- There should be a Compensation schedule attached to the Agreement.
- The Owner must be able to notify Consultant in a timely manner if Owner disputes Consultant’s assessment of the amount of the Work or costs associated with that portion of the Work reflected in any invoice. Owner will work with Consultant or its representative in a good faith effort to resolve any dispute on that invoice. If Owner and Consultant cannot resolve the dispute before payment on the invoice is due, Owner will timely pay the undisputed portion of the invoice. Absent a written acknowledgment to the contrary, neither Owner nor Consultant will waive any claims each may have with regard to the disputed portions of any Compensation by making or accepting payment of less than the amount invoiced.
- Owner must have the ability to withhold in whole or part of any payment to Consultant in event of, and until completion or correction of the following occurrences: (i) failure or refusal of Consultant to perform or comply with any term, condition, provision or obligation of this Agreement; (ii) defective Drawings and/or Specifications or the failure of same to comply with Applicable Laws; (iii) claims or liens filed by sub-consultants; (iv) failure to perform design services, review Submittals, provide site visits, certificates, or any other required services hereunder within the time periods specified in this Agreement or in compliance with approved Schedules; or (v) failure to respond to Owner’s or Contractor’s requests for interpretation of Construction Documents produced by the Consultant or its sub-consultants. When the aforementioned conditions are corrected or completed to Owner’s satisfaction, payment shall be made for amounts withheld due to Consultant or sub-consultant.
- Owner’s payments to Consultant for services as set forth under this Agreement must not constitute an Owner’s waiver of any claims for damages resulting from Consultant’s failure to perform such services.
There are many other typical clauses that a competent Attorney skilled in Construction Law will understand are required. As the Owner’s Representative, it is incumbent upon you to help your Client find experienced legal counsel to develop the right form of agreement for the Project.
The next installment of this series on the “Critical Elements of a Design Contract” will cover the topics of: Schedule, Representatives, Books & Records, Termination and Confidentiality & Promotion.