Speaking at the NYS American Inst. of Architects Conference is one of my 2008 professional highlights

Lots of interesting things happened professionally for me in 2008, but one of the most interesting was being asked to be a speaker at the New York State American Institute of Architects (AIA) convention held in Westchester. I chose to speak about contracts. Most of the time when people speak about this topic, they only discuss how to fill in an AIA form contract and what the provisions mean. I wanted to do something a little bit different. Instead, I spoke about the kinds of changes that people make to the form documents and what the effect is of those changes. Being able to electronically edit documents makes it very easy to make changes. Little changes here and there may enhance the document; however, as the number and extent of the changes grow, the document starts to change radically and the standard of care that an architect in New York state is typically held to may vary considerably. I negotiate contracts for both owners and architects at different times, of course. When I represent architects, I find that there is a direct correlation between the dollar value of the project and how many pages of changes I see proposed by the owner's legal counsel. If the owner's legal counsel goes too far with these kinds of changes, it can make it impossible for the architect to both do their job and get paid. A lot of these proposed changes are an attempt to "push the envelope" and see how far they can push the architect, before they back off a bit and reach a more "equitable" arrangement. Basically, architects are held to the standard of care maintained by their colleagues in the state in which they practice. Problems arise when owners want architects to "guarantee," "warrant," "certify" and "represent" things. Asking an architect for services and representations which may not be covered by their insurance policies is never a good thing for either side. Another example are provisions that say things like, the architect will not be paid additional fees, in the owner's sole discretion, for services "customarily" provided by architects. That sounds like a dispute waiting to happen. Another common one is requiring the architect to continue working whether they are paid or not and regardless of the amount being held. Some owners want the right to terminate, based on their determination that the architect has failed to perform, then to have the architect wait until there has been a trial before they are paid. The parties must be able to negotiate a "fairer" way of dealing with one another. Architects typically observe the work as it is being done to see if their plans are being followed. That is not the same as "supervising" the work the way the contractor's foreman might do. I have seen modifications pushing the envelope and asking the architect for "deliberate and thorough" site visits. Other times it has gone the other way with owners not wanting to spend money on having the architect make site visits and asking them only to visit when "requested." Naturally when something goes wrong, the owner still feels that the architect should have noticed it at one of the visits. The other big variable in all of this is the conduct of the parties. You can spend hours drafting a contract, but if the parties start to work together without one, it makes for a very complicated situation if there is a dispute. The same thing can happen when there is a proposal that the parties intend to follow up with a contract, but never do, yet they follow the payment terms and other provisions of the proposal as though it was the signed contract. Both owners and architects need to work together to arrive at a fair contract, which is workable for both sides. C. Jaye Berger, Esq. is the founder of Law Offices C. Jaye Berger, New York, N.Y.