AIA Contract Provision Void

In early March, 2017 the Colorado Court of Appeals determined a key AIA Contract Provision was void and unenforceable in a residential project.

In Broomfield Senior Living v. R.G. Brinkmann , the Court of Appeals considered whether Section 13.7.1 of the AIA Form A101-1997 Contract was enforceable against the ownership of a senior living project.

Section 13.7.1 of the AIA contract generally states that any defect claims against the general contractor must be filed within a specified date from substantial completion of the project.

The A101 contract is a popular agreement used by owners and general contractors in construction. In this instance, it was entered into between a national general contracting firm and a national company that builds and operates senior living centers.

Brinkmann argued that the AIA’s statute-of-limitations provision (using “substantial completion” as the starting point) reflected the parties’ intent to deviate from Colorado’s 2 year statute of limitation.  The appellate court concluded that such deviation was in violation of the express purpose of the Homeowners Protection Act (“HPA”).  The decision pivoted on the determination that the senior living community was “residential” in nature.   By declaring the project to be “residential,” the Colorado Court of Appeals nullified the concept that commercially-sophisticated parties can consent to modify the statute-of-limitations by adopting long-standing AIA contract language.

Commercial contractor should be aware that Section 13.7.1, which is found in several AIA contract forms, won’t be enforced in any Colorado project involving the construction of “residential” living units.

What’s in a name?

Intern. The term that has been the source of debate, ridicule, scorn, and general hair pulling for years. Until this past December, the AIA regarded all unlicensed persons practicing architecture as “interns”, much to the dismay of… just about everyone. The term was seen as demeaning to those who go to work every day and put in the time and work at a professional architectural practice. It was seen as a title that should have been left behind as soon as that person walked across the stage and was handed a diploma from their NAAB accredited program. Finally, though, there is movement forward.

In December of 2016, the AIA opted to pivot away from using intern to describe all unlicensed persons working in the field of architecture. Instead, it will now only refer to those that are still in school and working at a professional architecture practice. Those that are unlicensed will now have the titles of architectural associate or design professional. I cannot speak for everyone, but it seems that this shift is a long overdue step in the right direction.

Without doubt, these two titles will not please everyone. In my own experience at work, the title “associate” is used to describe someone that has been elevated within the firm to a position of leadership, so using that term will most likely not work for our office or a great many other offices. The term of design professional indicates a level of professional aptitude, but omits any reference to architecture, so is inherently vague, which is possibly by design so that it encompasses those not directly working in the field of architecture.

Each term has its own positives and negatives, but all in all, the move is a positive one. A person that is forty years old and has been practicing for fifteen years, moved up within the profession, and is highly regarded by their peers, but never got around to taking their tests should not be referred to as an intern the same way that a twenty year old student with three months of experience is. It defies logical reasoning.

Regardless of how the architectural community responds to the change, it is a positive step for the AIA to be taking. The organization has taken its share of backlash over the years and even more so recently. However, the American Institute of Architects still holds, and will continue to hold, major sway in the architecture community, with government entities, and with the general public. The name carries with it major influence and represents a wide array of members. While AIA may be a bit tardy in catching up with the shift away from outdated terminology, steps are being made to set things on the right track. That being said, I will leave you with this: the best way to ensure the AIA is representing architecture and all members is to continue to stay engaged, demand accountability, and to relentlessly push forward on the issues that matter. This change would not have come about if not for a strong push from members. It’s a small step, but it is indicative of the influence that members have and will continue to have.

Making the Most of Opportunities

As many of you may know, I have moved away from Denver. This is my last official blog post as an AIA Colorado Emerging Professional. Three months ago, I was presented with an opportunity to move to DC with my firm. It was one of those instances where the stars couldn’t have aligned better had I tried to plan it myself. If you know me, then you know I do try to plan it myself. In letting opportunity guide my path and watching this unfold, I have now identified key lessons for those of you that might be making a big transition yourself.

  • Opportunity may come knocking but that still doesn’t mean you sit back and relax. As a part of the move I had to research what salaries were in DC, what the cost of living increase is and if it was even going to be possible to maintain the lifestyle I had come to love in Denver. As they say, where there is a will there is a way. You need to put in the leg work, ask the questions and take action. You are your own best advocate. My move happened rather quickly, but it was because I had prepared along the way and knew what I was hoping to get out of the opportunity.
  • Once you move, life can be a bit daunting. You don’t have your regular friends, you may or may not move to be closer to family. In my case, it is the exact same distance as before (12 hours) but in the opposite direction. Social media is a beautiful thing and when used for a move, can open doors you didn’t know existed. Upon the announcement of my move, I reached out to junior high friends, high school friends, undergrad friends, grad school friends, conference friends and professional friends. Once again, this proved to me that networking and maintaining relationships is one of the most important things you can do. In many cases, I haven’t talked to these people in years. But it is amazing how meeting up with an old undergraduate architectural school friend in an unknown place can make it feel a little more comfortable.
    • TIP: When you hear from someone or are connected to someone else and say “let’s get together”, follow through! It will make your new place feel a little more like home.
  • For me, being involved and having a community is what drives me. I knew that in moving, I would have the opportunity to start over on my commitments, broaden my horizons and embrace new experiences. I also knew it meant leaving what was comfortable. So I brainstormed what was comfortable and found a group of University of Illinois Alumni called the DC Illini. They happened to have a volunteer opportunity at the DC Central Kitchen, a community kitchen engaged in food recycling and meal distribution programs. I wasn’t sure if I would meet anyone, if these alumni would be my age or what, but I figured this was a great way to get involved in the DC community and become a little more comfortable with being uncomfortable. It was only a 3-hour commitment. It was an amazing experience for a really amazing organization. And I met a few women who had graduated around the time I did who happen to work down the street.IMG_0216
  • Just say yes! My current roommates, who happen to be my Denver roommate’s parents, were having a dinner party on Monday evening. They invited me because the crowd was going to be fellow coworkers who were around my age. I went and made some connections with people doing different things than me. What’s funny is they all come from the volunteer and non-profit world. (Side note: They were throwing around acronyms and I gained a little insight into what it must feel like for non-architects to be around a group of architects.) I met a woman who is using design strategy to find solutions to poverty and marginalization in international communities. She was curious about my work as a trained designer and how that could potentially influence the work that they do.

Moving across the country, moving to a new company or going back to school are big changes for anyone. I have had a few opportunities to start new chapters in my life and it is through each start that I get a little more comfortable with the unknowns of new places and new people. But the key is to really build on the connections you have from previous chapters. Keeping all options on the table gives you the chance to create the new life you want to live.

With that, I close a Denver chapter and will hold dear the relationships and networks I built in Colorado. I already miss the architectural community and the EPs that I worked day in and day out to advance the architectural profession.

Thanks for the opportunity to guide this blog and become a leader among a group of such great leaders.

Best, Korey

AIA Denver Roundtable – Sign Up Now to have your voice heard!

As the Outreach Coordinator for the AIA Denver this year, I wanted to share a unique opportunity to help shape the AIA Denver’s 2017 agenda re: issues and initiatives that might benefit Denver’s collective A&D community.
As an AIA member, please consider signing up for our first AIA Denver member roundtable on April 11th from 4-6pm to share your important and unique voice as well as to learn about opportunities to become more involved re: issues of advocacy that directly impact our practice and Denver’s evolving built environment:
Thank you for your time and consideration!  Hope to see a wide cross-section of Denver’s firms and voices at this important event.

Out west, near Hawtch-Hawtch

Out west, near Hawtch-Hawtch,
there’s a Hawtch-Hawtcher Bee-Watcher.
His job is to watch …
is to keep both his eyes on the lazy town bee.
A bee that is watched will work harder, you see.
Well…he watched and he watched.
But, in spite of his watch,
that bee didn’t work any harder. Not mawtch.
So then somebody said,

hbqrpe6s_400x400 “Our old bee-watching man
just isn’t bee-watching as hard as he can.

 He ought to be watched by another Hawtch-Hawtcher.
The thing that we need
is a Bee-Watcher-Watcher.

-Dr. Suess

With my thanks (and apologies) to Dr. Suess, the Bee-Watcher always comes to mind when defending claims alleging negligent supervision and inspection against design professionals.

A recent case from the Court of Appeals in Mississippi provides guidance as to the liability of design professionals for supervision and inspection obligations beyond those assumed in their contract.  In McKEAN, v. YATES ENGINEERING CORPORATION, an engineer was sued from injuries that resulted from scaffolding failure during the construction of a medical center.

The engineer was to provide design drawings for the scaffolding and second-story form work. The plan provided was fundamentally flawed. Even though the plan was effectively impossible to follow, the contractor had no comments or questions about the design and it ignored essential features of the scaffolding design.

After the scaffolding collapsed, the plaintiffs claimed the engineering firm was “negligent in inspecting the scaffold[ing] and failed and/or refused to correct known deficiencies and defects in the construction [that] made it dangerous to use prior to the subject incident.” The engineer, however, did not have that duty under its contract.

Plaintiffs claimed the engineer negligently failed to inspect the scaffolding before concrete was poured. However, there was no contractual duty on the engineer to do so. For this reason, the Court examined the circumstances when a design professional’s supervisory powers go beyond the provisions of a contract.  It enumerated seven factors that it believed should be considered in determining whether there was such a duty. These were: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work. The Court found that the evidence did not support the conclusion that engineer had a duty to inspect the scaffolding.

We frequently see similar claims of failure to observe, inspect, or supervise asserted against architects as well as engineers.

This case provides a cautionary tale and useful guidelines to design professionals about the risks of assuming obligations not contained in their contract.

If a design professional performs supervisory and inspection tasks, notwithstanding the limited scope of its contract, courts may find the design professional ‘assumed a duty of safety’ which may leave it liable for damages notwithstanding any understanding to the contrary.

Casey Quillen’s firm is a member of the AIATrust Legal Network providing full legal service to design professionals throughout Colorado.  Ruebel & Quillen, LLC now has an office in Steamboat Springs, CO to better serve firms West of the Continental Divide.