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ACCNJ Legal DayAIA A201-2017General ConditionsWhat’s New and Different?Craig Landy, Esq. & Charles Kenny, Esq.Peckar & Abramson, P.C.October 5, 2017

OVERVIEW AIA’s once in a decade revision AIA A201-2007 will remain in circulationfor a period of 18 months. Additional revisions to the A201-2017 which we are notaddressing today but warrant consideration. AIA has also revised its AIA A101 (lump sum), A102 (cost plus witha GMP), A103 (cost plus without a GMP), A104 (short form,formerly the A107), A105 (short form) and A401(contractor/subcontractor agreement) forms, which should beexamined. AIA B series (owner/architect) and C series (architect/consultant)have also been revised.2

NOTICES & CLAIMS (NEW §1.6) §1.6.1 Except as otherwise provided in Section 1.6.2, where theContract Documents require one party to notify or give notice tothe other party, such notice shall be provided in writing to thedesignated representative of the party to whom the notice isaddressed and shall be deemed to have been duly served ifdelivered in person, by mail, by courier, or by electronictransmission if a method for electronic transmission is set forth inthe Agreement. §1.6.2 Notice of Claims as provided in Section 15.1.3 shall beprovided in writing and shall be deemed to have been duly servedonly if delivered to the designated representative of the party towhom the notice is addressed by certified or registered mail, or bycourier providing proof of delivery.3

NOTICES & CLAIMS (cont’d)§ 15.1 Claims§ 15.1.1 DefinitionA Claim is a demand or assertion by one of the parties seeking, as a matter of right, paymentof money, a change in the Contract Time, or other relief with respect to the terms of theContract. The term “Claim” also includes other disputes and matters in question between theOwner and Contractor arising out of or relating to the Contract. The responsibility tosubstantiate Claims shall rest with the party making the Claim. This Section 15.1.1 does notrequire the Owner to file a Claim in order to impose liquidated damages in accordance withthe Contract Documents.§ 15.1.2 Time Limits on ClaimsThe Owner and Contractor shall commence all Claims and causes of action against the otherand arising out of or related to the Contract, whether in contract, tort, breach of warranty orotherwise, in accordance with the requirements of the binding dispute resolution methodselected in the Agreement and within the period specified by applicable law, but in any casenot more than 10 years after the date of Substantial Completion of the Work. The Owner andContractor waive all Claims and causes of action not commenced in accordance with thisSection 15.1.2.4

NOTICES & CLAIMS (cont’d)§ 15.1.3 Notice of Claims§ 15.1.3.1 Claims by either the Owner or Contractor, where the conditiongiving rise to the Claim is first discovered prior to expiration of the period forcorrection of the Work set forth in Section 12.2.2, shall be initiated by noticeto the other party and to the Initial Decision Maker with a copy sent to theArchitect, if the Architect is not serving as the Initial Decision Maker. Claims byeither party under this Section 15.1.3.1 shall be initiated within 21 days afteroccurrence of the event giving rise to such Claim or within 21 days after theclaimant first recognizes the condition giving rise to the Claim, whichever islater.§ 15.1.3.2 Claims by either the Owner or Contractor, where the conditiongiving rise to the Claim is first discovered after expiration of the period forcorrection of the Work set forth in Section 12.2.2, shall be initiated by noticeto the other party. In such event, no decision by the Initial Decision Maker isrequired.5

NOTICES & CLAIMS (cont’d)§ 15.1.4.2 The Contract Sum and Contract Time shall be adjusted inaccordance with the Initial Decision Maker’s decision, subject to theright of either party to proceed in accordance with this Article 15. TheArchitect will issue Certificates for Payment in accordance with thedecision of the Initial Decision Maker. [Change order requirementeliminated] Claims for cost and time [§§15.1.5 and 15.1.6]must be given per §15.1.3 Notice of cost claim must be given beforeproceeding to execute portion of Workthat is subject to the Claim6

OTHER NEW NOTICE & CLAIMPROVISIONS (NOT EXHAUSTIVE) §2.5 - Owner carries out Work – Contractor may file claim for monieswithheld §3.7.4 – 14-day notice of differing site condition §7.3 – speaks only of making a claim for time if Contractor disagrees withCCD §7.4 – Minor changes – Notify Architect if time or Contract Sum affectedand not proceed §9.5.2 – Withholding Payment – File claim if Architect’s decision disputed §9.10.4 – Owner’s Waiver at Final Payment – Claims arising from audits nowexcluded from waiver §§10.2.3 & 10.2.5 – Notify adjacent owners, users and utilities of safeguards.Contractor may make a claim to remedy damage or loss attributable toOwner or Architect §10.3 – Notify (instead of report) hazmats7

INITIAL DECISION MAKER(REVISED §15.2.1) Architect still default IDM unless otherwiseindicated in Agreement IDM decision required (subject to 30 day rule)to proceed to mediation and binding disputeresolution Claims excluded from IDM decision: Afterexpiration of §12.2.2 correction period,Hazmats (§10.3), Emergencies (§10.4) & InsuredLoss (§11.5)8

INITIAL DECISION (§15.2.6.1) Aggrieved Party Has Open End toDemand Mediation unless WinningParty Demands Action within 30days to Challenge IDM’s decision Waiver!9

MEDIATION (NEW §15.3.3) § 15.3.3 Either party may, within 30 days from the date thatmediation has been concluded without resolution of the disputeor 60 days after mediation has been demanded without resolutionof the dispute, demand in writing that the other party file forbinding dispute resolution. If such a demand is made and theparty receiving the demand fails to file for binding disputeresolution within 60 days after receipt thereof, then both partieswaive their rights to binding dispute resolution proceedings withrespect to the initial decision. Similar to §15.2.6.1, except applied to mediation impasse. 30 and 60 day time periods to demand other party file for bindingdispute resolution. Waiver!10

ARBITRATION (REVISED §15.4) In the place where the Project islocated, unless otherwise mutuallyagreed Consolidation and joinder nowsubject to AAA rules or otherapplicable rules11

OWNER’S FINANCIALARRANGEMENTS (§2.2) Prior to commencement, reasonable evidence uponContractor’s request No obligation to commence Work Extension of time if commencement delayed (omitsmoney) After commencement, Owner required to furnishevidence if:(1) Owner fails to pay(2) Contractors’ reasonable concern(3) Change materially changes the Contract Sum12

OWNER’S FINANCIALARRANGEMENTS (§2.2) (cont’d) New 14 day post-commencement rightto stop work Contractor may immediatelystop portion of Workaffected by major change Time and money Owner can’t materially vary financialarrangements w/o prior notice13

CONFIDENTIALITY OF OWNER FINANCIALARRANGEMENTS (NEW §2.2.4) Duty to keep Owner’s financialinformation confidential 7 day notice to Owner if disclosurerequired by law Disclosure to those with“need to know”14

REVIEW OF CONTRACT DOCUMENTS ANDFIELD CONDITIONS BY CONTRACTOR(REVISED §3.2.4) Contractor’s liability to pay costs anddamages for failure to performobligations of Sections 3.2.2 or 3.2.3now subject to mutual waiver ofconsequential damages (which waiveris now Section 15.1.7)15

WARRANTY (NEW §3.5.2)§3.5.2 All material, equipment or otherspecial warranties required by theContract Documents shall be issued inthe name of the Owner or shall betransferrable to the Owner, and shallcommence in accordance with §9.8.4[Substantial Completion]16

SUBCONTRACTS & SEPARATE CONTRACTORS(REVISED §§5.2.1, 6.1.1 & 6.2.2) “Separate Contractors” defined Substantially similar Conditions of the Contract(not “identical”) Deleted sentence re: claim cost & delay [§6.1.1] Contractor not responsible for discrepanciesand defects in the construction or operationsof Owner or Separate Contractor that are notapparent17

CONSTRUCTION CHANGE DIRECTIVES(REVISED §7.3) Architect determines adjustmentof Contract Sum Architect approvalof employee costs New §7.3.5 speaks only ofmaking claim for time18

DELAYS AND EXTENSIONS OF TIME(REVISED §8.3.1)§ 8.3 Delays and Extensions of Time§ 8.3.1 If the Contractor is delayed at any time in the commencementor progress of the Work by (1) an act or neglect of the Owner orArchitect, of an employee of either, or of a Separate Contractor; (2)by changes ordered in the Work; (3) by labor disputes, fire, unusualdelay in deliveries, unavoidable casualties, adverse weatherconditions documented in accordance with Section 15.1.6.2, or othercauses beyond the Contractor’s control; (4) by delay authorized bythe Owner pending mediation and binding dispute resolution; or (5)by other causes that the Contractor asserts, and the Architectdetermines, justify delay, then the Contract Time shall be extendedfor such reasonable time as the Architect may determine.19

INDEMNIFICATION CHANGES New Lien Indemnity at §9.6.8 “Indemnify” in §§10.3.5 and 10.3.6replaced by “reimburse”20

TERMINATION (REVISED §§ 14.1, 14.2 &14.3) Added entitlement at §14.1.3 to OH&P on Work notexecuted & a termination fee at §14.4.3 [T4C] Sub-subcontractor or other entities added at §14.1.4as parties whose act or fault caused work to stop willdeprive Contractor of right to terminate Failure to make payment to suppliers can nowtrigger termination for cause Certification of sufficient cause now by Architectinstead of Initial Decision Maker21

NEW PROVISIONS IN A-201 OTHER AIADOCUMENTS Liquidated Damages Date of Commencement andSubstantial Completion Pricing and Payments Insurance22

QUESTIONS23

OVERVIEW AIA’sonce in a decade revision AIA A201-2007 will remain in circulation for a period of 18 months. Additional revisions to the A201-2017 which we are not addressing today but warrant consideration. AIA has also revised its AIA A101 (lump sum), A102 (cost plus with