Legal Matters: Contracts, Warranties, Claims and Disputes
What Causes Construction Claims and Disputes
This article by Matthew DeVries in Design Cost Data Magazine is a thorough explanation of cash allowances in construction projects. The owner’s and the contractor’s responsibilities in regard to allowances are both discussed.
BuildingDefects.com EIFS Page
This page includes a long and informative article on EIFS defects, inspection and testing and links to pages with similarly extensive and detailed text on disputes, arbitration, litigation, class actions, dealing with contractors and more.
Contractor’s Requirements and Provisions
Those things required of the contractor, that which he is expected to provide, should be enumerated in the Scope of Work. The first and most obvious are labor, equipment and materials. Section 9 of the Statement of Work for a restoration project in Norfolk, Virginia, USA lists the Contractor’s Provisions and Requirements for that job.
Contract Documents
Construction Documents That Are Not Contract Documents
This article by Arthur O’Leary in Design Cost Data Magazine lists what are and some of what aren’t “Contract Documents” in construction projects.
ConsensusDocs
ConsensusDocs catalog of contract documents was developed by a diverse coalition of more than 40 leading associations with members that represent all stakeholders in the design and the construction industry. Best practices that fairly allocate risk are key aspects of the agreements in their catalog.
Facility Manager’s Rx for Building Success
Durability & Design “Specs Appeal” blog by Bob Baily, AIA, CCS – “Critical information and requirements lurk in the Project Manual that accompanies the drawings for a construction project.”
Who Is Managing Your Contract Risks by Carrie L Ciliberto, Esq,
This Design Cost Data magazine article cites contract clauses in ConsensusDocs standard contracts that deal with properly allocating project risks. Among the risks mentioned are the owner’s financial strength, unknown site conditions and disputes.
Copyright
The 10 Things You Must Know About Architectural Copyrights
The 10 Things You Must Know About Architectural Copyrights at Lexology
Copyright, privacy and permission
This article for videographers covers several important legal principles all should know.
Owner vs. Architect: Who Owns The Design on Findlaw.com
Unless specified in the agreement, the designer of a building is the owner of the intellectual property known as the “design”. All representations of the design “as embodied by any tangible medium of expression” such as the drawings and the building itself are owned by the designer, or architect.
The standard owner-architect agreement provided by the American Institute of Architects, Document B141-1997, routinely signed by owners is weighted toward the architect’s interests. It makes the drawings and specifications “the property of the Architect.” There are pitfalls in the agreement for the unwary owner. It makes the design documents “instruments of service” for use solely with respect to the project, and the Architect is the “author and owner” of those instruments so he retains all rights, including copyrights, to the documents. This language supports the architect’s position that he or she has been retained in order to complete a construction project and that the design documents are “instruments” by which this goal is accomplished. Use of the term “author” protects the copyright of the documents and limits the ability of the owner to claim joint authorship.
These are standard practices but they are by no means inviolate. For example, another practice that is standard in other industries, is the “work for hire” designation, which grants ownership of intellectual property to the person paying for the intellectual effort. If the owner knows what he hopes to eventually accomplish by employing an architectural designer, or an author of any kind, he can craft an agreement to suit his purposes and also satisfy the designer.
A case in which specificity in regard to design ownership is important is in data centers operated by Microsoft, Google, banks and others around the world. These large structures house thousands, if not millions of servers. One of the rules of data backup is that every bit of data should exist in at least three locations. Another condition that simplifies maintenance and purchasing requirements is to be consistent. If three backups are needed they should be identical or nearly so. To meet these requirements data centers are very similar to each other. Most of the architectural plans are the same in all three data centers but if the standard AIA contract were used Google would have to pay the architect for all three buildings even though all the design effort was only expended for one.
Errors and Omissions
Imperfect Contract Documents: Who Pays For Omissions
This article by Arthur O’Leary in Design Cost Data Magazine explains whose responsible for the costs when an architect, designer or consultant makes errors or omits information from the contract documents that results in higher project costs.
General Information
Lexology.com
“Lexology is a web-based service and resource for company law departments and law firms. It provides free, useful information that would be expensive to produce internally. Lexology collaborates with law firms around the world to deliver fully tailored intelligence to business lawyers worldwide, every day. Subscribing to Lexology is usually free by registering certain details to create a personal newsfeed service. Lexology is a service of Globe Business Publishing Ltd.”
Owner’s Requirements and Provisions
Those things required of the building owner, that which he is expected to provide, should be enumerated in the Scope of Work. Among other things the owner is typically required to provide electrical power and water. Storage space and trash disposal are other things that the building owner may choose to provide and all such provisions should be specified. Section 9 of the Statement of Work for a restoration project in Norfolk, Virginia, USA lists the Owner’s Provisions and Requirements for that job.
Warranty
The Myth of The One Year Warranty and Other Construction Warranty Issues
This outstanding and enlightening article (July / August 2005 issue of “Probate & Property” by the American Bar Association) by, Susan Linden McGreevy (chair of the Construction Practice Group in the Kansas City office of Husch & Eppenberger LLC) sheds light on many significant issues regarding warranties, insurance and surety bonds.