Design Professional and Construction Manager Law

Pirmais vāks
Stephen A. Hess
American Bar Association, 2007 - 644 lappuses

No grāmatas satura

Lietotāju komentāri - Rakstīt atsauksmi

Ierastajās vietās neesam atraduši nevienu atsauksmi.

Atlasītās lappuses

Saturs

State Regulation of the Design Professional
xxxv
II Individual Licensure
xxxvi
III Firm Licensure
3
B Noncompliance Has Its Price
7
IV Firm Practice
9
B What Is to Be Sealed and When?
12
D Other Requirements Imposed by Some States
13
V Conclusion
14
D Value Engineering
296
E Constructability
297
F Site Logistics
298
G Green Building and Related Compliance
299
V PreConstruction
301
C Early Work
302
1 Time and Reimbursable Expenses
303
VII Changes
304

VI Practice Aids
15
B NCARB Certificates and NCEES Records
17
C Sample Interstate Commerce Letter
18
Ethics and Rules of Conduct Governing Design Professionals
21
B Rules of Professional Conduct
24
II Code of Ethics
25
B Historical Development
26
C Discussion of Professional Codes of Ethics
27
III AIA Ethical Standards and Rules of Professional Conduct
28
B Enforcement
29
IV ASCE Code of Ethics and Rules of Professional Conduct
30
V NSPE Code of Ethics
32
VI Law Ethics and Professional Conduct
34
VII Ethical Dilemma
36
VIII Licensing Boards Governing Design Professionals
37
B Licensing Board Powers
38
C Enforcement Powers
39
D Investigative and Disciplinary Powers
40
E Revocation and Suspension of Licenses
41
F Disciplinary Reciprocity
42
G Judicial Review
43
H Standard of Review
44
IX Hyatt Regency Sky Walkway Collapse
45
X Conclusion
48
XI Appendices
49
B Licensure Boards Web Site Addresses
50
Design Professional Contract ResponsibilitiesPreDesign Design and PreConstruction Phases
53
To Be or Not to Be
55
2 Understanding the Owners Initial Concept
57
b Project Consultants
58
AgenciesApprovals
59
b Building Permits and ApprovalsInspections
60
B Potential Liabilities of the Design Professional in the PreDesign Phase
61
2 Setting the Project Parameters
62
b The Initial Program
63
3 Initial Budget Estimates
64
4 Initial Schedule Estimates
65
III Contract Negotiation and Formation
66
A The Roles Responsibilities and Obligations of the Parties in Entering into the Contract
67
B The Contract
69
2 The Use of Custom Contracts
71
3 Specific Contract Provisionsthe Risks Defined
72
4 Indemnity
73
5 Basic vs Additional Services
74
6 Payments to the Design Professional
76
8 Budget Estimates
78
9 Schedule Estimates
79
11 Dispute Resolution
80
12 Insurance
81
13 Consequential DamagesWaiver and Related Issues
82
14 Limitations of Liability
83
Changes in Services
85
Roles and Responsibilities
86
2 Design Development
87
B Implied Obligations of the Design Professional during the Design Services Phases
88
Design Professional Legal ResponsibilitiesConstruction and Completion Phases
91
3 Variations on Traditional Roles and Responsibilities in DesignBidBuild
93
B Roles and Responsibilities of the Design Professional during the Construction Phase
94
2 Modification of Roles and Responsibilities during the Construction Phase
95
3 Standard Contract Terms Regarding Design Professional Roles and Responsibilities during the Construction Phase
96
b Submittal Review
98
c Construction MeansMethods
99
d Safety
100
f Rejection of Work
101
g Contractor Claims Payment Issues and Interpretation of the Contract Documents
102
h Termination of the Contractor
104
4 Commonly Recognized Implied Obligations of the Design Professional in the Performance of Construction Phase Services
105
5 Areas of Potential Professional Liability Exposure
106
b Third Party Claims
107
c ContractorSubcontractor Claims
108
d Personal Injury Claims
109
e OSHA
111
Roles and Responsibilities
112
A Substantial Completion
113
B Punchlists
116
C Final Completion
117
D Warranties
118
E Project CloseOut Documentation
119
Design Professionals and the DesignBuild Project
121
B Design Professional as a Subcontractor to DesignBuilder
123
D Bridging
124
B Less Complete Design
125
IV DesignBuild Led by Design Professional
126
C Strict Liability for the DesignBuilder
129
E Insurance Coverage and Bonding
130
G Economic Loss Doctrine Eroded
132
V ContractorLed DesignBuilder
133
1 PayIfPaid or PayWhenPaid Clauses in DesignBuild Contracts
134
3 Indemnification Clauses
135
C Licensing IssuesIllegality of DesignBuilder Not Having a Design Professional License
136
VI Member of a Joint Venture or Other Business Entity
137
3 Partnerships
138
B Insurance and Bonding
139
D Teaming Agreements
140
The Design Professional and Tort Liability
143
B Negligence
144
1 Standard of Care for Design Professionals
145
3 Necessity of Expert Witness Testimony
146
4 Causation
147
2 Effect on Contractual Limitations of Liability
149
E FraudElements
151
F Negligent Misrepresentation
152
II Issues Affecting the Tort Liability of Design Professionals
153
B Warranty Disclaimers
154
C Contract Modifications
155
D Preparation of Plans and Specifications
156
E Environmental Liability
157
Economic Loss Rule
158
B Application to Third Parties Not in Privity
159
1 Two Tests
160
b Foreseeable Duty Test
161
C Claims against Individual Design Professionals
162
D Exceptions to ApplicationEnforcement of the Doctrine
163
2 SuddenCalamitous Event
164
IV Site Safety
165
B Responsibility of the Contractor and Owner
166
C Indemnity for the Design Professional
169
D Theories of Liability against the Design Professional
170
E The Design Professionals Role on Site
171
F Design Professional Immunity Statutes
174
G Control over the Work and OSHA Fines
175
H Contract Provisions
177
J Hazardous Waste Sites
178
K The Safety Dilemma
179
Design Professional Work ProductOwnership and Protection
181
III Who Owns the Copyright?
183
2 CoAuthorship
184
1 Ownership by the Designer with a NonExclusive License for the Owner
185
3 Ownership of the Work by the Owner
186
4 Conveying Copyright Interests at a Later Date
187
b Transfer of Ownership
188
C CommonLaw Copyrights and Registered Copyrights
189
IV What Protection Does the Copyright Afford?
190
C The Architectural Works Copyright Protection Act
191
D Rights Protected by Copyright
192
F Scope of Protection for Works Consisting of Generic Features
193
V What Is Copyright Infringement?
195
B Access to the Copyrighted Work by the Alleged Infringer
196
1 The Extrinsic Test
197
2 Fair Use
198
3 Statute of Limitations
199
3 Statutory Damages
200
6 What Information Is Protected by Trade Secret Laws?
201
State Regulation of the Construction Manager
203
A States That Specifically Regulate Construction Managers
204
2 Oklahoma
205
B Jurisdictions with Little or No Regulation
208
1 Regulation as Contractor
209
b Implicit Regulation as Contractors
214
2 Regulation as Design Professional
217
b Regulation under State Procurement Laws
219
D Other Issues of Concern in Architect Engineering and Contractor Licensing
223
1 Design Professional Licensing
224
2 Contractor Licensing
225
III Ethical Considerations in the Relationship between Construction Manager and Owner
228
A Public Projects
229
1 Contingent Fees
230
2 Separate ContractsEntities for Design Management Construction
231
d Missouri
232
e South Carolina
233
c North Carolina
234
e Texas
235
1 Certification
236
2 Accreditation
237
3 Codes of Ethics
238
IV Practice Aids
240
B Research and Resource Links
241
Construction Management Overview
243
II Historical Evolution of Construction Management
246
III Recognition of Construction Management as a Profession
251
IV Construction Management and the Professional Standard of Care
253
V Differences from Design and Construction Professions
254
VI Construction Management Services Overlap with Other Professions
255
VII Major Categories of Service
256
A Agency CM
257
B CM AtRisk
258
C Program Management Services
259
D Value Engineering Services
260
VIII Standard Form Agreements
261
2 Construction Phase
263
2 Construction Phase
264
C AGC
265
D Comparison of the Standard Form Agreements
266
IX Compensation
268
B Lump SumFixed Fee
270
C Cost of Work Plus a Fixed Fee
271
D Fee as a Percentage of Construction Cost
272
E Cost of Work Plus a Fee with a GMP
273
F Comparison of Compensation Arrangements
276
X Practice Aids
277
Construction Managers Responsibilities PreDesign Design and PreConstruction Phase
279
III PreDesign
281
B Environmental Impact Statements
282
1 Phase I Environmental Assessment
283
C Site and Existing Building Survey Hazardous and Contaminated Substances
284
E Funding
285
G Engaging Design Professional
286
H Adjacent Site Investigation
287
I Utility Service
288
1 Schematic Design Drawings
290
2 Design Development Drawings
291
B Estimate
292
C Project Progress Scheduling
295
VIII Insurance
305
A Construction Managers Professional Liability Insurance
306
C Builders Risk Insurance
307
IX Suspension or Termination
308
X Claims
309
A Scope of Services
310
C Waiver of Consequential Damages
311
D Limitation of Liability
312
F Indemnification
313
XII Conclusion
314
B Part APreConstruction Agreement
335
C PreConstruction Agreement Checklist
346
Construction Management Contract Responsibilities Construction and Completion Phases
347
A Construction Managers Responsibility during Construction
348
II The Construction Managers Role Risks and Responsibilities during Construction
349
1 Work Scope Allocation
350
3 Trade Contractor Bidding and Selection
351
B Management of OnSite Work
352
C Cost Control
353
2 Management of Trade Contractor Changes
355
3 Continued Consulting on Value Engineering and Substitutions
356
2 Developing Schedule Updates
357
3 Control of Trade Contractor Schedules and Coordination
358
5 Float
359
1 Responsibilities of the Construction Manager as Design Is Finalized
360
2 Responsibility of the Construction Manager VisaVis Designer
361
1 Contracts and Delegation of Risk
362
3 Surety Bonds and Performance Risk
363
4 Management of Risk That Is Not Transferred or Insured
364
I Customer Service and Customer Relations
365
A Management of Punch List
366
B Commissioning and Turnover
367
1 Training
368
C Procuring and Handling WarrantiesGuarantees
369
D Audit or Cost Verification
370
IV Coordination with Othersan Independent Duty or an Adjunct to All Other Tasks?
371
B Construction Managers Duty to Owner as Agent
372
Use of Standard Form Contracts and Documents
373
C AIA
374
The Construction Manager and Tort Liability
375
II Tort Liability of the Construction Manager to the Owner
376
a DutyStandard of Care
377
b Failure to Comply with Licensing Requirements
379
c Failure to Comply with Procurement Codes
382
e Failure to Comply with Industry Standards
383
3 IntentionalNegligent Misrepresentation
384
4 Unfair Trade Practices
385
B Bases of Liability
387
2 Faulty Workmanship and Improper InspectionSupervision
389
3 Negligent Cost EstimatesThe OverBudget Project
391
4 Improper Certification of Progress Payments
393
5 Improper Schedule Preparation Monitoring and Coordination
394
6 Improper Processing of Submittals
395
7 SelfDealingConflict of InterestLack of Independence
396
III Construction Managers Liability to Third Parties
398
2 Negligent Misrepresentation
400
3 Interference with Contract
402
4 Defamation
403
B Bases for Liability
404
IV Owners Liability to Third Parties Based on Imputation of Construction Managers Misconduct
407
V Construction Manager Defenses
408
B ContributoryComparative Negligence
409
D Superior Knowledge
410
The Construction Manager and the DesignBuild Project
413
A Conflicts of Interest
415
C State Licensing Requirements
416
A Owners Budget vs Raw Construction Cost
417
Force Majeure or Reasonably Inferable in Todays Economy
418
C Design Team Fees and Reimbursables vs Additional Services
419
Unknown Hourly Billings or Predictable Lump Sum
421
3 Controlling Owner Changes During Design as a DesignBuilder
422
Contractual Responsibility
423
D Predicting Permits Fees and Other Governmental Approval Costs
424
2 How Much Is Enough?
425
3 Owner vs DesignBuilder Contingency
427
G Value Engineering vs Value Elimination
429
2 Managing the Implicit DesignBuilder Incentive to Lower Costs at the Expense of LifeCycle Cost
430
IV Ownership and Licensing of the Contract Documents
431
A Owner Retains the Right to Own Documents If the DesignBuild Contract Is Terminated
433
B Documents in Electronic Format
434
Managing Input BuyIn and Approval during PreConstruction
435
VI The Construction Cost Estimate
438
VII Constructability Review
439
VIII The Construction Schedule
441
X Use of a Commissioning Agent
444
XI Friendly Contract Clauses for the Construction Manager as DesignBuilder
445
B Indemnity
447
XII Appendices
449
B Instructions for Using the Fee and Reimbursables Worksheet
455
Design ProfessionalConstruction Manager Indemnification and Professional Liability Insurance
457
II Standard Indemnification Obligations
458
IV Intermediate Form
459
VII Restrictions on Indemnifications
463
A Professional Liability Coverage
465
C Tail CoverageExtended Reporting Periods
466
E Property Damage
467
G Premises and Operations Liability
468
H Contractual Liability Coverage
469
J Libel and Slander
470
Agency vs AtRisk
472
N Standard Exclusions
473
O Express Warranties and Guarantees
474
Q Deductibles
476
S WrapUp Project Policies
478
T Considerations with WrapUps
479
U Attorneys Fees and Litigation Costs
480
IX Evidence of Insurance
481
X Recent Claim Trends
482
B DesignBuild
483
XII Conclusion
484
Considerations for Subconsultant and Subcontract Agreements for Design Professionals and Construction Managers
485
II The Process of Choosing a Subcontractor
486
III Unique Legal Issues Applicable to the Prime ContractorSubcontractor Relationship
489
A Vicarious Liability Indemnification and Contribution
490
B Exculpatory Risk Allocation and Limitation of Liability Clauses
493
D Insurance Issues
495
E Dispute Resolution
497
F FlowDown Clauses
498
G Applicability of Economic Loss Rule
499
IV Drafting Subcontract Agreements
500
Get It in Writing and Get It Signed
501
1 Form or Custom Subcontract Agreements
502
Identify Key Subcontract Terms and Conditions
505
VI Subcontract Issues Unique to Offshore Subcontracting Relationships
511
VII Conclusion
513
IX Appendix
516
Damages and Remedies
523
II Causes of Action
524
2 Promissory Estoppel
525
3 Unjust Enrichment
526
a Design Professional and Construction Manager Compensation
529
c Contractors Compensation
531
2 Promissory Estoppel
532
B Tort Claims
533
IV Calculation and Proof of Compensatory Damages
534
2 Price Increases for Labor and Material
535
4 Home Office Overhead
536
5 Lost Profits
538
7 Loss of Efficiency
539
9 Interest
541
C Alternative Methods for Calculating Damages
542
2 Modified Total Cost
543
4 ShouldCost Estimates
544
D Consequential Damages
545
B Failure to Mitigate Damages
546
VI Protection for Performance and Payment Rights
548
C Labor and Material Payment Bonds
549
F Miller Act
550
G State Public Works Claims Little Miller Acts
551
VII Contractual and Other Limitations on Liability
552
B Waivers of ConsequentialIncidental Damages
553
D Disclaimer of Warranties
554
G No Damages for Delay
555
I Immunity under Workers Compensation Laws
556
J Immunity from Site Safety Claims
557
Alternative Dispute Resolution and the Construction Dispute
559
II Overview of Types of ADR
560
B Mediation
561
D Judicial or QuasiJudicial Procedures
562
1 Early Neutral Evaluation
563
B Law Governing
565
1 The Contract Provision
566
2 Contractual Preconditions
568
D Selection of the Forum and Procedural Considerations
571
Additional Considerations
573
F PreHearing Issues
575
3 PreArbitration Hearings
576
4 Briefing
577
G The Arbitration Hearing
578
2 Special Issues in the Arbitration of Construction Cases
579
b Delay Claims
580
e Use of Technology in Proceedings
581
f Nature of the Award
582
3 Vacating the Award
583
IV Strategies in Mediation
584
2 Selection of a Specific Process
585
B Selection of the Mediator
589
C Planning for and Attending the Mediation
591
2 Use of Technology Live Experts at the Mediation
592
3 Developing a Mediation Strategy
593
b Proactive Participation in Defining the Process
594
c Making Offers vs Discussing Positions
595
d Briefing
596
e Client and Advocate Expectations of Process and Result
597
4 Wrapping Up the Successful Mediation
599
Special Topics in Litigation of Disputes Involving Design Professionals or Construction Managers
601
B Statutes of Repose
602
C Using Tolling or Standstill Agreements to Defer Litigation
604
III Certificates of Merit
605
A Who Is Covered?
606
IV Management of Litigation through the Use of Special Masters
608
V Use of Experts
610
B DaubertKumho Tire Extends to Both an Experts Testimony and the Conclusions Reached by the Expert
611
It Must Be Reasonable for an Expert to Rely on That Which Forms the Basis of His or Her Opinion
612
VI Discovery Management and Use of Evidence in Complex Construction Cases
613
B Electronic Discovery
615
C Demonstrative Evidence
619
VII Using Joint Defense Agreements to Avoid FingerPointing and Manage the Dispute
622
A Practical Considerations for a Joint Defense
625
B The Necessity of a Writing
627
INDEX
629
Autortiesības

Citi izdevumi - Skatīt visu

Bieži izmantoti vārdi un frāzes

Bibliogrāfiskā informācija