Vail law: Role of the architect in construction agreements
Vail, CO Colorado
VAIL, Colorado –Architects are omnipotent. Especially when it comes to their powers under standard construction agreements, and the agreement form used by the American Institute of Architects in particular.
As you might have guessed, this group looks out, primarily, for… well, architects. Yet despite their understandable slant, these contracts are broadly employed and widely used. With some tweaking, they are largely comprehensive documents and are generally even-handed.
To understand construction agreements in general, and the role of the architect in particular, one must understand the inherent tensions underlying these agreements. Key to understanding is recognizing that, unlike many contractual arrangements, the relationship contemplated under most construction agreements goes three ways. If I agree to sell you my car and you agree to buy it, for example, there is a contractual arrangement between us. In construction agreements, however, the relationship is triangular.
The architect has certain obligations to the owner who, in turn, has contractual obligations to the contractor who, in turn, has contractual responsibilities to both the owner and the architect. To take the complexity and tension this creates one step further, one must also consider the rights, obligations and responsibilities owed to any party by the various subcontractors and even sub-subcontractors who will likely be employed in completion of the project.
By the nature of the relationship, the architect is, primarily, the agent of the owner. The architect must look out for the owner’s interest above any other. Obviously, this puts the architect immediately at odds regarding the contractor, who is on his own and must look out for him or herself.
Despite the tension that arises from that relationship, the architect is invested with almost mystical powers under the standard construction agreements.
Not only is the architect the owner’s agent but he is also often the owner’s representative, the owner’s eyes and ears regarding the progress of the project. The architect is also the talent behind the project, who creates the vision and design for which the owner will pay and which the contractor will be obliged to bring to life.
If all this weren’t enough, the architect is generally invested with monitoring the progress of construction, detecting flaws and monitoring the status of the construction schedule. Also, the architect generally reviews and approves proposed change orders, authorizes additional time and approves the contractor’s applications for payment.
The architect is also invested with the authority to determine if and when a project is complete, which affects who gets paid, and when, and how much.
Despite his natural alliance with the owner, the architect is also at least the initial arbiter of any disputes between the owner and the contractor.
If he didn’t already have his or her hands full, the architect will generally review any testing which may need to be performed and will review engineering reports and recommendations. Many times, too, the architect will either perform interior design and/or landscape design services, or at least aid and oversee those who do.
A competent architect must posses myriad talents. He must possess the necessary creative spark and be detail-oriented. He must be practical and have a realistic grasp of costs and the financial repercussions of his design. The architect must be a good businessman and be able to trace, monitor and understand the considerable flow of paper that construction projects necessarily generate. Too, he must be adequately schooled in mechanical, structural, and electrical engineering and must understand the implications of soils and environmental testing. Lastly, the architect must be part diplomat and must have at least a general understanding of contract, real estate and construction law and be able to work competently and seamlessly with the owner, banks and other lenders, general and subcontractors, governmental authorities and inspectors, engineers, zoning and design review boards, city councils, landscapers and interior designers, accountants and, perhaps most challengingly, lawyers
Architects really are omnipotent. And a competent, involved one is worth his weight in gold.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at email@example.com.
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