Contracts & Legal Flashcards
1
Q
G704-DB
A
Certificate of Substantial Completion for OWNER to fill out because owner takes on that responsibility in DB
2
Q
G732
A
Application and Certificate for Payment - CM Adviser Edition anticipates that the architect and the constructionmanager-adviser may certify a different amount than that applied for, with each initializing the figures that have been changed and providing explanations accordingly.
3
Q
G612
A
Owner’s Instructions to the Architect Regarding the Construction Contract, Insurance and Bonds, and Bidding Procedures is a questionnaire used to obtain information from the owner necessary to arrive at a construction contract through the bidding process.
4
Q
D200
A
Project Checklist identifies tasks and data necessary to fulfill assigned project responsibilities. It can also serve as a permanent record of owner, contractor, and architect decisions.
5
Q
G716
A
RFI
6
Q
Project Authority Matrix
A
Can be found in A201. Designates if O, A or C must approve contract elements.
7
Q
G711
A
Architect’s Field Report
8
Q
G702
A
Application and Certificate for Payment. GC shall submit itemized application for payment to architect at least 10 days prior to date established for progress payments in accordance with schedule of values. Needs to be notarized, contain supporting data and reflect retainage. Can include payment for work authorized by CCD. Architect has 7 days to review/approve. The owner could have as little as 3 days to make payment. Certificate for payment does not constitute acceptance of Work not in accordance with CDs. Look for progress and quality.
9
Q
G703
A
Continuation Sheet / Schedule of Values: Required for stipulated sum or GMP contracts
10
Q
G701
A
Change Order: prepared by the architect, signed by the opener and contractor stating their agreement on: 1. Change in the work2. Change in contract sum, if any3. Change in contract time, if any
11
Q
G714
A
Construction Change Directive: prepared by the architect, signed by the owner and architect directing agreement on on contract time, sum or both. Once a contractor signs it, it will become a change order.
12
Q
G710
A
Architect’s Supplemental Instruction: used for minor change in the work. Only needs architect’s approval. Architect submits in writing and if contractor thinks there is a change in contract sum or time, he should inform the team and not proceed until approved. If they proceed with the work anyway, they waive the right to the change in time/money.
13
Q
G704
A
Certificate of Substantial Completion
14
Q
Post-construction additional services
A
Lists found in B101 and D200: Post Occ Eval, construction as-builts, commissioning, LEED, FFE, Interior Design, warranty review, move-in assistance, energy analysis
15
Q
Contracts for post-construction additional services
A
2 ways: G802, Amendment to the Professional Services Agreement adds services to original agreement (statute of limitations has already begun). B101 creates another contract and statutes timeframe begins again.
16
Q
Performance Bond
A
Statement by surety company that obligates them to complete construction on a project if the contractor defaults on their obligations.
17
Q
Payment Bond
A
An amount of money guaranteeing that the contractor will pay subcontractors, vendors, and suppliers for their work free of liens.
18
Q
Spearin Doctrine
A
1918 Court Ruling: If the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. However B101 and the professional standard of care does not require defect-free documents (nor does it allow negligence). The difference between defect-free documents and the professional standard of care is often called the Spearin Gap. The costs associated with document defects that fall within the professional standard of care are borne by the owner.
19
Q
The Work
A
Construction and services performed by the contractor per the contract.
20
Q
The Project
A
Total construction including the Work and any other work provided by the owner or his consultants.
21
Q
Owner’s right to stop the work
A
A201 2.3If the connector fails to correct work that is not in accordance with CDs, or repeatedly fails to carry out the work per the CDs, the owner may issue written order to the contractor to stop the work or any portion thereof until cause is eliminated.
22
Q
Owner’s right to carry out the work
A
If the contractor defaults or neglects to carry out the work in accordance with the CDs and fails to commence correcting it within 10 days of receiving written notice from the owner, the owner may correct it themselves. Contractor must pay for owner’s expenses and any add services from architect. Architect must approve these actions.
23
Q
A201 3.2.3 requires the contractor to do what if he discovers a nonconformity in the CDs?
A
Promptly report it to architect. Failure to do so may result in liability for remediation costs.
24
Q
When do warranties start?
A
A201 3.5/9.8.4At substantial completion
25
GC's selection of superintendent
As soon as practicable after the award of the contract, they shall price the architect the name of the super. Architect may reply within 14 days with a reasonable objection.
26
Submittal schedule
Provided to architect for approval promptly after awarded the contract. It must allow the architect reasonable time to review submittals. If not provided, they are not entitled to any increase in contract time or sum based on time required for submittal review.
27
Indemnification
A201 3.18Contractor shall hold the owner, architect and architect's consultants harmless against claims attributable to injury or property damage caused by the contractor's negligence.
28
Who administers the A201 contract?
A201 4.2The architect shall provide administration of the contract and be an owner's representative during construction until the date the architect issues the final certificate for payment. The architect will have authority to act on behalf of the owner only to the extent provided in the CDs.
29
Can the architect accept and reject non-conforming work?
A201 4.2.6 / 12.3Architect can reject only. When advisable the architect can require inspection or testing if the work. If the owner chooses to accept non-conforming work, the contract sum shall be adjusted accordingly.
30
Owner's separate contractors
A201 6.1The owner shall coordinate his own consultants with the work of the contractor. If the contractor's work depends on that of the owner's consultants, the contractor shall notify the architect of apparent deficiencies prior to proceeding with their work. The contractor may be responsible for these defects if not reported. Contractor is not responsible for defects not discovered.
31
Approvals required for changes in the work
Change order: OACCCD: OAASI: A alone
32
Payment Bond
AKA Labor and Materials Bond. Guarantees payment to subs, employees and suppliers. Completion of project free of liens.
33
Contractor's Insurance and Bonds
GC must purchase and maintain required insurance types and name the Owner, Architect and Architect's consultants as additional insureds under the commercial general liability policy.
34
Insurance Owner is required to carry
1. General liability2. All-risk property insurance3. Boiler and machinery insurance
35
Insurance Architect is required to carry
1. Commercial liability2. Employer's insurance3. Professional liability (Errors and Omissions)4. Worker's compensation5. Auto insurance
36
Time limits of required insurances
A201 11.1.2Start at date of commencement of the Work and end at date of final payment
37
Waiver of subrogation
A201 11.3.7Owner and contractor waive all rights against each other and the architect for damages caused to the property to the extent covered by property insurance
38
Indemnification
A201 3.1.8The owner, architect and architect's consultants shall not be held liable for claims against contractor caused by negligent acts or omissions.
39
Correction of Work after Substantial Completion
A201 12.2In addition to the contractor's warranty obligations, they must correct work not in accordance with CD's within 1 year period after substantial completion.
40
Governing law of contract
A201 13.1The contract shall be governed by the law of the place where the Project is located except that, if the parties have selected arbitration, the Federal Arbitration Act shall govern.
41
Contractor's right to terminate the contract
A201 14.1A) The contractor may terminate the contract after 7 days written notice if work has been stopped for a period of 30 consecutive days through no fault of the GC or its subs for any of these reasons:1. Ordered by AHJ or court2. Act of government or national emergency3. Lack of certificate for payment or payment by owner per 9.4.1.4. Owner doesn't provide evidence of finances for project per 2.2.1.B) If the project has been delayed more than 100% of the total number of days scheduled for completion or 120 days in a 365 day period, whichever is less.C) If the owner repeatedly fails to fulfill their obligations under the contract and work is stopped for 60 consecutive days as a result. GC must give 7 days written notice.
42
Owner's right to terminate contract
A201 14.21. GC repeatedly refuses or fails to supply enough properly skilled workers or proper materials2. GC fails to make payments for labor or material3. GC repeatedly disregards laws or orders of AHJ4. GC is guilty of substantial breach of contract documentsOwner must get agreement from IDM and provide 7 days written notice.
43
Owner's right to suspend work for convenience
The owner may, without cause, suspend, delay or interrupt Work. Contract time and sum shall be adjusted accordingly.
44
Waiver of consequential damages
Owner and contractor waive claims against each other
45
Initial Decision Maker
Architect unless noted otherwise. 30 days to make a decision until it goes to Mediation if arbitration is a condition of mediation. 10 days to take action after receipt of claim in general.
46
What happens if mediation is concluded without resolution?
Either party may demand in writing that the other party file for binding dispute resolution within 30 days from conclusion of mediation of 60 days from start.
47
A305
Contractor's Qualification Statement: Sworn and notorized form for GC to fill out with financial data, experience and references.
48
What does the Cost of Work include and not include according to B101 6.1?
Includes: Total cost to the owner to construct all elements of the Project designed or specified by the Architect. GC costs, overhead, profit, reasonable value of labor, materials and equipment furnished or donated to Owner.Not: Compensation of the Architect, cost of land, rights of way, financing, contingencies.
49
What can owner do if GC is not paying subs?
A201 9.5.4 Issue joint checks
50
What are authorized Architect's reimbursables?
Authorized Out-of-town travel Physical models Permitting Taxes on professional services
51
What can a subcontractor do first if they have not been paid by the GC?
A201 9.6.3 Request from the architect information on the previous progress payments to the contractor.
52
During procurement, what tasks does the architect assist the owner with?
B101 3.5.2 Facilitating the distribution of Bidding Documents Organizing and conducting a pre-bid conference Answering RFI's and preparing addenda Organizing and conducting the opening of the bids Documenting and distributing the bidding results as directed by owner Participating in negotiations with prospective contractors (if a negotiated contract)Add service:- substitution requests- distributing drawings to bidders
53
Which party is responsible for maintaining a record of the Applications and Certificates for Payment?
B101 3.6Architect
54
Which party is responsible for maintaining a record of changes in the work?
B101 3.6Architect
55
Who pays for taxes, permits, and inspections?
A201 3.6Contractor
56
Time architect has to review submittals
Per contractors submittal schedule or in it's absence, with reasonable promptness per architect's professional judgement.
57
What types of tests is the owner responsible for?
B101 5.7Structural, mechanical, chemical, air/water pollution, hazardous materials
58
Under what conditions can the owner and architect terminate the B101 for convenience?
B101 - 9.17 days written notice. Owner doesn't pay architect, owner suspends project for more than 90 cumulative days, either party fails to perform in accordance with contract. Owner can terminate WITHOUT CAUSE. Owner must pay termination fee, all outstanding payments due and a licensing fee if they intend to keep using instruments of service.
59
If using IPD with forms B195, A195, and A295, what type of agreement is used?
Transitional forms are typically used along with AIA Documents B195-2008, A195-2008 and A295-2008. This represents a transition from traditional delivery methods where a general contractor provides pre-construction services.
60
After commencement of the Work, under what circumstances can GC request evidence of owner's financial arrangements?
A201 2.2 1. Owner fails to make payments 2. Contractor identifies reasonable concern about owner's ability to make payments when due 3. A change in the work changes the Contract Sum If owner fails to provide evidence within 14 days of contractor's written request, they may Stop the Work and request increase in Contract Time and Sum. For #3, only the portion of the Work affected may be stopped.
61
When does the Owner Make payments to the Contractor?
Once the Owner receives the approved Application and Certificate of Payment from the Architect, he/she makes payment to the Contractor.See AIA A201 9.6.1
62
Can the Architect adjust the amount the contractor is paid?
Yes, it the Work completed does not match the Application and Certificate for Payment, the Architect can adjust the amount.See AIA A201 9.4
63
What must the contractor warrant upon submittal of an application of payment?
The Contractor warrants upon submittal of an Application for Payment, that all previous Work shall be free and clear of Liens. This means the Contractor would need to submit lien releases for previous work with the submittal of the new Application for Payment.See AIA A201 9.3.3
64
Describe the Application for Payment procedure.
1. At least 10 days before the established date for each progress payment, the Contractor completes and submits the Application and Certificate for Payment to the Architect.2. Payments shall be made on account of materials and equipment delivered and stored on site. If approved in advance by the Owner, payment may be made for materials and equipment stored off the site.See AIA A201 9.1
65
When does the Architect issue a Certificate for Payment?
Within 7 days after receipt of the Contractor's Application for Payment, the Architect shall either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect’s reasons for withholding certification in whole or in part.See AIA A201 9.4.1
66
What does the issuance of a Certificate of Payment NOT represent on behalf of theArchitect?
1. Exhaustive or continuous on-site inspections.2. Reviewed construction means, methods, techniques, sequences or procedures.3. Reviewed copies of requisitions received from subcontractors and material suppliers.4. Made examination to ascertain how the Contractor has used money previously paid on account of the Contract Sum.See AIA A201 9.4.2
67
Under what conditions can the Architect withhold certification?
If the work on the Application does not match the work completed in the field, the Architect will discuss this with the Contractor. If an agreement cannot be reached, the Architect will issue the Application of Certificate of Payment to the Owner for the amount the Architect believes to be accurate.See AIA A201 9.5
68
What is Substantial Completion?
Substantial Completion is when the Work is sufficiently complete in accordance with the Contract Documents and ready for the Owner's occupancy and use.See AIA A201 9.8
69
What process is required in order to issue the Certificate of SubstantialCompletion?
1. Contractor submits to Architect a punch list of items to be completed prior to final payment.2. Architect makes inspection to determine if Work is substantially complete. If not, Contractor shall complete the Work prior to the issuance of a Certificate of Substantial Completion.3. Once complete, Architect issues Certificate of Substantial Completion to Owner & Contractor.See AIA A201 9.8
70
What does the Certificate of Substantial Completionestablish?
1. The date of Substantial Completion. 2. The responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the work and insurance (typically transferred to Owner).3. Warranty period begins for work. 4. Release of Retainage to Contractor. 5. Statute of Limitations time clock begins.See AIA A201 9.8.4
71
When can the Owner occupy any portion ofthe Work?
The Owner may occupy any portion of the Work when such portion is designated by separate agreement with the Contractor, provided such occupancy is consented to by the surety and authorized by the public authority having jurisdiction (Building Official) over the project.See AIA A201 9.9.1
72
Describe the process for Final Completion andFinal Payment.
1. Contractor submits to the Architect the final Application for Payment.2. Architect makes inspection to determine Final Completion, that all remaining Work is completed in accordance with the Contract Documents, has taken place.3. Architect issues a final Certificate of Payment to the Owner which states that the work has been completed in accordance with the Contract Documents and the outstanding balance is now due.See AIA A201 9.10
73
What must the Contractor submit to the Architect in order toreceive Final Payment?
occupy the building.1. Affidavit that payrolls, bills for materials and equipment and other indebtedness have been paid or satisfied.2. Submit Contractor's Affidavit of Release of Liens.3. Certificate stating that the insurance is in effect and no known reason for it not being renewable.4. Consent of Surety.5. Proof of release of all applicable liens from Subcontractors, material suppliers, and vendors.See AIA A201 9.10.2
74
What is Mediation?
Mediation is the first line of conflict resolution if parties are unable to resolve it themselves. It is a form of alternative dispute resolution and it must take place before Arbitration. A neutral third party aims to assist two (or more) parties in reaching an agreement. Both parties share the expenses of Mediation. An important distinction is that Mediation is non-binding.
75
How is Arbitration different from Mediation?
The main difference is Mediation is nonbinding and Arbitration is binding.Both are forms of alternate dispute resolution. Arbitration is used when Mediation is unable to resolve a dispute.
76
What is the one benefit of Litigation over Arbitration?
Litigation is when a dispute is resolved in court. It is an expensive and long process involving attorneys; however unlike Arbitration the judge's decision can beappealed.
77
Why is Arbitration a preferable method of dispute resolution overLitigation?
Arbitration tends to be less expense than Litigation and it is also faster. The decision of the arbitrator, though binding, is private information while Litigation is public.
78
When a Contractor or Subcontractor accepts final payment, what rights are they essentially waiving?
Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment.
79
In terms of the design professionals lien laws, what four groups are considered design professionals?
1. Licensed Architect 2. Licensed Landscape Architect 3. Registered Professional Engineer 4. Licensed Land Surveyor
80
The Contractor has consistently failed to keep the site clean and free of debris. What option does the Owner have in thissituation?
If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and shall be entitled to reimbursement from the Contractor.See AIA A201 3.15.2
81
What are the five steps included in the process of imposing a Design Professionals Lien?
1. Has construction commenced? - if yes, lien does not apply, must use mechanics lien.2. Determine governmental approval - if no building permit or other government approval has been granted, lien is not available.3. Send Demand Letter - 10 days prior to recording lien, issue landowner payment demand.4. Record Lien - in County of project location, no later than 90 days after knowledge that work will not commence.5. Enforce Lien - file suit within 90 days ofrecording the lien.
82
What is a Design Professionals Lien?
Design Professionals Lien - right to record a lien on a property before construction begins IF a building permit or other governmental approval has been obtained.Design Professionals Liens are available onpublic or private projects.
83
What is a Mechanics Lien?
A legal claim against real property for satisfaction of a debt (i.e. you or another individual perform work on a private project and are not paid for your service or materials, you can file a mechanics lien).Not allowed on public projects. Does notaffect the ability to pursue other rem
84
What are three conditions that will cause a Design Professionals Lien to expire?
The lien automatically expires if: 1. Design professional does not file lawsuit to enforce the lien. 2. The work commences on the project.3. Landowner partially or fully satisfies the lien, design professional shall execute andrecord a document as applicable.
85
What is a Preliminary 20 Day Notice?
A document that aids subcontractors, vendors, and material suppliers protect their lien rights in the event they are not paid for services rendered or materials supplied.Within 20 days of furnishing labor or materials, subcontractors must serve a Preliminary 20 Day Notice to Owner, by certified first class mail or in person, which allows the Owner to be made aware of the lien rights of the subcontractors, vendors,and material suppliers.
86
Who has rights to file a Mechanics Lien?
1. Contractors 2. Subcontractors 3. Material Supplier 4. Laborer5. Design Professional (Architect, Engineer,etc.)
87
Which parties are exempt from sending a Preliminary 20 Day Notice to the Owner?
170 Architects and General Contractors.They do not have to send a Preliminary 20 Day Notice as they have a direct contractwith the Owner.
88
What are the consequences of not sending a Preliminary 20 Day Notice to theOwner?
Failure to send the Preliminary 20 Day Notice can cause the subcontractors, vendors, or material suppliers to lose someor all of their lien rights.
89
What timeframes are important to be aware of regarding Mechanics Liens?
If a Notice of Completion or Notice of Cessation (work has formally stopped) is NOT filed by the Owner, the lien filing period is 90 days from completion of construction. If the Notice of Completion or Notice of Cessation is filed, the lien period is reduced to: 60 days for Prime Contractors 30 days for Subcontractors
90
What three steps are involved in issuing a Mechanics Lien?
1. Serve Notice of Mechanics Lien - must serve on the Owner by registered mail prior to recording the lien.2. Record Mechanics Lien - at County Recorder's office in County where project is located.3. Enforce Mechanics Lien - file lawsuit within 90 calendar days from date ofrecording.
91
What is the main difference between the filing of a Stop Notice and a Mechanics Lien?
Stop Notice may be filed on a public project or private project.A Stop Notice is a lien against funds.Mechanics lien cannot be filed on a public project, only a private project.
92
What is a Stop Notice?
A Stop Notice is a lien against funds.The procedure for filing a Stop Notice is similar to a Mechanics Lien. Stop Notices can be used on private or public projects and served accordingly: Private projects - serve Stop Notice to Lender Public projects - serve Stop Notice to Owner of public work
93
How does a Notice of Non-Responsibility protect the Owner?
A Notice of Non-Responsibility is utilized when a tenant (not Owner) of a space is performing work and the Owner (landlord) wants to protect themselves from any liens stemming from the failure of the tenant to pay contractors and vendors.The Notice of Non-Responsibility is completed by the Owner and physicallyposted at the construction site.
94
Define a Bonded Stop Notice.
Bonded Stop Notice - a Stop Notice presented to a construction lender accompanied by a bond with good and sufficient sureties for 125% of the claim.If a Bonded Stop Notice is presented to the lender, the lender does not have the optionto withhold funds.
95
What is the warranty period for the Contractor's work?
According to the A201, General Conditions, the Contractor must correct any work not found to be in compliance with the Contract Documents within 1 year ofSubstantial Completion.
96
What are five ways an Architect can help protect an Owner from liens being filed.
1. Have the Owner request the General Contractor to purchase a Performance Bondand Payment Bond.2. Receive a signed lien release from subcontractors at time of payment.3. Architect process Contractor's request for payment in a timely manner.4. Collect and hold retainage.5. Recommend the Owner file Notice of Completion with County Recorder to reduce the window in which liens may be filed.
97
What is the Statute of Limitations for latent (hidden by reasonable inspection) defects inthe Work?
Statute of Limitations is 10 years.No action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than ten (10) years after the SubstantialCompletion of such improvement.
98
What is the Statute of Limitations for patent (visible or apparent by reasonable inspection) defects in theWork?
Statute of Limitations is 4 years.No action shall be brought to recover damages from any person performing or furnishing the design, specifications, surveying, planning, supervision or observation of construction or construction of an improvement to real property more than four (4) years after the SubstantialCompletion of such improvement.
99
A101
Contractor/ Owner -Stipulated Sum-Ties into A279 general conditions
100
A102
Contractor/ Owner -Cost Plus with Gmax-Ties into A279 general conditions
101
A103
Contractor/ Owner -Cost Plus without Gmax-Ties into A279 general conditions
102
A104 & A105
Contractor/ Owner -Simple/limited scope projects
103
A132
CM as advisor/ Owner
104
A133 & 134
CM as builder/ Owner
105
A141 & A14x series
Design build / Owner
106
A195
Integrated / Owner
107
A201 (entire A2xx series)
general conditions
108
A295
general conditions for Integrated deliver projects
109
A305
Contractor qualification statement-(other A3xx series are for diff Contractor bonds)
110
A701
instruction to bidders
111
B101
Architect/ Owner -scope of work is defined-any payment types-Ties into A279 general conditions
112
B102
Architect/ Owner -scope of work is not defined-any payment types-Ties into A279 general conditions
113
B143
Architect/Design builder
114
B172
Architect of record/ Owner-executive work
115
B195
Architect/ Owner-Integrated project delivery -Ties into A373
116
B200 series
Architect/ Owner for only specific phases -A279 is CO-A280 is Programing
117
B305
Architects qualifications statement
118
C401
Architect / consultants-C series in general = consultant contracts (between anyone)
119
G701
Change order
120
G702
Pay application
121
G703
Pay application continuation sheet-lists specific schedule of values and % complete etc
122
G704
Certificate of substantial completion
123
What is Arbitration?
Arbitration is an alternative to litigating (going to court over) a dispute. One (or possibly more) arbitrators listens to both sides and renders a decision
124
What is a "patent defect"?
A defect that would be visible in materials, equipment, or completed work by any reasonable observation or inspection. Having a defect blocked from view by a pile of trash does not count as latent or hidden
125
What is a "latent defect"?
A defect hidden in materials, equipment, or completed work and not readily apparent or capable of discovery by reasonable observation
126
What does the AIA G706A Contractor's Affidavit Of Release of Liens signify?
Affidavit that payrolls, bills for materialsand equipment, and other indebtedness have been paid or satisfied. It's proof of release of all applicable liens, lien releases from subcontractors, vendors and material suppliers
127
The term at risk in Construction Management at Risk, means:
The contractor holds the trade contracts and takes the performance risk for construction.
128
Which AIA contract is A201?
General Conditions for Contract for Construction
129
Which AIA contract is G714?
Construction Change Directive
130
The Schedule of Values refers to...
Paying the contractor's applications for payment.
131
Who's responsible for resolving disputes?
Although Architect is "initial decision maker" all 3 parties are responsible for helping to resolve disputes.
132
arbitration
An alternative to litigating a dispute, in which one or more arbitrators hears the evidence and renders a decision.
