patrick j. toomey, esq. jorge cruz, esq., p.e. · aia b141 (1997) has been split into twoaia b141...

Patrick J. Toomey, Esq.Jorge Cruz, Esq., P.E.

OverviewOverview

Contract NegotiationsContract Negotiations Risk Management

Three New AIA Provisions Three New AIA Provisions Pitfalls in Contracts Bad Contracts Florida Statutes 558 Copyright Litigationg

Contract Negotiations:An ounce of prevention is worth a pound of An ounce of prevention is worth a pound of cure

The best time to ensure that the designThe best time to ensure that the design professional has limited their liability is during contract negotiationsg gSeeking Legal Counsel during contract negotiation is the best way to ensure thenegotiation is the best way to ensure the ounce of prevention

New AIA Contract NumbersNew AIA Contract Numbers

AIA B141 (1997) has been split into twoAIA B141 (1997) has been split into two separate document numbers as of 2007The B141 pt 1 is now the B102 (2007)The B141 pt. 1 is now the B102 (2007)The B141 pt. 2 is now the B201 (2007)

Be aware of what contracts you are i d th l i h t tusing and the clauses in each contract

Contract Negotiations:One Sentence Can Make A One Sentence Can Make A Difference B141 1.2.3.7 (1997)

The Architect shall be entitled to rely on the accuracy and completeness of services andaccuracy and completeness of services and information furnished by the Owner. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of anythe Owner if the Architect becomes aware of any errors, omissions or inconsistencies in such services or information.

B102 2 1 2 (2007) B102 2.1.2 (2007) The Architect shall coordinate its services with

those services provided by the Owner and the yOwners consultants. The Architect shall

Two Real World ApplicationsTwo Real World Applications

Civil case 10 years agoy gStructural case Today

Two Critical IssuesTwo Critical Issues

Reading new first sentence of B102Reading new first sentence of B102 2.1.2 (2007) in conjunction with the former sentencesThe Architect is placed in the middle as the point of contact between the Owner

d th i lt tand their consultants

Two Points IllustratedTwo Points Illustrated

O t k diff t thOne sentence can make a difference to the meaning of a contract provision when read in conjunction with the othersconjunction with the othersAmbiguous terms lead to uncertainty in not only services to be provided but also theonly services to be provided, but also the outcome of a claim

Mediation/ArbitrationMediation/Arbitration

Mediation is the initial stepMediation is the initial stepPositives of MediationRecent case showing efficacy ofRecent case showing efficacy of MediationAl i l d M di ti i i iAlways include Mediation provisions in your contract


Why mediation?Why mediation? More cost effective way of getting results Takes less time to arrive at an outcomeTakes less time to arrive at an outcome More predicable results

Arbitration Arbitration Choosing arbitrators is a critical component

of this processp Per se, these decisions are not judicially

reviewable


Pros/Cons of ArbitrationPros/Cons of ArbitrationB102 (2007) leaves the option of Arbitration to the PartiesArbitration to the Parties

Standard of CareStandard of Care

Previously the Standard of Care was notPreviously the Standard of Care was not spelled out in the B141 (1997)B102 1 2 (2007) Now states:B102 1.2 (2007) Now states:

The Architect shall perform its services consistent with the professional skill and care pordinarily provided by architects practicing in the same or similar locality under the same or similar i t circumstances.

This standard came from Moransais

Standard of CareStandard of Care

[W]here the negligent party is a professional, [ ] g g p y p ,the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the communityused by similar professionals in the community under similar circumstances Moransais v. Heathman, 744 So.2d 973 (Fla. 1999)

The standard of care is subjective and location-based, and should be proven by expert testimonytestimony.

The Standard of Care can be defined in the contract to be above that of the local communitycontract to be above that of the local community

Standard of CareStandard of CareAn onerous standard of care provision is that in the Broward County School Board ContractCounty School Board Contract

As to any and all drawings, plans, specifications or their documents or materials provided or prepared by Project Consultant or its Sub-Consultants, the Project Consultant agrees same:same:1. Are sufficiently complete, accurate, and adequate for bidding,

negotiating and constructing the Project and are consistent with the Owners requirements for the Project Budget and Project Schedule;

2. Meet the Owners aesthetic, functional and operational objectives;, p j ;3. Are sufficiently fit and proper for the purposes intended;4. Comply with all applicable laws, statutes, rules and regulations,

building codes and Owners guidelines or regulations, which apply to or govern the project, andWill if t t d i d ith th P j t C lt t5. Will, if constructed in accordance with the Project Consultants Design, result in a complete and properly functioning facility. Any defective drawings, specifications or other document furnished by Consultant shall be promptly corrected by the Project Consultant at no cots to Owner, without limitations to other remedies or rights of O O l t f t f llOwner. Owners approval, acceptance or use of or payment for all or any part of Project Consultants services hereunder or of the project itself shall in no way alter the Project Consultants obligations or Owners rights hereunder.

Code Compliance:Contrast With B141/B201 Previously, the B141 1.2.3.6 said:

The Architect shall review laws, codes, and regulations applicable to the Architects services. The Architect shall respond in the design of the Project to requirements imposed by governmentalProject to requirements imposed by governmental authorities having jurisdiction over the Project.

Now, the B201 2.1.5 says:The Architect shall at appropriate times contact the The Architect shall, at appropriate times, contact the governmental authorities required to approve the Construction Documents and the entities providing utility services to the Project. In designing the y j g gProject, the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services services.

IndemnificationIndemnification

Not in B201 (2007)Not in B201 (2007)Has never been a feature of standard form AIA B-series contractsform AIA B-series contractsFrequently sought by Owners today

Some Owners Are More Demanding

Broward County School Board indemnityBroward County School Board indemnity provisionBSCB Contract 8 1 1BSCB Contract 8.1.1

To the fullest extent permitted by law, the Project Consultant shall indemnify and hold harmless the Owner, its members, officers, employees and agents (hereinafter collectively Related Parties) from and against any and all liability, claims, causes of action (by whomever brought or alleged and regardless of the legal theories upon which the liability, claims or causes of action are based), losses, damage, costs, expenses and fees (including but not limited to reasonable fees of attorneys, expert witnesses and other consultants), which are or may be imposed upon, incurred by or asserted against Owner and/or the Related Parties to the extent said liability, claims, causes of action, losses, damages, costs, expenses and/or fees are caused by the Project Consultants negligent, reckless or intentional wrongful acts of omission, error, misconduct, or commission.

PitfallsPitfalls

Does the client have expectations forDoes the client have expectations for warranties/guarantees/performance Have a dispute resolution process inHave a dispute resolution process in placeCheck the Contractual LiabilityCheck the Contractual Liability Exclusion in your Professional Liability coveragecoverage

Th P i tThe Point: Bad Contracts Lead to Bad

Claims

Florida Statutes of LimitationsFlorida Statutes of Limitations

What are the applicable Florida Statutes of Li i iLimitation

Errors and omissions based on real t i tproperty improvement:

4 years. Florida Statute Section 95.11(3)(c)

For action founded on the design, planning or construction of an improvement to the real property, time starts running from

1 actual possession by the owner1. actual possession by the owner2. the date of issuance of certificate of occupancy3. the date of abandonment of construction if not completed4. date of completion5 t i ti f th t t b t th d i f i l5. termination of the contract between the design professional

whichever date is the latest


Professional Malpractice:p2 years. Florida Statute Section 95.11(4)(a),

This statute applies to action whether founded in contract or pptort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.

However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional and case law interprets the four year statute 95.11 (3)(c) as applicable regarding any action involving an improvement to real propertyimprovement to real property.

Thus, application to architects and engineers cases is extremely limited.

Example of 2 year versus 4 year Statute of Li i iLimitations

Example: If you are hired to inspect and/or p y psurvey a residence for defects without any intention of construction on the propertythen the 2 year statute of limitation wouldthen the 2 year statute of limitation would apply (Only situation 2 year statute applies)

Example: If you are hired to inspect a residence for defects and they ask you to verify that an addition can be added to the property then the 4 year statute of limitation would applywould apply.

Latent DefectsLatent Defects

Latent defects = hidden defectsLatent defects hidden defects

The statute of limitations previouslyThe statute of limitations previously discussed do not start running until the defect is discovereddefect is discovered.

Th t d d f di i th d f tThe standard for discovering the defect is the ordinary person standard


Action founded on statutory liability:Action founded on statutory liability:4 years. Florida Statute Section 95 11(3)(f)95.11(3)(f)

E l Fl id St t t 553 84Example: Florida Statute 553.84 -Violation of the building code.


Indemnity or equitable contribution:y q1 year. See A Patient Care Center, Inc. v. Ted Hoyer and Co., Inc., 498 So.2d 1381 (Fla. 4th DCA 1986)

The action begins to run when the right to bring the claim is established, either when judgment has been entered or when the defendant has paid the claim.

This is so despite the fact that the period of limitations has run on the original cause of action at the time the claim is filed and despite the fact the statute ofclaim is filed and despite the fact the statute of limitations had run on original cause of action when the claim is filed. See Kala Inv., Inc. v. Sklar, 538 So.2d 909 (Fla. 3d DCA 1989).

Example of Indemnity or Equitable C ib iContribution

Indemnity A duty to make good anyIndemnity A duty to make good any loss, damage, or liability another has incurred

Example: An Owner sues an Developer for breach of contract. The Owner wins the lawsuit and gets a judgment against the Developer The Developer than hasthe Developer. The Developer than has 1 year to file suit against the Architect for indemnification and/or contribution.


Statute of Repose:p10 years. Florida Statute Section 95.11(3)(c)

For action founded on the design, planning or construction of an improvement to the real propertyconstruction of an improvement to the real property, time starts running from 1. actual possession by the owner2. the date of issuance of certificate of occupancyp y3. the date of abandonment of construction if not

completed4. date of completion5 termination of the contract between the design5. termination of the contract between the design

professional

Whichever date is latest

Once Statute of Limitation Starts Running i b dit can not be stopped

Example: An owner discovers that a portion p pof his floor is sinking. The owner sues the Architect and structural engineer because he believes his home was negligently g g ydesigned. Four years pass and during destructive testing it is discovered that the footing were improperly pouredfooting were improperly poured.

Can the Owner now sue the Contractor for li i ?negligent construction?

NO

Construction Defects: Florida Statute 558

The purpose of Section 558 of the Florida p pStatutes is to provide an alternative method for resolution of construction defect disputes in order to reduce the need for litigation oforder to reduce the need for litigation of construction defect claims while protecting the rights of property owners. [F.S. 558.001]

558 only applies to new contracts for construction that contain a provision notifyingconstruction that contain a provision notifying a property owner of 558s requirements. [F.S. 558.005]

An Overview of F.S. 558F d t ll 558 f ti b tti h dl hi h Fundamentally, 558 functions by setting up hurdles which a property owner must clear before being allowed to file suit. A property owner cant sue until he has complied with its provisions. [F.S. 558.003]

The hurdles are designed to give the potentially responsible party notice of the alleged defect and an opportunity to cure it or otherwise make the property owneropportunity to cure it or otherwise make the property owner whole. [F.S. 558.004]

A potentially responsible party can be a contractor, b t t li d i f i l [F Ssubcontractor, supplier or design professional. [F.S.

558.002(3)]

558 applies ONLY to construction defects claims but does558 applies ONLY to construction defects claims, but does NOT apply to personal injury claims arising from a construction defect. [F.S. 558.002(1)]

558 di id l i i t t t i h tti 558 divides claims into two categories when setting deadlines: 1) less than 20 parcels and 2) 20 parcels or more. Deadlines are longer for claims involving 20 or more parcels. [F.S. 558.004]

Issuing A 558 Notice Issuing A 558 Notice The first hurdle required by 558 is that the property owner give

written notice to the potentially responsible parties that refers to Florida Statute 558 [F S 558 004(1)]Florida Statute 558. [F.S. 558.004(1)]

If the allegedly defective construction was done under a contract with the property owner, the written notice must be served on thewith the property owner, the written notice must be served on the entity with whom the property owner contracted. [F.S. 558.004(1)]

The written notice must reasonably describe the alleged defect with sufficient detail and state any resulting damage if known In claimssufficient detail and state any resulting damage, if known. In claims involving less than 20 parcels, a property owner must issue the written notice 60 days prior to filing suit; in claims with more than 20 parcels, the property owner must issue the written notice 120 days before filing suit [F S 558 004(1)]before filing suit. [F.S. 558.004(1)]

When issuing a 558 notice, a property owner can request that the recipient provide all discoverable information relating to the p p gconstruction defect. If so, the duty to disclose is reciprocal. [F.S. 558.004(15)]

Receiving A 558 Notice: Inspection

An entity that receives a 558 notice has the right to a bl i ti f th t id d threasonable inspection of the property, provided they

coordinate with the property owner. For claims involving less than 20 parcels, the period for inspection is 30 days from the date of notice. For 20 parcels or y pmore the period is 50 days from the date of notice. [558.004(2)]

Should destructive testing be determined necessary, it must be carried out by mutual agreement. [F.S. 558.004(2)]

If the property owner refuses any necessary destructive testing, he cannot maintain his claim. [F.S.558.004(2)][ S 558 00 ( )]

Receiving A 558 Notice: Notice To Other Parties

The recipient of a 558 notice may forward that notice to other potentially responsible parties such as a contractorpotentially responsible parties, such as a contractor, subcontractor, supplier, or design professional, noting the particular defect for which it believes each is responsible. For claims involving less than 20 parcels, the period for forward is 10 days from the date of notice. For 20 parcels or more the period is 30 days from the date of notice [F S 558 004(3)]period is 30 days from the date of notice. [F.S. 558.004(3)]

Each of the other potentially responsible parties has the same right to inspect as provided to the original recipient of the 558 notice [F S 558 004(3)]notice. [F.S. 558.004(3)]

Each of the other potentially responsible parties must provide a written response to the entity who forwarded the notice. The report must include the scope and results of the inspection, and

fp p p ,

unless a claim is disputed, a description and timetable for repairs the party is willing to make. In claims involving less than 20 parcels, the period for responding is 15 days from their receipt of notice. For 20 parcels or more the period is 30 days from their receipt of notice. [F.S.558.004(4)]from their receipt of notice. [F.S.558.004(4)]

Responding to the 558 Notice Responding to the 558 Notice In claims involving less than 20 parcels, the recipient of a 558 notice must provide a written response to the property owner within 45 days of the date of receipt If the claim involves more than 2045 days of the date of receipt. If the claim involves more than 20 parcels the recipient must provide the written response within 75 days. [F.S. 558.004(5)]

The recipients response m st eitherThe recipients response must either:A. Offer to repair the alleged defects at no cost to the property

owner and will not obligate the offerors insurer.B. Offer a compromise settlement by monetary payment that will p y y p y

not obligate the offerors insurer.C. Offer a compromise settlement of a combination of repairs

and monetary payment that will not obligate the offerorsinsurerinsurer

D. Dispute the claimed defects and refuse to remedy or compromise in settlement.

E. Offer a compromise settlement by monetary payment (or combination of monetary payment and repairs) based on thecombination of monetary payment and repairs) based on the determination of the offerors insurer to be made within 30 days of notification to the insurer.[F.S. 558.004(5)]

Responding to the 558 Notice: Monetary Payments

Where the recipient of the 558 notice responds by t ti th t t t ill b d t i d bstating that a monetary payment will be determined by

its insurer, that recipient must notify the insurer at the same time it responds to the 558 notice. [F.S. 558.004(5)(e)] ( )( )]

An insurer must provide a determination within 30 days of notification from the insured. [F.S. y [558.004(5)(e)]

If the insurer fails to provide a timely determination to th i d th t ill b d d tthe insured, the property owner will be deemed to have satisfied all conditions precedent to suit. [F.S.558.004(5)(e)]

Responding to the 558 Notice: Disputing A Claim

Where the recipient of the 558 noticeWhere the recipient of the 558 notice responds by disputing a claim, the property owner may proceed to litigate. [F.S.558.004(6)]

A recipients failure to respond operates the same as a dispute of the claim. [F.S. 8 004(6)]558.004(6)]

Acceptance/Rejection of the Recipients Response

Once the property owner receives a response, he must accept or reject that response in writing within 45 days [F Saccept or reject that response in writing within 45 days. [F.S. 558.004(7)]

If the property owner accepts the offer to repair an allegedIf the property owner accepts the offer to repair an alleged construction defect, he must provide the entity making repairs with reasonable access to the property. [F.S. 558.004(8)]

If the entity that agreed to make payment or repairs fails to do so as set forth in their response (except for reasonable delays beyond the control) the property owner may withoutdelays beyond the control) the property owner may, without further notice, proceed to litigate the claim. [F.S. 558.004(8)]

F.S. 558 and Statutes of Limitation

A claimant's mailing of the written 558 notice of claim t ll th li bl t t t f li it ti l ti ttolls the applicable statute of limitations relating to any person covered by 558 and any bond surety until the later of:

(a) Ninety days, or 120 days, as applicable, after receipt of the notice of claim or

(b) Thirty days after the end of the repair period or payment period stated in the offer, if the claimant has accepted the offer.

By stipulation of the parties, the period may be extended and the statute of limitations is tolled during the extension. [F.S. 558.004(10)]

F.S. 558 and Liability Insurance Policies

Nothing in 558 relieves the entity receiving the notice of claim from complying with all contractual provisions of anyclaim from complying with all contractual provisions of any liability insurance policy as a condition precedent to coverage for any 558 claim. [F.S.558.004(13)] -

However, notwithstanding the foregoing or any contractual provision, the providing of a copy of such notice to the person's insurer, if applicable, shall not constitute a claim for insurance purposes [F S 558 004(13)]insurance purposes. [F.S.558.004(13)]

Nothing in 558 shall be construed to impair technical notice provisions or requirements of the liability policy or alterprovisions or requirements of the liability policy or alter, amend, or change existing Florida law relating to rights between the insureds and insurers except as otherwise specifically provided by 558. [F.S.558.004(13)]

Other Important 558 ProvisionsOther Important 558 Provisions

558 does not prohibit or limit a property owner p p p yfrom making any necessary emergency repairs to the property as are required to protect the health safety and welfare of theprotect the health, safety, and welfare of the claimant. [F.S.558.004(9)]

After receipt of the initial notice of claim, a property owner and the entity receiving noticemay by written mutual agreement alter themay, by written mutual agreement, alter the procedure for the notice of claim processdescribed in this chapter. [F.S. 558.005(3)]

Type of A/E Insurance CoverageType of A/E Insurance Coverage

Most A/E liability insurances are claims ymade policy

Insurance agents sell you insurance for one year g y yand crosses their fingers that a claim does not come in.

Project Specific Insurance Policy:

Name speaks for itselfName speaks for itself

Advantage - Does not affect your regular liability

What happens if you cancel your liability insurance for just oneliability insurance for just one year?

Notification of a ClaimNotification of a Claim

Make sure to notify insurance of any potential claim Insurance always contain a clauseclaim. Insurance always contain a clause concerning notification within (30) days or a reasonable amount of time.

Always error on the side of notification.

Many insured due to inexperience fail to notifyMany insured due to inexperience fail to notify insurance company when they receive a potential claim.

R D t li h th iReason: Do not realize when they receive a claim

Reason: Scared that premium may increaseReason: Scared that premium may increase

Failure to Notify Insurance Of Claim

If you fail to notify the insurance company of aIf you fail to notify the insurance company of a potential claim within a reasonable amount of time the insurance company may refuse coverage.

Example: An architect receives a claim letter onExample: An architect receives a claim letter on a project and never reports it. (3) years later the Architect gets sued on the project. At some point during the litigation the insurancepoint during the litigation the insurance discovers that there was a previous claim letter never reported.

WHAT HAPPENS NOW?

Procedure for Successor Architect Adopting As His Own Work The Adopting As His Own Work The Work Of Another Architect

DPR Rule 61G1-18.002(1)A successor registered architect seeking to reuse already sealed contract documents underreuse already sealed contract documents under the architects must be able to document and produce upon request evidence that he has in fact recreated all the work done by the original y gregistered architect.

The successor registered architect must take allThe successor registered architect must take all legal professional and legal responsibility for the documents which he signed and sealed and can in no way exempt himself from such full y presponsibility.

Procedure for Successor Architect Adopting As His Own Work The Work Of Another ArchitectOf Another Architect

DPR Rule 61G1-18.002(1)Pl d t d t b d b thPlans do not need to be redrawn by the successor architect. However, the successor architect must be able to prove by documentation that he rethought and reworkeddocumentation that he rethought and reworked the entire design process.

Th i t d hit t t hiThe successor registered architect must use his own title block and seal and signature and remove the title block, seal and signature of the original registered architectoriginal registered architect.

Procedure for Successor Architect Adopting As His Own Work The Work Adopting As His Own Work The Work Of Another Architect

DPR Rule 61G1-18.002(2)Prior to sealing, signature and dating work, a successor registered architect shall be requiredsuccessor registered architect shall be required to notify the original registered architect, by certified letter to the last known address of the original registered architect of the successorsoriginal registered architect of the successor s intention to use or reuse the original registered architects work.

The successor registered architect will take full responsibility for the drawing as though they were the successor registered architectswere the successor registered architect s original products.

Successor Architect Potential Exposure

Disciplinary Action from the AIADisciplinary Action from the AIA

Lawsuit from original architect forLawsuit from original architect for Copyright infringement.

Successor registered architect must take all legal professional and legal a ega p o ess o a a d egaresponsibility.

COPYRIGHTCOPYRIGHT

Brief Look at Copyright ProtectionBrief Look at Copyright Protection

Architects have always had a common law i ht t i ht t tiright to copy right protection.

In 1990, the United States Congress 990, t e U ted States Co g esspassed the Architectural Works Copyright Protection Act.

Architectural Works 17USCS 102(a)(8)

Plans and Drawings 17USCS 102(a)(5)

Brief Overview of Copyright Protection

Richard v. Leonel, 232 F. 3d 290 (2d CirRichard v. Leonel, 232 F. 3d 290 (2d Cir 2000) the Court interpreted the Copyright Act holding that Buildings that were constructed after December 1, 1990 are now protected as well.

Architects often mistakenly contract away h i i htheir copyright.

Requirement for Copyright Protection

Substantial Similarity Test:Substantial Similarity Test:There is a substantial similarity when the ordinary observer unless he is setthe ordinary observer, unless he is set out to detect the disparities, would be disposed to overlook them, and regarddisposed to overlook them, and regard their aesthetic appeal as the same

Copyright Case LawCopyright Case Law

Value v. Mendhem architectural work hibi di f i imust exhibit some modicum of creativity

before it is eligible for copyright protection

Feist v. Rural Telephone Services the threshold for creativity is low and the Courtsthreshold for creativity is low, and the Courts are apt to find that an architectural work is protected as an original design.p g g

Some Aspect of Architectural Work Are Not Protected

Photographs and similar reproductionPhotographs and similar reproduction are allowed

Why Register Copyright Protection EarlyEarly

Why would an Architects want to register his copyright when copyright protection attaches at the time ofwhen copyright protection attaches at the time of creation of the drawing?

1. infringement is unenforceable until drawings are copyrighted.

2. registration creates the presumption that the copyright is valid.py g

3. If the drawings are published prior to copyright being registered, then the owner of the copyright can not collect Attorneys fees or statutory damages.

Damages for Copyright Infringement

Either the copyrights owners actualEither the copyright s owner s actual damages and any additional profits of the infringer or Statutory Damagesg y g

Statutory damages range from y g g$750 -$150,000

Damages for Copyright Infringement

Example: You enter into a contract withExample: You enter into a contract with a developer to design and construct a strip mall. The strip mall is completed. p p pThe developer without your permission builds another strip mall using your p g ydrawings. Now if you can prove copyright infringement you would be entitled to recover all of the developers profits in the new strip mall

Sign and Sealing Potential Exposure

The Architect signing and sealing the g g gdrawings can be sued individually for professional negligence

Limit Exposure by making sure that the firm you work for has you on their iinsurance coverage.

LITIGATIONLITIGATION

Preventing or Being Prepared for Litigation

Contract provisions:p

Make sure you understand the contract yyou are signing.

The contract with your sub-consultant should incorporate the contract with the ownerowner.

Preventing or Being Prepared for LitigationExample: The Contract between the

G l C t t d th A hit tp

General Contractor and the Architect on a design Build project has a paid when paid clause. The Contract between the Architect and his sub consultant indicatesArchitect and his sub-consultant indicates that sub-consultant will be paid within 30 days of performing work. The Owner is late in paying the General Contractor are youin paying the General Contractor, are you still required to pay your sub-consultant?

YESCan the sub consultant sue the ArchitectCan the sub-consultant sue the Architect due to the lateness in payment and win?

YES

Preventing or Being Prepared for LitigationExample:

The Contract between the General Contractor and the Architect on a design Build project has

10 d t d f t RFIa 10 day turn around for response to RFIs. The Contract between the Architect and his sub-consultant is silent as to the turn around time for shop drawingstime for shop drawings.

How much time does the sub-consultant have to respond to RFIsto respond to RFI s.

A Reasonable amount of time

Preventing or Being Prepared for Litigation

Document all decisions revisions RFIsDocument all decisions, revisions, RFI s and modifications to the project.

Construction administration through emails if not done correctly can be aemails if not done correctly can be a problem. (EMAILS SHOULD BE FORMAL)FORMAL)

How to Define Scope of ServicesHow to Define Scope of Services

Limit scope by saying what you do andLimit scope by saying what you do and what you will NOT do if appropriate

Limit site visits by being definite

Limit meetings by hours

Sample of Bad Scope LanguageSample of Bad Scope Language

Visit site as appropriateVisit site as appropriate

Attend meetings with staff when necessaryg y

If there is litigation, assist Owner as neededg

Revise Plans as appropriate

Do you see a trend here????

Sample of Good Scope LanguageSample of Good Scope Language

Attend meetings with staff for up to 12 h f ti d i S h ti hhours of time during Schematic phase;

In the event of litigation, consultant will be t e e e t o t gat o , co su ta t bepaid to assist as an additional service;

Attend meetings to be held Mondays fromAttend meetings to be held Mondays from 8am to Noon during Contract Administration phase; and

Plan revisions through no fault of the Architect shall be an additional service;

General Cause of A/E ClaimsGeneral Cause of A/E Claims

Primary factors in many A/E y yclaims are: Miscommunication and Lack of Coordination

How the architect drewHow the engineerHow the shop drawingHow the contractorWhattheownerwasWhat the ownerHowthearchitectdrewit.

Howtheengineerdesignedit.

Howtheshopdrawingshowedit.

Howthecontractorinstalledit.billedfor.

Whattheownerwanted.

Communication with the client is the mostclient is the most

important thing you do to p g yprevent litigation

Jorge Cruz Patrick [email protected] [email protected]