topic Re: construction doc disclaimer language? in Documentation

construction doc disclaimer language?

Jefferson — Tue, 30 May 2023 10:28:58 GMT

Sorry about the probable inappropriate posting here, I didn't know where to post this question............Djorde please redirect the post if you need to.

I have a contractor, new to me, who is balking at my rather extensive disclaimer which goes on every set of plans I turn out. [In fact refusing to sign a contract with the clients if the language appears. Never had this issue before.] It is a composite of language I have culled from disclaimers of other long time architects and designer friends of mine. I am curious what kind of language is common with my fellow ArchiTalkers for residential plan sets if you are willing to share I would really appreciate some help-advice-opinion here.

Mine is below. As I said it is extensive and intended to get the contractor to assist in oversight, as well as compliance to what is put forward by me, my engineer and local code authorities. All of that said I spend an inordinate amount of time "proofing" my plans, and I am conciseness to the point of absurdity. Knock on wood I have yet to have any issue with my plans. This is not a pass the buck as much as cover your ass kind of thing.........

GENERAL NOTES

THIS PLAN HAS BEEN PREPARED TO MEET PROFESSIONAL STANDARDS AND PRACTICES. HOWEVER, BUILDING CODE REQUIREMENTS VERY WITH LOCATION AND CHANGE FROM TIME TO TIME. BEFORE STARTING CONSTRUCTION THE CONTRACTOR MUST REVIEW AND BE RESPONSIBLE FOR ALL DIMENSIONS AND OTHER DETAILS AND SHOULD REVIEW PLANS TO INSURE THEY MEET CURRENT REQUIREMENTS. THE CONTRACTOR ASSUMES FULL RESPONSIBILITY TO VERIFY THE CONDITIONS, DIMENSIONS, AND STRUCTURAL DETAILS OF THE BUILDING, AND ASSUMES FULL LIABILITY FOR ANY PROBLEMS THAT MAY ARISE DUE TO POSSIBLE ERRORS ON THESE PLANS. ALL FEDERAL, STATE AND LOCAL CODES. ORDINANCES, REGULATIONS, ETC.,SHALL BE CONSIDERED AS PART OF SPECIFICATIONS FOR THIS BUILDING AND SHALL TAKE PRECEDENCE OVER ANYTHING SHOWN, DESCRIBED OR IMPLIED WHERE SAME ARE AT VARIANCE. USE OF THESE PLANS CONSTITUTES COMPLIANCE WITH THE ABOVE TERMS.
THESE PLANS HAVE BEEN GENERATED FOR THE CLIENTS LISTED IN THE PROJECT NAME AND ARE NOT TO BE USED, REPRODUCED, COPIED, OR DISTRIBUTED FOR ANY OTHER PROJECT WITHOUT WRITTEN PERMISSION FROM AND OR COMPENSATION DUE WHITECAP3D.

ANY ATTACHED ENGINEERING OR LOCAL BUILDING AUTHORITY NOTATIONS
SUPERSEDE AND OVERRIDE MATERIALS, FASTENING, NAILING SCHEDULES AND
CONSTRUCTION PROCEDURES PRESENTED BELOW
AND OR IN PLAN, SECTION OR DETAIL VIEWS.

Re: construction doc disclaimer language?

Karl Ottenstein — Fri, 20 Jun 2008 00:17:06 GMT

Hi Jeff!

I think you're in the right forum (here or ArchiCAD+) - since BIM Manager might not get small office input into this issue. I changed your subject line a bit - if you edit your initial post, you can change the subject further if you think it will draw more attention.

The 'contractor responsible for all dimensions', for example, seems a bit strong to me ... and 'other details' seems a bit vague. The dimensions on the plans should be correct. I've seen language that instructs the builder to not measure dimensions from the plans, but to contact the architect if any dimensions required are not present.

A friend uses a variant of the following block which I think came from Monte Chapin, and I'm not sure where he might have gotten it from:

The use of these plans shall be restricted to the original project site for which they were created, and publication thereof is expressly limited to such use. Reuse, reproduction or publication by any method, in whole or in part, is prohibited. This drawing is classified as part of an unpublished collection of visual
art under the 1978 copyright act. It is an exclusive work of original authorship. None of the pictorial graphic or technical charts or drawings depicted on this sheet may be reproduced by any method, includung tracing or photocopying, stored in a retrieval system, or transmitted in any form or by
means electronic, mechanical or otherwise; nor may they be used or re-used for any purpose without the express prior written permissionof the author. Title and ownership remains with the author without prejudice. Visual contact with these plans shall constitute prima facie evidence of the acceptance of these restrictions.
ALL RIGHTS RESERVED. Copyright ©2008 <your firm>

That block is basically a copyright block, rather than a disclaimer. Hopefully some folks have some good disclaimer examples....

I also suspect that the language might vary for designers vs licensed architects who are stamping their drawings?

Cheers,
Karl

[Edit: typos]

Re: construction doc disclaimer language?

Dwight — Fri, 20 Jun 2008 00:51:06 GMT

"THE CONTRACTOR ASSUMES FULL RESPONSIBILITY TO VERIFY THE CONDITIONS, DIMENSIONS, AND STRUCTURAL DETAILS OF THE BUILDING, AND ASSUMES FULL LIABILITY FOR ANY PROBLEMS THAT MAY ARISE DUE TO POSSIBLE ERRORS ON THESE PLANS"

No wonder he won't sign.
Making the contractor responsible for your errors is not very nice.
Since i know you personally, I know that you are stand-up kind of guy, but can you clarify exactly what you ARE responsible for if not drawing errors?

Re: construction doc disclaimer language?

Anonymous — Fri, 20 Jun 2008 01:52:50 GMT

I agree. There's a big difference between a copyright protection and what you're asking for.

I'd refer to the the AIA General Conditions A201 for an industry accepted definition of roles, responsibilities and liabilities. If you don't include the conditions as part of the construction contract you could crib some of the more important concepts for your waiver.

Re: construction doc disclaimer language?

Anonymous — Fri, 20 Jun 2008 03:31:11 GMT

Jefferson wrote:
GENERAL NOTES

... BUILDING CODE REQUIREMENTS VARY WITH LOCATION ....

or is that a COLOR v COLOUR type thing?

Re: construction doc disclaimer language?

Jefferson — Fri, 20 Jun 2008 03:42:01 GMT

Thanks for the replies!!...........I have left myself open to some good old fashioned ridicule here and I am temped to let this post ride for a while just to see where it goes.............also temped to pull it, for the same reasons I've got Dwight talking nice about me, kinda, and that's good! And Dom thanks for the link. Reading through that maze mine seems like the easy reader version! GOD, that would frighten most lawerys! I'll peruse it for the type of language I'm after.

This disclaimer is definitely severe, and at a bare minimum needs rewording, and that is actually what I am after..............assistance and guidance toward a fair and balanced disclaimer compelling the contractor to perform as intended and be responsible to both the client, me and spirit of the design. Not the "it's all on you" disclaimer but something appropriate..........keep it coming, I can take it!

Re: construction doc disclaimer language?

Erich — Fri, 20 Jun 2008 05:20:39 GMT

Jefferson,

While I don't think you can ask the builder to bear the burden of errors in your drawings, you could ask that the contractor check the dimensions and conditions on the drawings prior to construction and report back to the architect any conditions that may interfere with or otherwise prevent the work as indicated. Such a condition will hopefully produce the cooperative results you are after and should not be seen as too onerous.

You may also want to consider, and perhaps you already have, a statement to the effect that changes made in the field without the acknowledgment of the architect will void the responsibility of the architect for such changes.

Now, for my disclaimer... ... I am not a lawyer and am only providing you the above generalizations based on things I have seen and used in my practice. We tend to have our lawyer review any disclaimers we use on our drawings as they must be able to defend us should any project end up in dispute. To me this seems like money well spent.

HTH

Re: construction doc disclaimer language?

Erika Epstein — Fri, 20 Jun 2008 06:16:13 GMT

Hi Jefferson,
Boy you get points for bringing up a topic that scares everyone.

Contractors at least in California are not responsible for architects'/designer's mistakes. I am not a lawyer and each state varies.

My understanding is the contractor is responsible for materials, methods of constructions and being able to build the 'Design Intent' of your work. To that end, as Erich said they have to familiarize themselves with the drawings and specifications that make up the bid package. Most general notes also call for some variation of 'discrepancies should be brought to your attention in a timely manner'.

I agree with others here; your wording is too harsh in asking [contractors] to take full responsibility for your work. But, that this is the first time in all your years of practice that your words have been questions demonstrates what we all know, that you are a good and decent person, not out to get them, just struggling with words like any good artichoke.

Re: construction doc disclaimer language?

Eduardo Rolon — Fri, 20 Jun 2008 11:11:00 GMT

Here's another example

NOTE:
The contractor shall verify all dimensions on the job site according to the contract documents. Notes and dimensions on architectural plans shall be checked and verified with structural, mechanical, plumbing and any other drawings included in the contract documents. Any discrepancies in notes and or dimensions shall be broght to the immediate attention of the designer prior to commencing work, so that any required remedial work can be performed.

All drawings, specifications and other documents prepared by the designer and his consultants for this project are instruments of the designers service for use solely with respect to this project and unless otherwise provided, the designer shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyrights. Copies of architectural drawings, specifications and other documents for information and reference are prohibited unless expressly authorized by XXX in writing.

As always check with your lawyer

Re: construction doc disclaimer language?

Anonymous — Fri, 20 Jun 2008 15:41:48 GMT

Jefferson wrote:
Reading through that maze mine seems like the easy reader version! GOD, that would frighten most lawerys! I'll peruse it for the type of language I'm after.

Yeah, you let lawyers get a hold of anything and it becomes almost unintelligible! There are, however some areas that are similar to some of the language in your waiver. For example, as mentioned earlier, the contractor should be solely responsible for construction means, methods, techniques, procedures and safety precautions; that by entering into the contract the contractor warrants that he has made himself familiar with the existing conditions and the information provided in the contract documents; that the contractor shall not KNOWINGLY perform work in violation of building codes or regulations; discrepancies in the contract documents shall be brought to the attention of the architect; in the event of conflicts between the specifications and drawings - the more stringent condition shall apply; the architect shall not be liable or work not in accordance with the contract documents etc....

There is another issue here as well. The items included need to be enforceable should litigation arise. Around here - there is somewhat less weight given to a laundry list of liability definitions and requirements if they are just pasted onto a drawing package where the contractor had no chance to review and negotiate. Signing blind, so to speak. Even if the contractor signed your example "THE CONTRACTOR ASSUMES FULL RESPONSIBILITY TO VERIFY THE CONDITIONS, DIMENSIONS, AND STRUCTURAL DETAILS OF THE BUILDING, AND ASSUMES FULL LIABILITY FOR ANY PROBLEMS THAT MAY ARISE DUE TO POSSIBLE ERRORS ON THESE PLANS" I doubt he could be legally held liable because some of these items are clearly the professional responsibility of the Architect and Structural Engineer.

Finally, if you end up with a set of requirements and definitions that differ substantively from accepted common practice in your area, then having a lawyer review the boiler plate set of notes -as suggest earlier- is definately money well spent.

Re: construction doc disclaimer language?

Jefferson — Fri, 20 Jun 2008 16:02:01 GMT

I felt this would be a great resource venue, even if the subject is seldom discussed. I truly appreciate the input.

I cobbled this disclaimer together several years back and haven't really reviewed since. Reading and re-reading it is embarrassing . The language is that of someone who is scared to death to take responsibility for their work. That's not me or my intent..........My work is done on a handshake believe it or not. I came up working with a contractor building million dollar homes that way and have always admired, naively or not, that way of conducting business. To that end I am way off base with my original language. I sincerely doubt any of this, old or new version, could be defended against aggressive legal representation. It's not about that in so much as it's intended to compel participation toward the desired result without disregard for the parameters that guide local residential construction.

With your assistance this is where I'm headed. Hopefully appropriately defining who's responsible for what. Any further input is appreciated.........

THIS DESIGN AND PLANS ARE THE SOLE RESPONSIBILITY OF WHITECAP3D, [JEFF WHITE], AND HAVE BEEN GENERATED FOR THE CLIENTS LISTED IN THE PROJECT NAME AND ARE NOT TO BE USED, REPRODUCED, COPIED, OR DISTRIBUTED FOR ANY OTHER PROJECT WITHOUT WRITTEN PERMISSION FROM AND OR COMPENSATION DUE WHITECAP3D.

UTILIZATION OF THESE DOCUMENTS AND SUBSEQUENT FABRICATION-CONSTRUCTION ARE THE SOLE RESPONSIBILITY OF THE CONTRACTOR. BEFORE STARTING CONSTRUCTION THE CONTRACTOR SHALL REVIEW AND VERIFY ON SITE ALL DIMENSIONS, DETAILS AND THEIR CORRELATION TO ATTACHED ENGINEERING. ANY DISCREPANCIES IN PLANS, DIMENSIONS, NOTES, OR DETAILS SHALL BE BROUGHT TO THE IMMEDIATE ATTENTION OF THE DESIGNER PRIOR TO COMMENCING ASSOCIATED WORK, ALLOWING REQUIRED CORRECTIONS TO BE PERFORMED. ANY ATTACHED ENGINEERING OR LOCAL BUILDING AUTHORITY NOTATIONS SUPERSEDE AND OVERRIDE MATERIALS, FASTENING, NAILING SCHEDULES AND CONSTRUCTION PROCEDURES PRESENTED IN PLAN, SECTION OR DETAIL VIEWS AND SHALL TAKE PRECEDENCE OVER ANYTHING SHOWN, DESCRIBED OR IMPLIED. THE CONTRACTOR ASSUMES LIABILITY FOR ANY PROBLEMS THAT MAY ARISE DUE TO NON-COMPLIANCE. USE OF THESE PLANS CONSTITUTES COMPLIANCE WITH THE ABOVE TERMS.

Re: construction doc disclaimer language?

Anonymous — Sat, 21 Jun 2008 20:06:12 GMT

Hello Jeff,
You and others might be interested in the article at this address.

http://www.aia.org/aiarchitect/thisweek05/tw0902/tw0902bp_riskmgmt.cfm

Peter Devlin

Re: construction doc disclaimer language?

Anonymous — Sun, 22 Jun 2008 01:13:00 GMT

This may be an instance where the advice of an attorney familiar with construction law could be very helpful. Your client hires you, a professional, to do your work. Why not engage the services of a professional skilled in the formulation of protective language to do his/her work?

The use of some parts of the body of AIA documents may not be a bad thing, either. There is a family of agreements tailored to the needs of "small projects" that are not too onerous, yet offer a modicum of protection to all parties in the process of designing and building projects.

Re: construction doc disclaimer language?

Anonymous — Mon, 23 Jun 2008 00:53:22 GMT

Thanks Jefferson for bringing this up.
Very brave; you are to be commended.
Maybe the most important topic ever, for architects
and designers.
Without a great agreement you might not even want to draw the
first line.
After having been a contractor/designer for 30yrs in Calif.
I must say, my Terms and Conditions, along with what is on
plans, is very strong, (equivalent to 9 full typed pages) much too long to post here,
with the most important items said a least twice and written in plain "english".
Also in your agreement to owner, call out that the contractor is to
read and agree to all the conditions set forth in you agreement with owner
as pertains to plans. Also call this out on plans.
However, the most important statement is that "if any part of
these "terms and conditions/plans" are found to be invalid, illegal,(etc)
that particular "term and or condition" shall be as if it does not exist and all other provisions set forth herein, shall be fully enforceable.
Next most important thing, is that ALL discrepancies (not just dimensions) shall be brought to the attention of the architect/designer, IN WRITING! (That means words, not drawings), because that is my responsibility.
In my opinion, that is enforceable, and should they not provide clear, written-down issues they have
found, and legally transferred them to me, then that's on them.
I can’t go around chasing, he said, she said, he said,…….But you must spell this out.
Of course, very, very, abbreviated with all legal disclaimers, that I’m not a lawyer, bla, bla, bla.
"all parties" is not my concern, protect your shelf, for no-one else will!
I’m sure someone will disagree with things I've said here, but what the hell, fire away.
Enough said for now, maybe more latter.
Peter, great article.
Think I'll add some of those ideas also.
Bier