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Porter's Class > Kettle Jalapeño's Eye Yeah Eye Review > Flashcards

Kettle Jalapeño's Eye Yeah Eye Review Flashcards

1
Q

Tripartite Relationship

A

Simplest manner of explaining essence of a Project is between three diverse groups

The Owner and the Contractor sign the Contract for Construction (Agreement), the A/E is linked by the General Conditions (i.e A-201 or EDJDC C-700) but is not a party to the Construction Agreement.

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2
Q

AIA A201: Long History of Success

A
  • First issued in 1888
  • Well known and understood by A/Es, Contractors, and Insurers
  • Basis for many Owner developed General Conditions
  • Tested in the Courts
  • 1915 to 1963, Architect had “general supervision and direction of the Work”.
  • 1963, Architect makes “periodic site visits”
  • 1965, Major reorganization, Project Manual emerges
  • 1970, Architect no longer responsible to “stop the Work”
  • AGC “endorsed” A201 until 2007

In the late 1900s other industry groups started to create their own.

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3
Q

Standard General Conditions by Professional Organizations

A
  • This session is based on AIA (American Institute of Architects) Document A201-2007 and2017 General Conditions of the Contract for Construction
  • Other standard general conditions by other professional organizations include the following
    • EJCDC (Engineers Joint Contract Document Committee) Document C-700 Standard General Conditions of the Construction Contract
    • AGC (Associated General Contractors of America) ConsensusDOCS Document 200 Agreement and General Conditions Between Owner and Contractor
    • DBIA, (Design-Build Institute) Standard Form 535
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4
Q

Tripartite Relationship

A

The relationship among three parties:

  • Owner-Architect Agreement
  • Owner-Contractor Agreement
  • Third party obligations

As Design-Bid-Build delivery remains the most prevalent in the industry, we focus on this arrangement.

The Owner and the Contractor sign the Contract for Construction
(Agreement); the A/E is linked by the General Conditions (i.e. A-201) but is not a party to the Construction Agreement.

However there are duties for all three parties defined in the General Conditions

Each party must know their duties and roles, “to play the game”.

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5
Q

Comparison of General Conditions (A201)+

A
  • General Provisions
  • Owner
  • Contractor
  • Architect
  • Subcontractors
  • Construction by Owner or by Separate Contractors
  • Changes in the Work
  • Time
  • Payments and Completion
  • Protection of Persons and Property
  • Insurance and Bonds
  • Uncovering and Correction of Work
  • Miscellaneous Provisions
  • Termination or Suspension of the Contract
  • Claims and Disputes
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6
Q

Comparison of General Conditions (C-700)+

A
  • Definitions and Terminology
  • Preliminary Matters
  • Contract Documents: …
  • Availability of Lands; …
  • Bonds and Insurance
  • Contractor’s Responsibilities
  • Other Work at the Site
  • Owner’s Responsibilities
  • Engineer’s Status During Construction
  • Changes in the Work; Claims
  • Cost of the Work;…
  • Change of Contract Price and Time
  • Tests and Inspections;…
  • Payments and Completion
  • Suspension and Termination
  • Dispute Resolution
  • Miscellaneous
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7
Q

Comparison of General Conditions (ConsensusDOCS 200)+

A
  • Agreement
  • General Provisions
  • Contractor’s Responsibilities
  • Owner’s Responsibilities
  • Subcontracts
  • Contract Time
  • Contract Price
  • Changes
  • Payment
  • Indemnity, Insurance, Waivers and Bonds
  • Suspension, Cure, Termination
  • Dispute Resolution
  • Miscellaneous
  • Contract Documents
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8
Q

General Conditions Comparison+

A
  • AlA and EJCDC Documents
    • Separate and supplemental to Agreement
    • High page count AIA-39 and EJCDC-62
    • Design professional is “visible” in the traditional 3 party contract
    • AIA subscription / EJCDC download
  • AGC ConsensusDOCS
    • Low page count - 35, more concise
    • Design professional is not mentioned as this contract is a true two party contract.
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9
Q

TOC for AIA A201-2017

A
  1. General Provisions
  2. Owner
  3. Contractor
  4. Architect
  5. Subcontractors
  6. Construction by Owner or by Separate Contractors
  7. Changes in the Work
  8. Time
  9. Payments and Completion
  10. Protection of Persons and Property
  11. Insurance and Bonds
  12. Uncovering and Correction of Work
  13. Miscellaneous Provisions
  14. Termination or Suspension of the Contract
  15. Claims and Disputes
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10
Q

Conditions of the Contract+

A
  • Defines basic rights, responsibilities, and relationships of parties involved in performance of Contract
  • Inherent part of Owner-Contractor Agreement

As an A/E you cannot recommend which General Conditions of the Contract for the Owner to use - Why not?

If the Owner wants to change the A201, issue ‘Supplemental Conditions to the Contract for Construction* - Why?

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11
Q

Conditions of the Contract - Division 00

A
  • General Conditions: Broad clauses that typically apply to all projects.

These can be modified to suit specific requirements on individual projects.

  • Supplementary Conditions: Used to make project-specific modifications to the General Conditions
    • For example; Change the phrase, “requests for information about”, to, “requests for interpretation of”, in art. 4.2.14
    • To add to or delete from the Architect’s Duties and Responsibilities as described in Article 4. (To coordinate with the Owner-Architect Agreement in cases where the Architect isn’t providing full contract administration service.)
    • Define the purpose of a Bulletin.
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12
Q

Important Legal Issues

7.11

A
  • Most professionals are required by law to have advanced education and training as well as be licensed by the State
  • Professionals are expected to meet the “Professional Standard of Care”
  • If professionals do not exercise the standard of reasonable care, they may be negligent
  • Professionals are required to comply with codes, laws and regulations

Architect/engineers have unique knowledge and capabilities. Consequently, they are expected to practice in such a manner as to achieve a professional standard of care.

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13
Q

Spearin Doctrine

7.11.5 and 7.11.7

A

“Contractor is entitled to rely on the Construction Documents provided by the Owner to be sufficient for their intended purpose and is not responsible for the consequences of defects in the Contract Documents.”

Courts interpret construction documents according to the following rules:

  • Autonomy to Contract
  • Entire agreement
  • Specific takes precedence over general
  • Trade Customs
  • Practical interpretation
  • Construction against the drafter
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14
Q

Basic Definitions+

  • The Contract Documents
A
  • The Contract Documents
    • Enumerated in Owner-Contractor Agreement
      • Agreement
      • Conditions of the Contract
      • Drawings
      • Specifications
      • Addenda
      • Other documents listed
      • Modifications
    • Modifications
      • Written amendment
      • Change Order
      • Construction Change Directive
      • Written order for a minor change
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15
Q

Basic Definitions+

  • The Contract Documents
A
  • The Contract
    • Agreement between the parties
    • Not an agreement with certain other parties
  • The Work
    • Construction and services required by Contract Documents
    • Labor, materials, equipment and services to fulfill Contractor’s obligations
    • Whole or part of Project
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16
Q

Basic Definitions

  • The Project
A
  • The Project
    • Total construction of which the Work may be the whole or a part
    • May include construction by Owner and separate Contractors
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17
Q

Basic Definitions+

  • The Drawings
  • The Specifications
  • Instruments of Service
  • Initial Decision Maker
A
  • The Drawings
    • Graphic and pictorial portions of Contract Documents
    • Shows design in its completed form, location and dimensions of Work
  • The Specifications
    • Written qualitative requirements for materials, equipment, systems, standards and workmanship for Work
  • Instruments of Service
    • Representations of creative work by Architect and consultants
    • Studies, surveys, models, sketches, drawings, specifications, the Building Information Model, and similar materials
  • Initial Decision Maker
    • Person identified to render decisions on claims and terminations
    • Commentary: Editions prior to 2007 did not use Initial Decision Maker
    • Architect was the decision maker
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18
Q

Intent of Contract Documents+

A
  • Contract Documents to include items necessary for execution and completion of Work by Contractor
  • Contract Documents are complementary
  • Spec sections do not limit the Contractor’s assignment of work among the Subcontractors
  • Performance by Contractor required only to extent of Contract Documents and reasonably inferable to produce the indicated results
  • No order of precedence in the documents
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19
Q

Ownership of Instruments of Service

A
  • Architect and consultants deemed author and owners of respective instruments of service
  • The Following are authorized to use instruments of service exclusively for execution of Work, but does not own or can claim a copyright
    • Contractor
    • Subcontractors
    • Sub-subcontractors
    • Material or equipment suppliers
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20
Q

Notice Given: Electronic communication

A
  • Except for Notice of Claims, notice may be given “in writing” if delivered in person, by courier, by US Mail, or by electronic transmission
  • Notice of Claims not allowed by electronic transmission.
  • (New in 2017)
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21
Q

Digital Data

A
  • The parties shall agree on protocols governing the digital transmission of the Instruments of Service.
  • (New in 2017)
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22
Q

ARTICLE 2 OWNER

A

ARTICLE 2 OWNER

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23
Q

General

A
  • Owner is a person or entity identified in Agreement
  • Designated representative has express authority to bind Owner to matters requiring approval or authorization (This is NOT the Architect)
  • If requested by Contractor, furnish statement of record legal title to property (site) for Contractor’s mechanic’s lien rights
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24
Q

Information and Services Required of the Owner

A
  • If requested by Contractor, furnish reasonable evidence of financial arrangements to fulfill obligations
  • Secure and pay for approvals, easements, assessments and charges (Contractor responsible for permits and fees designated by Contractor Documents)
  • Furnish survey describing physical characteristics, legal limitations, utility locations, and legal description
  • Furnish other information or services designated by Contractor Documents, (soils report, dwgs, specs)
  • Retain an Architect licensed to practice where the Project is located.
  • If the Architect is replaced, Owner shall not employ an Architect for whom the Contractor has reasonable objection.
  • (Relocated in 2017 from Article 4)
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25
Q

Owner’s Right to Stop the Work ++

A
  • Can issue written order to Contractor to stop the Work if Contractor
    • Fails to correct Work not in accordance with Contract Documents
    • Repeatedly fails to carry out the Work in accordance with Contract Documents
  • Owner has no duty to stop the Work for benefit of contractor or others

Commentary: Architect does not have authority to stop the Work.

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26
Q

Owner’s Right to Carry out the Work+

A
  • Can correct deficiencies in the Work if Contractor
    • Defaults
    • Neglects to carry out Work in accordance with Contract Documents
    • Fails to commence and continue correction of such default or neglect
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27
Q

ARTICLE 3 CONTRACTOR

A

ARTICLE 3 CONTRACTOR

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28
Q

General

A
  • Contractor is a person or entity identified in Agreement
  • Designated representative has express authority to bind Contractor to matters under Contract
  • Perform Work in accordance with Contract Documents
  • Not relieved of Contract obligations as a result of:
    • Tests and inspections or approvals performed by others
    • Architect’s administration of Contract
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29
Q

Review of Contract Documents and Field Conditions by Contractor+

A
  • Execution of Contract represents Contractor
    • Has visited site
    • Become generally familiar with local conditions
    • Correlated observations with Contract Documents
  • Before starting Work, Contractor shall
    • Study and compare various Contract Documents, but not required to find errors
    • Take field measurements of existing conditions
    • Observe any conditions at site affecting Work Conditions of
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30
Q

Supervision and Construction Procedures+

A
  • Contractor shall supervise and direct Work using best skill and attention
  • Solely responsible for, and have control over, following construction activities (even if Contract Documents include instructions for following activities, Contractor obligated to evaluate jobsite safety)
    • Means
    • Methods
    • Techniques
    • Sequences
    • Procedures
    • Coordination

Commentary: Means and Methods

  • Contractors are now responsible for performing their own due diligence regarding the safety of construction means and methods dictated in the Contract Documents.
  • “In the past, contractors could rely on the designer or architect’s direction stated in the Contract Documents. This addition protects the design team from legal action as safety associated with all means and method is now in the hands of the builder”.
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31
Q

Supervision and Construction Procedures

A
  • Contractor responsible to Owner for acts and omissions of Contractor
  • Contractor responsible for inspection of Work already performed for proper condition to receive subsequent Work
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32
Q

Labor and Materials

A
  • Contractor provides and pays for following for proper execution and completion of the Work
    • Labor
    • Materials
    • Equipment
    • Tools
    • Construction equipment
    • Water
    • Heat
    • Utilities
    • Transportation
    • Other facilities and services
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33
Q

Labor and Materials+

A
  • Contractor may make substitutions
    • Only with consent of Owner
    • After evaluation by Architect
    • In accordance with
      • Change Order
      • Construction Change Directive
  • Contractor shall
    • Enforce strict discipline and good order among employees and persons carrying out Work
    • Not employ unfit persons or persons not properly skilled
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34
Q

Warranty+

A
  • Contractor warrants to Owner and Architect that materials and equipment furnished
    • Will be of good quality and new
    • Will conform to Contract Documents
    • Will be free from defects
  • Work not conforming to Contractor’s warranty may be considered defective

Commentary: Contractor does not warrant adequacy of Contract Documents *

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35
Q

Permits, Fees, Notices, and Compliance with Laws++

A
  • Contractor shall secure and pay for
    • Building permit
    • Other permits
    • Fees
    • Licenses
    • Inspections by government agencies
  • If Contractor performs Work contrary to following, Contractor assumes responsibility and bears cost for correction
    • Laws
    • Codes
    • Statutes
    • Rules and regulations
    • Ordinances
    • Lawful orders of public authorities
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36
Q

Permits, Fees, Notices, and Compliance with Laws+

A
  • Contractor to provide notice to Owner and Architect if following conditions encountered
    • Subsurface or concealed differences that differ from Contract Documents
    • Unknown physical conditions of an unusual nature that differ from those ordinarily found to exist

Contractor entitled to Change Order for unforeseen conditions.

Architect to investigate promptly & recommend adjustments to the
Contract if found to be valid

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37
Q

Allowances

A
  • Costs included in Allowance
    • Cost of material and equipment delivered to site
    • Taxes, less trade discounts
  • Costs included in Contract Sum
    • Unloading and handling at site
    • Labor
    • Installation
    • Overhead
    • Profit
    • Other expenses
  • Cost differences adjusted by change order

(Allowances should not be confused with Bid Alternates)

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38
Q

Superintendent

A
  • Contractor shall employ competent superintendent and assistants
    • In attendance at Project site duringnperformance of Work
    • That represents the Contractor
    • Communications are binding as if given to Contractor
    • Owner and Architect has no reasonable objection
    • Cannot be changed without Owner’s consent
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39
Q

Contractor’s Construction Schedule and Submittal Schedules+

A
  • Contractor shall submit construction schedule for the Work, (only for the Architect’s review)
    • Shall not exceed Contract Documents time limits
    • Revised at appropriate intervals
    • Related to entire Project and extent required by Contract Documents
    • Shall provide for expeditious and practicable execution of the Work
  • Contractor shall submit submittal schedule for approval
    • Coordinated with construction schedule
    • Allow Architect reasonable time to review, resubmittal, re-review and approval
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40
Q

Documents and Samples at the Site

A
  • Contractor shall maintain following at Project site in good order and marked currently to indicated field changes and selections made during construction.
    • Drawings
    • Specifications
    • Addenda
    • Change orders
    • Other modifications
    • Shop drawings
    • Product data
    • Samples
    • Similar required submittals
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41
Q

Shop Drawings, Product Data and Samples+

A
  • Shop drawings (project specific), product data, (catalog info), samples and similar submittals are not Contract Documents
  • Purpose is to demonstrate how Contractor proposes to conform with information given and design concept expressed in Contract Documents
  • Submittals not required by Contract Documents, may be returned by Architect without action
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42
Q

Shop Drawings, Product Data and Samples+

A
  • Contractor shall review submittals for compliance with Contract Documents, approve, and submit to Architect
  • By submitting submittals, Contractor represents to Owner and Architect that Contractor has
    • Reviewed and approved them
    • Determined and verified materials, field measurements and field construction criteria
    • Has checked and coordinated submittal information with requirements of the Work and
    • Contract Documents
  • Contractor shall perform no Work until respective submittals have been approved by Architect
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43
Q

Shop Drawings, Product Data and Samples

A
  • Work shall be in accordance with approved submittals and Contractor is not relieved from deviations from Contract Documents (or by Architect’s errors in submittal review).
  • Contractor not required to provide licensed architectural or engineering services unless:
    • Performance and design criteria specifically required by Contract Documents for portion of the Design-Build Work
    • Unless necessary for means, methods, techniques, sequences and procedures, like shoring design

Delegated Design example: Roof trusses or pre-engineered building

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44
Q

Shop Drawings, Product Data and Samples

A

When Design-Build service is required:

  • Architect must provide detailed design and performance criteria
  • Contractor’s design-build service must be performed by licensed professionals
  • Design-build design and shop drawings are reviewed and approved by the Contractor; not the Architect
  • Architect’s review is limited to checking for conformance with the design- build criteria
  • ( This process is sometimes referred to as “Delegated Design”)
  • (Commentary: Provisions added in 2007)
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45
Q

Use of Site

A
  • Contractor shall
    • Confine operations to site and areas permitted by
      • Laws
      • Statutes
      • Ordinances
      • Codes
      • Rules and regulations
      • Lawful orders of public authorities
    • Not unreasonably encumber site with materials or equipment
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46
Q

Cutting and Patching

A
  • Contractor responsible for following and for restoring areas to condition existing prior to
    • Cutting
    • Fitting
    • Patching
  • Contractor shall not damage or endanger Work of the Owner separate Contractors

Critical for phrased work, or CM type work with multiple contractors

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47
Q

Cleaning Up

A
  • Contractor shall keep premises free from accumulation of waste materials or rubbish
  • At completion of Work, Contractor shall remove
    • Waste materials
    • Rubbish
    • Contractor’s tools
    • Construction equipment
    • Machinery
    • Surplus materials
  • If Contractor fails to clean up, Owner may do so and be reimbursed by Contractor
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48
Q

Access to Work

A
  • Contractor should provide Owner and Architect access to the Work in preparation and progress

Access required for testing agency or sub-consultants, or A/E staff.

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49
Q

Royalties, Patents and Copyrights++

A
  • Contractor shall pay royalties and license fees
  • Contractor shall defend suits or claims for infringement of copyrights and patent rights and hold Owner and Architect harmless from loss
  • Contractor not responsible for such defense or loss when particular design, process or product of particular manufacturer is required by Contract Documents or where copyright violations are contained in the Contract Documents

Note disadvantage of single source type specifications

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50
Q

Indemnification+

A
  • Contractor shall indemnify and hold harmless the following from claims, damages, losses and expenses from performance of the Work to the extent caused by negligent acts or omissions
    • Owner
    • Architect
    • Architect’s consultant
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51
Q

ARTICLE 4 ARCHITECT

A

ARTICLE 4 ARCHITECT

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52
Q

General+

A
  • Architect is a person or entity identified in Agreement
  • Duties, responsibilities and limitations of authority of Architect as set forth in Contract Documents shall not be
    • Restricted
    • Modified
    • Extended
  • If Architect is terminated, Owner shall employ successor architect to whom Contractor has no reasonable objection (moved to 2.3.3 in 2017)
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53
Q

Administration of the Contract

A
  • Architect will
    • Provide administration of the Contract as described in Contract Documents until Final Certificate for Payment is issued
    • Be Owner’s representative during construction
    • Have authority to act on behalf of Owner to extent provided in Contract Documents
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54
Q

Administration of the Contract++

A
  • Architect will visit site at intervals appropriate to stage of construction
    • To become generally familiar with progress and quality of portion of Work completed
    • To determine in general if Work observed is being performed in a manner, when completed, will be in accordance to Contract Documents
    • Not required to make exhaustive or continuous on-site inspections to check quality or quantity of the Work
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55
Q

Administration of the Contract+

A
  • Architect will not have control over, charge of, or responsibility for, construction
    • Means
    • Methods
    • Techniques
    • Sequences
    • Procedures
    • Safety precautions and programs

These are specifically the Contractor’s responsibility.

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56
Q

Administration of the Contract+

A
  • Architect will keep Owner reasonably informed about progress and quality of Work completed
    • Known deviations from Contract Documents and construction schedule
    • Defects and deficiencies observed in the Work
  • Architect not responsible for Contractor’s failure to perform Work in accordance with Contract Documents
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57
Q

Administration of the Contract

A
  • Architect will have no control over and will not be responsible for acts and omissions of
    • Contractor
    • Subcontractors
    • Agents or employees
    • Other persons or entities performing Work
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58
Q

Administration of the Contract

A
  • Communications
    • Owner and Contractor will include the Architect in all communications related to the Architect’s services
    • Communications by and with Architect’s Consultants through Architect
    • Communications by and with Subcontractors through Contractor
    • (Revised in 2017)
59
Q

Administration of the Contract+

A
  • Based on Contractor’s Applications for Payment, Architect will
    • Review and certify amounts due
    • Issue Certifications for Payment
  • Architect has authority
    • To reject Work not conforming with Contract Documents
    • To require inspection or testing of Work whether or not fabricated, installed or completed
60
Q

Administration of the Contract+

A
  • Architect will review and approve or take action on Contractor’s submittals
    • For limited purpose of checking for conformance with information given
    • Design concept expressed in Contract Documents
    • Not conducted for purpose of determining accuracy and completeness of details, dimensions, and quantities of for substantiating instruction for installation or performance of equipment or systems
    • Review does not constitute approval of safety precautions
61
Q

Administration of the Contract

A
  • Architect will
    • Prepare Change Orders and Construction Change Directives
    • Order minor changes, Architect’s Supplemental Instruction
    • Investigate and make determinations and recommendations regarding concealed and unknown conditions
62
Q

Administration of the Contract

A
  • Architect will interpret and decide matters concerning performance under, and requirements of, Contract Documents on written request of either Owner and Contractor
  • If Owner and Architect agree, Architect will provide project representatives at site
63
Q

Administration of the Contract

A
  • Interpretations and decisions of Architect will
    • Be consistent with intent of, and reasonably inferable from, Contract Documents
    • Endeavor to secure faithful performance by Owner and Contractor
    • Not show partiality to Owner or Contractor
    • Not be liable for results of interpretations or decisions rendered in good faith
  • Architect’s decisions on aesthetic effect will be final if consistent with intent expressed in Contract Documents
64
Q

Administration of the Contract

A

Architect will review and respond to requests for interpretation, (RFI)
of Contract Documents (not requests for “information”)

65
Q

ARTICLE 5 SUBCONTRACTORS

A

ARTICLE 5 SUBCONTRACTORS

66
Q

Definitions

A
  • Subcontractor is a person or entity who has direct Contract with Contractor to perform portion of Work at site
  • Separate Contractors are not subcontractors
  • Sub-subcontractor is a person or entity who has direct or indirect Contract with Subcontractor to perform portion of Work at site
  • Materials suppliers are not subcontractors
67
Q

Award of Subcontracts and Other Contracts for Portions of the Work++

A
  • Contractor
    • Shall not contract with entity to whom Owner or Architect has made objection
    • Will not be required to contract with anyone Contractor has made objection
    • Shall not substitute Subcontractor if Owner or Architect has made objection
    • Specifications organized into sections shall not limit the Contractor from subdividing the Work among Subcontractors
68
Q

Sub-contractual Relations

A
  • Contractor shall require Subcontractors
    • To be bound by terms of Contract Documents
    • To assume toward Contractor all obligations and responsibilities which Contractor assumes toward Owner and Architect
    • To enter into similar agreements with Sub-subcontractors

The sub-contractor Agreement is subservient to the Owner/GC Agreement.

69
Q

Contingent Assignment of Subcontracts

A
  • If Owner terminates Contractor for cause, subcontracts are assigned by Contractor to Owner who assumes Contractor’s rights and obligations
  • Owner may further assign subcontract to successor Contractor or other entity
70
Q

ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

A

ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

71
Q

Owner’s Right to Perform Construction and to Award Separate Contracts+

A
  • The Owner reserves the right to perform construction or operations related to the Project with the Owner’s own forces, and with Separate Contractors
  • Separate Contractors shall be retained under Conditions of the Contract substantially similar to those of this Contract, including those provisions related to insurance and waiver of subrogation
  • Owner shall coordinate the activities of Owner’s own forces and Separate Contractors

These conditions occur often in CM related projects.

72
Q

Mutual Responsibility

A
  • Regarding Owner and separate Contractors, Contractor shall
    • Afford opportunity for storage of materials and equipment
    • Allow performance of their activities
    • Connect and coordinate Contractor’s construction and operations with theirs
  • If Contractor’s Work depends on Owner or Separate Contractors, Contractor shall report discrepancies or defects in such construction; failure to report constitutes acceptance
  • Contractor shall reimburse Owner for costs payable to Separate Contractors because of Contractor’s delays, improperly timed activities or defective construction; and vice versa
73
Q

Owner’s Right to Clean Up

A
  • If disputed among Contractor, Separate Contractors and Owner concerning clean up, Owner may clean up and Architect will allocate cost among those responsible
74
Q

ARTICLE 7 CHANGES IN THE WORK

A

ARTICLE 7 CHANGES IN THE WORK

75
Q

General++

A
  • Changes accomplished after Contract execution that do not invalidate Contract
    • Change Order - Based on agreement among Owner, Contractor and Architect
    • Construction Change Directive - Requires agreement by Owner and Architect and may or may not be agreed to by Contractor
    • Architect’s Supplemental Instruction - Minor change in the Work - Issued by Architect alone
  • Promptly performed under applicable provisions of Contract Documents

ASIs are used for minor changes to the work; with no cost or time.

76
Q

Change Orders+

A

Written instrument, prepared by Architect and signed by Owner
and Contractor, agreeing to

  • Change in the Work
  • Amount of adjustment in Contract Sum
  • Amount of adjustment in Contract Time
77
Q

Construction Change Directive+

A
  • Written order, prepared by Architect and signed by Owner and Architect, directing a change in the Work prior to agreement on
    • Amount of adjustment in Contract Sum
    • Amount of adjustment in Contract Time
  • Owner may, without invalidating the Contract, order following changes in the Work with the “CCD”
    • Additions
    • Deletions
    • Other revisions
  • Used in absence of total agreement on Change Order terms

Usually used when there is not enough time to price a Change Order, i.e., removing discovered contaminated soils.

78
Q

Construction Change Directive+

A
  • Methods for adjustment of Contract Sum
    • Itemized lump sum
    • Unit prices
    • In a manner mutually agreed
  • Upon receipt, Contractor promptly proceeds with change and indicates agreement of disagreement with adjustment
  • Contractor’s signature indicates agreement
79
Q

Minor Changes in the Work

A
  • Architect has authority to order minor changes in the Work not involving
    • Adjustment in Contract Sum
    • Adjustment in Contract Time
    • Not inconsistent with Contract Documents
  • No Change Order needed
  • Architect’s Supplemental Instruction, form Al A G710
80
Q

ARTICLE 8 TIME

A

ARTICLE 8 TIME

81
Q

Definitions+

A
  • Contract Time - Period of time, including adjustments, allotted in Contract Documents for Substantial Completion of the Work
  • Date of Commencement of the Work - Date established in Agreement
  • Date of Substantial Completion
    • Date certified by Architect
  • Day - Calendar days unless otherwise defined
82
Q

Progress and Completion

A
  • Time is of the essence - By executing Contract, Contractor confirms Contract Time is reasonable
  • Contractor cannot prematurely commence operations before effective date of insurance
  • Contractor proceeds expeditiously with adequate forces to achieve Substantial Completion within Contract Time
83
Q

Delays and Extensions of Time++

A
  • If Contractor is delayed by any of following, then extended by Change Order
    • Act or neglect by Owner or Architect
    • Changes in the Work
    • Labor disputes
    • Fire
    • Unusual delay in deliveries
    • Unavoidable casualties
    • Mediation or arbitration
    • Adverse weather conditions
    • Other causes beyond the Contractor’s control
    • Other causes justified by Architect
84
Q

Delays and Extensions of Time

A
  • “No cost” Contractor requested time extensions can be allowed but should be reviewed by the Owner’s attorney first.
  • Issued in a Change Order.
85
Q

ARTICLE 9 PAYMENTS AND COMPLETION

A

ARTICLE 9 PAYMENTS AND COMPLETION

86
Q

Contract Sum

A
  • Stated in Agreement, including adjustments, is total amount payable by Owner to Contractor for performance of the Work
87
Q

Schedule of Values

A
  • Allocates entire Contract Sum to various portions of the Work
  • Prepared in form and supported by data to substantiate accuracy as Architect requires, (but not approved by the Architect)
  • Basis for reviewing Contractor’s Applications for Payment

Break down often in CSI division format, for both labor and materials. Consider level of detail required based upon scheduling, complexity, and size of the project.

88
Q

Applications for Payment

A
  • Contractor submits in accordance with Schedule of Values supported by data requested by the Owner substantiating right to payment
  • Includes
    • Completed portions of the Work
    • Change Orders
    • Authorized Construction Change Directives
    • Stored materials, on or off site
    • Cannot include requests for payment for portions of the Work for which a Subcontractor will not be paid
  • Contractor warrants
    • By time of payment, title to Work passes to Owner
    • Upon submittal, previous Certificates for Payment free of liens and claims
89
Q

Certificates for Payment+

A
  • Upon receipt of Contractor’s Application for Payment, Architect will perform one of following
    • Issue Certificate for Payment to Owner
    • Notify Contractor and Owner of Architect’s reasons for withholding certification in whole or in part
90
Q

Certificates for Payment+

A
  • Representation by Architect to Owner that
    • Work has progressed to point indicated and quality in accordance with Contract Documents
    • Contractor is entitled to amount certified
91
Q

Certificates for Payment+

A
  • Not a representation that Architect
    • Made exhaustive or continuous on-site inspections to check quality or quantity of the Work
    • Reviewed construction
      • Means
      • Methods
      • Techniques
      • Sequences
      • Procedures
    • Reviewing cost data to substantiate Contractor’s right to payment
    • Ascertained purpose Contractor has used previous payments
92
Q

Decisions to Withhold Certification

A
  • Architect may withhold Certificate for Payment in whole or in part
    • To extent reasonably necessary to protect Owner
    • If in Architect’s opinion representations to Owner cannot be made
  • Architect may withhold a Certificate for Payment or may nullify Certificate previously issued to protect Owner because of subsequently discovered evidence because of
    • Defective Work not remedied
    • Third party claims
    • Failure of Contractor to make payments to Subcontractors
    • Reasonable evidence that Work cannot be completed for unpaid balance
    • Damage to Owner of separate Contractor
    • Reasonable evidence Work cannot be completed within Contract Time
    • Repeated failure to carry out Work in accordance with Contract Documents
  • When reasons are removed, certification will be made for amounts previously withheld
  • Owner may issue joint checks to Contractor and any entity to whom Contractor failed to make payment

Off-site storage of materials needs to be in a bonded warehouse. On-site storage needs to be secured: trailers can be driven away.

93
Q

Progress Payments

A
  • After Certificate issued, Owner makes payment
  • Contractor makes payment to Subcontractors reflecting retainage
  • Owner has right to request evidence that Contractor has made payments to others
  • Following do not constitute acceptance of Work not in accordance with Contract Documents
    • Certificate for Payment
    • Progress payment
    • Partial or entire use or occupancy of Project
94
Q

Failure of Payment++

A
  • Contractor may stop Work until payment is received if any of following happen
    • Architect does not issue Certificate
    • Owner does not pay Contractor

Note: Contractor’s only contractual ability to stop work.

95
Q

Substantial Completion+

A
  • Stage in progress of Work when sufficiently complete in accordance with Contract Documents so that Owner can occupy or utilize for intended purpose, (Always contingent on having the Building Inspector and Fire Department approval.)
  • When Contractor considers Work substantially complete, Contractor prepares comprehensive list of items to be completed or corrected, the “Punchlist”
  • Architect will make an inspection to determine whether the Work is substantially complete
  • Contractor completes or corrects items on list

This is the first of two times tht the Architect “inspects” the work.

96
Q

Substantial Completion+

A
  • When Work is substantially complete, Architect
    • Prepares Certificate of Substantial Completion
    • Establishes Date of Substantial Completion
    • Establishes responsibilities of Owner and Contractor for
      • Security
      • Maintenance
      • Heat
      • Utilities
      • Damage to Work
      • Insurance
      • Fix time for Contractor to finish list of items

Typically Owner is now responsible for all the items in the list.

97
Q

Substantial Completion+

A
  • Warranties commence on Date of Substantial Completion
  • Upon acceptance by Owner, and consent of surety, Owner makes payment of retainage

The GC’s first one-year Warranty period is now referred to as the “Correction Period.”

Hold back enough retainage to complete punchlist by another contractor.

98
Q

Partial Occupancy or Use+

A
  • Owner may occupy or use any completed or partially completed portion of the Work
  • Can commence whether or not substantially complete
  • Consent of Contractor to partial occupancy or use cannot be unreasonably withheld
  • Partial occupancy or use does not constitute acceptance of the Work

This may also be referred to as “Beneficial Occupancy.”

99
Q

Final Completion and Final Payment

A
  • When Contractor is ready for final inspection and acceptance, upon receipt of final Application for Payment
    • Architect will make such final inspection
    • When Architect finds Work acceptable under Contract Documents and Contract fully performed
    • Architect will issue final Certificate of Payment stating entire balance is due and payable
    • (AIA documents do not include a Certificate of Final Completion)
100
Q

Final Completion and Final Payment+

A
  • Prior to Final Payment, Contractor must submit
    • Affidavit that all payments made
    • Evidence that required insurance will remain in effect for period of time
    • Statement that insurance will be renewable
    • Consent of surety
    • Other data required by Owner
  • Making Final Payment constitutes waiver of claims by Owner except
    • Unsettled liens, claims, security interests or encumbrances
    • Failure of Work to comply with Contract Documents
    • Terms of special warranties
  • Acceptance of Final Payment by Contractor constitutes waiver of claims
101
Q

ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY

A

ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY

102
Q

Safety of Persons and Property+

A
  • Contractor responsible for initiating, maintaining and supervising safety precautions and programs
  • Contractor’s Superintendent is responsible for site safety unless another member of the Contractor’s team is appointed.
103
Q

Safety of Persons and Property

A
  • Contractor responsible for initiating, maintaining and supervising safety precautions and programs
  • Contractor responsible for safety and protection to prevent damage, injury or loss to
    • Employees on the Work
    • Work and materials and equipment
    • Other property at, or adjacent to, site
104
Q

Safety of Persons and Property

A
  • Contractor shall
    • Comply with applicable safety laws, statues, ordinances, codes, rules and regulations, and lawful orders
    • Erect and maintain safeguards
    • Exercise utmost care with explosives and hazardous materials
    • Remedy damage and loss
    • Designate Contractor employee with duty of prevention of accidents
    • Not permit loading that causes damage or unsafe condition
  • Injury or damage to person or property
  • If either party suffers injury or damage because of act or omission of other party, written notice to other party required
  • Notice should contain information to enable investigation
105
Q

Hazardous Materials

A
  • Contractor
    • Responsible for compliance with Contract Documents including hazardous materials identified to be remediated
    • If hazardous materials encountered, that are not identified in the Contract Documents to be remediated, Contractor may shall stop Work in area and notify Owner
  • Owner
    • Responsible for hazardous materials not identified in Contract Documents
    • Not responsible for hazardous materials Contractor brings on site not required by Contract Documents

Note that the “Work” is not stopped entirely, only area impacted.

106
Q

Emergencies

A
  • In an emergency affecting safety, Contractor may act, at Contractor’s discretion, to prevent threatened damage, injury or loss
107
Q

ARTICLE 11 INSURANCE AND BONDS

A

ARTICLE 11 INSURANCE AND BONDS

108
Q

Contractor’s Liability Insurance

A
  • (Insurance provisions relocated to Exhibit “A” to AI0I, Owner- Contractor Agreement)
  • Contractor purchases and maintains insurance to protect himself from claims resulting from operations under Contract at limits specified or required
    • Worker’s compensation
    • Bodily injury or death of Contractor’s employees
    • Bodily injury or death of other than Contractor’s employees
    • Personal injury liability
    • Damages because of injury or destruction of tangible property
    • Use of motor vehicles
    • Damage arising out of completed operations
    • Contractual liability
109
Q

Owner’s Liability Insurance

A
  • Owner purchases and maintains Owner’s usual liability insurance
110
Q

Property Insurance++tax

A
  • Owner shall purchase maintaining tain builder’s risk “all risk” insurance, (protecting all parties), that includes
    • Perils of fire and physical loss
    • Theft
    • Vandalism
    • Malicious mischief
    • Collapse
    • Earthquake
    • Floor
    • Windstorm
    • False-work
    • Testing and startup
    • Temporary buildings
    • Debris removal
    • Contractor’s compensation
    • Architect’s compensation
  • Owner purchases and maintains boiler and machinery insurance
111
Q

Property Insurance

A
  • If Owner intends not to purchase “all risk” property insurance he must inform the Contractor so the Contractor can purchase insurance to protect his interest in the Work
  • The cost of this insurance is included in a Change Order
112
Q

Loss of Use Insurance

A
  • Owner, at Owner’s option, may purchase and maintain insurance to insure Owner against loss of use of Owner’s property due to fire or other hazards
  • Waivers of Subrogation
    • Owner and Contractor waive all rights for damage claims against each other and their subcontractors, sub-subcontractors, agents and employees, the Architect, Architect’s consultants, Separate Contractors, and their subcontractors, subsubcontractors, agents and employees for damages caused by fire and other losses to the extent those losses are covered by insurance
113
Q

Performance Bond and Payment Bond

A

Owner has right to require Contractor to furnish bonds covering faithful
performance and payment of obligations

114
Q

ARTICLE 12 UNCOVERING AND CORRECTION OF WORK

A

ARTICLE 12 UNCOVERING AND CORRECTION OF WORK

115
Q

Uncovering of Work

A
  • Architect may request portions of the Work already covered, contrary to the Contract Documents, be uncovered for Architect’s examination and replaced at Contractor’s expense
  • If Architect requests Work to be uncovered for examination that has not been identified for examination in the Contract Documents, the costs for this are as follows:
    • If Work in accordance with Contract Documents, replacement at Owner’s expense
    • If Work not in accordance with Contract Documents, correction of Work and replacement at Contractor’s expense
116
Q

Correction of Work++

A
  • Before Substantial Completion, Contractor shall correct Work rejected by Architect for failing to conform to Contract Documents whether fabricated, installed, or completed, or not
  • After Substantial Completion, if within one year after Date of Substantial Completion or after commencement of warranties, Contractor shall correct nonconforming Work, (the one-year correction period, Not the Warranty Period)
    • Requires notice by Owner; failure to do so constitutes Owner’s waiver
    • If Contractor fails to correct Work, Owner has right to do so at Contractor’s cost
  • Warranty period is determined by state law where the Project is located
117
Q

Acceptance of Nonconforming Work++

A
  • If Owner prefers to accept Work not in accordance with Contract Document
    • Owner may do so instead of requiring removal and correction
    • Appropriate and equitable adjustment to Contract Sum

Non-conforming work should be adjusted and documented by change order.

118
Q

ARTICLE 13 MISCELLANEOUS PROVISIONS

A

ARTICLE 13 MISCELLANEOUS PROVISIONS

119
Q

Miscellaneous Provisions

A

Governing Law

  • Contract governed by law of Project, or Work, location

Successors and Assigns

  • Owner and Contractor bind themselves, their partners, successors, assigns and legal representatives to covenants, agreements and obligations contained in Contract Documents
120
Q

Miscellaneous Provisions

A

Written Notice

  • Written notice deemed duly served (This article revised and relocated to article 1.6.1 in 2017. Written notice, “on paper”, now only required for claims.)
    • Delivered in person to individual or member of firm or entity
    • Delivered to officer of corporation
    • With proof of delivery

Rights and Remedies

  • Duties and obligations imposed by Contract Documents and rights and remedies in addition to those available by law, e.g., warranty
121
Q

Miscellaneous Provisions

A

Tests and Inspections

  • Tests, inspections and approvals made as required by
    • Contract Documents at the time the Contract was signed
    • Applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities
  • Contractor shall
    • Make arrangements with independent entity
    • Bear costs, (except where the law requires the Owner to pay)
    • Bear costs to remedy deficient Work identified from testing and inspections
  • Owner will
    • Bear costs for tests, inspections or approvals required after bids received
    • Bear costs for tests, inspections or approvals where law prohibits Owner from delegating cost to Contractor
122
Q

Miscellaneous Provisions+

A

Tests and Inspections

  • If additional testing or inspection is requested, beyond those called for in the Contract Documents, Architect will instruct Contractor to perform tests
    • Owner bears costs if Work conforms to Contract Documents
    • Contractor bears costs if Work does not conform to Contract Documents

Interest

  • Payments due and unpaid bears interest
123
Q

ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT

A

ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT

124
Q

Termination by the Contractor

A
  • Contract may be terminated if Work is stopped for 30 consecutive days through no fault of Contractor for any of following reasons
    • Public authority order to stop Work
    • Act of government that requires Work to be stopped
    • Architect has not issued a Certificate for Payment, or Owner has not made payment
    • Owner fails to furnish evidence of financial arrangements to fulfill obligations
125
Q

Termination by the Contractor

A
  • Contract may be terminated due to:
    • Repeated suspensions
    • Delays or interruptions of entire Work
  • If time is equal to an aggregate of 100 percent of total number of days scheduled for completion, or 120 days out of any 365 day period
  • Contractor may, upon 7 days written notice, terminate contract with Owner and recover payment for Work executed
  • Contract may be terminated if Work is stopped for 60 consecutive days because Owner has repeatedly failed to fulfill Owner’s obligations important to progress of the Work
126
Q

Termination by the Owner: for Cause

A
  • Owner may terminate Contract if Contractor
    • Refuses or fails to supply workers and materials
    • Fails to make payment to Subcontractors
    • Disregards applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities
    • Breach of provision of Contract Documents
  • If Initial Decision Maker certifies cause exists, Owner may terminate Contract
    • Exclude Contractor from site and take possession of materials and equipment
    • Accept assignment of Subcontractors
    • Finish the Work
127
Q

Termination by the Owner: for Cause

A
  • When terminated, Contractor not entitled to further payment
  • If unpaid balance exceeds costs of finishing, excess shall be paid to Contractor
  • If costs of finishing exceeds unpaid balance, Contractor pays Owner
128
Q

Suspension by the Owner: for Convenience+

A
  • Owner may, without cause, order Contractor to suspend, delay or interrupt the Work in whole or in part
  • Contract Sum and Contract Time adjusted by Change Order and included profit; no adjustment for
    • Performance would have been suspended, delayed, or interrupted by another cause for which Contractor responsible
129
Q

Termination by the Owner for Convenience+

A
  • Owner may terminate Contract for convenience and without cause
  • Contractor shall
    • Cease operations
    • Take action to protect and preserve the Work
    • Terminate all Subcontracts and Purchase Orders
  • Contractor entitled to
    • Payment for Work executed
    • Costs for termination
    • Termination fee
    • Note : Payment of profit and overhead on the Work not executed eliminated in 2017
130
Q

ARTICLE 15 CLAIMS AND DISPUTES

A

ARTICLE 15 CLAIMS AND DISPUTES

131
Q

Claims

A
  • Demand or assertion by one party seeking payment of money or other relief with respect to Contract terms
    • Includes other disputes and matters in question
    • Party making claim responsible for substantiation
  • Must be initiated by written notice to other party, Initial Decision Maker and Architect within 21 days after
    • Occurrence of event giving rise to claim
    • Condition giving rise to claim first recognized
  • Pending resolution
    • Contractor shall proceed with the Work
    • Owner should continue to make payments
132
Q

Claims

A
  • If Contractor wishes to make claim for increase in Contract Sum, written notice required prior to executing the Work
  • If Contractor wishes to make claim for increase in Contract Time, written notice required with cost estimate and probable effect of delay on progress
  • If weather conditions are basis of claim for additional time
    • Claim should be documented substantiating conditions were abnormal
    • Conditions could not have been anticipated
    • Conditions had adverse effect on scheduled construction
133
Q

Claims

A
  • Contractor and Owner waive claims against each other for consequential damages (usually a result of not completing the Work on schedule)
    • Damages incurred by Owner for
      • Rental expenses
      • Loss of use, income, profit, financing, business and reputation
      • Loss of management or employee productivity or services
    • Damages incurred by Contractor for
      • Principal office expenses including personnel compensation
      • Loss of business and reputation
      • Loss of anticipated profit

Resolve claims as quickly as possible - later ones may overlap

This does not include Liquidated Damages

134
Q

Claims

A

Time Limits on Claims

  • Owner and Contractor commence claims and causes of action against other according to
    • Agreement stipulations
    • Within time period specified by law, but not more than 10 years after Date of Substantial Completion
135
Q

Claims

A
  • Comments: Evaluation of a Contractor’s claim often requires input from professional cost and schedule consultants, once it’s been determined to be a valid claim.
  • Cost consultants have detailed information necessary to substantiate or rebut the costs requested by the Contractor.
  • Schedule consultants are essential in evaluating delays, especially determining how delays affect the critical path activities along with any concurrent delays and how these may result in a Contract time extension.
136
Q

Initial Decision++

A
  • Claims referred to Initial Decision Maker for initial decision
  • Initial Decision Maker reviews claim and take one of following actions
    • Request additional supporting data
    • Reject claim in whole or in part
    • Approve claim
    • Suggest compromise
    • Advise parties unable to resolve claim
  • Initial decision shall be final and binding, but subject to mediation, and if that fails, to binding dispute resolution
  • Either party may file for mediation of an initial decision
137
Q

Mediation+

A
  • Claims, disputes or other controversial matters subject to mediation as a condition precedent to binding dispute resolution
  • Parties should endeavor to resolve claims by mediation, unless parties agree otherwise
  • Fees shared by both parties
  • Agreements reached are enforceable as settlement agreements in any court having jurisdiction
138
Q

Arbitration+

A
  • If selected as method for binding dispute resolution, claims not resolved by mediation subject to arbitration
  • Award rendered is final and judgment may be entered upon it according to applicable law in any court having jurisdiction
  • Either party may consolidate an arbitration under this Agreement with any other arbitration to which it is a party under certain conditions
139
Q

Important Legal Issues Standard of Care+

(Is this still true?)

A

Professionals are required to be licensed and highly educated;

Society expects licensed professionals (A/E’s & GCs) to
practice and achieve a professional standard of care.

Higher standard than the average person.

Standard of reasonable care: Same course of action as another reasonable & prudent professional peer, under the same circumstances.

If not, then professional may be considered negligent in performance

140
Q

Important Legal Issues Codes, Laws and Regulations+

(Is this still true?)

A

A/E’s are responsible for designing a facility at minimum to
comply with all:

  • Laws, statutes, ordinances, codes, rules and regulations and lawful orders of the Authority Having Jurisdiction (AHJ).

Contractors and all project stakeholders share in this responsibility during construction.

141
Q

Important Legal Issues Spearin Doctrine++

(Is this still true?)

A
  • Contractor is entitled to rely on Contract Documents to be sufficient for their intended purpose.
  • Contractor is not responsible for the consequences of defects in the Contract Documents.
    • For example: errors, inconsistencies,
  • CD’s need to be:
    • Clear, concise, complete and correct
    • The 4 C’s of CSI.
  • CDs need to be at the same level of detail.
142
Q

Important Legal Issues Interpretation by the Courts++

(Is this still true?)

A

Courts will interpret specifications in the same manner as they interpret contracts according to these rules:

  • Autonomy to Contract:
    • Both parties are free to determine the terms of the Agreement
  • Entire Agreement:
    • Review of all documents to establish the intention of the parti??
  • Specific take precedence over General (project specific vs. general information or printed provisions)
  • Trade Customs (customs and practices of Industry or trade)
  • Practical Interpretation (provisions interpreted based on practical meanings)
  • Construction Against the Drafter (concept of superior knowledge of author)
143
Q

AIA A201 Family of Agreements and General Conditions++

A

AIA B101 - Agreement

  • Agreement for Design Contract
  • Third Party Obligations

AIA A101 - Agreement

  • Construction Contract

AIA A201 - General Conditions

  • Construction Contract
  • Third Party Obligations
144
Q

AIA A201 Family of Agreements and General Conditions++

A

As previously noted there are also EJCDC parallel documents.

EJCDC “contract cousin” to AIA Contracts

AIA A201 = EJCDC C700
AIA B101 = EJCDC D500

The key is that Contract families need to match; Consensus Docs also have parallel documents, however each contract family has variances that can have a major impact on the Architect/Engineer.

Porter's Class (19 decks)

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