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aia a201 v. consensusdocs 200 american college of construction lawyers summary discussion

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aia a201 v. consensusdocs 200 american college of construction lawyers summary discussion

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    1. AIA A201 v. ConsensusDOCS? 200 American College of Construction Lawyers Summary & Discussion Betty Hum, Intel Corporation Eric Wilson, Phelps Development, LLC June 28, 2008

    2. June 28, 2008 PIAC

    3. Ten key provisions reviewed at ACCL annual meeting Scoring: June 28, 2008 PIAC 3 AIA A201 v. ConsensusDOCS™ 200

    4. June 28, 2008 PIAC 4 AIA A201 v. ConsensusDOCS? 200 COMMENTS: AIA – approach continues with a third party between owner and contractor. Architect may be the decision maker, but AIA has provided for the use of an IDM as the initial decision maker. Responds to conflict of interest and a preference to have someone other than the Architect decide disputes AIA addressed many of the issues to issue a more balanced set of contract documents. Consensus – focus towards increased collaboration and direct communications and dealings between the owner and contractor to lessen the adversarial nature of the typical dealings on construction projects. Shifts the mindset of the parties. Some would say that the Architect has a greater accountability to the project through the risk matrix that is part of the CD. Less of a sense that the AE is protected from liability because there are options to having a neutral the initial decision maker Changes the historical role of the AE from when the AIA documents were first createdCOMMENTS: AIA – approach continues with a third party between owner and contractor. Architect may be the decision maker, but AIA has provided for the use of an IDM as the initial decision maker. Responds to conflict of interest and a preference to have someone other than the Architect decide disputes AIA addressed many of the issues to issue a more balanced set of contract documents. Consensus – focus towards increased collaboration and direct communications and dealings between the owner and contractor to lessen the adversarial nature of the typical dealings on construction projects. Shifts the mindset of the parties. Some would say that the Architect has a greater accountability to the project through the risk matrix that is part of the CD. Less of a sense that the AE is protected from liability because there are options to having a neutral the initial decision maker Changes the historical role of the AE from when the AIA documents were first created

    5. June 28, 2008 PIAC 5 AIA A201 v. ConsensusDOCS? 200 Comments: AIA does not require or establish same level of protocol as CD and can be considered to be more flexible for the parties to determine how to manage Instruments of Service. Separate Digital Data Protocol Exhibit AIA E201-2007. Transmittal of warranty of ownership of the copyright, but not the that data is complete or reliable. Also, separate document for license to use the data – C106-2007. Two party agreement and parties may not be the same as primary AE – Owner agreement. In contrast, the owner can dictate whether documents may be exchanged in electronic or digital form under the CD AE is clearly the owner of the copyright. Use by owner and subs/suppliers does not affect the A/E rights in the copyright Management of digital data transfer is dependent on the level of sophistication of the parties CD – clear statement of the owner’s right of use w/o ownership of the copyright, which may be acquired for a fee as part of the AE agreement or upon termination for a fee Owner’s right of use during and after completion of a project are spelled out AE use is limited post completion of a project § 10.2 of CD 200.2 (2007) establishes a protocol on digital transfer of data to increase reliability of the data through the system parameters and protections; how costs are to be shared; third party administration, with ultimate control residing with the Owner. Mutual indemnification from damages incurred or arising by transmissions that do not conform to the agreed systems. CD focuses on the need for Owner to provide appropriate documents for completion of the work with the appropriate license for use. Comments: AIA does not require or establish same level of protocol as CD and can be considered to be more flexible for the parties to determine how to manage Instruments of Service. Separate Digital Data Protocol Exhibit AIA E201-2007. Transmittal of warranty of ownership of the copyright, but not the that data is complete or reliable. Also, separate document for license to use the data – C106-2007. Two party agreement and parties may not be the same as primary AE – Owner agreement. In contrast, the owner can dictate whether documents may be exchanged in electronic or digital form under the CD AE is clearly the owner of the copyright. Use by owner and subs/suppliers does not affect the A/E rights in the copyright Management of digital data transfer is dependent on the level of sophistication of the parties CD – clear statement of the owner’s right of use w/o ownership of the copyright, which may be acquired for a fee as part of the AE agreement or upon termination for a fee Owner’s right of use during and after completion of a project are spelled out AE use is limited post completion of a project § 10.2 of CD 200.2 (2007) establishes a protocol on digital transfer of data to increase reliability of the data through the system parameters and protections; how costs are to be shared; third party administration, with ultimate control residing with the Owner. Mutual indemnification from damages incurred or arising by transmissions that do not conform to the agreed systems. CD focuses on the need for Owner to provide appropriate documents for completion of the work with the appropriate license for use.

    6. June 28, 2008 PIAC 6 AIA A201 and ConsensusDOCS 200 Language

    7. AIA A201 and ConsensusDOCS 200 Language

    8. AIA A201 and ConsensusDOCS 200 Language

    9. June 28, 2008 PIAC 9 AIA A201 v. ConsensusDOCS? 200 AIA – reasonable to require reporting of what is identified during field inspection and comparison of the various Contract Documents and other information provided by the Owner as part of the responsibility to facilitate coordination and construction Issues to be to reported by written notice or through the RFI process. Failure to fulfill this obligation imposes responsibility to Owner for any damages or costs that might have been avoided. Becomes a bar to request for equitable adjustment if Contractor should have known. Opens up disputes based on what “should have been known” Additional costs or time handled under Article 15 as a claim ConsensusDOCS – contractor must report discovered errors, omissions or inconsistencies in the Contract Documents. Limited to Contract Documents review to “facilitate” construction. Unless Contractor knowingly fails to report a recognized problem, Contractor is not liable for costs related to AE errors. Less onerous responsibility on contractor Contractor may obtain a price adjustment rather than submit a claim AIA – reasonable to require reporting of what is identified during field inspection and comparison of the various Contract Documents and other information provided by the Owner as part of the responsibility to facilitate coordination and construction Issues to be to reported by written notice or through the RFI process. Failure to fulfill this obligation imposes responsibility to Owner for any damages or costs that might have been avoided. Becomes a bar to request for equitable adjustment if Contractor should have known. Opens up disputes based on what “should have been known” Additional costs or time handled under Article 15 as a claim ConsensusDOCS – contractor must report discovered errors, omissions or inconsistencies in the Contract Documents. Limited to Contract Documents review to “facilitate” construction. Unless Contractor knowingly fails to report a recognized problem, Contractor is not liable for costs related to AE errors. Less onerous responsibility on contractor Contractor may obtain a price adjustment rather than submit a claim

    10. June 28, 2008 PIAC 10 AIA A201 and ConsensusDOCS 200 Language

    11. AIA A201 and ConsensusDOCS 200 Language

    12. June 28, 2008 PIAC 12 AIA A201 v. ConsensusDOCS? 200 Comments: AIA: neutral is similar to DRB with real time decision making authority Choice of the parties to either use AE or a third party Process with IDM may mitigate claims on a project Parties will be required to develop criteria to select the 3rd party, qualifications, fees and costs, confidentiality, contract for neutral/third party selected, etc. In AIA A101-2007 Agreement, the parties may select either Arbitration or Litigation as the method for binding dispute resolution for all disputes ConsensusDOCS: Issues to be decided in multi-step process, which would include AE issues, w/o the AE as a decision maker Multi-step process requires parties to select either arbitration or litigation as final dispute resolution process. Parties may amend to change requirements if either of these options are not acceptable. Fosters claims mitigation process by working issues early through direct discussion Parties have the option to select either arbitration or litigation during the contract negotiation process Comments: AIA: neutral is similar to DRB with real time decision making authority Choice of the parties to either use AE or a third party Process with IDM may mitigate claims on a project Parties will be required to develop criteria to select the 3rd party, qualifications, fees and costs, confidentiality, contract for neutral/third party selected, etc. In AIA A101-2007 Agreement, the parties may select either Arbitration or Litigation as the method for binding dispute resolution for all disputes ConsensusDOCS: Issues to be decided in multi-step process, which would include AE issues, w/o the AE as a decision maker Multi-step process requires parties to select either arbitration or litigation as final dispute resolution process. Parties may amend to change requirements if either of these options are not acceptable. Fosters claims mitigation process by working issues early through direct discussion Parties have the option to select either arbitration or litigation during the contract negotiation process

    13. June 28, 2008 PIAC 13 AIA A201 and ConsensusDOCS 200 Language

    14. AIA A201 and ConsensusDOCS 200 Language

    15. June 28, 2008 PIAC 15 AIA A201 v. ConsensusDOCS? 200 Comments: AIA – multi-step process for dispute resolution. Initial decision may be mediated. Broad definition of claims but language may not include claims against the AE IDM is AE, unless otherwise noted by the parties. Decisions encompass claims except for hazardous substances, emergencies, and property insurance claims. Parties select whether binding dispute resolution is arbitration or litigation Consolidation and joinder specifically addressed under three conditions ConsensusDOCS – multi-step process as well. Timelines for claims submittal are specified (14 days after contractor first recognizes condition giving rise to claim for additional cost or time). Written documentation w/in 21 days after giving notice, unless longer period is agreed upon. 14 days after receipt of claim for the Owner to deny or approve the claim Process: direct discussion; optional mitigation with party neutral or DRB; mediation and binding dispute resolution. Mediation if no binding process is selected in the agreement. Comments: AIA – multi-step process for dispute resolution. Initial decision may be mediated. Broad definition of claims but language may not include claims against the AE IDM is AE, unless otherwise noted by the parties. Decisions encompass claims except for hazardous substances, emergencies, and property insurance claims. Parties select whether binding dispute resolution is arbitration or litigation Consolidation and joinder specifically addressed under three conditions ConsensusDOCS – multi-step process as well. Timelines for claims submittal are specified (14 days after contractor first recognizes condition giving rise to claim for additional cost or time). Written documentation w/in 21 days after giving notice, unless longer period is agreed upon. 14 days after receipt of claim for the Owner to deny or approve the claim Process: direct discussion; optional mitigation with party neutral or DRB; mediation and binding dispute resolution. Mediation if no binding process is selected in the agreement.

    16. June 28, 2008 PIAC 16 AIA A201 - ConsensusDOCS? 200 Language

    17. June 28, 2008 PIAC 17 AIA A201 - ConsensusDOCS? 200 Language

    18. June 28, 2008 PIAC 18 AIA A201 v. ConsensusDOCS? 200 COMMENTS The Contractors liability insurance – completed operations is extended through the correction period or longer for maintenance of completed operations coverage is required. AIA follows the industry practice of adding additional insured. AIA directs the contractor to particular types of insurance and the insurance becomes the way to resolve disputes Note: under Section 3.18, the Contractor’s obligation to indemnify and hold harmless the Owner, Architect, et. al., does not include the duty to defend. ConsensusDOCS – selection process needs to be carefully reviewed to avoid creating inadvertent gaps in insurance coverage COMMENTS The Contractors liability insurance – completed operations is extended through the correction period or longer for maintenance of completed operations coverage is required. AIA follows the industry practice of adding additional insured. AIA directs the contractor to particular types of insurance and the insurance becomes the way to resolve disputes Note: under Section 3.18, the Contractor’s obligation to indemnify and hold harmless the Owner, Architect, et. al., does not include the duty to defend. ConsensusDOCS – selection process needs to be carefully reviewed to avoid creating inadvertent gaps in insurance coverage

    19. June 28, 2008 PIAC 19 AIA A201 - ConsensusDOCS? 200 Language

    20. AIA A201 - ConsensusDOCS? 200 Language

    21. AIA A201 - ConsensusDOCS? 200 Language

    22. AIA A201 - ConsensusDOCS? 200 Language

    23. AIA A201 - ConsensusDOCS? 200 Language

    24. June 28, 2008 PIAC 24 AIA A201 v. ConsensusDOCS? 200 AIA - Additional responsibility on Contractor to raise issues if given specific directions. Appears to require the Contractor to evaluate potential issues that may arise from an Owner’s direction on means and methods because the Contractor is the expert. AIA - Additional responsibility on Contractor to raise issues if given specific directions. Appears to require the Contractor to evaluate potential issues that may arise from an Owner’s direction on means and methods because the Contractor is the expert.

    25. June 28, 2008 PIAC 25 AIA A201- ConsensusDOCS? 200 Language

    26. June 28, 2008 PIAC 26 AIA A201 v. ConsensusDOCS? 200 Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite. Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite.

    27. June 28, 2008 PIAC 27 AIA A201 v. ConsensusDOCS? 200 Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite. Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite.

    28. June 28, 2008 PIAC 28 AIA A201 v. ConsensusDOCS? 200 Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite. Comments: AIA – Major change of HazMat provisions from whoever was responsible for the presence of Hazmat was singularly responsible for consequences on the site New rule – Owner may direct Contractors to determine how to safely use and hold it jointly liable for consequences focus on risk allocation based on which party has the right to indemnity under the circumstances. Owner liability is limited to degree of fault or neglience Contractor may be held liable for NOT figuring out how to handle HazMat safely. No longer sole negligence but shared liability Contractor indemnity clause is new and is triggered by bringing HazMat to the site or breach of duty to handle materials safely. Contractor responsibility is broadened to include all contractual hazardous materials even if not specifically encountered on the site ConsensusDOCS – focus is more on HazMat on the site . Limitation to what is discovered on the site. Contractor obligation to hold the Owner harmless for all claims from the delivery, handling, application, storage, removal and disposal of substances brought to the worksite.

    29. June 28, 2008 PIAC 29 AIA A201 v. ConsensusDOCS? 200 . .

    30. June 28, 2008 PIAC 30 AIA A201 v. ConsensusDOCS? 200

    31. June 28, 2008 PIAC 31 Back-up

    32. June 28, 2008 PIAC 32 AIA A201 v. ConsensusDOCS? 200

    33. June 28, 2008 PIAC 33 AIA A201 v. ConsensusDOCS? 200

    34. June 28, 2008 PIAC 34 AIA A201 v. ConsensusDOCS? 200

    35. June 28, 2008 PIAC 35 AIA A101/A201 v. ConsensusDOCS? 200

    36. June 28, 2008 PIAC 36 AIA A201 v. ConsensusDOCS? 200

    37. June 28, 2008 PIAC 37 AIA A201 v. ConsensusDOCS? 200

    38. June 28, 2008 PIAC 38 AIA A201 v. ConsensusDOCS? 200

    39. June 28, 2008 PIAC 39 AIA A201 v. ConsensusDOCS? 200

    40. June 28, 2008 PIAC 40 AIA A201 v. ConsensusDOCS? 200

    41. June 28, 2008 PIAC 41 AIA A201 v. ConsensusDOCS? 200

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