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    Construction (Architecture)

 

  • Licensed architect (New York), licensed Real Estate Broker (New York), former real estate developer, former general contractor, former licensed Real Estate Salesman (New York).

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  • Negotiation and drafting of three hundred fifty-eight (358) consecutive construction contracts, each worth from $1 million to more than $1 billion, not one of which resulted in any litigation.

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  • Authored or edited four hundred forty-four (444) specification sections.

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  • Legal support for architectural projects, construction projects, engineering projects and infrastructure projects.

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  • Prioritization of critical path activities in agreements and contracts.

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  • Legal support for ethics violations.

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  • Legal support for sustainable design and Leadership in Energy and Environmental Design (LEED) certification.

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  • Legal support through each phase of an architectural project, such as the: (1) pre-design; (2) schematic design; (3) design development; (4) construction documents; (5) building permitting; (6) bidding and negotiation; (7) constriction administration; (8) close-out; (9) occupancy or use.

 

  • Particular attention to the prime provisions that should be included in an architect-owner agreement, such as the: architect’s scope of services; detailed and succinct description and enumeration of the deliverables and drawings the architect must furnish; owner’s objectives for the project; schedule of fees to be paid to the architect for providing the specific enumerated services, with milestone dates and key performance indicators (KPIs) when such fees are to be paid to the architect; schedule or sequence of events under which the architectural services will be provided.

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  • Negotiation and drafting hospitality brand contracts including specific design rules and furniture, fixtures and equipment (FF&E) specifications to maintain consistency of the hospitality brand look and experience.

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  • Other important considerations to be addressed in detail in an architect-owner agreement may be: all documents, drawings, models, plans, sketches, prepared by the architect for a particular project may only be used by the architect and the owner for that particular project without the prior written consent of the other Party; alternative dispute resolution (ADR) protocol (and the losing Party must pay the prevailing Party’s costs and attorney’s fees); architect is responsible for providing a schedule for all drawing milestones prior to any site work; architect is strictly liable for all errors, inconsistencies and omissions in the drawings; architect shall revise construction drawings at no cost to the owner in the event that bids for construction of the project exceed the project budget by some specified percentage; architect shall include a one-year inspection warranty for the project, on a regular schedule, in the architect’s services; assignment of the contract by either Party; avoidance by the architect of uninsurable risks; clear delineation of who owns the copyright to the architect’s original drawings, for each phase of the project, and any copies thereof provided to the owner (the architect should own the copyright for the project documents created by the architect, and the owner should own the documents themselves); conditions precedent to suspension of either services by the architect, or the project itself by the owner; detailed definition of “final completion”; detailed definition of “substantial completion”; enumeration of types of damages for various liability purposes; e-signatures on electronic counterpart copies should be allowed; failure of the architect to perform the specified services either on time, or not at all; failure of the owner to pay for all, or part of, the architectural services as specified; failure of the owner to follow the agreed schedule; failure of the owner to obtain funding for the project; intellectual property (IP) considerations; owner may join architect and contractor for a single arbitration or mediation; owner owns the project documents; owner shall have an irrevocable license to reproduce, use, or make derivative works from the project documents; limitations on liability (LOL); material representations by each Party; owner shall be an intended and named third-party beneficiary of all contracts in which the architect is a Party; owner shall have a reasonable right of approval for any entities the architect wishes to hire directly to work on the project; owner shall have an irrevocable license to reproduce images of the project; protocol for approval by the owner of moving from phase to phase of the project schedule; protocol for either incorporating additional architectural services into the project, or for canceling specific services already enumerated in the contract; protocol for processing payment requests; protocol for records retention; reasonableness of the owner’s budget (including whether the architect assumes the risk of commencing services without having verified the viability of the owner’s budget); required insurance coverages and limits; respective confidentiality and non-disclosure obligations of each Party; respective data privacy and security obligations of the Parties; respective responsibilities for environmental situations and hazardous materials (hazmat); respective responsibilities for hidden site conditions not shown on any geotechnical documentation related to the project; respective standards of care incumbent on each Party; rights of the owner to use the architect’s drawings if the owner terminates the project, whether for cause or without cause; specific enumerated Leadership in Energy and Environmental Design (LEED) goals for the project; subrogation situations; venue for ADR and any litigation; which state’s laws govern the contract and the project; who must indemnify whom, and for what, under what circumstances, when; who is held liable if the architect’s design exceeds the owner’s budget; who must obtain the building permit.

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  • Familiarity with governmental and trade association guidelines, handbooks and publications for architectural projects, such as: American Society for Testing and Materials (ASTM); Architectural Graphic Standards (AGS); ConsensusDocs; Construction Specifications Institute (CSI) Project Resource Manual (PRM); Department of Defense (DOD); Department of Energy (DoE); Department of Homeland Security (DHS); Department of State (DOS) Bureau of Overseas Building Operations (BOBO); Department of Veterans Affairs (VA); Engineers Joint Contract Documents Committee (EJCDC); General Services Administration (GSA); Masterspec Specification System; National Aeronautics and Space Administration (NASA); Sweets Catalogue; Unified Federal Guide Specifications (UFGS).

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  • Working knowledge of the five (5) basic classifications for building construction and design: Type 1 – fire-resistive (generally constructed of non-combustible materials such as heavy concrete and concrete-encased steel or fire-resistive sprayed steel; all new construction in cities and densely-populated areas must be Type 1); Type 2 – non-combustible (generally constructed of brick, lightweight concrete, masonry, tile); Type 3 – ordinary (a/k/a brick-and-joist structures; generally constructed of a mix of non-combustible elements, such as concrete of stone foundations, and wood elements, such as floors and walls); Type 4 – heavy timber (constructed predominantly of large-caliber timber or laminated wood elements throughout); Type 5 – wood-framed (generally for residential housing outside of cities and densely-populated areas, generally constructed of small-dimension lumber and plywood).

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  • Representation for architects in situations involving typical architectural practice issues, such as: acceleration; affidavit of merit; approval problems; architectural design defects; as-built drawings defects; asbestos abatement issues; bad faith; budget overruns; building collapses; building envelope defects; cardinal change; certificate of merit; civil engineering design defects; commercial building defects; concurrent delays; consequential damages; construction administration negligence; construction bonds; construction drawings defects; construction liens; constructive trust; cost overruns; contractor licensing; delay-in-startup (DSU); defective materials; design drawings defects; disruptions; electrical design defects; embezzlement; employment issues; environmental conditions; equipment failures; escrow; ethics violations; failure to inspect; failure to supervise; fidelity bonds; fraud; general delays; geotechnical conditions; governmental investigations; hidden conditions; human resources issues; incompetent personnel; indemnification; interference; internal investigations; labor issues; latent conditions; lead-based paint remediation; limitation of liability (LOL); liquidated damages; mechanical design defects; mechanics’ liens; mold intrusion damage; negligence; pay-if-paid; pay-when-paid; payment bonds; performance bonds; performance guarantees; permitting problems; personal Injury; professional exemptions (for minimum wages and overtime); prompt payment problems; property damage; public bidding issues; reputational risk management; retainage; risk management; roof defects; shop drawings defects; schedule delays; scope change; set-off rights; site improvement delays; specification sections defects; storm water management design defects; structural design defects; structural failures; subrogation; surety bonds; unauthorized practice; Uniform Commercial Code (UCC); warranties; waste water treatment design defects; water intrusion damage; works-for-hire.

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  • Experience with numerous forms of architectural agreements and contracts, such as the: alteration agreement (between the condo owner or co-op shareholder and the condo management company or the co-op board of directors); build-operate-transfer (BOT); cost plus (such as: cost plus fixed percentage; cost plus fixed fee; cost plus fixed fee with guaranteed maximum price; cost plus fixed fee with bonus; cost plus fixed fee with guaranteed maximum price and bonus; cost plus fixed fee with sharing any cost savings); design-build; design-bid-build; engineering, procurement and construction (EPC); engineering, procurement, construction and installation (EPCI); incentive (such as: cost reimbursement; fixed price); integrated project delivery (IPD); lump sum; master work agreement; measurement; net cost; percentage of construction fee; professional services agreement; unit price.

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  • Legal review of various document packages related to architectural projects, such as: as-built drawings; bid documents (such as Request For Information - RFI, Request For Proposals – RFP, Request For Qualifications – RFQ, Request For Solicitations – RFS); construction documents (including addenda, contract terms and conditions, construction drawings, form contracts, modifications, specifications); procurement documents; project manuals; proposal documents (such as letter of agreement, letter of intent – LOI, proposal letter); record drawings; shop drawings.

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  • Legal review of project documentation, such as the: applications and certificates for payment; certificate of final completion, related documentation for final payment and all releases; certificates of substantial completion (if different certificates are issued relating to different areas of the project, pursuant to the milestone schedule – otherwise, then just the single certificate of substantial completion); change orders and supporting documentation; documentation for architectural services originally in the architect-owner agreement but subsequently deleted or suspended by the owner; dated images of the construction progress taken by the architect or the architect’s employees; documentation for all non-conforming work accepted by the owner; executed architect-owner agreement and attached exhibits; logs of every document of any type associated in any way with the project; meeting notes taken by the architect or the architect’s employees at the meeting; reports prepared by the architect or the architect’s employees; written site observations by the architect or the architect’s employees, recorded during site inspection visits.

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  • Representation for architects regarding intellectual property (IP) in general, copyright infringement, copyrights, licensing, patent infringement, patents, trade dress, trade dress infringement, trademark infringement, trademarks, trade secrets, works-for-hire.

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  • Copyright registration generally for “architectural works” (including drawings and photos) created on or after December 1, 1990, and for unconstructed architectural works represented in unpublished drawings if the architectural work (here, meaning a building) was eventually constructed on or before December 31, 2002.

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  • Representation for architects regarding alleged license-threatening conduct violations, such as: conviction of any crime involving moral turpitude; deceit or fraud in obtaining a license; gross negligence or misconduct in the practice of engineering; inability to practice (perhaps due to drunkenness, use of controlled substances, chemicals, or other mind-altering substances); professional incompetence; recklessness; severe mental or physical incapacitation; violating the rules of professional conduct; workplace violence.

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  • Experience managing Occupational Safety and Health Act (OSHA) claims.

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  • Experience managing asbestos and mesothelioma claims, and approximately 77,000 asbestos litigation cases (with the untiring support of an average staff of 40 lawyers and paralegals).

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  • Experience with typical architectural dispute situations, such as: administrative agency proceedings; alternate dispute resolution (ADR); domestic and international arbitrations – such as the American Arbitration Association (AAA), International Chamber of Commerce (ICC), International Centre for Dispute Resolution, Judicial Arbitration and Mediation Services, Inc. (JAMS), and the dispute resolution rules promulgated by the United Nations Commission on International Trade Law (UNCITRAL); jury and bench trials; mediations; nonbinding adjudications; pre-dispute negotiations; proceedings before dispute review boards.

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  • Negotiation and drafting of typical architectural practice agreements, contracts and documents, such as: build-out agreements; change orders; claims; construction management agreements; contract amendments; contract modifications; contract novations; cooperation agreements; design-bid-build agreements; design-build agreements; equipment purchase contracts; high-low agreements; indefinite delivery indefinite quantity (IDIQ) contracts; item rate contracts; joint defense agreements; letters of credit; liquidating agreements; long-term maintenance agreements; measurement contracts; operating agreements; parent guarantees; project close-out agreements; project finance agreements; purchase orders; restructuring agreements; specifications sections; tender documents; term agreements (generally for ongoing services as required, such as a: master agreement – MA; master services agreement – MSA; service level agreement – SLA); time and materials (T&M) contract; tolling agreements; turnaround agreements; turnkey agreements.

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  • Negotiation and drafting of various architectural project management legal structures, such as: alliances; certified B corporations; consortiums; corporations; general partnerships; integrated project delivery (IPD); joint ventures; limited liability companies (LLCs); limited partnerships; partnering agreements; public-private partnerships (P3 or PPP); S corporations; single purpose entity (SPE) agreements; strategic alliances; teaming agreements.

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  • Management and procurement of numerous types of architectural practice insurance coverages, such as: auto liability; builders’ all-risk; captive insurance; catastrophic; commercial general liability; construction all-risk; construction vehicle liability; employers’ liability; environmental liability; errors and omissions; excess; officers’ and directors’ liability; owner-controlled insurance programs (OCIPs); personal injury; primeguard; professional malpractice liability; property damage; reinsurance; subguard; workers’ compensation; umbrella.

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  • Experience with numerous forms of architectural and construction project financing arrangements and structures.

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  • Extensive use of building information modeling (BIM) as a forensic tool in domestic and international ADR, building analysis, claims, construction drawing analysis, historic preservation, litigation, mediation and presentations.

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  • Experience with architectural contracts and administrative proceedings for historical preservation projects.

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  • Representation for architects and contractors in disputes with co-operative (co-op) boards of directors and condominium (condo) associations.

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  • Legal support for New Jersey home inspector licensure, pursuant to N.J.A.C. 13:27-4-.12.

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  • Advocate for the application of Zero Trust (ZT) cybersecurity principles to architectural cloud-based and internal networks to further the application of Zero Trust Architecture (ZTA) (here, referring to computer “architecture” rather than bricks-and-mortar architecture) promulgated by the National Institute of Standards and Technology (NIST) in Special Publication (SP) 800-207.

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  • Authoring and editing various types of specification sections, such as: architectural; design; engineering; guideline; interface; master; materials; performance; product; project; quality; requirements; standards; test.

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  • Familiarity with various styles for writing specification sections, such as: descriptive; performance; proprietary; reference standards.

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  • Familiarity with Racketeer Influenced and Corrupt Organizations (RICO) Act and usury considerations in architectural, engineering and construction contracts.

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  • Application of the argument that Covid-19 constitutes a force majeure event for delay claims and litigation.

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  • Outside General Counsel and Corporate Secretary services for architectural, construction and engineering firms, including minority-owned business enterprises (MBEs), veteran-owned business enterprises (VBEs) and women-owned business enterprises (WBEs).

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  • Familiarity with employment and professional liability issues related to contract architectural employment.

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  • Compliance with Federal guidelines, laws, regulations, rules, statutes and treaties relating to architectural practice, such as the: Age Discrimination in Employment Act (ADEA); Americans with Disabilities Act (ADA); Architectural Barriers Act (ABA); Architectural Works Copyright Protection Act (AWCPA); Civil Rights Act (CRA) Title VII; Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”); Davis-Bacon Act (DBA); Contract Work Hours and Safety Standards Act (CWHSSA); Copeland "Anti-Kickback" Act (CAKA); Defense Federal Acquisition Regulation Supplement (DFARS); Department of Health and Human Services (HHS) – particularly Part 336 – Construction and Architect-Engineer Contracts; Executive Order 13658, Establishing a Minimum Wage for Contractors; Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors; Federal Acquisition Regulation (FAR) – particularly Part 36 Construction and Architect-Engineer Contracts; Federal Arbitration Act (FAA); General Services Acquisition Manual (GSAM) – particularly Part 536 Construction and Architect-Engineer Contracts; Immigration Reform and Control Act (IRCA); Little Miller Act (LMA); McNamara-O'Hara Service Contract Act (SCA); Miller Act (MA); Occupational Safety and Health Act (OSHA); Wage Rates Requirements Statute (WRRS); Walsh-Healey Public Contracts Act (PCA).

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  • Compliance with Connecticut agencies, guidelines, laws, opinions, regulations, rules and statutes related to architectural practice, such as the: Connecticut Department of Consumer Protection (CSDCP) - Occupational and Professional Licensing Division (OPLD); CSDCP - Architectural Licensing Board (ALB); Connecticut General Statutes (CT Gen Stat), Title 20 (Professional and Occupational Licensing, Certification, Title Protection and Registration. Examining Boards), Chapter 390 (Architects), Sections 20-288 – 20-298b generally; Connecticut Administrative Code (Conn. Agencies Regs.), Title 20 (Professional and Occupational Licensing, Certification), Chapter 289 (Architect Licensure) Sections 20-289-1 – 20-289-14 and Sections 20-289-1a – 20-289-13a, generally.

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  • Familiarity with Connecticut professional and trade association guidelines and publications related to architectural practice, such as the: Connecticut Construction Guidelines Coalition “The Manual for Successful Building Projects”; USLaw Network, Inc. “State of Connecticut Construction Law Compendium”.

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  • Compliance with New Jersey agencies, guidelines, laws, opinions, regulations, rules and statutes related to architectural practice, such as the: New Jersey Division of Consumer Affairs (NJDCA) New Jersey State Board of Architects (NJSBA); New Jersey Administrative Code (N.J. Admin. Code), Title 13 (Law and Public Safety), Chapter 27 (New Jersey State Board of Architects); New Jersey Revised Statutes Annotated (NJ Rev Stat) Title 45 (Professions and Occupations), Sections 45:3-1 – 45:3-30, generally; New Jersey Building Design Services Act (NJBDSA) N.J.S.A. 45:4B-1 – 45:4B-14.

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  • Compliance with New York agencies, guidelines, laws, opinions, regulations, rules and statutes related to architectural practice, such as the: New York Codes, Rules and Regulations (NYCRR), Title 8 (Education Department), Chapter II (Regulations of the Commissioner), Subchapter B (Regulation of Professions), Part 69 (Architecture); New York Consolidated Laws, Education Law – EDN (NY EDN), Title VIII (The Professions), Article 147 (Architecture); New York State Education Department (NYSED) Office of the Professions (OP) – State Board of Architecture (ARCHBD).

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  • Compliance with New York City agencies, guidelines, Local laws, opinions, regulations, rules and statutes related to architectural practice, such as the: New York City Local Law 11/98 (requires façade inspections every 5 years for buildings over 6 stories); New York City Greener, Greater Buildings Plan (GGBP) (including Local Law LL87); New York City Climate Mobilization Act (including Local Law LL97).

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  • Compliance with Pennsylvania agencies, guidelines, laws, opinions, regulations, rules and statutes related to engineering practice, such as the: Pennsylvania Code (Rules and Regulations) Title 49 (Professional and Vocational Standards), Part I (Department of State), Subpart A (Professional and Occupational Affairs), Chapter 9 (State Architects Licensure Board); Pennsylvania State Architects Licensure Board; Pennsylvania Statutes (Pa. Const. Stat.) Title 63 P.S. Professions and Occupations (State Licensed), Chapter 2A (Architects Licensure Law).

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    Last updated 210725_1447

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