Vol. 6 No. 10		October 1987

Agreements drafted by attorneys for your clients are likely to be one-sided. That is how the game is played. Your role is to come up with your own list of desired benefits. The expectation is that the ensuing negotiations will produce a mutually satisfactory meeting of the minds.

Reviewing the writings of your client's attorney is not your greatest challenge. Overreaching is generally obvious, and modifications for the purpose of negotiating key points can easily be drafted. Far less obvious are the missing elements--provisions which would afford you with important protections but for the fact that they have been omitted. These missing elements are easy to overlook, in no small part because your attention has been neatly diverted to salvaging something workable from what is actually there.

Here is a checklist of reasonable limitations on your risk and responsibility, limitations frequently discarded by your clients. You might use this list as a point of reference in your initial review of client contract forms. It is not a substitute for the advice of competent counsel, but it just may assist you in taking important first steps toward a genuine meeting of the minds.

Does your agreement provide for an equitable adjustment of fees in the event the project is suspended by the owner and later resumed? Does it provide for a financial penalty for termination at the owner's convenience? Why not?

What recourse do you have in the event your fees are not paid promptly? Have you given up your lien rights? Do you have the right to stop work without liability for consequential or other damages?

Does your agreement clearly distinguish between Basic and Additional Services? Is the list delineating Additional Services as complete as you can reasonably make it?

Has your client shifted responsibilities you would normally treat as Additional Services into Basic Services? Have you included the associated costs in your fee?

Does your agreement include provisions which will enable you to control substitutions? Does it limit the time you will be expected to spend evaluating substitution requests to some reasonable amount?

Are the limitations on your ability to predict construction costs clearly stated? Do they include mutual recognition that you have no control over the costs of labor, materials, or equipment, over future market conditions, or over the contractors' bidding methods? Does the language make clear that your estimates cannot be guaranteed; that you are not representing that the actual costs of construction will not vary from your estimates or from the owner's budget?

If your agreement calls for a fixed limit on construction costs, does it allow you to include contingencies, to make minor adjustments in the scope or the quality of the project, to control the selection of materials, equipment, systems, and types of construction? Does it provide for alternate bid items which can be easily deleted, as necessary, to reduce costs?

What happens if the fixed limit is exceeded by the bids? Is your responsibility for the consequences limited in some reasonable way--to an obligation to redesign, for example? Is the owner required to cooperate in revising the project scope and quality as may be necessary to bring costs into line?

Is your client seeking greater assurances about construction costs than you can reasonably deliver? Can you provide, instead, that the owner retain an independent cost estimator as a means of securing those additional assurances?

Does the agreement contain an unequivocal statement of nonresponsibility for the means, methods, sequences, techniques, and procedures of construction and for the contractor's safety precautions in connection with the work?

Are your responsibilities in the field clearly spelled out, and are the limitations on your ability to guard against defects and deficiencies in the work clearly stated?

Does the agreement make clear that you neither control nor supervise the work on the site; that you are not responsible for errors and omissions of the contractor, nor for his or her failure to keep the work on schedule or carry it out in accordance with the contract documents?

Is your responsibility for reviewing shop drawings, samples, and other contractor submittals limited to those submittals required by the Construction Contract?

Does your agreement contain a disclaimer of responsibility for the discovery, presence, handling, removal, or disposal of (or the exposure of persons to) hazardous or toxic materials at the site?

Does the agreement call for the preparation of Record Drawings? If so, does the language make clear that those drawings will be prepared, in part, based on information furnished by others--information which you will not be in a position to verify and for which you cannot be responsible ?

Does your agreement provide for the transfer of ownership of your documents? If so, does it include adequate protections against the consequences of misinterpretation, modification, or misuse by others in the completion of the project? Against reuse on other projects?

If you are being required to indemnify your client, is your obligation restricted to the consequences of your negligence, at least as respects your professional performance?

Does your agreement contain a mutual waiver of subrogation for damages covered by property insurance? Does it call for that waiver to be extended to consultants and subconsultants? To contractors and their subcontractors?

Is there a clear statement in the agreement that it is for the exclusive benefit of the parties; that it does not create a contractual relationship with or exist for the benefit of any third party--including contractors, subcontractors and their sureties?

Does the agreement specify that any applicable statutes of limitations begin to run on the date of substantial completion?

Every project is different, and this checklist, of necessity, is only a partial list. It is intended to provide a series of benchmarks against which you might conduct an initial review of contracts drafted by others. In this limited application, we hope it proves to be of value to you in your efforts to negotiate fair and equitable agreements.