Design Professional and Construction Manager Law

Capa
Stephen A. Hess
American Bar Association, 2007 - 644 páginas
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Índice

State Regulation of the Design Professional
1
II Individual Licensure
2
III Firm Licensure
5
B Noncompliance Has Its Price
9
IV Firm Practice
11
B What Is to Be Sealed and When?
14
D Other Requirements Imposed by Some States
15
V Conclusion
16
B Estimate
294
C Project Progress Scheduling
297
D Value Engineering
298
E Constructability
299
F Site Logistics
300
G Green Building and Related Compliance
301
V PreConstruction
303
C Early Work
304

VI Practice Aids
17
B NCARB Certificates and NCEES Records
19
C Sample Interstate Commerce Letter
20
Ethics and Rules of Conduct Governing Design Professionals
23
A Ethical Issues in the Design Process
24
B Rules of Professional Conduct
26
II Code of Ethics
27
B Historical Development
28
C Discussion of Professional Codes of Ethics
29
III AIA Ethical Standards and Rules of Professional Conduct
30
B Enforcement
31
IV ASCE Code of Ethics and Rules of Professional Conduct
32
V NSPE Code of Ethics
34
VI Law Ethics and Professional Conduct
36
VII Ethical Dilemma
38
VIII Licensing Boards Governing Design Professionals
39
B Licensing Board Powers
40
C Enforcement Powers
41
D Investigative and Disciplinary Powers
42
E Revocation and Suspension of Licenses
43
F Disciplinary Reciprocity
44
G Judicial Review
45
H Standard of Review
46
IX Hyatt Regency Sky Walkway Collapse
47
X Conclusion
50
XI Appendices
51
B Licensure Boards Web Site Addresses
52
Design Professional Contract ResponsibilitiesPreDesign Design and PreConstruction Phases
55
Contractual and ExtraContractual Roles of the Design Professional
56
To Be or Not to Be
57
2 Understanding the Owners Initial Concept
59
b Project Consultants
60
AgenciesApprovals
61
b Building Permits and ApprovalsInspections
62
B Potential Liabilities of the Design Professional in the PreDesign Phase
63
2 Setting the Project Parameters
64
b The Initial Program
65
3 Initial Budget Estimates
66
4 Initial Schedule Estimates
67
III Contract Negotiation and Formation
68
A The Roles Responsibilities and Obligations of the Parties in Entering into the Contract
69
B The Contract
71
2 The Use of Custom Contracts
73
3 Specific Contract Provisionsthe Risks Defined
74
4 Indemnity
75
5 Basic vs Additional Services
76
6 Payments to the Design Professional
78
8 Budget Estimates
80
9 Schedule Estimates
81
11 Dispute Resolution
82
12 Insurance
83
13 Consequential DamagesWaiver and Related Issues
84
14 Limitations of Liability
85
Changes in Services
87
Roles and Responsibilities
88
2 Design Development
89
B Implied Obligations of the Design Professional during the Design Services Phases
90
Design Professional Legal ResponsibilitiesConstruction and Completion Phases
93
A Roles and Responsibilities of Project Participants in DesignBidBuild
94
3 Variations on Traditional Roles and Responsibilities in DesignBidBuild
95
B Roles and Responsibilities of the Design Professional during the Construction Phase
96
2 Modification of Roles and Responsibilities during the Construction Phase
97
3 Standard Contract Terms Regarding Design Professional Roles and Responsibilities during the Construction Phase
98
b Submittal Review
100
c Construction MeansMethods
101
d Safety
102
f Rejection of Work
103
g Contractor Claims Payment Issues and Interpretation of the Contract Documents
104
h Termination of the Contractor
106
4 Commonly Recognized Implied Obligations of the Design Professional in the Performance of Construction Phase Services
107
5 Areas of Potential Professional Liability Exposure
108
b Third Party Claims
109
c ContractorSubcontractor Claims
110
d Personal Injury Claims
111
e OSHA
113
Roles and Responsibilities
114
A Substantial Completion
115
B Punchlists
118
C Final Completion
119
D Warranties
120
E Project CloseOut Documentation
121
Design Professionals and the DesignBuild Project
123
II Differing Roles for Design Professionals in DesignBuild Projects
124
B Design Professional as a Subcontractor to DesignBuilder
125
D Bridging
126
B Less Complete Design
127
IV DesignBuild Led by Design Professional
128
C Strict Liability for the DesignBuilder
131
E Insurance Coverage and Bonding
132
G Economic Loss Doctrine Eroded
134
V ContractorLed DesignBuilder
135
1 PayIfPaid or PayWhenPaid Clauses in DesignBuild Contracts
136
3 Indemnification Clauses
137
C Licensing IssuesIllegality of DesignBuilder Not Having a Design Professional License
138
VI Member of a Joint Venture or Other Business Entity
139
3 Partnerships
140
B Insurance and Bonding
141
D Teaming Agreements
142
The Design Professional and Tort Liability
145
B Negligence
146
1 Standard of Care for Design Professionals
147
3 Necessity of Expert Witness Testimony
148
4 Causation
149
2 Effect on Contractual Limitations of Liability
151
E FraudElements
153
F Negligent Misrepresentation
154
II Issues Affecting the Tort Liability of Design Professionals
155
B Warranty Disclaimers
156
C Contract Modifications
157
D Preparation of Plans and Specifications
158
E Environmental Liability
159
Economic Loss Rule
160
B Application to Third Parties Not in Privity
161
1 Two Tests
162
b Foreseeable Duty Test
163
C Claims against Individual Design Professionals
164
D Exceptions to ApplicationEnforcement of the Doctrine
165
2 SuddenCalamitous Event
166
IV Site Safety
167
B Responsibility of the Contractor and Owner
168
C Indemnity for the Design Professional
171
D Theories of Liability against the Design Professional
172
E The Design Professionals Role on Site
173
F Design Professional Immunity Statutes
176
G Control over the Work and OSHA Fines
177
H Contract Provisions
179
J Hazardous Waste Sites
180
K The Safety Dilemma
181
Design Professional Work ProductOwnership and Protection
183
II What Types of Works Are Subject to Copyright Protection?
184
III Who Owns the Copyright?
185
2 CoAuthorship
186
1 Ownership by the Designer with a NonExclusive License for the Owner
187
3 Ownership of the Work by the Owner
188
4 Conveying Copyright Interests at a Later Date
189
b Transfer of Ownership
190
C CommonLaw Copyrights and Registered Copyrights
191
IV What Protection Does the Copyright Afford?
192
C The Architectural Works Copyright Protection Act
193
D Rights Protected by Copyright
194
F Scope of Protection for Works Consisting of Generic Features
195
V What Is Copyright Infringement?
197
B Access to the Copyrighted Work by the Alleged Infringer
198
1 The Extrinsic Test
199
2 Fair Use
200
3 Statute of Limitations
201
3 Statutory Damages
202
6 What Information Is Protected by Trade Secret Laws?
203
State Regulation of the Construction Manager
205
A States That Specifically Regulate Construction Managers
206
2 Oklahoma
207
B Jurisdictions with Little or No Regulation
210
1 Regulation as Contractor
211
b Implicit Regulation as Contractors
216
2 Regulation as Design Professional
219
b Regulation under State Procurement Laws
221
D Other Issues of Concern in Architect Engineering and Contractor Licensing
225
1 Design Professional Licensing
226
2 Contractor Licensing
227
III Ethical Considerations in the Relationship between Construction Manager and Owner
230
A Public Projects
231
1 Contingent Fees
232
2 Separate ContractsEntities for Design Management Construction
233
d Missouri
234
e South Carolina
235
c North Carolina
236
e Texas
237
1 Certification
238
2 Accreditation
239
3 Codes of Ethics
240
IV Practice Aids
242
B Research and Resource Links
243
Construction Management Overview
245
II Historical Evolution of Construction Management
248
III Recognition of Construction Management as a Profession
253
IV Construction Management and the Professional Standard of Care
255
V Differences from Design and Construction Professions
256
VI Construction Management Services Overlap with Other Professions
257
VII Major Categories of Service
258
A Agency CM
259
B CM AtRisk
260
C Program Management Services
261
D Value Engineering Services
262
VIII Standard Form Agreements
263
2 Construction Phase
265
2 Construction Phase
266
C AGC
267
D Comparison of the Standard Form Agreements
268
IX Compensation
270
B Lump SumFixed Fee
272
C Cost of Work Plus a Fixed Fee
273
D Fee as a Percentage of Construction Cost
274
E Cost of Work Plus a Fee with a GMP
275
F Comparison of Compensation Arrangements
278
X Practice Aids
279
Construction Managers Responsibilities PreDesign Design and PreConstruction Phase
281
II Relationship with Owner
282
III PreDesign
283
B Environmental Impact Statements
284
1 Phase I Environmental Assessment
285
C Site and Existing Building Survey Hazardous and Contaminated Substances
286
E Funding
287
G Engaging Design Professional
288
H Adjacent Site Investigation
289
I Utility Service
290
1 Schematic Design Drawings
292
2 Design Development Drawings
293
1 Time and Reimbursable Expenses
305
VII Changes
306
VIII Insurance
307
A Construction Managers Professional Liability Insurance
308
C Builders Risk Insurance
309
IX Suspension or Termination
310
X Claims
311
A Scope of Services
312
C Waiver of Consequential Damages
313
D Limitation of Liability
314
F Indemnification
315
XII Conclusion
316
B Part APreConstruction Agreement
337
C PreConstruction Agreement Checklist
348
Construction Management Contract Responsibilities Construction and Completion Phases
349
A Construction Managers Responsibility during Construction
350
II The Construction Managers Role Risks and Responsibilities during Construction
351
1 Work Scope Allocation
352
3 Trade Contractor Bidding and Selection
353
B Management of OnSite Work
354
C Cost Control
355
2 Management of Trade Contractor Changes
357
3 Continued Consulting on Value Engineering and Substitutions
358
2 Developing Schedule Updates
359
3 Control of Trade Contractor Schedules and Coordination
360
5 Float
361
1 Responsibilities of the Construction Manager as Design Is Finalized
362
2 Responsibility of the Construction Manager VisaVis Designer
363
1 Contracts and Delegation of Risk
364
3 Surety Bonds and Performance Risk
365
4 Management of Risk That Is Not Transferred or Insured
366
I Customer Service and Customer Relations
367
A Management of Punch List
368
B Commissioning and Turnover
369
1 Training
370
C Procuring and Handling WarrantiesGuarantees
371
D Audit or Cost Verification
372
IV Coordination with Othersan Independent Duty or an Adjunct to All Other Tasks?
373
B Construction Managers Duty to Owner as Agent
374
Use of Standard Form Contracts and Documents
375
C AIA
376
The Construction Manager and Tort Liability
377
II Tort Liability of the Construction Manager to the Owner
378
a DutyStandard of Care
379
b Failure to Comply with Licensing Requirements
381
c Failure to Comply with Procurement Codes
384
e Failure to Comply with Industry Standards
385
3 IntentionalNegligent Misrepresentation
386
4 Unfair Trade Practices
387
B Bases of Liability
389
2 Faulty Workmanship and Improper InspectionSupervision
391
3 Negligent Cost EstimatesThe OverBudget Project
393
4 Improper Certification of Progress Payments
395
5 Improper Schedule Preparation Monitoring and Coordination
396
6 Improper Processing of Submittals
397
7 SelfDealingConflict of InterestLack of Independence
398
III Construction Managers Liability to Third Parties
400
2 Negligent Misrepresentation
402
3 Interference with Contract
404
4 Defamation
405
B Bases for Liability
406
IV Owners Liability to Third Parties Based on Imputation of Construction Managers Misconduct
409
V Construction Manager Defenses
410
B ContributoryComparative Negligence
411
D Superior Knowledge
412
The Construction Manager and the DesignBuild Project
415
II The Construction Manager as DesignBuild Team Leader
416
A Conflicts of Interest
417
C State Licensing Requirements
418
A Owners Budget vs Raw Construction Cost
419
Force Majeure or Reasonably Inferable in Todays Economy
420
C Design Team Fees and Reimbursables vs Additional Services
421
Unknown Hourly Billings or Predictable Lump Sum
423
3 Controlling Owner Changes During Design as a DesignBuilder
424
Contractual Responsibility
425
D Predicting Permits Fees and Other Governmental Approval Costs
426
2 How Much Is Enough?
427
3 Owner vs DesignBuilder Contingency
429
G Value Engineering vs Value Elimination
431
2 Managing the Implicit DesignBuilder Incentive to Lower Costs at the Expense of LifeCycle Cost
432
IV Ownership and Licensing of the Contract Documents
433
A Owner Retains the Right to Own Documents If the DesignBuild Contract Is Terminated
435
B Documents in Electronic Format
436
Managing Input BuyIn and Approval during PreConstruction
437
VI The Construction Cost Estimate
440
VII Constructability Review
441
VIII The Construction Schedule
443
X Use of a Commissioning Agent
446
XI Friendly Contract Clauses for the Construction Manager as DesignBuilder
447
B Indemnity
449
XII Appendices
451
B Instructions for Using the Fee and Reimbursables Worksheet
457
Design ProfessionalConstruction Manager Indemnification and Professional Liability Insurance
459
II Standard Indemnification Obligations
460
IV Intermediate Form
461
VI Insurance Impacts
464
VII Restrictions on Indemnifications
465
A Professional Liability Coverage
467
C Tail CoverageExtended Reporting Periods
468
E Property Damage
469
G Premises and Operations Liability
470
H Contractual Liability Coverage
471
J Libel and Slander
472
Agency vs AtRisk
474
N Standard Exclusions
475
O Express Warranties and Guarantees
476
Q Deductibles
478
S WrapUp Project Policies
480
T Considerations with WrapUps
481
U Attorneys Fees and Litigation Costs
482
IX Evidence of Insurance
483
X Recent Claim Trends
484
B DesignBuild
485
XII Conclusion
486
Considerations for Subconsultant and Subcontract Agreements for Design Professionals and Construction Managers
487
II The Process of Choosing a Subcontractor
488
III Unique Legal Issues Applicable to the Prime ContractorSubcontractor Relationship
491
A Vicarious Liability Indemnification and Contribution
492
B Exculpatory Risk Allocation and Limitation of Liability Clauses
495
D Insurance Issues
497
E Dispute Resolution
499
F FlowDown Clauses
500
G Applicability of Economic Loss Rule
501
IV Drafting Subcontract Agreements
502
Get It in Writing and Get It Signed
503
1 Form or Custom Subcontract Agreements
504
Identify Key Subcontract Terms and Conditions
507
VI Subcontract Issues Unique to Offshore Subcontracting Relationships
513
VII Conclusion
515
IX Appendix
518
Damages and Remedies
525
II Causes of Action
526
2 Promissory Estoppel
527
III General Measures of Damages
530
a Design Professional and Construction Manager Compensation
531
c Contractors Compensation
533
2 Promissory Estoppel
534
B Tort Claims
535
IV Calculation and Proof of Compensatory Damages
536
2 Price Increases for Labor and Material
537
4 Home Office Overhead
538
5 Lost Profits
540
7 Loss of Efficiency
541
9 Interest
543
C Alternative Methods for Calculating Damages
544
2 Modified Total Cost
545
4 ShouldCost Estimates
546
D Consequential Damages
547
B Failure to Mitigate Damages
548
VI Protection for Performance and Payment Rights
550
C Labor and Material Payment Bonds
551
F Miller Act
552
G State Public Works Claims Little Miller Acts
553
VII Contractual and Other Limitations on Liability
554
B Waivers of ConsequentialIncidental Damages
555
D Disclaimer of Warranties
556
G No Damages for Delay
557
I Immunity under Workers Compensation Laws
558
J Immunity from Site Safety Claims
559
Alternative Dispute Resolution and the Construction Dispute
561
II Overview of Types of ADR
562
B Mediation
563
1 Early Neutral Evaluation
565
III Strategies in Arbitration
566
B Law Governing
567
1 The Contract Provision
568
2 Contractual Preconditions
570
D Selection of the Forum and Procedural Considerations
573
Additional Considerations
575
F PreHearing Issues
577
3 PreArbitration Hearings
578
4 Briefing
579
G The Arbitration Hearing
580
2 Special Issues in the Arbitration of Construction Cases
581
b Delay Claims
582
e Use of Technology in Proceedings
583
f Nature of the Award
584
3 Vacating the Award
585
IV Strategies in Mediation
586
2 Selection of a Specific Process
587
B Selection of the Mediator
591
C Planning for and Attending the Mediation
593
2 Use of Technology Live Experts at the Mediation
594
3 Developing a Mediation Strategy
595
b Proactive Participation in Defining the Process
596
c Making Offers vs Discussing Positions
597
d Briefing
598
e Client and Advocate Expectations of Process and Result
599
4 Wrapping Up the Successful Mediation
601
Special Topics in Litigation of Disputes Involving Design Professionals or Construction Managers
603
B Statutes of Repose
604
C Using Tolling or Standstill Agreements to Defer Litigation
606
III Certificates of Merit
607
A Who Is Covered?
608
IV Management of Litigation through the Use of Special Masters
610
V Use of Experts
612
B DaubertKumho Tire Extends to Both an Experts Testimony and the Conclusions Reached by the Expert
613
It Must Be Reasonable for an Expert to Rely on That Which Forms the Basis of His or Her Opinion
614
VI Discovery Management and Use of Evidence in Complex Construction Cases
615
B Electronic Discovery
617
C Demonstrative Evidence
621
VII Using Joint Defense Agreements to Avoid FingerPointing and Manage the Dispute
624
A Practical Considerations for a Joint Defense
627
B The Necessity of a Writing
629
INDEX
631
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