2009 ASLA Annual Meeting and EXPO Introduction to the (Almost) New ASLA Standard Contract Friday, September 18, 3:30PM ‐ 5:00 PM Handout Contents: Overview of Presentation Copy of PowerPoint Presentation Shinnerer’s Commentary on Selected Provisions of the ASLA Standard Form Contract Presenters: Vaughn B. Rinner, ASLA ‐ The LandMark Design Group, Inc. Member of ASLA Professional Practice Committee and Contract Subcommittee Frank Musica ‐ Victor O. Schinnerer & Company, Inc. Liability Insurance for Landscape Architects Representative Suzanne Coleman ‐ Vince Zucchino Associates ASLA Standard Contract User (with plenty of questions…..) Learning Objectives: Provide an overview of what is included in the contract document. Understand the way in which the standard contract is to be used. Understand that contracts assist in the execution of the project by setting forth the expectations of the landscape architect and the client. Develop a framework for describing the services that will be provided and how the project will be done. Discuss issues with utilizing the contract document and provide examples of use of the documents. Background: For many years there has been demand on the part of ASLA members for legal documents similar to those provided by the AIA, but specifically geared to landscape architectural practice. The Professional Practice Committee of the ASLA formed a subcommittee to work with an attorney to create the first of these documents, the ASLA Standard Form Contract. The forms were released on April 1, 2008. The contracts were primarily created for the benefit of the many landscape architects who are small business owners, since large firms often have developed their own contract forms. However, they may be useful to landscape architects in any size firm. Two documents were created: Standard Form Contract for Professional Services between Landscape Architect and Client and Standard Short Form Contract for Professional Services between Landscape Architect and Client. The two documents emerged through committee discussions about the varying nature and scope of landscape architectural projects. A “short” version of the standard contract was created for use on smaller scale projects where a client, such as a residential property owner, Handout Introduction to the New ASLA Standard Contract Friday, September 18, 3:30PM ‐ 5:00 PM Page 2 of 5 might be overwhelmed by the size of the standard contract. The contract also creates confidence in the contract form on the part of the client since the form is generated by a professional organization. Both contracts include the fundamental provisions needed, broadly summarized ‐ to define the responsibilities of the client and the landscape architect, manage client expectations, and manage liability. The goal of the committee was to generate a simple, balanced agreement to establish a clear understanding of the scope of the work. Since many landscape architectural clients are relatively unfamiliar with our practice and how our work is accomplished, the contract also serves as an educational tool, a means of discussing all of the important decisions needed to fully define the project. Presentation Overview: There are three presenters for this educational session. Vaughn Rinner, ASLA is a member of the ASLA subcommittee that created the documents. She will provide an overview of the documents themselves and of the status of document use and updates. Frank Musica is with Shinnerer and will focus on the legal and liability issues of the contract and discuss the rationale behind liability provisions of the contract. He has provided a commentary ( which is included in these session handouts) on the contract document that elaborates on his discussion. Suzanne Coleman develops contracts for a landscape architectural firm (along with many other duties at the firm). She has used the contract for numerous projects, has adapted it as needed for various purposes, and has asked a lot of questions. She will present “the good, the bad and the ugly” of using the documents, including several case studies. Contract Form and Use: There are two parts to each of the contract forms, the document and guidance for the use of the contract document. Similar to other standard form contracts, the document itself consists of Preliminary Provisions, which include the basic information, and then attachments to provide specific detail: Preliminary Provisions Exhibit A – Client’s Program Exhibit B – Scope of Services Exhibit C ‐ Compensation Schedule Exhibit D ‐ Schedule of Services The guidance includes provisions regarding the relationship between the ASLA and the user of the contract form, for example: Handout Introduction to the New ASLA Standard Contract Friday, September 18, 3:30PM ‐ 5:00 PM Page 3 of 5 LEGAL AND INSURANCE COUNSEL
Because of the legal and insurance consequences of the contract,
consultation with an attorney and an insurance adviser is recommended
prior to contracting and with respect to the completion and modification
of the standard form. In addition to jurisdictional differences in the law,
counsel should be consulted with regard to changes in statutes,
regulations and case law affecting the contract.
USE OF THE ASLA FORM DOCUMENT
Because the integrity of the ASLA standard form is important to the
Association and its members, purchase and use of the document are
conditioned on the following provisions governing the license to use the
document.
License holders may not copy and/or distribute the document(s) to other
individuals or firms outside of their own practice.
Users of the standard form are required to maintain in their files, and to
provide to all parties on request, a full and complete PDF copy of the
original, unmodified standard form.
Guidance also includes definitions as used in the document, including the distinction between Client and Owner: Client
The nature of the Client’s authorization to enter into the agreement can have
serious implications with regard to decision making as well as payment. If one
person representing the Client approves a design or an increase in the scope of
services
while another does not agree, payment may be contested. Additionally,
the person signing the contract for the Client must have the power to actually
commit the Client and to authorize a change in services. This can be an issue with
government and commercial clients as well as clients who provide housing or
custom residential services.
Owner
Provisions from the Owner-Client agreement and/or requirements of a funding
source may need to be incorporated in this Agreement. Incorporation of such
provisions
may be in an exhibit to this Agreement.
Handout Introduction to the New ASLA Standard Contract Friday, September 18, 3:30PM ‐ 5:00 PM Page 4 of 5 Guidance also includes brief explanations of some of the provisions of the document, for example: AGREEMENT PROVISIONS
Project Budget
If the Client requires the Project to be designed to be built within a
specific construction budget amount and the Landscape Architect agrees
to meet this design requirement, the contract should expressly state the
requirement and the budget amount in a provision replacing the existing
1.7. This type of provision places the Landscape Architect at risk of
additional design and documentation work without the ability to charge
additional fees. The Landscape Architect should not agree to such a
provision without fully understanding the risk that should the
project bids exceed the budgeted amount, the Landscape Architect
may be required to redesign and revise construction documents at
no additional cost to the Client. files, and to provide to all parties on
request, a full and complete PDF copy of the original, unmodified
standard form.
Preliminary Provisions within the contract include: Client Owner Landscape Architect Project (general description) Program The following page shows the Preliminary Provisions of the form, which is filled in digitally. To date, 417 ASLA members and non‐members have purchased the documents, and there have been minimal issues and questions. There will be an update coming in the future that will address the issues that have been raised and any other issues or concerns the users bring to the ASLA. We encourage you to provide feedback on using the documents. In addition, the Small Business Owners Sub‐committee of the ASLA Professional Practice Committee will be generating additional documents in the future. We welcome feedback on what the needs of landscape architect practitioners are. ASLA Staff Contact: Susan Cahill [email protected] Handout Introduction to the New ASLA Standard Contract Friday, September 18, 3:30PM ‐ 5:00 PM Page 5 of 5 Preliminary Provisions of the form: Introduction to the
(Almost) New
ASLA Contract Documents
ASLA Annual Meeting and EXPO
Introduction to the New ASLA
Contract Documents
Presenters
 Vaughn B. Rinner, ASLA
The LandMark Design Group, Inc.

Frank Musica
Victor O. Schinnerer & Company, Inc.

Suzanne Coleman
Vince Zucchino Associates
ASLA Annual Meeting and EXPO
1
Learning Objectives





Provide an overview of what is included in the contract
document.
Understand the way in which the standard contract is to
be used.
Understand that contracts assist in the execution of the
project by setting forth the expectations of the landscape
architect and the client.
Develop a framework for describing the services that will
be provided and how the project will be done.
Discuss issues with utilizing the contract document and
provide examples of use of the documents.
ASLA Annual Meeting and EXPO
ASLA
Professional PracticeCommittee
Business Owner Support Subcommittee
 Dwayne Adams, ASLA - Chair - Alaska
 Bill Perkins, ASLA - New Mexico
 Vaughn Rinner, ASLA - Virginia
Susan Cahill, ASLA Staff
Cheryl Terio Esq. - Legal Consultant
Documents released April 1, 2008
ASLA Annual Meeting and EXPO
2
General Purpose of Contracts

Manage Owner Expectations

Define Responsibilities

Manage Liability
ASLA Annual Meeting and EXPO
Why ASLA Contracts?


Good contractual arrangements are an essential
component of sound professional practice
Landscape Architecture is similar to other design
disciplines but also unique
ASLA Annual Meeting and EXPO
3
Contract Forms to Date
Design and Construction Phase Services
ASLA Annual Meeting and EXPO
Standard Form Contract



Simple and Balanced Agreement
Contract as an Educational Tool
Importance of a Clear Understanding
ASLA Annual Meeting and EXPO
4
Two Contract Forms
ASLA Annual Meeting and EXPO
Guidelines and Contract Forms
Each contract form has a separate set of guidelines.
GUIDELINES FOR STANDARD FORM CONTRACT
FOR PROFESSIONAL SERVICES
BETWEEN LANDSCAPE ARCHITECT AND CLIENT
2009 Edition
These Guidelines are for the information and convenience of
the users of the ASLA Standard Form Contract for
Professional Services Between Landscape Architect and
Client, published in January 2008. The Guidelines are not
part of the agreement, nor are they commentary on or
interpretation of the standard form.
ASLA Annual Meeting and EXPO
5
Definitions
Client
The nature of the Client’s authorization to enter into the agreement can have serious
implications with regard to decision making as well as payment. If one person
representing the Client approves a design or an increase in the scope of services
while another does not agree, payment may be contested. Additionally, the person
signing the contract for the Client must have the power to actually commit the Client
and to authorize a change in services. This can be an issue with government and
commercial clients as well as clients who provide housing or custom residential
services.
Owner
Provisions from the Owner-Client agreement and/or requirements of a funding source
may need to be incorporated in this Agreement. Incorporation of such provisions may
be in an exhibit to this Agreement.
ASLA Annual Meeting and EXPO
Standard Contract Provisions
Project Specific Information

Exhibit A – Client’s Program

Exhibit B – Scope of Services

Exhibit C – LA’s Hourly Compensation Schedule

Exhibit D – LA’s Schedule of Services
ASLA Annual Meeting and EXPO
6
Major Elements







Client
Owner
Landscape Architect
Project-Specific Information
Scope of Services
Budget
Compensation
ASLA Annual Meeting and EXPO
Phases







Site Analysis
Schematic Design
Design Development
Construction Document
Bidding
Contract Negotiation
Construction Contract Administration
ASLA Annual Meeting and EXPO
7
Supplemental Services




Pre-design
Design Phase Limitations
Construction Phase Services
Post-Construction
ASLA Annual Meeting and EXPO
Rule of Contracts
You get what you negotiate not necessarily what you deserve.
ASLA Annual Meeting and EXPO
8
The Legal Status of Landscape
Architecture Firms
LEGAL AND INSURANCE COUNSEL
Because of the legal and insurance consequences of the contract,
consultation with an attorney and an insurance adviser is
recommended prior to contracting and with respect to the completion
and modification of the standard form. In addition to jurisdictional
differences in the law, counsel should be consulted with regard to
changes in statutes, regulations and case law affecting the contract.
ASLA Annual Meeting and EXPO
Tort and Contract Law

Basic protection of negligence standard



Legal framework of protection
Based on standard of care
Freedom to assume contractual
obligations


Changing or creating rights
Exceeding normal legal liability
ASLA Annual Meeting and EXPO
9
Negligence and Liability
Was there a breach of a duty?



What duty existed?
Was the standard of care met?
If there was a breach of a duty, did it
cause damage?



Can the damage be traced to the breach?
Could such damage have been expected?
ASLA Annual Meeting and EXPO
Breach of Contract

Did a valid contract exist?




Could the parties enter into a contract?
Was there an agreement?
Was there consideration?
If a contract existed, was it breached?


Was there a material failure to perform?
If not performed in substantial compliance, what is an
adequate remedy?
ASLA Annual Meeting and EXPO
10
Breach of Warranty






Was a promise made about time, cost, result?
Was there a right to rely on it?
Did the party actually rely on it?
Did the promise prove to be false?
What harm did reliance cause?
What remedy is adequate
ASLA Annual Meeting and EXPO
Other Causes of Action

Consumer protection laws

Fraud

Misrepresentation

Concealment of material fact

Product liability
ASLA Annual Meeting and EXPO
11
Basic Contractual Requirements
and the ASLA Contracts
ASLA Annual Meeting and EXPO
Include Minimal Requirements
in All Contracts
Any basic contract should include:





Identification of client and contract authority
Specification of a negotiated scope of services
Determination of the amount of compensation and
payment procedures
Statement of the time for performance and method to
modify time constraints
Inclusion of a dispute resolution mechanism
ASLA Annual Meeting and EXPO
12
Recognize the ASLA Standard
Contracts as Valuable Tools

ASLA Contracts are:





Equitable but protective of profession
Clear and concise
Usable with only project-specific changes
Educational in any negotiation of owner-generated
contracts or modifications
Other contracts can be used if crafted for
projects and profession
ASLA Annual Meeting and EXPO
Use the ASLA Standard
Contracts


All Landscape Architects should have a basic
understanding of the background for the terms
and conditions
Provisions can be modified to meet the needs of
clients but changes must be made carefully



Contracts must be internally consistent
Modifications can extend contractual obligations
beyond normal legal liability
Insurance might not cover assumed risks
ASLA Annual Meeting and EXPO
13
Advice and Questions When
Using the
ASLA Contracts
ASLA Annual Meeting and EXPO
Advice and Questions




Know the Project Client
Define Your Scope of Services
Protect the Standard of Care
Beware of Giving or Implying Estimates
ASLA Annual Meeting and EXPO
14
Advice and Questions



Be Sensitive to Time Commitments
Recognize Vicarious and Coordination Liability
Situations
Limit Responsibility for Construction Site Safety
ASLA Annual Meeting and EXPO
Advice and Questions



Be Aware of Insurance Requirements
Carefully Commit to Contractual Indemnity
Provisions
Limit Liability for Consequential Damages
ASLA Annual Meeting and EXPO
15
Advice and Questions



Recognize the Value of Ownership of Copyrights
and Design Materials
Plan for the Resolution of Disputes
Preserve Rights in Suspension or Termination
Situations
ASLA Annual Meeting and EXPO
Emerging Risks in Contracts

Design-Build



Stimulus Projects


Contractually Assumed Exposures
Difficulties in Recognizing “Client”
Special Documentation and Reporting
Public-Private Partnerships


Extension of “Window of Vulnerability”
Flow-down Provisions
ASLA Annual Meeting and EXPO
16
ASLA CONTRACTS
A Left-Brain Function in a
Right-Brain World
ASLA Annual Meeting and EXPO
A Left Brain Person in a Right
Brain World

Federal Reserve Bank


Bank Atlantic


Law Makers
Political Consultant


Financial Servicers
Florida Legislature


Regulators
Strategists
Vince Zucchino Associates
Landscape Architects
Design Professionals
ASLA Annual Meeting and EXPO
17
It Takes A Village…
LEFT BRAIN
Project Management
 Linear Functions



Contracts
Timelines
Accounting
RIGHT BRAIN
Project Design
 Creative Functions


Design
Spatial Visualization
ASLA Annual Meeting and EXPO
Before ASLA Contracts
OUR OPTIONS
 Hire / Retain Attorney
 Adapt AIA Contract
 Use / Adapt Past
Contracts




Pick a Contract
Pick a Legal Phrase
Pick a Format
Cut and Paste
ASLA Annual Meeting and EXPO
18
The Tipping Point
Why We Adopted ASLA
Renewal Application for Professional
Liability
For Members of Design Professionals
Association
“ Be advised that this program REQUIRES your use of a standard contract
that has been approved by YOUR attorney. On projects where you must
use a contract provided BY OTHERS, it is a requirement AT A MINIMUM
to have the INDEMNITY PORTION of that contract reviewed by YOUR
Attorney.”
ASLA Annual Meeting and EXPO
E & O Insurance Carrier
AN L.A.’S BEST FRIEND






Great Resource
Risk Avoidance Specialists
Protection
Guidance
Information
On-line Members Services



Sample Contracts
Review Exhibits / Addenda
Develop Relationship
ASLA Annual Meeting and EXPO
19
Why ASLA Contracts?








Easy to Use
Industry Customized
E & O Compliant
Technical/Legal Support
Annual Updates
Budget Considerations
Client Credibility
Why reinvent the wheel?
ASLA Annual Meeting and EXPO
ASLA Contract Packets
Short
Standard
Guidelines
Document
4 Pages
4 Pages
Contract for Professional Services
5 Pages
Page 01/18-11/18
Pages 12/18-18/18
Exhibit A: Client’s Program
Contract
A-1 (Not Included)
Exhibit B: Scope of Services
Contract
B-1 to B-6
Exhibit C: Rate Schedule
Contract
C-1 (Not Included)
Exhibit D: Schedule of Services
Contract
D-1
ASLA Annual Meeting and EXPO
20
EXHIBIT A: Client’s Program
Detailed Project Description and Program
SHORT FORM
STANDARD FORM
Preliminary Provisions
Exhibit A:


Page 1 “Project”
L.A. to Draft / Insert


Not Included
L.A. to Draft / Attach
ASLA Annual Meeting and EXPO
EXHIBIT B:
Scope & Supplemental Services
Are They Crystal Clear?

SHORT FORM



Articles 1.2 and 1.3
L.A. to Draft / Insert
STANDARD FORM




Included
Exhibit B
Articles 1.4 and 1.5
L.A. to Adapt
ASLA Annual Meeting and EXPO
21
EXHIBIT C:
Hourly Compensation and Rates for
Supplemental Services

SHORT FORM






Page 1
Preliminary Provisions
“Compensation”
Page 3, Article 4
“L.A. Compensation”
STANDARD FORM
Exhibit C:
 Not Included
 Attach In-House Hourly
Rate Sheet
ASLA Annual Meeting and EXPO
EXHIBIT D:
Schedule of Services
Schedule for Performance of L.A. Services

SHORT FORM



None
Page 2, Section 1.5
“L.A. shall perform
services as
expeditiously as is
consistent with
professional quality.”

STANDARD FORM



Included
Exhibit D
L.A. to Adapt / Attach
ASLA Annual Meeting and EXPO
22
How We Use Each Form
SHORT FORM


Small, simple projects
Types:



Med-large, complex projects
 Types
Residential/Parks
Schematics
Landscape/Planting Plans

Low-risk projects
Short-timeline

Individual contracts

STANDARD FORM




Residential

Commercial

Institutional
High-risk
Longer timeline
Hybrid contracts
ASLA Annual Meeting and EXPO
Formatting Issues


Formatting – MSWord Expert
Customize Headers / Footers





ASLA
Your Firm
Adding / Deleting Paragraphs
Adding / Deleting Exhibits
Copyrighted Material
ASLA Annual Meeting and EXPO
23
Don’t Try This at Home
Specialized Risks

When projects have special risks, consult with
E & O carrier:




Public Projects
ADA Compliance
Skate Parks / Playground Equipment
Wetlands
ASLA Annual Meeting and EXPO
Major Elements




Insurance Information
Indemnification
Consequential Damages
Dispute Resolution
ASLA Annual Meeting and EXPO
24
Poorly Crafted Contracts
Issues and Pitfalls

Client Misunderstandings




Dissatisfaction / Ill Will
Poor or No References
Loss of Revenue
Liability


Legal
Financial
ASLA Annual Meeting and EXPO
CASE STUDIES

#1 The Case of the Missing PARTF Dock

#2 The Case of the Ohio Scam King

#3 The Case of the Lapsed Mitigation
Agreement
ASLA Annual Meeting and EXPO
25
ASLA Standard Contract
IN CLOSING…..
ASLA Annual Meeting and EXPO
Document Status
Agreements have been purchased from 417
ASLA members and non-members from April
2008 through August 2009.
Questions and Issues – Very Few
 Issues with ability to edit document
 Font refinement
 Percentage format
Download:
http://www.asla.org/profpractice/standard_form_contracts.html
ASLA Annual Meeting and EXPO
26
Where do we go from here…
Other Templates Needed




Feasibility Analysis
Physical planning
Studies and Reports
? ? ?
ASLA Annual Meeting and EXPO
Copyright Materials
This presentation is protected by US and
International Copyright laws. Reproduction,
distribution, display and use of the presentation
without written permission of the speaker is
prohibited.
© The American Society of Landscape Architects
ASLA Annual Meeting and EXPO
27
Q&A
ASLA Annual Meeting and EXPO
28
Schinnerer ’s Commentary on
Selected Provisions of
The ASLA
Standard Form Contract
FOR PROFESSIONAL SERVICES BETWEEN
LANDSCAPE ARCHITECT AND CLIENT
For more information on the Schinnerer professional
liability and business insurance programs for
Landscape Architects, please contact Vanessa Cole
at 301-951-5455 or visit www.Schinnerer.com and
search for Landscape Architects
This publication was prepared by the education and management
assistance professionals in the Risk Management Department of Victor O.
Schinnerer & Company, Inc., the program administrator for the CNA
professional liability program for Landscape Architects. Nicholas
Colombo, a landscape architecture graduate student at Virginia Tech and
intern at Schinnerer, assisted in its preparation.
This Commentary cites portions of the American Society of Landscape
Architects Standard Form Contract for Professional Services Between
Landscape Architect and Client, 2009 Edition and the Guidelines for
ASLA Standard Form Contract for Professional Services Between
Landscape Architect And Client, 2009 Edition. Both publications are
copyrighted intellectual property of the American Society of Landscape
Architects and the excerpted provisions in this Commentary are used
with permission.
The form of this publication and comments by
Victor O. Schinnerer & Company, Inc. are copyrighted, 2009,
by Victor O. Schinnerer & Company, Inc.
This publication cannot be reproduced or redistributed in any form
without the permission of
Victor O. Schinnerer & Company, Inc.
Two Wisconsin Circle,
Chevy Chase, Maryland 20815.
Schinnerer can be contacted at [email protected].
Additional information can be obtained from www.Schinnerer.com or the
Schinnerer design professionals risk management website at
www.PlanetRiskManagement.com.
STANDARD FORM CONTRACT
FOR PROFESSIONAL SERVICES BETWEEN
LANDSCAPE ARCHITECT AND CLIENT
2009 Edition
Black, Indented Text is Existing Contract Language
Blue Italicized Text is Language from ASLA Guidelines
Green, Roman Text is Commentary from Schinnerer
Victor O. Schinnerer & Company, Inc.
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Preliminary Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Landscape Architect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Scope of Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Schedule of Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Article 1: Landscape Architectural Services . . . . . . . . . . . 11
Standard of Care (1.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Coordination (1.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Scope of Services (1.4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Approval of Services/Changes to Services (1.6). . . . . . . . . . . . . . . . . . . . . . . . 13
Opinions of Probable Construction Costs (1.7) . . . . . . . . . . . . . . . . . . . . . . . . 14
Construction Saftey (1.8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Article 2: Client’s Responsibilities . . . . . . . . . . . . . . . . . . . . . 17
Reliance (2.4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Approvals (2.6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Notice of NonConformance (2.7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Article 3: Ownership of Documents . . . . . . . . . . . . . . . . . . . 18
Article 5: Insurance Indemnification,
Consequential Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Insurance (5.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Indemnification (5.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Consequential Damages (5.3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ASLA Standard Form Contract With Commentary
Article 6: Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Article 7: Suspention/Termination . . . . . . . . . . . . . . . . . . . . . . 25
Termination (7.6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Termination for Convenience (7.7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Article 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Force Majeure (8.1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Assignment (8.3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Third Party Relationships (8.4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Governing Law (8.7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Additional Issues and Provisions to Consider . . . . . . . . . . 28
Appendix: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Comparison of ASLA and AIA Standard Form Agreements
Between Client and Design Professional
Victor O. Schinnerer & Company, Inc.
Introduction
Design professionals in private practice operate as commercial entities. Commercial
concerns, therefore, are integral to a profitable and stable professional practice.
Business terms in a professional service agreement include the scope and nature of
the services, the schedule for providing those services, and the compensation and
payment conditions for services and reimbursable expenses. The Standard Form
Contract published by the American Society of Landscape Architects has been
carefully crafted to address these three essentials of an agreement for services. In
addition, it provides an objective, equitable, and clear guide for the performance of
professional services by incorporating balanced terms and conditions. It also
emphasizes the professional nature of the services performed. In doing so, it
matches the contractual risk with the normal legal liability of a design professional
so that professional liability exposure is not replaced by uninsurable contractual or
warranty obligations.
This Commentary includes selected portions of the ASLA Standard Form Contract
and the ASLA Guidelines related to the Standard Form Contract. The interpretations
and annotations in this commentary are the observations of Victor O. Schinnerer &
Company, Inc., as a provider of professional liability insurance and are not endorsed
by the American Society of Landscape Architects as explanations or clarifications of
the contract language.
In addition to comments on the Standard Form Contract, this publication contains
two appendices. The first includes additional material on contractual issues and
their relationship to professional liability exposures. The second is a comparison
between the provisions of the ASLA Standard Form Contract and similar language in
the B102-2007TM and B104-2007TM owner-architect agreements published by The
American Institute of Architects.
ASLA Standard Form Contract With Commentary
5
Preliminary Provisions
Date
This Agreement is made as of
, 2009, between the Client and
Landscape Architect for the Landscape Architectural Services as
provided herein. Unless otherwise noted, this Agreement supersedes all
previous proposals, agreements, and negotiations between the parties.
The agreement is made “as of” the date indicated so that it will include any services performed
prior to signing the contract.
While it is not uncommon for design professionals to commence work on a project
based upon an understanding that the contract with the client will be executed in a
timely manner, the Landscape Architect (L.A.) must keep in mind that, without a
contract signed by both parties indicating mutual assent to the business terms and
conditions, it can be nearly impossible to ascertain the L. A.’s contractual liability,
to protect the work-product of the L.A., or to collect payment for services rendered
in the event that the client decides not to proceed with the project.
Client
Name
Address / City / State / Zip
Relationship to Project Owner
The nature of the Client’s authorization to enter into the agreement can have serious implications
with regard to decision making as well as payment. If one person representing the Client approves
a design or an increase in the scope of services while another does not agree, payment may be
contested. Additionally, the person signing the contract for the Client must have the power to
actually commit the Client and to authorize a change in services. This can be an issue with
government and commercial clients as well as clients who provide housing or custom residential
services.
On any project, the L.A. should identify the real client. Confusion over who has the
authority to accept and approve services and authorize payment often creates
disputes. Basic questions that should be addressed include the following:
❖ Does the party signing the contract have the authority to do so on behalf of the
client?
❖ Can the party signing the contract modify the contract—such as through the
authorization of additional services—on behalf of the client?
Victor O. Schinnerer & Company, Inc.
6
❖ Is the client a committee or other group entity that might have internal disputes
that could negatively impact the schedule for services, the acceptance of and
payment for services, and the close-out of the contract?
❖ Is there a clear leader and duly authorized representative of the group?
❖ Are the services being provided on a residential project where the client
representative with whom you communicate on a day-to-day basis might not be
the person who is in charge of making the payment for services?
❖ Is the client a government entity?
Has the project been approved by the necessary authorities? Are these
different from the Department procuring the work?
Have proper funds been authorized and allocated to the project?
Is the project subject to Federal or other provisions in order to be funded?
❖ Is the client an entity with a limited life and limited assets such as an LLC or
other special legal entity set up for the specific project?
❖ If the client is another professional or a construction entity, is the payment for
services tied to an event beyond your control?
❖ Is there funding in place and legally available for any additional services you
are asked to perform?
❖ Whether funding comes from a lender or other third-party, is someone other
than your direct client able to exert contractual rights against you?
❍
Are there performance or reporting requirements other than those directly
involving your client?
❍
Is there a third-party beneficiary mentioned in the contract, or could a thirdparty beneficiary be construed from the type of project?
Owner
The Client acknowledges that it is authorized to enter into this
Agreement pursuant to an agreement with the Owner of the Project.
ENTITY (❑
CORPORATION
❑
MUNICIPALITY
ADDRESS / CITY / STATE / ZIP (IF
❑
GOVERNMENT OR
❑
PRIVATE RESIDENCE—SELECT ONE)
DIFFERENT FROM CLIENT ADDRESS ABOVE)
Provisions from the Owner-Client agreement and/or requirements of a funding source may need to
be incorporated in this Agreement. Incorporation of such provisions may be in an exhibit to this
Agreement.
Incorporation by reference is an expedient for the inclusion of the specifics of one
document—a contract, reference publication, or information source—into another.
It can be accomplished without republishing the information or appending the
document. It is done by incorporating the cited information by reference to the
document in which it is contained. Incorporation by reference simplifies documents
ASLA Standard Form Contract With Commentary
7
such as professional service agreements, but the process also can lead to
misunderstandings, professional liability or contractual claims, and significant
losses.
Referring to Legal or Technical Information
❖ Contract may require L.A. to adhere to certain referenced standards or
constraints.
L.A. must be knowledgeable and familiar with these standards
Contract should clearly state the version, edition, or date of the standards or
constraints in question.
❖ Drawings and specifications prepared by L.A.s often refer to standard
specifications, manuals, and codes of technical societies
Helps describe materials, equipment, systems, standards, or quality.
Not intended to revise or supersede the terms of the contract.
Typically the referenced item is what is in effect at the time of the issuance
of the documents, or as of the date of the agreement; it is logical to specify
what edition or version of the material is incorporated by reference
Creating Flow-Down Provisions
❖ Interprofessional service agreements are common between design team
members.
❖ Referencing may also occur between prime professional service contract and
client’s agreement with construction contractor
❖ The prime design firm usually wants the contract requirements it has assumed
with the client also to be assumed by any lower-tier service provider.
Subconsultant must have a full understanding of the incorporated provisions.
Landscape Architect
ENTITY (❑
SOLE PRACTICTIONER
❑
PARTNERSHIP
❑
CORPORATION)
ADDRESS
CONTACT INFORMATION
If requested, the license, registration, or certification of the individual Landscape Architect may be
added.
A L.A. should realize that in a judicial proceeding, a client’s perceptions of the L. A.
could be used to establish liability. For instance, it is very important that the firm
clearly indicate its form of practice, its authorization to provide services, and the
legal qualifications of its professionals leading the project. If a firm is seen as
Victor O. Schinnerer & Company, Inc.
8
holding itself out as a different entity—perhaps it is practicing in an authorized
corporate form but implying to its client that it is a partnership—or is not clear on
its licensure, registration, or certification in the appropriate jurisdiction, the client
could allege misrepresentation, concealment of a material fact, or even fraud in the
inducement to contract.
Program
The Client’s detailed Program: project description, purpose, user needs,
functional and built elements, and the Client’s budget parameters are
set forth in Exhibit “A.”
Design and construction projects are complex. The objectives and priorities of the
client must be defined and clearly articulated within the context and constraints of
the project environment.
❖ Owner’s Program, Schedule, and Budget
Program description should contain sufficient detail to support clear
decision-making throughout the planning and design process.
If changes or refinements are needed, the program should be revised with
client’s written approval.
❖ Information on Existing Conditions
High-quality information provided by surveyors, geotechnical engineers, etc.
can significantly reduce uncertainty and variability associated with the
project’s cost and schedule
If the L.A. possesses the in-house expertise to perform some or all of these
specialty services, the agreement forms can be modified to include those as
services of the L.A. for an appropriate fee.
❖ Client’s Design Criteria and Standards.
Clients with ongoing construction programs may have standard design
criteria, details, and specifications that must be used when designing new
facilities or improvements.
The L.A. should inquire early about the existence of such design criteria and
standards so they can be smoothly integrated into the planning and design of
the project.
The L.A. is not, however, relieved of its normal duties of skill and care
simply because a client provides, or even insists on, the use of specific
details, design standards, or criteria.
Scope of Services
The scope of services to be provided by the Landscape Architect under
this Agreement and the Supplemental Services which may be provided
when requested in writing by the Client are described in Exhibit “B.”
ASLA Standard Form Contract With Commentary
9
A detailed list of services frequently included as the basic Scope of Services as well as services
frequently considered Supplemental Services, or beyond the anticipated services and requiring
additional compensation, is included as Exhibit B to this Standard Form. The parties should
carefully review these provisions as to their applicability to the Project. The listings may be
augmented or elements stricken as appropriate to the Project or otherwise agreed to by the parties.
The more specifically the anticipated scope of the Landscape Architect’s services can be described
at the time of contracting, the less chance of misunderstanding at some later point in the Project.
Some services may be incorporated in different phases, depending on the Project elements and/or
Project complexity.
The contract defines the relationship between the L.A. and the client, and
establishes their responsibilities to other project stakeholders, such as contractors,
permitting agencies, and insurance companies. A clear, precise definition of the
scope of services is essential for business and payment purposes, while an
ambiguous or unspecified scope may lead to a continuing enlargement or shifting of
the scope or to a dispute with the client caused by unfulfilled expectations. The
model Scope of Services provided in “Exhibit B” of the ASLA Standard Contract
should be considered a useful guide, but every scope will be different and must
address the particular goals, requirements, constraints, and realities of the specific
project. A good overall approach is to divide the services into four categories:
1) Basic services—those that are included
2) Additional services—those that will be provided at additional cost when
authorized.
3) Expressly disclaimed services—those that are not included and for which no
responsibility is established.
4) Client responsibilities—those that will be provided by the client at no cost to
the design professional and upon which the design professional can reasonably
rely.
Compensation
Compensation for Landscape Architectural Services performed under
this Agreement shall be a stipulated sum of $
plus Reimbursable
Expenses as defined in Article 4 and is subject to the provisions of this
Agreement. Supplemental Services, when requested in writing by the
Client, shall be compensated on an hourly basis at the rates provided in
Exhibit “C” or on the basis of a negotiated fee provided in an
amendment to this Agreement.
In this standard form the Landscape Architect’s compensation for the contracted services is termed
a “stipulated sum,” sometimes called a “lump sum” or a “fixed fee.” The stipulated sum is
exclusive of both Reimbursable Expenses and compensation for Supplemental Services. The
compensation provisions require modification if another payment method (e.g., “cost plus a fee”)
will be used. The Landscape Architect provides Exhibit C, the Landscape Architect’s Hourly
Compensation Rates Schedule.
Victor O. Schinnerer & Company, Inc.
10
Contracts should provide for the prompt payment for services, prevent the
unreasonable withholding of fees, and require the equitable adjustment or
renegotiation of fees for delayed or terminated projects. Most claims against design
professionals are brought by their clients, often relating to compensation amounts.
Not all agreements require “fixed fee” or “lump sum” compensation. In fact, “lump
sum” contracts can be quite risky, due to uncertainty associated with the
performance of design professional services. L.A.s might use methods such as cost
plus a fixed fee, fixed billing rates multiplied by hours charged to the contract, or a
method that acknowledges the value of the services to the client.
Receiving payment in a timely manner is essential to a firm’s financial health. At
times clients realize that they can jeopardize the very existence of a professional
service firm by withholding or delaying payment and use this power to coerce
reduced fees or uncompensated additional services. Establishing and enforcing
contractual payment provisions not only can keep a firm from being subjected to
such unethical treatment but can help a firm avoid professional liability claims.
Through properly-structured contracts, firms can:
❖ Preserve their right to payment;
❖ Reduce the need to surrender part of their fee; and
❖ Avoid the time, deductible costs, and insurance impact of retaliatory claims
brought by clients in response to the L.A.’s attempts to collect fees.
See “Additional Provisions and Issues to Consider,” in Appendix A, for further
discussion.
Schedule of Services
The schedule for the performance of the Landscape Architectural
Services under this Agreement is provided in Exhibit “D,” and is subject
to the provisions of this Agreement.
Requirements regarding the schedule or time for performance of services are
project-specific. The L.A. should be satisfied that any requirements are reasonable
and grant the ability to control and achieve compliance with them. Time parameters
cannot be stated as absolute, especially when the L.A.’s ability to meet a schedule
depends upon review by the client, a governmental agency, or a third party. “Time is
of the essence” clauses could convert any delay into a material breach of contract
that might justify termination by the client. Timely delivery of services may be a
material element of an agreement, but it should not establish a warranty. See also
the discussion of “Force Majeure” below.
ASLA Standard Form Contract With Commentary
11
Article 1
Landscape Architectural Services
1.1 Standard of Care
The Landscape Architectural Services shall be performed with care and
diligence in accordance with the professional standards appropriate for
a project of the nature and scope of this Project.
The law already holds design professionals to this applicable and insurable
standard of care. Including a restatement of the L.A.’s normal standard of care in a
contract can lessen the possibility that the client will create a contractual standard
that is onerous, inappropriate or simply uninsurable. Contractual commitments
above and beyond this standard, such as provisions that call for a design
professional to meet “the highest professional standard” or “the highest level of
professional care,” raise liability problems. An unreasonable or naïve client may
expect perfection; a knowledgeable client might use such language to make it
impossible for the L.A. to meet such a contractual obligation.
It is also important to be reasonable in marketing to prospective clients. Overselling
or declaring “expert” knowledge when that may not be the case raises client
expectations. While marketing material is not seen by law to change the standard of
care, the use of superlatives on the firm’s website, printed material, or personal
communications can raise client expectations and result in a dissatisfied client and
a dispute over the services or the result of the services. The real danger to a design
professional is if expansive language that could be construed as providing a
guarantee of result or a warranty of services is included in proposals, letters of
intent, reports or other communications with a client. Such language often is
incorporated by reference into the agreement for professional services and can
prove to be disastrous. When the language is based on superlatives, a higher
standard of care could be incorporated into the actual agreement; when guarantee
language is offered, there is no defense based on meeting a standard of care. And
there is no worse situation than promising in marketing material that professional
services will ensure an on-time and within-budget completion of the designed
project.
1.2
Coordination
The Landscape Architect shall coordinate the services of its consultants,
and shall cooperate with the Client’s representatives and separate
consultants in the best interest of the Project.
Projects are completed by teams that are often assembled only for the specific
project. This can involve subconsultants, independent providers selected by the
client, and other specialists whose services might be outside of the L.A.’s scope of
Victor O. Schinnerer & Company, Inc.
12
knowledge or expertise. Thus an L.A. could be responsible through vicarious
liability, because of a coordination responsibility, or under a theory of derivative
liability.
Vicarious Liability
A prime design professional is always responsible for the actions—including the
negligence—of those providing services through the prime design professional.
Professional liability insurance provides coverage for this vicarious liability
created by others providing services.
To prevent a loss to the L.A.’s firm, the management of interprofessional
consultants and subcontractors must be carefully managed. In all cases care
should be taken to select subconsultants:
❖ Who are qualified and capable of providing their services;
❖ Who will sign a written agreement with the L.A. that clearly delineates
duties, responsibilities, and other project-specific terms and conditions;
❖ Who do not attempt to shift risk to the L.A. by unreasonably limiting their
liability; and
❖ Who maintain professional and general liability insurance with appropriate
limits and will provide certificates of insurance evidencing coverage; or
❖ Who pledge significant assets (and have the financial strength to stand
behind them) through an indemnification provision in the contract with
them, such that if the L.A. is held liable for harm caused by the negligence
of others, the L.A. (or the L.A.’s insurer) can pursue them for contribution or
their professional and contractual commitments.
Coordination Liability
Signing a statement that has you assume responsibility for consultants under the
owner’s control is a different matter; it generates risks beyond your ability to
manage those risks. Without the ability to select and oversee the services of
others, your responsibility for their services should be disclaimed. While you
might not have vicarious liability, the client’s demand that you coordinate their
services—rather than simply cooperate with them as in the ASLA contract—may
subject you to a contractual obligation that is outside of professional liability
insurance coverage.
Derivative Liability
A L.A. might be found to be derivatively liable even if there is no element of
control over the services of another consultant. If the client only wants the
design professional to serve as a conduit for payment rather than actively
managing the services of a specific service provider, the contract structure
should protect the design professional from liability for activities over which it
ASLA Standard Form Contract With Commentary
13
has no real control. The specialty firm should sign a separate contract with the
client. The L.A.’s contract should be for professional services only and clearly
state the L.A.’s separate status. One of the professional services indicated as
being provided is serving as the conduit for payment. Responsibility for services
or work performed by, or billed to the client on behalf of any independent
contractor should be specifically disclaimed.
As the project is underway, the L.A. should keep all billings separate. Under no
circumstances should the L.A. include an administrative mark-up on the charges
of the independent contractor. If the L.A. is coordinating payment, it should
charge a separate administrative fee. Billing statements should indicate that the
charges of the subcontractor are submitted only for the administrative
convenience of the client and that no representation is made that the charges
are accurate. Contract language should include a statement by the client
acknowledging the above.
1.4 Scope of Services
The Scope of Landscape Architectural Services to be provided under
this agreement is detailed in Exhibit “B.”
Mutual assent on the scope of services to be provided is essential. The importance
of setting scope in consultation with the client cannot be overstated. If the client is
unsophisticated in its understanding of the duties and limitations normally involved
in the services provided, the consultation and negotiation over services and the
corresponding fees become a meaningful education that could lessen the
probability of contractual or professional liability claims. The ASLA “Exhibit B –
Scope of Services and Supplemental Services” should be used more as a guide than
a template or boilerplate. It is a method to achieve understanding as well as a
management tool for the conduct of professional services.
1.6 Approval of Services/Changes to Approved Services
The Landscape Architect shall proceed with a phase or design package
of the Landscape Architect’s services only after receiving the Client’s
written approval of the services and deliverables provided in the
previous phase and written authorization to proceed with the next
phase. Revisions to drawings or other documents shall constitute
Supplemental Services when made necessary because of Clientrequested changes to previously approved drawings or other
documents, or because of Client changes to previous budget
parameters and/or Program descriptions.
The client may not be the only entity with the capacity to approve or reject services.
The client’s lender, and especially government entities and regulatory authorities
may reject services or require additional design work. In landscape architecture, a
Victor O. Schinnerer & Company, Inc.
14
possible example might be a change in local regulations regarding specific
plantings near buildings, in response to wildfire concerns. Contract language should
make clear that, in addition to changes caused by the client, changes in
government regulations or third-party requirements that occur after execution and
necessitate alteration of the design should constitute “Supplemental Services.”
1.7 Opinions of Probable Construction Costs
Opinions of probable construction costs provided by the Landscape
Architect are based on the designer’s familiarity with the landscape
construction industry and are provided only to assist the Client’s budget
planning; such opinions shall not be construed to provide a guarantee
or warranty of the actual construction costs at the time construction bids
are solicited or construction contracts negotiated. Unless expressly
agreed in writing and signed by the parties, no fixed limit of construction
costs is established as a condition of this Agreement by the furnishing of
opinions of probable construction costs.
This provision is very carefully crafted to avoid uninsurable warranty claims and to
minimize misunderstandings over the cost of the work. Few clients have unlimited
or even highly flexible budgets for projects. The certainty of cost is always an issue.
L.A.s certainly can provide additional cost information, but must do so prudently
based on their expertise and with recognition by the client of the nature and value
of the cost information. Providing additional cost information will lead to an
increased, and justifiable, reliance on the L.A. and could result in claims. Some
clients will insist on a fixed limit of construction costs. This is especially true of
public-sector clients. The L.A. needs to be aware of the risks of agreeing to a fixed
construction budget (see below.)
The ASLA Guidelines provides an alternative which is the following:
If the Client requires the Project to be designed to be built within a specific construction budget
amount and the Landscape Architect agrees to meet this design requirement, the contract should
expressly state the requirement and the budget amount in a provision replacing the existing 1.7.
This type of provision places the Landscape Architect at risk of additional design and
documentation work without the ability to charge additional fees. The Landscape Architect should
not agree to such a provision without fully understanding the risk that should the project bids
exceed the budgeted amount, the Landscape Architect may be required to redesign and revise
construction documents at no additional cost to the Client. Landscape Architects should only
agree to provide services with this approach if they are prepared to accept this risk. The
replacement provision might read as follows.
1.7 Project Budget
The Client's budget for the construction of the Project, exclusive of design fees, is the fixed
amount of $ . The Landscape Architect agrees to design the Project so that construction
costs do not exceed this fixed limit. The Landscape Architect may include alternate bid
ASLA Standard Form Contract With Commentary
15
documents reflecting reasonable adjustments in the Project scope and materials as well as
contingencies for cost escalation to meet the budgeted amount. If the lowest bona fide
construction bid or negotiated proposal exceeds this budget amount, the Client shall either
(1) authorize in writing an increased budget amount, (2) seek additional bids or negotiated
proposals, (3) authorize the Landscape Architect to revise the Project scope and/or
materials, without additional compensation to the Landscape Architect, or (4) abandon the
Project. If the Client elects to direct the Landscape Architect to revise the Project scope
and/or materials, the revision of the construction documents to reflect the
modifications shall be the limit of the Landscape Architect's responsibilities under this
provision, and, exclusive of the revision services, the Landscape Architect shall be
entitled to full compensation for all services performed under this Agreement. If the
Project is abandoned because of construction bids or proposals not meeting the Client’s
budget, this Agreement shall be deemed terminated under the provisions of section 7.6 of
the Agreement.
The highlighted portion of the provision above is a very effective limitation of the
liability of the L.A. Without this limitation, the L.A. may have extensive exposure to
claims from the owner because the owner relied on the L.A. to design to the budget
and the L.A. did not meet this contractual commitment. The claimed losses could be
significant, and could be based on the increased construction costs, increased
interest charges, lost income because of the delay necessitated by the redesign or
the harm to the owner resulting from the abandonment of the project. Note also that
the L.A. could agree with the client to redesign the project to bring it within a fixed
budget for an additional professional fee but with no profit. In any event, making
redesign the limit of liability is prudent.
To reduce the possibility of conflict concerning construction budgets, the Landscape Architect may
choose to propose a base bid package with additive alternates for bidding that allows the Client to
select alternates within the Client’s budget parameters. However, if the additive alternate approach
is used, the Landscape Architect must be careful to explain in the bid documents the manner in
which additive alternates will be chosen. Similarly, if deductive alternates are used, bid documents
should clearly indicate the procedure for alternate acceptance.
Unless the Landscape Architect has expressly agreed to a fixed design-to-construction budget,
opinions of probable construction cost provided by the Landscape Architect (consistent with the
existing 1.7 provision in the form document) should not be considered to be guarantees that actual
construction bids will be within the budgeted costs.
1.8 Construction Safety
The presence of the Landscape Architect, its employees, or consultants
at the Project site shall not be deemed an assumption by the Landscape
Architect of any obligations, duties, or responsibilities for safety,
including but not limited to construction means, methods, sequences,
techniques, or procedures necessary for performing, superintending, or
coordinating the work of the Project in accordance with the Construction
Documents or any regulatory health or safety requirements. The
Victor O. Schinnerer & Company, Inc.
16
Landscape Architect, its employees, and consultants have no authority
to exercise any control over any construction contractor, its employees,
or subcontractors in connection with their work or health and safety
programs and procedures.
A design professional on a construction site has a duty to exercise reasonable care
to avoid the risk of injury to others as well as to the design professional’s staff.
Courts have found this as a professional duty that may prevail over a contractual
provision to the contrary.
What this means for L.A.s in most cases is that the firm should implement and
document a straightforward, clearly articulated safety plan for its employees while
they are onsite (i.e., appropriate footwear and eye or head protection—if
necessary—must be worn). Beyond this, L.A.s are not typically liable for the safety
practices of construction contractors or their subcontractors, so long as the L.A.
responds in a reasonable manner to any unsafe condition that is apparent while the
L.A. is onsite. Reporting a known dangerous situation to the party in the best
position to remedy the situation is usually held to be rational. Ignoring a known
dangerous situation can create liability.
If the L.A. is in a role of representing the client in administering the contract
between the client and a contractor, the L.A. should be aware that the contract for
construction places on the contractor the obligation for safety precautions and
procedures, since it is the contractor who is in control of the site. The L.A. should
not step in to take on duties that are rightfully and contractually those of the
contractor since doing so could lead to an assumption of liability for a site-related
injury. However, the L.A., as the client’s agent, cannot ignore contractor violations
of the agreement to keep the site safe. Observed safety violations should be
reported to the contractor who is in the best position to correct them. The client
also needs to be made aware that the contractor is not complying with the terms of
the construction agreement.
ASLA Standard Form Contract With Commentary
17
Article 2
Client’s Responsibilities
2.4 Reliance
The Landscape Architect shall be entitled to rely on the accuracy and
completeness of the information, test results, and work product provided
by the Client and the Client’s consultants. The Landscape Architect shall
not be responsible for calculations, specifications, or designs based on
erroneous, inaccurate, or incomplete information provided by the Client.
Landscape architects should not accept alteration or limitation of this provision. A
provision that directs the L.A. to utilize reports prepared by the client’s various
consultants, “as verified by the design professional” (or stated similarly), means
that the L.A. cannot rely on the information at all. The L.A. is unlikely to be able to
verify any of the work products of various technical consultants, and certainly
cannot afford to perform such verification, unless the work is specifically included
in the contract as a “Supplemental Service,” with commensurate compensation.
2.6 Approvals
Client’s decisions, approvals, reviews, and responses shall be
communicated to the Landscape Architect in a timely manner so as not
to delay the performance of the Landscape Architectural Services.
Comments, if from a committee client or multiple interested entities,
must be a consolidation of all comments in order to provide clear
direction to the Landscape Architect and to avoid delays.
The L.A. may want to add a provision that establishes whether the L.A. will begin
work on the next phase, stage, or task order of the project without first receiving
approval and payment by the client. This is an attractive option when firms are
apprehensive about their viability because of cash-flow issues.
2.7 Notice of Nonconformance
If the Client observes or becomes aware of any errors or omissions or
inconsistencies in any documents provided by the Landscape Architect
or any fault or defect in the Project, the Client shall promptly give written
notice thereof to the Landscape Architect.
Some clients might object to this language because they will infer that the L.A. is
relieved of responsibility for any “errors or omissions or inconsistencies” if the
client does not observe and give notice of the problem. That is not the case; L.A.s
should communicate that this provision does not absolve the professional of
responsibility but rather seeks to mitigate risk to the client. The client’s duty is not
to check or monitor but simply to communicate any problem of which the client
becomes aware.
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Article 3
Ownership of Documents
3.1
The Landscape Architect shall be deemed the author and owner of all
deliverables provided to the Client, including but not limited to plans,
drawings, specifications, Construction Documents, displays, graphic art,
photographs, and other images and devices of any medium, including
electronic data or files, which are developed, created, or derived
pursuant to this Agreement by the Landscape Architect (collectively, the
“Design Materials”).
3.2
Subject to payment by the Client of all fees and costs owed to the
Landscape Architect, the Landscape Architect grants to the Client a
nonexclusive license to reproduce the Design Materials solely for the
construction and use of the Project. Termination of this Agreement prior
to the completion of the Project shall terminate this license; all Design
Materials and copies thereof in the Client’s possession or control shall
be returned to the Landscape Architect within 21 days of the notice of
termination.
This standard agreement grants the client a limited license to reproduce the L.A.’s
deilverables designated as Design Materials. The L.A. provides services not
products, and these Design Materials are the instruments of the L.A.’s professional
services. As such, they can be used solely for purposes of the construction and
operation of a project. Any termination of the design contract automatically
terminates the client’s license, so the client cannot use those documents to
complete the project. Often, when a design professional’s contract is terminated, the
parties trade the right of continued use of the documents for the payment of all
sums due and an agreed-upon portion of the remaining fee, and the release of the
firm from any future claims.
In practice, government entities and certain other clients may insist upon obtaining
ownership and rights to unlimited use of the instruments of service. A limited
license to a park or streetscape design, for example, may be of little use to a
municipality that must maintain the built project in perpetuity and eventually
improve, restore, or alter it as need be. This can be a workable option for the L.A.,
as long as proper payment and license transfer provisions are included in the
contract.
See “Additional Provisions and Issues to Consider,” below, for further discussion.
ASLA Standard Form Contract With Commentary
19
3.3
The Client, to the fullest extent permitted by law, shall indemnify and
hold harmless the Landscape Architect for any costs, including legal
fees or defense costs, liability or loss, which result from any
unauthorized modification of the Design Materials or the use of the
Design Materials for any purpose other than the Project.
If the client can terminate the contract for its convenience, precautions should be
taken to preclude the transfer of rights to the Design Materials without appropriate
compensation and liability protection. Because the use or misuse of Design
Materials affects specific rights and obligations of the client, construction team,
and public, a licensed professional should retain ownership of, control over, and
responsibility for those deliverables. Any ownership transfer provision should be
considered carefully. Certainly an obligation to protect the originator of the design
and the Design Materials is reasonable. Such an obligation, however, might not be
effective.
It is worth noting that most public sector clients cannot, by law, agree to indemnify
the design professional. Many private sector developers, such as those operating
as LLCs or single-purpose entities, may agree to contractual indemnity provisions,
but the promised protection may not be real. See “Additional Provisions and Issues
to Consider,” below, for further discussion.
3.4
In the event this Agreement is terminated prior to the completion of the
Project, the Landscape Architect shall have no liability to the Client or to
anyone claiming through the Client for any claims, liabilities, or damages
resulting from the use, misuse, or modification of the Design Materials
without the Landscape Architect’s approval, and the Client agrees to
indemnify and defend the Landscape Architect against all such claims.
This is a much broader obligation on the part of the client than in §3.3 in that it
includes a waiver of client claims, a defense of third-party claims, and an
indemnification of any costs, losses, or damages to the L.A. See discussion after
§3.3, above, as well as “Additional Provisions and Issues to Consider,” below, for
further discussion.
Victor O. Schinnerer & Company, Inc.
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Article 5
Insurance, Indemnification, Consequential Damages
Indemnification provisions are governed by state law; it is recommended the provision be reviewed
by counsel with knowledge of the governing law. If insurance certificates are required, they may be
attached as an exhibit to this Agreement. The consequential damages provision is a mutual waiver
by both parties.
5.1 Insurance
The Landscape Architect shall secure and maintain insurance coverages
indicated as follows:
Coverage
Liability Limits
Professional Liability
per claim/aggregate
Commercial General Liability
per occurrence
Comprehensive Automobile Liability
per accident
Workers Compensation
statutory limits
Professional liability insurance defends design professionals against allegations
that their “wrongful acts” (usually defined by the courts as negligence in performing
or providing professional services) caused harm to another party. It also pays on
the design professional’s behalf (for the amount above the deductible and up to the
available per-claim limit of coverage) for any cost, loss, or damage to the other
party once it is determined that the professional’s “wrongful acts” caused them.
L.A.s should also have an understanding of the limits of professional liability (PL)
coverage. Clients may attempt to mandate specific insurance coverage, usually
seeking financial protection and to structure insurance requirements in what they
consider to be standard terms for the procurement of services. Not all professional
liability policies are the same. A broker can explain the scope of coverage and
specific issues such as per-claim and aggregate coverage limits, coverage
definitions and exclusions. It is a good idea to become educated about the nuances
of PL coverage. This is especially important when the requirements, as stated, are
actually adverse to the client’s interests or are simply impossible to meet under the
terms of the design professional’s PL coverage.
5.2 Indemnification
Client and Landscape Architect each agree to indemnify and hold
harmless the other, and their respective officers, employees, agents, and
representatives, from and against liability for all claims, losses, damages,
and expenses, including reasonable attorneys’ fees, to the extent such
claims, losses, damages, or expenses are caused by the indemnifying
ASLA Standard Form Contract With Commentary
21
party’s negligent acts, errors, or omissions. In the event claims, losses,
damages, or expenses are caused by the joint or concurrent negligence
of Client and Landscape Architect, they shall be borne by each party in
proportion to its negligence.
Indemnity provisions allocate risk or liability among parties. Typically, they shift
liability to the party who is thought to be more actively involved in activities or
events giving rise to liability. In the context of client-design professional
agreements, a client may seek indemnity from a design professional for liability or
risk resulting from the negligence or other wrongdoing of the design professional in
the performance or furnishing of services. Client-proposed indemnity provisions,
however, often demand more of the design professional than the law would
otherwise require. Design professionals should not accept risk that they are unable
to control or that is not covered under an insurance policy.
The provision above establishes a reciprocal indemnity obligation. Clients rarely
propose or accept mutual or cross indemnity provisions wherein the design
professional indemnifies the client and the client indemnifies the design
professional. The general rationale for clients insisting on a unilateral contractual
indemnity provision is that the design professional (or contractor) is directly
involved in the activity of design (or construction) and should take responsibility for
claims and shield those whose involvement is passive. In addition, many
municipalities and governmental entities are barred from assuming contractual
indemnity obligations as a matter of law or policy. Nevertheless, mutual indemnity
provisions are often viewed by design professionals as more reasonable than a
unilateral indemnity provision in favor of the client (or in favor of the prime
professional under a subcontract). If any changes are made to the indemnity
provision above, local legal counsel should first be consulted.
Several other points to consider:
❖ Any indemnification is only as valuable as the worth of the indemnitor. The
L.A. should determine, prior to entering into a contract, whether the indemnitor
is capable of actually indemnifying the design professional.
❖ Interpretation and enforceability of indemnity provisions depends upon the
jurisdiction, statutes, and case law. Some indemnity provisions are interpreted
to be limitations of liability for negligence and may be considered void as
against public policy or specific statutes regarding contractual indemnity.
❖ Consultation with knowledgeable legal counsel is essential when reviewing or
drafting indemnity provisions, since statutory and case law can change.
❖ Any contractual indemnity obligation to defend a client is significantly different
from a provision that contains an obligation to pay for actual harm. The
defense of any party other than the insured usually is not provided by a
professional liability insurance policy.
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5.3 Consequential Damages
The Landscape Architect and the Client waive consequential damages
for claims, disputes, or other matters in question which arise out of or
are related to this Agreement, including but not limited to consequential
damages due to the termination of this Agreement by either party in
accordance with the provisions of Article 7 hereof.
Although the definition varies from state to state and often from case to case,
consequential damages do not directly or immediately result from particular actions
or a failure to act—they depend on intervening circumstances. Nevertheless, they
must be a reasonably foreseeable result of an activity. They can include economic
losses, such as lost profit.
One way to manage the risks of consequential damages is to include a mutual
waiver in the professional services agreement. Waiving consequential damages
means that both parties acknowledge known and calculable risks, and recognize
that many unclear and incalculable risks exist. Such a waiver between a client, who
can suffer significant consequential damages because of the negligence of the
professional firm, and a firm, which is rarely in the position to claim consequential
damages, is quite protective of the firm. Most knowledgeable owners recognize the
“mutual waiver of consequential damages” as a provision that only benefits the L.A,
and therefore delete it from most contracts for design services.
An agreement to waive consequential damages might not protect the L.A. in a
situation where a third party—one who has not signed the contract and agreed to
the waiver—is suing the client for damages. In some situations, even though the
L.A. might not be liable to the client, the third-party claim might result in the same
financial challenge to the L.A.
ASLA Standard Form Contract With Commentary
23
Article 6
Dispute Resolution
These provisions contemplate mediation under the construction mediation rules of the American
Arbitration Association, but the provisions allow the parties to utilize mutually agreed upon
mediation services. Arbitration is not required in these provisions.
6.1
If a dispute arises out of or relates to this Agreement, the parties shall
endeavor to resolve their differences first through direct discussions
between the parties or their representatives who shall have authority to
settle the dispute. If the dispute has not been settled within 14 days of
the initial discussions, the parties shall submit the dispute to mediation
in accordance with section 6.2.
Clients and design professionals should anticipate the possibility of disputes or
claims and include in their agreements some provision for dispute resolution.
Alternative dispute resolution through mediation is a non-binding process in which
an impartial mediator actively assists the parties in identifying and clarifying the
issues in dispute, and in designing and agreeing to solutions. The progression of
“good faith negotiation” followed by an attempt at a mediated settlement is usually
promoted by professional liability insurers because the method keeps the parties
from becoming adversaries and reduces legal expenses.
6.2
If the dispute is not settled pursuant to section 6.1, before recourse to
any other dispute resolution procedure, the parties shall endeavor to
settle the dispute by mediation under the current Construction Industry
Mediation Rules of the American Arbitration Association. The location of
the mediation shall be the location of the Project. A request for
mediation may be filed with the American Arbitration Association or any
other mediation service acceptable to both parties. The parties agree to
conclude the mediation within 60 days of filing the request.
The early implementation of a mediation process helps save attorney fees, expert
witness costs, discovery expenses, and administrative time that are intrinsic in
litigation. Mediation involves settling—not “winning” or “losing”—a dispute. An
impartial third party helps resolve conflicts, but the onus of coming to a settlement
is placed upon the parties themselves. The mediation rules of the American
Arbitration Association are often used, but other mediation facilitators might be
specified as an alternative. Before agreeing to a different form of mediation rules,
L.A.s should check with their professional liability insurers to determine if there is
an understanding of and support for the alternative mediation process. Most
professional liability insurers strongly support mediation that provides the parties
Victor O. Schinnerer & Company, Inc.
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with the opportunity to discuss and resolve their own differences. As it depends
upon voluntary participation, mediation works best when parties want to settle a
disagreement and need a facilitator to help shape the result. Since they are not
promising to settle, and the mediator cannot force them to do so, either party can
terminate the process at any time without cause.
6.4
Appropriate provisions for consolidation shall be included in other
contracts relating to the Project so that all parties necessary to resolving
a claim are parties to the same dispute resolution proceeding.
However, mediation is not successful in all cases. Another method of reducing the
cost and time associated with litigation is the use of arbitration. Arbitration is a
form of legal adjudication. An arbitration award enforceable in a court of competent
jurisdiction is not unlike a judgment in a court of law; the rules may differ but the
result is one that has been adjudicated.
The arbitration of claims, however, is not always in the best interest of the design
professional. When a client insists on mandatory and binding arbitration with parties
other than those in the direct client-design professional relationship, the design
professional may find that the proceedings are neither equitable nor efficient in
terms of cost or time.
6.5
Unless otherwise agreed, the cost of mediation shall be shared equally
by the parties.
Not all professional liability insurers will equally share in mediation costs. In some
cases this provision might be excluded from coverage as a contractually assumed
obligation. Most insurers, however, favor mediation. Before signing a contract
specifying shared mediation expenses, an L.A. should check the professional
liability insurance provisions.
ASLA Standard Form Contract With Commentary
25
Article 7
Suspension/Termination
7.6
If termination is not due to the fault of the Landscape Architect, the
Client shall pay, in addition to Compensation and Reimbursable
Expenses due at the time of the termination, all actual costs and
expenses reasonably incurred by the Landscape Architect in connection
with such termination. In addition, the Client shall comply and cooperate
in accordance with the provisions of Article 3, Ownership of Documents,
herein.
7.7
The Client may terminate this Agreement for convenience and without
cause with 7 days’ notice to the Landscape Architect providing, in
addition to the compensation, expenses, and compliance with the
Ownership of Documents provisions indicated in section 7.6, above, the
Client pays to the Landscape Architect an amount representing the
anticipated profit on the Scope of Services not performed under this
Agreement because of the Client’s decision to terminate for its
convenience.
Some clients could find the termination costs of 7.6 and 7.7 in conflict. When the
termination of the contract is clearly for the client’s convenience, there is an
obligation not only to pay for services performed and expenses (including
“demobilization” costs), but also for lost profits. This is a standard commercial
remedy; a party not at fault is entitled to recover “expectation damages” when a
contract is prematurely terminated. In a negotiation over termination, the L.A. might
want to surrender the contractual right to collect damages equivalent to lost profits
to keep the client from resorting to a termination for cause attempt—alleging
breach of contract and negligence on the part of the L.A.—in an effort to minimize
the amount for which the client could be held liable.
Victor O. Schinnerer & Company, Inc.
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Article 8
Other Terms and Conditions
8.1 Force Majeure
Either party shall be relieved of its obligations hereunder in the event
and to the extent that performance hereunder is delayed or prevented
by any cause beyond its control and not caused by the party claiming
relief hereunder, including, without limitation, acts of God, public
enemies, war, insurrection, acts or orders of governmental authorities,
fire, flood, explosion, or the recovery from such cause (“Force
Majeure”). The parties agree to make all reasonable efforts to mitigate
the delays and damages of Force Majeure.
The design professional should not be held accountable for damages caused by
delays that arise from circumstances or events beyond its reasonable control. Such
circumstances are normally addressed by including a force majeure provision in the
professional services contract. Force majeure means a superior or irresistible force.
A narrow force majeure provision limited only to named events (i.e., acts of God,
war, strikes) may not fully protect an L.A., particularly if the client is a public entity.
And many such provisions do not account for unique events such as pandemics,
government intervention, or even highly specific causes of delay. As an example,
an L.A. might be selected on the basis of individual expertise; a force majeure
provision that includes the illness or death of the individual could keep the firm
from being held liable for delay costs.
8.3 Assignment
Neither party shall assign their interest in this Agreement without the
express written consent of the other, except as to the assignment of
proceeds.
With private sector clients, lenders often want the contracting parties to agree to an
assignment of the rights of the client at a contract’s inception so that the lender can
step in to enforce the contract if the borrower defaults on the loan. This type of
automatic assignment might be objectionable to the L.A. who may not want to
provide services to the lender or, as is often the case, to a further assignee of the
lender. In addition, such automatic assignments usually do not include an obligation
for the lender to cure any default in payment to the professional. Once the lender
takes over the contract, it only wants to pay for future services, leaving the L.A. to
attempt to collect unpaid fees from the defaulting client. Keeping this “no
assignment” provision intact makes any assignment to a lender subject to
negotiation and therefore potentially linked to the payment of fees for previous
services.
ASLA Standard Form Contract With Commentary
27
8.4 Third Party Relationships
Nothing in this Agreement shall create a contractual relationship with,
an obligation to, or a cause of action in favor of any third party against
either the Client or the Landscape Architect.
Prohibiting third parties from becoming beneficiaries of the contract can limit the
risk of the L.A.. In many states a third party, such as a construction contractor,
cannot sue a design professional for economic loss unless there is some form of
contractual arrangement. If the contractor is included as a third-party beneficiary of
the Client-Landscape Architect agreement, the L.A. becomes a target for contractor
cost recovery efforts. A L.A. providing services to a prime design firm or a
developer, design-build entity, or public-private partnership could find itself in a
situation where third parties have rights against it that exceed the L.A.’s normal
professional and contractual liability exposures.
8.7 Governing Law
This Agreement shall be governed by the law in effect at the Landscape
Architect’s principal place of business.
While a design firm might feel more comfortable with the legal climate in its own
locality (which is also where its legal counsel is likely to reside), the laws of the
L.A.’s “home” jurisdiction may not always be preferable to those of the project’s
location. Care should be taken in agreeing to have the contract governed by laws
that may change the liability of the L.A. Some states have significantly longer (or
narrower) statutes of repose, anti-indemnity statutes, differences in how liability is
assigned, or joint and several liability provisions. It also is important to understand
foreign jurisdiction; some contracts could be governed by tribal law that could be
adverse to the L.A.’s interests, or by international legal provisions that do not
include the concept of negligence but might include strict liability.
Depending on advice of counsel, you might consider the drafting of a governing
laws provision to be a negotiating tool with your client. Agreeing to changes might
not diminish your rights or increase your legal expenses.
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Additional Provisions and
Issues to Consider
Compensation Provisions
Firms should execute written agreements with their clients that include:
❖ Payment terms
❖ A schedule of when payments are to be made; and
❖ Clear invoicing and collection procedures.
Invoices must be consistent with contractual billing and compensation
methodology.
Itemized invoices must be promptly sent to the appropriate client
representative in the prescribed manner.
Collection procedures should promptly pursue payment of invoices.
Application of any fee system should be documented.
❖ A fee dispute resolution method should be included in the contract.
Ownership of Documents
The design developed for a client by an L.A. is the culmination of a creative
process. The plans and specifications that assist the contractor in transforming the
L.A.’s recommendations into a built project are instruments of the creative service
provided by the L.A. to the client, and the federal government has enacted copyright
protection for the design and its documentation. Essentially, this protection extends
not only to the ideas embodied in the documentation but to the right to own and
copy the physical documents. Design professionals can agree to transfer all or part
of their copyright protections through the contract or licensing agreements.
However, there are several important issues to consider before any such transfer
should take place.
Language regarding nonexclusive licenses may not address the important risks for
the L.A., and may be undesirable to a client. Foremost, ownership of the Design
Materials should not transfer unless all fees and reimbursables are paid. The
deliverables are the only leverage a design professional has to obtain payment.
Furthermore, such a transfer does not by itself extinguish future liability to third
parties from the reuse of the transferred Design Materials. From a risk management
standpoint, in exchange for any transfer the design firm and client should agree, at
a minimum, to the following:
❖ Transfer of ownership of the documents should come only after:
ASLA Standard Form Contract With Commentary
Final payment by the client to the L.A.;
Default by the design firm; or
29
If there is a termination for convenience, only after the appropriate
termination payment with a commitment to protect the firm from future
claims.
❖ The client acknowledges the documents are project-specific and are not
intended for re-use on other projects.
❖ Any use by the client, such as for maintenance or renovations, without the
involvement of the design firm will be at the client’s sole risk.
❖ The client agrees to defend, indemnify and hold the design firm harmless from
any claims brought against the design firm arising out of the subsequent use.
❖ The design firm has the right to re-use standard details.
Government Clients, LLCs, and Indemnity
Public-Sector Entities as the client
❖ In many jurisdictions, public entities have legal safeguards that other parties
do not. For example
Sovereign immunity laws may provide total protection to public entities.
Statutes may limit the amount of damages public entities owe.
They may have separate, shorter statutes of limitations.
❖ In other words, a public entity may not be permitted by law to provide any
indemnity at all for an L.A. working for them.
Developers as the Client
❖ Many developers exist as limited liability companies (LLCs).
This limits the developer’s business risks, but also limits the L.A.’s recourse
should problems arise.
Providing services to an LLC defeats the effectiveness of many contractual
provisions. For example, provisions requiring the developer to defend and
indemnify the L.A. from claims usually are not effective. And the LLC is
usually not in existence when the need for defense and indemnity arises.
❖ It may be possible, but not easy, to negotiate a personal obligation by the
developer to back the contractual commitment to protect the design firm from
future claims or to negotiate funds to be placed in escrow by the developer for
the purpose of legal defense should it be needed.
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Appendix
Comparison of ASLA and AIA Standard Form Agreements
Between Client and Design Professional
Although Landscape Architects can benefit greatly from the use of the ASLA
agreement forms, some use contract forms developed by The American Institute of
Architects (AIA), or have created forms based on the AIA standard agreements. The
following table compares important elements of several “Standard Form” contracts
that Landscape Architects are likely to encounter. The current (2009 edition) of the
American Society of Landscape Architects (ASLA) Standard Form Contract For
Professional Services Between Landscape Architect and Client is compared with the
two most similar documents published by the AIA: the 2007 editions of AIA
B102—Standard Form Agreement Between Owner and Architect, and AIA
B104—Standard Form Agreement, for a Project of Limited Scope. In situations where
no relevant provision exists in these AIA documents, the more comprehensive B1012007 is referenced.
Highlighted below are provisions that may have a significant impact on a firm’s
professional liability and exposure to disputes and claims related to a particular
project. Also noted are provisions that differ between the several documents, or are
absent from one of them. The referenced clauses are noted in parenthesis.
A Landscape Architect (L.A.) may encounter other standard form contracts. For
example, AIA Document B101-2007 is similar to B102-2007, but includes a scope of
services for building design, and AIA B105-2007 is essentially a simplified version
of the B104 document considered here. The B105 document was intended for
limited-scope residential and small commercial projects, and does not include as
many contractual protections as an L.A. may want to consider for larger-scale or
higher-risk projects, particularly those for public sector clients or developers.
At times, an architect or other professional service firm will engage an L.A. in a
project as a subcontractor. The L.A may be encouraged to utilize AIA Document
C401-2007 Standard Form Agreement Between Architect and Consultant, or a similar
contract. The chosen contact format should suit the needs of a particular project and
the structure of a particular design team. When using AIA C401 or another
“subcontract” form, an L.A. should remember the extent to which the “prime”
contract—the agreement that the prime professional has signed directly with the
client—is incorporated into the subcontract with the L.A as a set of “flow-through”
provisions. In AIA C401, both the full text of the prime agreement and the particular
portions that apply to the subcontractor are to be printed indirectly into the form.
Other contract forms may incorporate the prime agreement or other documents only
by referencing them. In either case, the L.A. should be familiar with the specific
provisions, requirements, and protections described in any referenced or
incorporated documents, since the L.A. is responsible for and impacted by those
clauses as well.
In some cases, the L.A. might be hired by a developer or construction contractor in a
design-build project delivery system and asked to execute a construction-related
subcontract. For instance, a ConsensusDOCS 240, Standard Form of Agreement
Between Owner and Architect/Engineer or a ConsensusDOCS 420, Standard Form of
Agreement Between Design-Builder and A/E for Design-Build Projects might be
suggested. Firms should be careful to make sure that the agreement recognizes the
L.A. as a professional, preserves the standard of care normally applicable to the
professional services provided, and avoids contractual obligations that exceed
normal legal obligations.
ASLA Standard Form Contract With Commentary
ASLA
AIA
Client Obligations
Clauses Similar in Both Contracts
❖ Client furnishes all legal, accounting, and insurance
❖ Owner furnishes all legal, accounting, and insurance
services required by the Owner. (§2.2.2)
services required by the Owner. (B102 §2.4; B104 §5.6)
❖ If Client becomes aware of errors, omissions, or
❖ If Owner becomes aware of errors, omissions, or
inconsistencies in documents or work, it must promptly
inconsistencies in documents or work, it must promptly
notify L.A. in writing. (§2.7)
notify Arch. in writing. (B102 §2.5; B104 §5.7)
❖ Client provides independent testing services [if
❖ Owner provides tests, inspections, and reports as required
necessary] to determine soil / subsoil conditions, water,
for structural, mechanical, and chemical conditions,
pollution, and hazardous waste conditions. (§2.3)
pollution, and hazardous materials. (B104 §5.5)
Clauses that Differ
Program / Information
Program / Information
❖ Client provides detailed Project description/ budget, site ❖ Owner provides written program, including: objectives,
surveys, legal info. As applicable: written legal
schedule, constraints, criteria, space requirements &
description of site, land survey by licensed surveyor,
relationships, flexibility, expandability, special equipment,
rights-of-way, easements, encroachments, zoning,
systems & site requirements. (B102 §2.1; B104 §5.1)
covenants, deed or other restrictions. (§2.1 and 2.2.1) ❖ Owner provides physical & legal descriptions of site,
surveys, utility locations, geotechnical and other reports.
(B104 §5.4)
❖ Owner shall set and “periodically update” its budget for the
Project which includes the budget for the cost of the Work,
the owner’s other costs, and “reasonable contingencies.” If
the Owner significantly changes its budget, it must notify
the Arch. and a both parties will agree to a “corresponding
change in the Project’s scope and quality.” (B104 §5.2)
Owner’s Representative
Owner’s Representative
❖ Client identifies a representative to act on its behalf for ❖ Owner identifies a representative to act on its behalf for the
the duration of the Project. If Client replaces that
duration of the Project. (B102 §2.2)
representative during progress of Project, the L.A. has
the right to renegotiate its compensation in response to
this change. (§2.5)
Owner’s Consultants
❖ L.A. “entitled to rely on the accuracy and
completeness” of work product & info provided by
Client and its consultants. L.A. not responsible for
specifications or designs based on wrong / incomplete
info provided by Client. (§2.4)
Other
❖ Client provides decisions, approvals, reviews, responses
in timely manner. If response is from a committee or
multiple entities, it must consolidate all comments to
provide clear direction to L.A. (§2.6)
❖ Client pays all fees for jurisdictional approvals for the
project. (§2.8)
Owner’s Consultants
❖ Owner coordinates services of its consultants with those of
Arch. and informs Arch. of consultants’ scopes of work.
(B102 §2.3; B104 §5.4)
❖ If Arch. demonstrates that additional consultant(s) are
required to complete the scope of work, Owner will
contract with them directly, or Arch. will subcontract to
them for additional fee to be negotiated. (B102 §2.3)
❖ Owner will require its consultants to carry professional
liability insurance. (B102 §2.3; B104 §5.4)
ASLA
AIA
Cost Estimates
❖ L.A. provides opinions of probable construction costs
❖ Arch. shall submit to Owner an estimate of the Cost of the
based on its familiarity with the landscape industry, and
Work prepared in accordance with §6.3” (B101 §3.2.6).
only to assist with Client’s budget planning. L.A.
In preparing estimates of the Cost of Work, Arch. shall be
provides or implies no guarantee or warranty of actual
permitted to include contingencies for design, bidding, and
construction costs. Unless expressly agreed in writing,
price escalation; to determine what materials, equipment,
no fixed limit of construction costs is established as a
component systems and types of construction are to be
condition of this contract. (§1.7)
included in the Contract Documents; to make reasonable
adjustments in the program and scope of the Project; and
to include in the Contract Documents alternate bids as may
be necessary to adjust the estimated Cost of the Work to
meet Owner’s budget. Arch.’s estimate shall be based on
current area, volume or similar conceptual estimating
techniques. If Owner requests detailed cost estimating
services, Arch. shall provide such services as an Additional
Service under Article 4. (B101 §6.3).
Intellectual Property
Ownership of Physical and Electronic Documents
Ownership of Physical and Electronic Documents
❖ L.A. is “author and owner” of the “Design Materials,” ❖ Arch. and its consultants are “authors and owners” of the
developed or created pursuant to the contract,
“Instruments of Service, including the Drawings and
including but not limited to: plans, drawings,
Specifications,” and retain “common law, statutory and
specifications, Construction Documents, displays,
other reserved rights, including copyrights.” Submission or
graphic art, photographs, other images in any medium,
distribution of Instruments of Service for Project purposes
electronic or otherwise. (§3.1)
does not constitute “publication in derogation of the
reserved rights of the Arch.” or its consultants. (B102
§3.2; B104 §7.2)
❖ “Arch. and Owner warrant” that the party transmitting
Instruments of Service is the copyright owner, or has
permission of the copyright owner to do so. Owner and
Arch. “shall endeavor to establish necessary protocols
governing” digital transmission of documents and
information. (B102 §3.1; B104 §7.1)
Owner’s License
Owner’s License
❖ L.A. grants to Client a nonexclusive license to
❖ Arch. grants Owner nonexclusive license to use
reproduce Design Materials for the construction and
Instruments of Service for the Project. Owner may
use of the Project. Termination of the contract prior to
authorize its consultants, Contractor, Subcontractors, and
Project completion, or failure to pay by the Client will
suppliers to reproduces portions of the Instruments to
terminate the license. Within 21 days of termination,
perform services for this Project. This license is
all Design Materials in Client’s possession or control
terminated if the Arch. terminates the contract for cause
shall be returned to the L.A. (§3.2)
(B102 §5.3 & 5.4; B104 §9.1 & 9.3-9.4) or if Owner
fails to substantially perform its obligations, including
❖ As permitted by law, Client shall indemnify and hold
prompt payment of the Arch. (B102 §3.3; B104 §7.3) If
harmless the L.A. for “any costs, including legal fees or
contract is terminated by Owner or Arch., the Owner shall
defense costs, liability or loss” which result from
pay Arch. a licensing fee, as set forth in contract, for
unauthorized use or modification of Design Materials.
continued use of Instruments of Service. (B102 §6.3)
(§3.3)
❖ If Owner uses Instruments of Service without retaining the
❖ If contract terminated before completion of Project,
author, Owner releases Arch. and its consultants from all
L.A. has no liability to Client or any third party for any
resultant claims and causes of action. As permitted by
claims, liabilities, or damages resulting from the “use,
law, Owner agrees to indemnify and hold harmless the
misuse or modification” of the Design Materials
Arch. and its consultants, “from all costs and expenses,
without L.A.’s approval. Client agrees to indemnify and
including the cost of defense, related to claims and
defend L.A. against such claims. (§3.4)
causes of action asserted by any third person or entity”
that arise from Owner’s misuse of Instruments of Service.
(B102 §3.3.1; B104 §7.3.1)
❖ No other license or right is granted or implied by the
contract. Owner shall not “assign, delegate, sublicense,
pledge, or otherwise transfer” any license to another party
without prior written agreement of the Arch. (B102 §3.4;
B104 §7.4)
ASLA
AIA
Insurance & Indemnification
❖ L.A. shall secure and maintain insurance coverage as
indicated in the contract, including Workers’
Compensation in accordance with statutory limits, and
general liability, auto liability, and professional liability
up to the limits described. (§5.1)
❖ Client and L.A. shall “indemnify and hold harmless the
other, and their respective officers, employees, agents,
and representatives, from and against liability for all
claims, loses, damages, and expenses, including
reasonable attorneys’ fees, to the extent such…are
caused by the indemnifying party’s negligent acts,
errors, or omissions.” If “claims, losses, damages, or
expenses are caused by the joint or concurrent
negligence of Client and L.A., they shall be borne by
each party in proportion to its negligence.” (§5.2)
❖ As permitted by law, Client shall indemnify and hold
harmless the L.A. for “any costs, including legal fees or
defense costs, liability or loss” which result from
unauthorized use or modification of Design Materials.
(§3.3)
❖ If contract terminated before completion of Project,
L.A. has no liability to Client or any third party for any
claims, liabilities, or damages resulting from the “use,
misuse or modification” of the Design Materials
without L.A.’s approval. Client agrees to indemnify and
defend L.A. against such claims. (§3.4)
❖ Mutual waiver of consequential damages. (§5.3)
❖ Arch. shall maintain insurance of the type and limits
described in the contact, including: General liability, auto
liability, workers’ compensation, and professional liability.
If any of these requirements exceed what the Arch.
normally maintains, the Owner reimburses the Arch. for
any additional cost. (B102 §1.5)
❖ Owner will require its consultants to carry professional
liability insurance. (B102 §2.3)
❖ If Owner uses Instruments of Service without retaining the
author, Owner releases Arch. and its consultants from all
resultant claims and causes of action. As permitted by
law, Owner agrees to indemnify and hold harmless the
Arch. and its consultants, “from all costs and expenses,
including the cost of defense, related to claims and causes
of action asserted by any third person or entity” that arise
from Owner’s misuse of Instruments of Service. (B102
§3.3.1; B104 §7.3.1)
❖ “Any unauthorized use of the Instruments of Service shall
be at the Owner’s sole risk and without liability to” the
Arch. and its consultants. (B102 §3.4)
❖ Arch. “shall not have control over or charge of and shall
not be responsible for, acts or omissions of the Contractor
or of any other persons or entities performing portions of
the Work.” (B104 §3.4.1.2)
❖ Waiver of subrogation. (B104 §8.1.2)
❖ Mutual waiver of Consequential Damages. (B104 §8.1.3)
Construction Site Saftey
❖ L.A., its employees and consultants, assume no
obligations, duties, or responsibilities for safety of the
Project site, “including but not limited to construction
means, methods, sequences, techniques, or
procedures…the L.A., its employees and consultants
exercise [no] control over any construction contractor,
its employees, or subcontractors in connection with
their work or health and safety programs and
procedures.” (§1.8)
❖ Arch. shall not have “control of, charge of, or responsibility
for the construction means, methods, techniques,
sequences, or procedures, or for safety precautions and
programs.” (B104 §3.4.1.2)
Dispute Resolution
❖ Mediation required if dispute not settled after
❖ Mediation is required. (B102 §4.2.1; B104 §8.2.1)
negotiation [14 days]. (§6.1)
AAA – Constr. Indust. Med. Rules, unless otherwise
AAA – Constr. Indust. Med. Rules, unless
agreed upon by parties. (B102 §4.2.2; B104
otherwise agreed upon by parties. (§6.2)
§8.2.2)
Parties share mediation fees equally. (§6.5)
Arbitration / litigation filings stayed until mediation
occurs [60 days]. (B102 §4.2.2)
❖ No specific provision for arbitration.
Parties share mediation fees equally. (B102 §4.2.3;
❖ Consolidation / Joinder permitted as necessary
B104 §8.2.2)
“Appropriate provisions for consolidation shall be
If dispute is subject of a lien arising out of Arch.’s
included in other contracts relating to the
services, the Arch. may proceed with lien in
Project…”(§6.4)
compliance with laws / filing deadlines prior to
❖ Unless otherwise agreed, during any dispute resolution
mediation or binding resolution. (B102 §4.2.1;
process, L.A. continues to perform and Client continues
B104 §8.2.1)
to pay for any amounts / tasks not in dispute. (§6.3)
❖ Parties agree in contract whether to pursue arbitration (see
B102 §4.3; or B104 §8.3) or litigation if mediation fails.
(B102 §4.2.4; B104 §8.2.3)
❖ Either party may consolidate arbitration cases, or include
ASLA
AIA
Governing Law
❖ The law in effect at the L.A.’s principal place of
business shall govern. (§8.7)
❖ The law of the place where the Project is located shall
govern, except during arbitration, when the Federal
Arbitration Act shall apply. (B102 §7.1; B104 §10.1)
Statute of Repose / Limitations
❖ No specific provision.
❖ Not longer than 10 years from Substantial Completion.
(B102 §4.1.1; B104 §8.1.1)
Other Provisions
Force Majeure
Certificates
❖ Either party shall be relived on its obligations, if and to ❖ If Owner requires Arch. to execute certificates or consents,
the extent that performance is delayed or prevented
the proposed language must be submitted to Arch. for
by any cause beyond its control , including, without
review at least 14 days prior to execution. The Arch. is
limitation, acts of God, public enemies, war,
not required to execute certificates or consents requiring
insurrection, acts or orders of governmental authorities,
knowledge, services, or responsibilities beyond the scope
fire, flood, explosion, or the recovery from such cause.
of this contract. (B102 §7.4; B104 §10.4)
(§8.1)
Hazardous Materials
❖ Unless otherwise written in contract, Arch. has no
Severability
responsibility for discover, presence, handling, removal,
disposal of, or exposure to hazardous materials or toxic
❖ If any term or provision of the contract is found invalid
substances. (B102 §7.6; B104 §10.6)
or unenforceable, the remaining provisions remain in
full force and effect to the extent permitted by law.
(§8.5)
Images of the Project
❖ Arch. has the right to reasonable access to the completed
project to take photographs, and to included photos and
artistic representations of the Project among its
promotional and professional materials, excluding the
Owner’s proprietary or confidential information. (B102
§7.7; B104 §10.7)
❖ “The Owner shall provide professional credit for the Arch.
in the Owner’s professional materials for the project.”
(B102 §7.7)
ASLA
AIA
Construction Phase Services
The ASLA Standard Form Agreement does not envision
frequent, extensive involvement of L.A.s in the
construction phase of projects. If an L.A. will provide
significant construction phase services, appropriate
language from the AIA documents at right may be a
helpful guide.
Construction Administration
❖ Arch. shall provide administration of the Contract between
the Owner and the Contractor.” (B104 §3.4.1.1)
❖ Arch. “shall advise and consult” Owner as part of
Construction Phase services. (B104 §3.4.1.2)
Evaluation of Work
❖ Arch. shall visit site “at intervals appropriate to the stage of
construction” to be “generally familiar with the progress
and quality” of the Work in accordance with the
construction documents. Based on visits, Arch. will keep
owner reasonably informed on progress and quality of the
work, and report any observed deficiencies, defects, or
deviations from the contract documents. (B104 §3.4.2.1)
❖ Arch. has authority to reject Work that does not conform to
contract docs, and authority to require inspection or
testing of the Work. (B104 §3.4.2.2)
❖ Arch. may authorize minor changes in the Work that are
consistent with contract documents but do not cause a
change in the contract sum or an extension of the contract
time. Change Orders for substantial changes, if necessary,
will be submitted to the Owner for approval and execution.
(B104 §3.4.5)
Arch. as Intermediary Between Client and Contractor
❖ “Owner shall endeavor to communicate with the
Contractor through the Arch. about matters arising out of
or relating to the Contract Documents.” (B104 §5.8)
❖ If Owner or Contractor requests such in writing, Arch.
shall “interpret and decide” matters concerning
performance and requirements of the contract
documents; shall render initial decisions on Claims
between these two parties; shall endeavor to secure
faithful performance by both parties; will not show
partiality to either; shall not be liable for results of
interpretations or decisions rendered in good faith. (B104
§3.4.2.3 - §3.4.2.5)
❖ Arch. agrees to “review and certify the amounts due to the
Contractor and shall issue certificates in such amounts”
(B104 §3.4.3.1) in accordance with the Arch.’s duties
outlined in the preceding clauses and subject to the
limitations described in B104 §3.4.3.2.
❖ Arch. shall also “review and approve or take appropriate
action” upon Contractor’s submittals such as shop
drawing, product data, etc., for limited purposes specified
in the contract. Arch. will also inspect work for purpose of
issue certificates of Substantial Completion, Final
Completion and attendant certificates for payment of the
Contractor. (B104 §3.4.4 & §3.4.6)