The Evolution of the AIA Documents From 2007 to 2017 Kenneth Cobleigh, Managing Director and Counsel for AIA Robin G. Banks, Goldberg & Banks, P.C. A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
Agenda • AIA Contract Documents History and Overview • What’s new in the Owner -Contractor Agreements and A201 General Conditions in 2017? • What’s new in the Owner -Architect Agreements in 2017? • Questions? • Contacts and Resources
Overview AIA Contract Documents Program
Quiz 1. When did the AIA publish its first set of standard form documents? A. 1888 B. 1911 C. 1987, when Howard Goldberg first became outside counsel to the Documents Committee First AIA Contract Document 1888
2. Who compromises the Documents Committee of the AIA? A. Architects B. Lawyers C. Insurance advisors D. Howard Goldberg’s family and friends E. All of the above
3. What are the objectives of the Documents Committee in drafting AIA Contract Documents? A. To create fair & balanced documents B. To balance competing interests C. To put risk where it is best managed D. All of the above
4. True or False The Documents Committee takes all of the following steps when drafting AIA Contract Documents: • Seeking industry comment • Reviewing/incorporating legal decisions • Investigating the impact of industry practices • Drafting and revising the documents • Soliciting and reviewing feedback on drafts • Finalizing and publishing the documents
2017 Release The Documents A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
2017 Release What’s been revised? • A101™– 2017, Owner and Contractor where the basis of payment is a Stipulated Sum * • A102™– 2017, Owner and Contractor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price * • A103™– 2017, Owner and Contractor where the basis of payment is the Cost of the Work Plus a Fee without a Guaranteed Maximum Price * • A104™ -201 017 (formerly A107-2007), Standard Abbreviated breviated Form of Agreement Between Owner and Contractor • A105™– 2017, Standard Short rt Form of Agreement Between Owner and Contractor • A201™– 2017, General Conditions of the Contract for Construction • A401™– 2017, Standard Form of Agreement Between Contractor and Subcontractor * with new Insurance Exhibit A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
2017 Release What’s been revised? • B101 ™– 2017, Standard Form of Agreement Between Owner and Architect • B102™– 2017, Owner and Architect without a Predefined Scope of Architect’s Services • B103™– 2017, Standard Form of Agreement Between Owner and Architect for a Complex lex Proje ject ct • B104™– 2017, Standard Abbrevi breviat ated ed Form m of Agreement Between Owner and Architect • B105™– 2017, Standard Short ort Form of Agreement Between Owner and Architect • C401™– 2017, Standard Form of Agreement Between Architect and Consultant • E204™– 2017, Sustainable Projects Exhibit A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
2017 Release What is new? Program
Sustainable Project Exhibit • History Guide for Sustainable Projects AIA Document D503™ (2011) SP versions of standard AIA Documents (2007-2009) Sustainable Projects Exhibit AIA Document E204-2017 • E204 is attached to owner, architect and contractor agreements • Same process, terminology, responsibilities and material as the SP versions, but located and coordinated within a single exhibit A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
Sustainable Project Exhibit • Establish a clear and detailed process to achieve the Sustainable Objective • Provide a clear and detailed description of the various roles and responsibilities of the parties • Address key risk factors the parties might encounter (like product substitution, delayed or failed certification, and consequential damages) and the exhibit now allows us publish just one version of the key document. A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
Insurance Exhibit AIA Document A101-2017 Exhibit A, Insurance and Bonds • Also used as an Exhibit to A102-2017 and A103-2017 • Key terms of Exhibit and Article 11 of A201 written into A104 • A105 contains very basic insurance provisions A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
Insurance Exhibit Most, but t not ot all, of the A201-2007 Insurance and Bonds requirements (Article 11) are moved to the Exhibit: • Owner’s Insurance • Contractor’s Insurance • Optional Coverages • Additional Insureds • Performance & Payment Bonds A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
Insurance: Why an Exhibit • Changing range and types of coverage • Flexibility in developing Project Insurance Requirements • Need to allow for adaptation to changes in the insurance market w/o edits to A201 • Facilitate transmission to insurance advisors/brokers • Exhibit for 2014 Design-Build documents
Insurance: The Exhibit • Requires Owner or Contractor to obtain and maintain property insurance written on builder’s risk “all - risk” completed value or equivalent policy form • Begins from premise that Owner will obtain and maintain property insurance, but allow parties to shift burden to Contractor • Sufficient to cover the value of the entire Project on a replacement cost basis o And existing structure in case of renovation or remodeling • Maintained until Substantial Completion and thereafter continued or replaced through the Contractor’s one -year period for correction of the Work
Insurance: The Exhibit In addition, the parties may agree that the Owner will purchase and maintain certain optional extended property coverages: • Loss of Use, Business Interruption, and Delay in Completion Insurance • Ordinance or Law Insurance • Expediting Cost Insurance • Extra Expense Insurance • Civil Authority Insurance • Ingress/Egress Insurance • Soft Costs Insurance
Insurance: The Exhibit The parties may also agree that the Owner will purchase and maintain certain other optional coverages: • cyber security insurance • other potential Owner coverages
Insurance: The Exhibit Contractor Required Coverages for all Projects: • Commercial General Liability • Automobile liability • Worker’s compensation • Employer’s liability
Insurance: The Exhibit Contractor Required Coverages depending on the nature of the Project: • Jones Act and Longshore & Harbor Worker’s Compensation • Professional Liability • Pollution liability coverage • Maritime Liability • Coverage for use or operation of manned or unmanned aircraft
Insurance: The Exhibit Other coverages the Contractor might obtain: • Railroad Protective liability • Asbestos Abatement liability • Coverage for physical damage to property while in storage or transit • Property coverage for property owned by he Contractor and used on the Project Payment and Performance Bonds
Insurance: The Exhibit Key Take Away: • Exhibit allows parties to develop project specific owner and contractor insurance requirements • If parties simply want the standard coverages historically required by A201, they simply need ignore optional coverage sections and fill in required policy limits/sub-limits and penal sums for bonds.
Insurance: A201 Article 11 • Owner and Contractor must provide each other with notice of an impending or actual cancellation or expiration of coverage • Notice provided within 3 business days of the date the party becomes aware • Party receiving notice has the right to stop the Work until lapse cured – unless lapse caused by that party • Notice does not relieve party of the contractual obligation to provide any coverage • Additional provisions protect the interest of the Contractor and Subs if the Owner fails to purchase required coverage
Insurance: A201 Article 11 New provisions on adjustment and settlement of loss covered by property insurance: • Loss adjusted by and payable to the Owner as fiduciary • Prior to settlement Owner notifies Contractor of proposed settlement and proposed allocation of proceeds • Contractor has 14days to object • If Contractor does not object, the Owner settles and Contractor bound by settlement and allocation • If Contractor timely objects, Owner may proceed to settle the loss and dispute between Owner and Contractor is resolved per the Claims and Disputes provisions
2017 Release Key Terms and Concept Changes A’17 AIA Conference on Architecture 2017 April 27-29, Orlando
BIM and other Digital Data • 2017 Agreements require the parties to agree on protocols governing the use and transmission of digital data, and • Require the use of E203, G201 and G202 to establish those protocols • With respect to BIM, the 2017 agreements further provide that any use of, or reliance on, information contained in a Model, without first having established the protocols, is at the using or relying party’s own risk and without liability to any other project participant
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