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Construction Contracts Common Interest Developments

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Construction Contracts Common Interest Developments

  1. 1. Construction Defect and Litigation Attorneys Robert P. Hall, Esq. Construction Contracts Common Interest Developments Roles/Responsibilities of the “Players” (Reference Document) Spring 2014
  2. 2. PARTICIPANTS IN REPAIR RENOVATION PROCESS ROLE/RESPONSIBILITIES ARCHITECT   Predesign   Assist the owner and CM to determine the project goals and requirements   Develop the project design   Coordinate the design consultants   Process entitlements related to design responsibilities   Ensuring regulatory and code compliance
  3. 3. PARTICIPANTS IN REPAIR PROCESS ROLE/ RESPONSIBILITIES ARCHITECT (Slide 2)   Work with the CM advisor to estimate construction costs   Work with the CM advisor during constructability reviews   Assist the CM advisor and owner with the construction bidding and negotiation   Review and approve shop drawings during the work   If hired, offer limited coordination with the CM advisor during the repair process (does not mean engage in detailed review of the quality of the work)
  4. 4. PARTICIPANTS IN REPAIR PROCESS ROLE/ RESPONSIBILITIES CONTRACTOR   Estimating and bidding the cost of construction   Obtaining entitlements related to construction such as building permits   Preparing shop drawings and other documents necessary to accomplish the work   Providing the methods and means of construction   Coordinating the subcontractors   Job site safety   Coordinating with the CM advisor to establish and maintain the construction schedule   Guaranteeing the quality of construction   Fulfilling the requirements of the construction documents   Correcting deficiencies covered by the guarantee
  5. 5. PARTICIPANTS IN REPAIR PROCESS ROLE/ RESPONSIBILITIES CONSTRUCTION MANAGER   Keep the owner informed about the issues that arise during the construction, including cost and schedule with secondary implications for the project’s quality – under this approach the owner obtains technical support from the CM   The CM supervises the construction   The CM resolves any issues at the point of bidding or negotiations such that the final results and the final quality are relatively predictable
  6. 6. Why can’t an architect be the sole CM?   Consider industry approved language architect’s offer from the American Institute of Architects (AIA) form of agreement:   Specifically excludes an Architect conducting exhaustive or daily inspections to check the contractor’s work   An industry gap surfaces:   Are architectural firms typically set up to play the CM role?
  7. 7. Construction Manager’s Core Services   If hired as an “adviser” to the owner, an experienced construction manager (CM) should be considered an “independent resource” with technical expertise who through offering services can assist the owner primarily related to risk management.
  8. 8. Construction Manager Core Services   The CM, who in turn has an architect in its employ:   Operates under a separate contract with the owner.   Protects owner given the gaps of service typically offered by other participants in the construction industry such as architects and contractors.   Manages the risk inherent in the construction industry.   Monitors the progress of the contractor and architect.
  9. 9. Construction Manager Core Services   The CM assists the owner reduce risk by:   Managing costs   Evaluating scope options   Scheduling the work   Delivering the quality of work that contract documents and building codes require.   When a fee/cost comparison is made between what a “CM as agent” of Owner can provide to protect the Owner as identified above, and what an architect would charge to provide the exact “by contract” service, most Owners cannot afford an architect to perform the same role as a CM could offer
  10. 10. What are owner risk points?   Decisions such as choosing which project delivery to adopt (best choice varies with each project):   Design-bid   Design build   Multi-prime and others.   Ensuring that quality controls are in place by contract/ applies to contractors and designers.   Ensuring that cost controls or pricing and budget limits exist.   Ensuring that time or schedule controls exist.
  11. 11. What are owner risk points? (cont’d)   Setting up bid procedures and managing bid disputes.   Understanding and negotiating contract issues that pose risk points to owners for every project (a separate presentation).   Handling payment applications and lien releases to ensure a “lien free” and “on budget” repair or renovation job.
  12. 12. What are owner risk points? (cont’d)   Handling changed conditions and or change order claims as well as delay claims by contractor.   Dealing with the potential for bad chemistry between the project delivery team such as the architect and contractor.   Managing close-outs issues and defects post project.
  13. 13. Ounce of Prevention (Lawyer fee-a minimal Owner investment to manage risk)   Owners should consider hiring a construction lawyer who:   Specializes in construction contracts.   Is knowledgeable on how defects occur.   Has a depth and breadth of experience with the construction process:   Standards of care and practices of architects, engineers, and contractors.   AIA contracts (a great industry benchmark for contract issues).   If lawyer hired to review all contracts, lawyer is in position to assist Owner with a “bird’s eye” or elevated view of all contracts
  14. 14. Construction Defect and Litigation Attorneys Robert P. Hall, Esq.Spring 2014 The information contained herein is not intended to and does not constitute legal advice, create any attorney-client relationship with anyone viewing it, or serve as a substitute for legal advice to a client by a lawyer on a particular matter. Accordingly, the general information contained herein should be considered an advertisement. You should not act or rely on any information contained herein without seeking the advice of a competent attorney licensed in your jurisdiction for your particular problem. Any information contained herein concerning the law firm and its lawyers, as well as any past cases, is also intended to provide only general information about the firm and its attorneys. Nothing herein is or should be construed as a guarantee, warranty or prediction regarding the result of any representation. Nor does any endorsement or testimonial contained herein constitute, nor should it be construed as, a guarantee, warranty, or prediction regarding the outcome of your legal matter or any particular matter.

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