The owner’s rights to use project design documents can be overlooked during contract drafting and negotiation. Standard form design contracts, however, often contain design document terms that weigh heavily in the architect’s favor, and this can leave the owner unable to freely use a design if there’s a dispute between the owner and architect. Here are ¬five questions an owner should ask to ensure good access to design documents.
Do you have an unencumbered right to use the design?
Project owners should make sure that their contracts with architects give them the right to use design documents as intended, especially if the owner’s relationship with the architect goes south. Form contracts will often condition the owner’s right to use the design on the owner’s payment to the architect or compliance with other contract terms. While this sounds reasonable in theory, it can be tricky in practice if the owner and architect disagree about the architect’s compensation or other contract terms. One approach is for an owner to obtain an irrevocable license to use – or to hire others to use – the design documents to construct, repair, remodel and operate the project. The contract should make clear that this license survives any termination of the contract or dispute between the owner and architect, so that the completion of the project isn’t threatened by this termination or dispute.
Have you required as-built drawings?
An architect’s proposed scope of work may not include preparing “as built” drawings – in other words, drawings that show changes in the project made during construction. With the passage of time, memories fade, key personnel retire, and a working knowledge of the true conditions of a building is lost. Without as-built drawings, therefore, it may be very difficult – and expensive – to maintain, remodel or repair a building (imagine the expense of having to poke holes in your ceiling in a search for piping or cabling that needs repair). To minimize these risks, an owner should consider requiring its architect to synthesize change orders and other design-related documents prepared during construction into as-built drawings.
Is the unique look of your project protected?
Projects often have unique qualities that an owner does not want repeated by others. Restaurant franchises, for example, often contain unique design features based on a prototype building design. If the owner doesn’t want its project design repeated, the owner should include in its design contract a requirement that the architect refrain from designing another building that looks the same as or substantially similar to the owner’s project.
Are you furnishing any design documents to the architect?
As part of the design process, the owner sometimes gives the architect design specifications or other requirements developed by the owner as part of its business branding (for example, interior design specifications) to be incorporated into the architect’s design. If they are, the owner should include in its architect contract the requirements and conditions of using the owner’s design documents, and the design contract should make clear that (i) the use of owner-furnished design documents doesn’t limit the architect’s responsibility for the project design and (ii) the architect’s use of the owner’s documents is limited to the project and must be kept confidential by the architect and its consultants.
What about design-build documents?
Development projects often contain parts that are designed by the contractor or its subcontractors rather than the architect, such as HVAC systems, fire sprinklers, audio/visual systems and steel stairs. The rights of the owner to use design documents prepared by design-build contractors, however, may be forgotten in the sea of contract terms and project paperwork. An owner should identify what portions of the work will be performed on a design-build basis and then make sure that it has irrevocable rights to use the design-build documents.
As with all contract terms, careful drafting of design-related terms can help avoid problems in the future. Asking whether your contract gives you the right to use project design documents, even if there’s a problem between you and your architect, is a good first step.