When undertaking a construction project, it is important for owners to have a contract that provides them with protection and aligns with both California construction laws and the Education Code. More times than not, the architect or contractor will offer American Institute of Architects template documents, generally known as AIA Documents or AIA Contracts, for execution. Although AIA intends for these templates to simplify the construction agreement process, failure to thoroughly review and modify the AIA Contract to align with your specific project may create problems in the event of a dispute or cause the project to become noncompliant with California laws. School and college project owners should, for example, take the following into consideration prior to executing an AIA Contract:
- California Education Code Section 33193 outlines a contractor’s obligations to install physical barriers to ensure student safety. Alternatively, the contractor may conduct background checks pursuant to Education Code Section 33192. The standard AIA Documents do not address these issues. The owner should request that provisions addressing student safety are added to the AIA Contract.
- Owners may enter into an AIA Contract with an architect and subsequently enter into a separate agreement with the contractor. When entering into the architect agreement, owners should dictate what they expect from the architect during construction. When entering into the construction agreement, any obligations expected from the architect outlined in the construction agreement should align with the original agreement with the architect. If the two agreements do not align, this may cause confusion as to which party is responsible for certain tasks, which may cause disputes or delay the project.
- The AIA Contract should clearly outline the contract sum, how that contract sum is calculated, any retainage, and the payment process. The contract sum may be a flat rate or based on the cost of the work. The AIA Contract should clearly reflect whether the contractor should submit payment applications to the Architect for the Architect’s certification or whether the owner plans to skip that step. Owners should ensure that its obligation to make progress payments is limited to undisputed completed work and materials purchased and delivered, as evidenced by a properly supported and timely submitted payment application.
- It is imperative that the documents that make up the “Contract Documents” are specifically, fully, and accurately identified in the AIA Contract, including the date, version, title and author, and attached to the AIA Contract. This will ensure all parties are on the same page and will help resolve disputes if all documents are clearly identified and incorporated into the AIA Contract.
When presented with AIA Documents, a school or college should consult with legal counsel to identify the contract modifications needed to ensure the school’s or college’s interests are protected.
