We help design professionals negotiate contracts, protect their financial interests, prevent and resolve disputes efficiently, so they can focus on what they do best: serve society with excellent design and create the unique spaces that define our lives.
Jeremy Baker is honored to serve as a liaison to the AIA Contract Documents Committee, a role he has enjoyed for years, having first offered his suggestions for ways to improve draft and unpublished versions of forthcoming AIA contract documents in 2015.
Contract Negotiation and Project Delivery
Much of our work begins with contract drafting and negotiation. We regularly work with the full suite of AIA contract documents and tailor them to the realities of each project and client. We have developed customized suites of template agreements for design firms, including tailored versions of both AIA and non-AIA contract templates for our clients repeat use. In fact, Jeremy is prouder of his template terms and conditions (T&C) document that our architect clients attach to their proposals to owners than any other contract document he has ever drafted.
We have guided architect clients through negotiations on projects such as a $70 million mountain resort development structured under a suite of AIA master agreement and service order documents, and a $165 million 200,000 sq. ft. science and healthcare research facility with a $13 million architect’s fee. We have also negotiated contracts for a $300 million two-tower mixed-use project, a $160 million thirty-story luxury condominium tower, a $45 million historic theater renovation, and a $40 million hotel in a ski resort town.
Our ultra high-end single-family home contract negotiation experience for architects includes a 17,000 sq. ft. mountain compound with a $15 million construction budget and a $2 million design team fee, an 8,500 sq. ft. single-family home in the mountain west with nearly $1 million in design fees, a 10,000 sq. ft. vacation home with a $3 million design professional fee, and a $17 million home designed to house an extensive art collection. We have also negotiated agreements for multifamily and senior housing, including a $41 million 200-unit urban mixed-use project, a $45 million ten-building multifamily development, a $40 million senior housing facility, and a $60 million mixed-use project in an upscale beach town.
Our contract negotiation work for architects also includes commercial and entertainment projects such as a $16 million luxury auto racing club, an $11 million casino redevelopment, and a $16 million renovation of a private clubhouse. Our institutional and public work for architects includes negotiating contracts for a $15.5 million adaptive reuse of a 50,000 sq. ft. university building, a $29 million two-phase school project, a $25 million public elementary school annex and renovation, and a $40 million multi-phase charter high school.
In the industrial sector, we have negotiated agreements for an $11 million manufacturing and office facility, a $15 million corporate headquarters improvement project, a 100,000 sq. ft. cannabis cultivation and processing facility, and master services agreements with Fortune 500 pharmaceutical companies and publicly traded mobile network operators involving data centers. We also represented an architecture firm in negotiating an agreement with a design-builder for a $20 million multi-phase distribution center reconstruction.
Breadth of Sectors
Our work for architects spans many major sectors and project types.
In the commercial sector, we have handled high-rise office towers, historic theaters, casinos, museums, and retail redevelopments. In the industrial sector, we have worked on logistics, distribution, warehousing and cannabis cultivation facilities, and pharmaceutical plants. In the institutional sector, our work includes schools, adaptive reuse of educational buildings, childcare centers, university laboratories, administration buildings, and hospital renovations. In the residential sector, we represent clients on multi-family developments, condominiums, modular housing, and ultra high-end single-family homes.
AIA Contract Experience
We regularly negotiate and provide counsel under the full range of AIA contract forms for architects and engineers, including:
AIA Document B161-2022, Standard Form of Agreement Between Client and Consultant for Design Consulting Services where the Project is Located outside the United States
AIA Document C403-2021, Standard Form of Agreement Between Client and Consultant for Design-Assist
AIA Document C106-2022, Digital Data Licensing Agreement
AIA Document E201-2022, Building Information Modeling Exhibit for Sharing Models with Project Participants (Model Versions may be Enumerated as a Contract Document)
AIA Document E202-2022, Building Information Modeling Exhibit for Sharing Models with Project Participants (Model Versions may not be Enumerated as a Contract Document)
AIA Document E205-2022, Architects’ Scope and Responsibility Matrix
AIA Document E401-2022, Building Information Modeling Exhibit for Sharing Models Solely Within the Design Team
AIA Document G203-2022, Building Information Modeling Execution Plan
AIA Document G204-2022, Model Element Table (CSI UniFormat)
AIA Document G205-2022, Abbreviated Model Element Table (CSI UniFormat)
AIA Document G801-2017, Notice of Additional Services
AIA Document G802-2017, Amendment to the Professional Services Agreement
Many of our architect clients retain us as outside general counsel, meaning we stand by to advise them over years and decades, and an open-ended engagement, on many issues that arise in their studios and on their projects.
We have counseled design professional firms in state licensing board complaints, in bogus copyright infringement claims brought by serial litigants seeking to shake our clients down for unjust settlements, and on employment and insurance matters. We have advised architects on Initial Decision Maker (IDM) responsibilities under AIA Document A201-2017, General Conditions of the Contract for Construction. We have guided design firm clients through structural deficiencies that created urgent health, safety, and welfare concerns, unpermitted demolition resulting in unsafe conditions and work stoppages, and multi-project disputes involving significant unpaid architectural and engineering fees.
We have negotiated favorable early project exits for design firm clients, including a resolution of a private school renovation dispute in which the project owner paid our architecture firm client a six-figure licensing fee for the right to continue to use its instruments of service and gave our client a complete release of all future design liability after the owner elected to change design teams. We often advise architects on lender consents, consultant agreements under AIA Document C401-2017, Standard Form of Agreement Between Architect and Consultant, and team restructuring when project financing or consultant arrangements change.
Early, Cost-Efficient Dispute Resolution
Our work for architects and engineers often involves preventing and resolving disputes in ways that protect both their financial interests and their reputations. We are well-versed in professional liability insurance, which is important for owners and design professionals alike. When we negotiate design professional agreements – in the rare cases when our clients run into design malpractice disputes – we work so they won’t be surprised by uninsurable terms in their contracts which threaten their professional liability insurance coverage.
We pursue early, cost-efficient dispute resolution, beginning with negotiation and progressing to mediation, arbitration or litigation when that best serves the client’s goals. In one matter, despite years of unpaid fees on a 63-story mixed-use skyscraper, we first sought amicable resolution with the real estate developer project owner but, when litigation became necessary, we secured a $1.55 million court judgment for unpaid architectural and engineering fees.
We also guide design professional clients through the strategic use of mechanics liens to secure payment. In one case, we pursued a mechanics lien on a complex vertically subdivided mixed-use tower, helping the architect to recover about $1 million, nearly the full unpaid professional services fee, to forestall recording of the mechanics lien. In another, involving a high-end mountain resort, we pursued a hard-fought mechanics lien foreclosure lawsuit, overcoming aggressive and well-funded opposition and ultimately obtaining a favorable resolution to a matter involving $1.8 million in fees which our architect client earned and deserved to be paid.
Our dispute resolution work often integrates mediation, either as an alternative to or in parallel with arbitration or litigation. For example, we resolved a dispute between a project owner and our architect client that involved design malpractice allegations and outstanding fee claims for our client’s unpaid services, coordinating with professional liability insurers and defense counsel while achieving a mediated settlement that fairly compensated our client.
Where projects involve public owners or complex investor groups, we are ready to litigate aggressively when negotiations fail, but also emphasize practical outcomes. Whether through mediation, arbitration, litigation, or mechanics liens, we tailor the approach to the client’s situation, always with an eye toward early, cost-efficient dispute resolution, protecting the client’s professional reputation, and ensuring payment of earned fees.
By Number, Most of our Clients Are Design Professionals
Architects and engineers turn to us because every project and contract embodies both opportunity and risk, and because every dispute affects reputation and cash flow. Our role is to help design professionals profitably and safely focus on shaping the built environment.
Our representative experience includes projects totaling hundreds of millions of dollars of construction value across commercial, residential, institutional, and industrial sectors. Whether negotiating non-AIA or AIA contracts, enforcing mechanics lien rights, defending against design malpractice claims, or protecting intellectual property, we provide the depth of experience necessary to protect architects and engineers in the complex environment where design and construction intersect.
To learn more, contact an architect and engineers lawyer at Baker Law Group LLC today.
Common FAQs from the Architect Industry
What Risky Contract Terms Concern Smart Architects and Engineers?
Contact terms that take design professionals outside the protection offered by their professional liability insurance. Most of the money in design and construction runs through contractors. This means architects and engineers rarely have the funds to settle design defect claims. Design professionals who face claims that are uninsurable under professional liability insurance policies can be forced out of business. Also, real estate developers and project owners whose claims are not covered by an architect’s or engineer’s professional liability insurance might win their claims but achieve no monetary recovery. It is in everyone’s interest for the terms in architects’ and engineers’ contracts to be insurable.
Coordination. While it is appropriate for the lead architect or engineer to accept a certain level of obligation for coordinating the design of the overall project, often, liability for design team coordination can be set out in vague contractual terms. This creates a risk that creative attorneys will blame the lead designer for the mistakes of others, for failing to properly “coordinate” their work. Few design professionals consider this risk when they vaguely agree to coordinate the design. When they think about coordination, many designers envision running meetings and facilitating communications between the owner, contractors, and other design team members – NOT the risk of being blamed for the design errors of others. This risk is acute when the project owner directly contracts with some members of the design team, including design-build MEP/FP contractors.
Accessible design. The Fair Housing Act and Americans With Disabilities Act impose certain responsibilities on design professionals that go beyond the typical kinds of liability exposures architects and engineers face in negligence claims. You should confer with your attorney before agreeing to the client’s terms and conditions for accessible design to ensure that they are both fair and legally valid.
Jeremy Baker helps architects and engineers negotiate contracts with real estate developers and project owners to achieve a fair and balanced allocation of risk – focusing on who can best manage those risks and the cost-benefit of the deal.
Can Architects Help Protect Owners from Construction Project Problems?
When the project owner hires them directly, an architect can play a key role in preventing problems, especially during the construction phase. They can:
Visit the site and confirm whether the work performed is consistent with the design
Review and approve contractor requests for payment
Support the owner at project closeout by preparing the punch list (minor corrections that the contractor must make before the project is declared complete)
Having an architect handle these matters can help ensure the integrity of the completed project.
Should Designers’ Proposals Have Terms and Conditions on the Back?
Architects, engineers, and contractors should put the terms and conditions under which they propose to do the work on the backside of the proposal page.
The reason is that in the construction industry, it is common for work to start before a well-thought-out construction contract is in effect. For example:
Initial drawings are requested from architects so that the project owner can obtain a construction loan
Contractors are asked to do some preliminary site work
Legally, a contract exists as soon as any type of work begins, especially if money is exchanged. This creates the question: if a problem arises during the project and a thoughtful contract has not been signed, what are the terms and conditions of the contract that this preliminary work created?
When there are terms and conditions on the back of the proposal, a court or arbitrator may conclude that they are included in the formed contract and make its/their decision accordingly.
Why Are Architects and Engineers Scared to Build What They Design?
Some of Jeremy’s Recent Contributions
Mechanics Liens and Other Payment Avenues During COVID-19, AIA Contract Documents Video Podcast (April 28, 2020)
Using Mechanics Liens to Get Paid: A Primer for Architects In the COVID-19 Era, AIA Chicago Webinar (April 7, 2020)
Anatomy of Indemnity and Copyright Clauses: WhatArchitects Should Know, AIA Chicago, Chicago, IL (March 18, 2020 – COVID-19 Postponed)
Understanding AIA Document A201-2017, the General Conditions of the Construction Contract, Berkley Design Professional Webinar (June 13, 2019)
Protecting the Design Professional with Insurance and Contract Provisions, ABA Tort Trial and Insurance Practice Section, Chicago, Illinois (Feb 7, 2019)
Design Professional Liability Exposure, Construction Litigation Dispute Resolution, IICLE Seminar, UBS Tower, Chicago, Illinois (Dec. 12, 2018)
AIA’s Digital Practice Documents: Managing the Risks of BIM and Digital Data, AIA Chicago Presentation, Chicago, Illinois (Nov. 8, 2018)
Professional Liability Law, Managing Engineering Liability and Risk, Halfmoon Education, Lombard, Illinois (May 30, 2018; Oct. 25, 2018)
Using AIA’s Digital Practice Documents to Manage the Risks of BIM and Digital Data, ABA Forum on Construction Law – “Hot Topics” Webinar (May 16, 2018)
The New Role of the AIA’s BIM and Digital Practice Documents, ACEC Annual Convention and Legislative Summit, Washington, D.C. (Apr. 17, 2018)
Chapter 1 – Responsibilities and Liabilities of Architects and Engineers for Construction Failures, Construction Dispute Litigation 2018 Edition, IICLE (Mar. 2018)
Using AIA’s Digital Practice Documents to Manage the Risks of BIM and Digital Data, ABA Forum on Construction Law, “Hot Topics” Webinar (Dec. 6, 2017)
