An Administrator's Guide to California Private School Law

Chapter 17 – Construction

C. D ISPUTES W ITH A RCHITECT In disputes with the architect, a school’s claims will generally involve the architect’s failure to perform or the negligent performance of its obligations under its contract with the school. The architect’s claims will generally involve the school’s failure to pay for services provided by the architect under the contract. With a good contract, the school may avoid many of these disputes by outlining the duties of each party before the architect begins to perform and conditions for payment. The contract should provide a process to resolve any disputes that do arise. The school should prepare and maintain good documentation related to any issues with the architect. Any changes to the contract between the school and the architect should be in writing, signed by both the architect and an authorized representative of the school. The school should also follow the terms and conditions of the contract. For example, if the contract requires the school’s written approval before the architect may provide additional services, the school should enforce that provision consistently. The contract should also explicitly state the school is the owner of all project documents, plans, and electronic drawings and files, even if the contract is terminated. 2376 Without this provision, the architect may be able to prohibit the school from using its plans and specifications if a dispute arises. The school may receive a claim from a contractor that the architect’s performance, or failure to properly perform, delayed the contractor’s ability to work on the project, causing it additional costs and time spent on the project. The contractor typically does not have a direct contract with the architect, so it may have no choice but to file a claim against the school seeking damages for the school’s architect’s negligence. Schools should tender these claims to the architect for it to defend and indemnify the school from the contractor’s claims. If the architect refuses to accept its duties to indemnify and defend the school, the school’s only choice may be to file an action against the architect for breach of contract or for failure to indemnify and defend the school. A school should carefully review the contract’s indemnification agreement and discuss its options with legal counsel before filing this type of claim against the architect. D. M ECHANICS L IENS 1. M ECHANICS L IEN L AW A mechanics lien is an encumbrance against the school’s real property recorded by a claimant who was not paid for its work on the project. A contractor, subcontractor, material supplier, equipment lessor, laborer, design professional, or any other person authorized to perform work on a project has the right to file a lien against the school’s property if it is not paid for labor, service, equipment, or materials. 2377 The purpose of a mechanics lien is to prevent unjust enrichment of a property owner at the expense of a laborer or material supplier. 2378 For example, if the school, as project owner, obtained the benefit of the materials or services from a company hired by the contractor, but the contractor failed to pay that company for those services or materials, that company can protect its claim for payment by filing a mechanics lien against the school’s property. Once recorded, a

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