYRIGHT ISSUESHow do you copyright a document?The United States Patent Office now allows copyrights to be filed online:https://eco.copyright.gov/eService enu/start.swe?SWECmd Start&SWEHo eco.copyright.govTwo easy-to-follow circulars (handouts), Circular 02 and Circular 41, show youhow:“To file a claim to copyright in an architectural work, you must submitthe following to the Copyright Office:(1) a completed application form;(2) a nonrefundable filing fee; and(3) the required “deposit copies” of your work.You must submit your application through the electronic registrationsystem, and you must use the Office’s Standard Application.”

Description of Services/ Scope of Work

PROFESSIONAL PRACTICE ACTDescription of Services: Define It!AIA Form B101-2017ARTICLE 1: Initial Information§ 1.1 through § 1.1.12: Scope of Architect’s work§ Sit down with Owner or Project Manager and ask questions!nSuggested Additional Clause (see B101, sec. 13.1):This Agreement represents the entire and integrated agreementbetween the Owner and the Architect and supersedes all priornegotiations, representations or agreements, either written or oral. ThisAgreement may be amended only by written instrument signed by bothOwner and Architect. This Agreement shall be not be construed orinterpreted as having been drafted by either Party.

PROFESSIONAL PRACTICE ACTDescription of Services:§ Consulting Services§§§§§Peer ReviewLand Use, FeasibilityEntitlementsZoningLEED Certification§ Litigation Consulting§ Certificate of Meritorious Cause§ Requirement for Plaintiff’s counsel to consult with professionalin same discipline before lawsuit. (CCP 411.35)§ Expert Witness on Standard of Professional Care§ Protected by Privilege (Civil Code section 47)§ Consulting During Construction of Repairs

Customizing Your Contract

PROFESSIONAL PRACTICE ACTCompensation and PaymentnCompensation for Basic Services under Article 3: AIA B101, Article 11nAdditional Services:nServices not set forth in this Article 3 are Supplemental or AdditionalServices. (AIA B101, Sec. 3.1)nSpecially prepared clauses:nMaking revisions to Construction Documents when such revisions are:n Inconsistent with approvals or instructions previously given by Client,including revisions made necessary by adjustments in Client'sprogram or Project budget;n Required by the enactment, revised interpretation, jurisdictionaldifferences in interpretation, or revision of codes, zoning or buildingordinances, laws or regulations subsequent to the performance ofservices which are impacted by such, or additional costs caused bydelays resulting from such;n Due to changes required as a result of Client's failure to renderdecisions in a timely manner;n Discretionary decisions of building officials or inspectors inconsistentwith prior approvals;n Additional submittals, revisions and corrections required by Client orthe public entity or governing body with jurisdiction over the Project ifconstruction of the Project occurs in more than one building phase;and/orn Repackaging and processing of Documents if permits are required foradditional units.

PROFESSIONAL PRACTICE ACTCompensation and PaymentMore Additional Services§Providing services required because of changes in the Project including, but not limited to,size, quality, complexity, plan options, Client's schedule, or the method of bidding ornegotiating and contracting for construction.§Preparing drawings, details and other documentation, analysis and supporting data,evaluating contractor's proposals, and providing other services in connection with changeorders, directives and addenda.§Providing services in connection with evaluating substitutions proposed by the contractoror requested by Client and making subsequent revisions to drawings, details and otherresulting documentation§Providing services in connection with replacement of work damaged by fire, exposed tothe elements or other causes and furnishing services required in connection with thereplacement of such work.§Providing services made necessary by the default or termination of the contractor, bydefects or deficiencies in the work of the contractor, or by failure of performance of eitherClient, contractor or others performing services or providing work on the Project.§Providing services in connection with the preparation for, or attendance at, publichearings, homeowner's associations or other meetings, or legal proceedings, except whereArchitect is a party thereto.

PROFESSIONAL PRACTICE ACTCompensation and PaymentMore Additional ServicesnPreparation of designs and construction documents for buildings or featuresnot specifically contained in the Scope of Basic Services including, but notlimited to, recreation buildings, sales offices, cabanas, laundry facilities,carports or remote garages, trash enclosures if not required by localordinance, patio trellises, fencing, walls, entry gates, detached mailboxes,paving graphics, signage or any other ancillary structure or feature.nProviding financial feasibility, marketing, site analysis, comparative studies orother such special studies or providing analyses of Client's projectrequirements in the preparation of a program for Client.nProviding interior design and other services required for, or in connection with,the selection, procurement, purchasing, receipt, moving or installation offurniture, appliances, plumbing fixtures, flooring, casing, molding, fireplaces,stair rails, door hardware, colors, countertops & backsplashes, cabinetry, tub &shower enclosures, lighting, graphics, signage, accessories, and the like, if notspecifically provided for under Scope of Basic Services.nProviding colored renderings, models or similar presentation drawings ifrequested by Client.nPreparation or compilation of as-built or record drawings based on inputprovided by Client or others.

PROFESSIONAL PRACTICE ACTSample ExclusionsnArchitect will have no involvement in, or responsibility for, any services not setforth in Section II, or expressly requested by Client and accepted by Architectpursuant to Section IV. and in particular and without limitation, Architect:nWill not provide structural engineering, civil engineering, soils engineering,geotechnical services, landscape architectural or irrigation design services,interior design and decorating, Title 24 energy calculations, any hazardouswaste or toxic substances engineering, mechanical, electrical, and plumbingengineering drawings for permits and bidding, which will not be included inArchitect's work, and will be designed by a consultant, or consultants, retainedby Client.nClient will advise the Architect of its consultants prior to retaining them,however, it is understood and agreed that Architect undertakes, and shall have,no responsibility or legal liability with respect to the services provided byClient's consultants, or for Client's decision to retain or not to retain theservices of certain consultants. Architect will coordinate its efforts with Client'sconsultants as Client retains them for such services, as appropriate. Client issolely responsible for filing documents required for the approval ofgovernmental and quasi-governmental authorities having jurisdiction over theProject.