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Waiving Liability w/ no CA services

  • 1.  Waiving Liability w/ no CA services

    Posted 02-05-2019 15:18
    I'm hoping I can get some advice on clients who would like to engage my services through building permit only.  I have language in my contract that states that liability is waived should I not be retained for CA.  If it is already agreed upon that the client does NOT want CA (or construction documents for that matter) do I have them sign the contract anyway knowing I will be waiving liability?  Should I even contract with an owner who is requesting up to permit drawings only, and sign and seal those drawings?  I'm happy to do Schematic Design services only and I have a separate contract for that but this would be a first where a building permit is requested.

    I'm asking in general but the project in question is an interior renovation of a Master Suite in a condo building.

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    Adrienne Turner AIA
    Owner
    Swiatocha Architecture & Design
    Philadelphia PA
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  • 2.  RE: Waiving Liability w/ no CA services

    Posted 02-06-2019 17:35

    Adriene,

    Don't think all your liability is waived if they don't hire you for CA. Talk to your lawyer. This is language that we use:

    If the Owner chooses not to include Construction Phase Services as part of this Agreement, the Owner shall be solely responsible for interpreting the Contract Documents and observing the Work of the Contractor to discover, correct, or mitigate errors, inconsistencies, or omissions.  If the Owner authorizes deviations, recorded or unrecorded from the documents prepared by the Architect, the Owner shall not bring any claim against the Architect and shall indemnify and hold the Architect harmless from and against all claims, losses, damages, and expenses, including but not limited to defense costs and the time of the Architect to the extent such claim, loss, damage, or expense arises out of or results in whole, or in part from such deviations, regardless of whether or not such claim, loss, damage, or expense is caused in part by a party indemnified under this provision.

    -Rick



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    Richard Tokarski AIA
    Principal
    Tokarski Millemann Architects
    Wall NJ
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  • 3.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 17:32
    Check your state laws.  Here's South Dakota's, with underlines added by me.  You should make sure you know what your state says. (It would be nice if building officials and our State Board consistently enforced these statutes, but why take the chance of losing your license?):

    20:38:37:02. Prime professional. The prime professional is the licensed architect or professional engineer who leads the design team and manages the design project. A prime professional is required for any project that requires the coordination of multiple disciplines, such as, architectural, landscape architectural, civil, structural, mechanical, or electrical engineering. The prime professional is charged with the coordination of the design and construction administration services. The prime professional may require testing and uncovering of work to determine compliance with approved plans and specifications. The duties of the prime professional include the following:

    (1) Acts as point of contact for the project team during the design phase to ensure dialogue among participants, including owners, contractors, developers, design professionals, government bodies, and building officials;

    (2) Verifies that the submittal to the building official is compatible and coordinated and provides a logical and comprehensive document;

    (3) Verifies that the design submitted is complete, and that all requirements for calculations and specifications are complete and accurately delineated on plans and related documents;

    (4) Acts as point of contact during the review process with the building official and provides for timely response to questions, corrections, or requests for additional information on any element of the design package;

    (5) Acts as point of contact for the design team following permit issuance, responds to changes, clarifications, and additional information that may be required from members of the design team to owners, developers, contractors, or building officials; and

    (6) Coordinates construction administration services.
    20:38:37:03. Construction administration services. Construction administration services shall be provided by a licensee practicing within the licensee's profession and comprise the following minimum services:

    (1) Visiting the construction site on a regular basis as is necessary to determine that the work is proceeding generally in accordance with the contract documents and technical submissions;

    (2) Processing shop drawings, samples, and other submittals required of the contractor by the terms of construction contract documents to assure general accordance with the plans and specifications; and

    (3) Notifying the owner, the client, the board, and the building official of any observed and uncorrected code violations; changes that affect code compliance; the use of any materials, assemblies, components, or equipment prohibited by a code; major or substantial changes between such technical submissions and the work in progress; or any deviation from the technical submissions that the design professional identifies as constituting a hazard to the public, which is observed in the course of performing the professional's construction administration duties.

    The project's architect or professional engineer shall report to the board and the building official if neither one is engaged to provide construction administration services.

    36-18A-46. Construction administration services to be provided by architect or engineer. No person other than an architect may provide construction administration services on an architecture portion of a project that is not exempt pursuant to @ 36-18A-2. No person other than a professional engineer may provide construction administration services on an engineering portion of a project that is not exempt pursuant to @ 36-18A-3. The architect or professional engineer of record, or another designated architect or professional engineer without conflict of interest, shall provide a written report of observed deficiencies or variations from the submitted plans and specifications to the building official, owner, and builder before project completion. The board may promulgate rules pursuant to chapter 1-26 to establish construction administration services criteria including coordinating and prime professional criteria for persons licensed by the board.


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    Robin Miller AIA
    MSH Architects
    Sioux Falls SD
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  • 4.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 18:15
    Thanks for the input. This is an issue I have always had concerns about.

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    Kathleen Starghill-Sherrill AIA
    Principal
    SP Arch
    Windsor Mill MD
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  • 5.  RE: Waiving Liability w/ no CA services

    Posted 02-06-2019 21:40

    Hi Adrienne,

     

    In the north east, a number of building departments require the architect to observe construction and at the end of construction, sign a document stating the same.  It releases the building department of some liability for the inspections.  I would suggest you speak with the local building department and see if there's a requirement.  If there is, you have to let the building department know the Owner requested you not observe the construction. Some villages have forms to fill out and some will issue a stop work order; others won't care.  In that case, I believe you're still liable if the house is built exactly to the plans.  If the contractor changes anything, he's responsible.  The headache of course is, if there is a problem, you're entangled and have to know if something was changed.

     

    Good luck,

    Laura




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  • 6.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 08:52
    We do what you describe all the time, rarely do we perform CA.  The permitting and inspection entities also need to know that we are not performing CA.  We put a note on the cover to the effect that "Contractual obligations do not continue past the receipt of the building permit and contract administration services are not included in the scope of work provided by (the firm).  It's also noted in our agreement.  We've been operating this way for 30 years but most of our clients are contractors and when we work for a client, it's considered a small project.

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    E Michael Shackley AIA
    Architect
    Beta Design Group, P.C.
    Stone Mountain GA
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  • 7.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 10:06
    Adrienne

    Talk to your insurance carrier  and see how they feel about this.  They may also have language  waivers you put in  the contract with the  client to limit liability.  Lawyer can also.  There may also be affidavits that are filed at the end of project that you would need  to be released from.  That would be the local AHJ.

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    David DeFilippo AIA
    Architect
    Tsoi Kobus Designs
    Boston MA
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  • 8.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 13:07
    I did a design and working drawings for a condo association two years ago.  Last week I got a call from a contractor asking me to sign the drawings so he can get an "after-the-fact" building permit.  It turns out the association hired him to build the project without getting a building permit.  In Hawaii state law requires the architect to provide CA and there is a note to that effect on my drawings and my contract with the client included CA.

    Building without a permit or CA is so rampant here on Maui that I have been approached often by contractors who want plans but no permit.  I always turn them down.  But in this case I was blindsided by my client.  What should I do now?

    Oh, and the project was NOT built according to my plans.  I think I should notify my client that I am not liable.

    Tim Mead, AIA Architect
    Kihei, Maui
    --
    Tim Mead, AIA, Architect
    808-866-6929



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  • 9.  RE: Waiving Liability w/ no CA services

    Posted 02-10-2019 17:32
    I would treat it as a brand new project, as if you never touched it before and are aiding them after they got busted to make a legally permitted structure.

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    Ricardo Ramos, Assoc. AIA, LEED® AP, CSI
    Project Manager
    CBRE GWS
    Arcadia CA
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  • 10.  RE: Waiving Liability w/ no CA services

    Posted 02-11-2019 08:49
    Ricardo,  your idea is sound.  The problem is, at least where I work . . . projects do get permitted without proper documentation.  Nobody gets busted; as you suggest.  I wish it worked that way.

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    Robin Miller AIA
    MSH Architects
    Sioux Falls SD
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  • 11.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 15:11
    I do not think you can wholesale waiver your liability if an owner wishes to not hire you for CA Services. If you are required by an AHJ to seal the documents, you could still be liable for negligence. In terms of your contract, you could add language to it that states you are not liable for changes made beyond your permit set.

    It is probably a better question for a lawyer.


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    Andrew Queenan AIA
    Project Architect
    Tower Pinkster
    Grand Rapids MI
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  • 12.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 19:36
    I just want to thank you all for your generosity in sharing your experiences, thoughts, and advice on this topic.  In addition to the responses in this thread I have received private responses and even a phone call (which I still need to return).  It's obviously an issue that we have all grappled with so it's helpful that we have this space to share.  While I'm not sure what I will do about this particular project yet (I already received a slightly grumpy email from the client after expressing my concerns) I realize that this is a larger issue that I need to plan for.   I have engaged my lawyer and we will use the advice from this forum as we adjust my contract as needed and as I decide which projects I will take on in the future.  Thank you all!

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    Adrienne Turner AIA
    Owner
    Swiatocha Architecture & Design
    Philadelphia PA
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  • 13.  RE: Waiving Liability w/ no CA services

    Posted 02-07-2019 19:28
    I think the language in your agreement covers you.

    I'm perplexed that someone could hold you responsible for something that you aren't asked to do, told not to do and as a result don't do.   If your state requires Construction Administration, that's a different story.  Mine doesn't

    The people responding here seem to cover the bases, ask a lawyer, your insurance agent and local AIA office.   I don't think your risk is very great, if any.

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    Peter Carlsen AIA
    Carlsen & Frank Architects
    Saint Paul MN
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  • 14.  RE: Waiving Liability w/ no CA services

    Posted 02-12-2019 17:07
    Rather than look to state law to find out what is required explicitly by statute, It may be informative to understand what we as professionals, entrusted with the Health Safety and Welfare of our fellow citizens, may owe society irregardless of compensation in specific contracts. This would likely be the guide a Judge might use, otherwise uninformed about the specifics of our profession, looking at the consequences of not providing a certain minimum level of CA. There are elements of CA that only protect or assist the owner or contractor, these can be negotiated in or out, but the basic obligation to society to ensure the structure remains safe remains as part of accepting your role as a professional. Based on this approach the obligation to observe the construction and ensure that the elements that protect the inhabitants regarding structural integrity, safe egress in case of fire, proper distribution of utilities so that they do not pose a threat to the inhabitants, or any other metric of HSW as identified in model codes or local ordinances are executed properly. In summary, CA as a contractual obligation can be negotiated, observation of construction as a professional obligation likely cannot.

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    Christopher Blood AIA
    Sr. Designer
    Architecture49
    Ottawa ON
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  • 15.  RE: Waiving Liability w/ no CA services

    Posted 02-13-2019 20:33
    Construction Administration is or isn’t a contractural obligation between the Owner and Architect. It’s value to the Owner and necessity will vary widely with the size of the project. Small projects, like residential remodeling, or tenant leasehold improvement for a repeat client will require limited to no CA. It is on large projects where CA becomes valued. But the success of CA will be limited by the relationships between the owner, project manager, contractor and architect. If the owner, contractor and project manager don’t want the architect around there is little to be done. It doesn’t matter what you observe if you have limited or no authority.

    Years ago I was taught that the riskiest part of CA was the certificate of payments. I’m always happy not to take that risk. If the plans are completed, and construction started you have already met your obligation to the public by making sure they conform to the building codes. CA though, in practice is often a time to fill in the gaps, omissions and catch errors. None of us is perfect. I suspect the real risking not providing CA is not having the opportunity to “ finish" the drawings, and help others understand them.

    An older brother, a lawyer advised me that I shouldn't live my life endlessly trying to protect myself from being sued. We should take reasonable precautions and understand risks. If you wind up in a courtroom in front of a judge, everybody has already lost.


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  • 16.  RE: Waiving Liability w/ no CA services

    Posted 02-14-2019 17:27
    I have come to understand that my E+O carrier has a dim view of us NOT providing CA and that there is a trigger somewhere in their matrix that if more than 25% (or something close to it) of our projects do not include CA as a contracted scope of work, our rating kicks and our premiums increase.

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    William Eberhard AIA
    Managing Partner
    Eberhard Architects LLC
    Cleveland OH
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  • 17.  RE: Waiving Liability w/ no CA services

    Posted 02-14-2019 18:49
    Regarding: Waiving Liability w/ no CA Services, 
       and in addition to the comment by Christopher G. Blood AIA.

    I concur with his opinion that you are still responsible as a licensed professional.

    For Reference: 
      
    In Washington State - Case Law has determined liability for failure of construction and or design can be discovered even 10 years after the project is constructed.  e.g., "Basic obligation to society"

    Therefore,  you  would most likely still be named in a suit and have to defend your position in court  by the injured Party and or Parties and pay for your Counsel. (Unless you had Professional Services Coverage at the time and continuously in force and the services provided were sufficient to comply with the Insurer's requirements.) Note: Even then you would still need your own counsel.

    Side Note: Even Plan Centers (Building Designers) often intentionally include a structural mistake so that they will get a call from the building department regarding an error. This allows them to verify they received a fee for the proposed construction at a specific site (as they site-adapt stock plans to a particular site) as part of their (per use) fee for stock plans. 

    If this client does not want CA services I would be very hesitant.





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