construction corner

LCW represents and advises private schools and colleges in various business, construction, and facilities matters, including all aspects of construction projects from contract drafting and negotiations to course of construction issues. Through this Construction Corner, LCW will be giving private schools and colleges monthly helpful tips on a variety of topics applicable to campus construction projects. LCW attorneys are available should you have any questions or need assistance with any construction projects no matter what phase you may be in currently.

Five Things To Consider When Contracting With An Architect

By: Victoria M. Gómez Philips

When undertaking a construction project, a school likely requires a design professional, such as an architect, to assist in the planning, development, design, and construction of a project. These design professionals tend to present the schools with AIA contracts that favor the design professional and do not align with the California construction laws.

The school should take the following into consideration prior to executing a contract with a design professional:

• The architect should represent that he or she is licensed with the California Architects Board. The city or county will only issue a building permit if the architect who prepared the plans and specifications certifies that they are properly licensed by the State of California.

• Architect contracts very rarely include many provisions that address the construction phase. Schools should dictate what they expect from the architect during construction and the scope of work should align with the construction agreement. If the scope of work is not clear, the architect may charge the school for hourly services in order to perform services during the construction phase, such as reviewing submittals and pay applications.

• The indemnification language must conform with California law. In California, a design professional may only indemnify the school to the proportionate extent the claims relate to the design professional’s negligence, recklessness or willful misconduct.

• The contract should address the ownership of the documents developed by the architect. The school needs ownership of the instruments of service (plans and specifications) or an irrevocable, perpetual license to use the documents developed by the architect under the agreement in the future in order to maintain, complete or make any alterations to the construction project.

• The design professionals’ authority to file a lien on the property should also conform to California law. An architect’s lien is limited to the remaining amount of the design professional’s fee for services provided under the contract, or the reasonable value of those services, whichever is less. The architect must satisfy each of the conditions outlined in Civil Code Section 8304 prior to filing a lien against the real property.

Many AIA and other form contracts address these issues but these forms do not clearly conform to California laws. When presented with a design professional contract, the schools should consult with legal counsel to modify the contract provisions to ensure the school’s interests are protected.