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jeckle303
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Posted: Thu Sep 25th, 2008 06:25 pm |
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| Looking for suggestions for putting together a CAD release form. I don't need something ridiculously long or elaborate, just simple and straight forward that gets the point across and covers the legal bases. If anybody has an example, or ideas of what should/shouldn't be included I'd appreciate the help.
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Coach
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Posted: Thu Sep 25th, 2008 06:37 pm |
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| What do you mean? What's the purpose?
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jeckle303
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Posted: Thu Sep 25th, 2008 06:42 pm |
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One example would be:
Our office does a lot of leasing plans for commercial property managers. After we provide them with the plan, many times they have contractors come in later and do minor improvements that would not necessarily need an architect (i.e. HVAC replacement, new ducting, etc.). Anyway the contractors are using the CAD files for their duct layout. We just don't want our files out there without any protection for us.
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Coach
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Posted: Thu Sep 25th, 2008 06:45 pm |
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First, California law protects you. See the practice act.
Second, all I do is remove the title block and any other identifiers.
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xcentric
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Posted: Thu Sep 25th, 2008 06:49 pm |
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Just because I'm up to my ears in studying for CD's right now, I'll refer you to the AIA documents:
E201-2007 (which must be used as an attachment to A101 or B101),
or
C106-2007 (which can be used as a stand alone contract if no other services are being provided)
Perhaps longer than you want because they are generic forms, but they cover lots of legal "what-if"s that you won't think of until you need them.
For more detail: http://www.aia.org/docs_synopses#series
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Coach
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Posted: Thu Sep 25th, 2008 07:03 pm |
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| You can also write a disclaimer that it's not to be considered an as-built and you do not warrant it's accuracy.
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brudgers
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Posted: Thu Sep 25th, 2008 07:06 pm |
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jeckle303 wrote: One example would be:
Our office does a lot of leasing plans for commercial property managers. After we provide them with the plan, many times they have contractors come in later and do minor improvements that would not necessarily need an architect (i.e. HVAC replacement, new ducting, etc.). Anyway the contractors are using the CAD files for their duct layout. We just don't want our files out there without any protection for us.
Protection from what?
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jeckle303
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Posted: Thu Sep 25th, 2008 07:14 pm |
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Coach:
The practice act protects the architect from unapproved changes or uses of plans that have been stamped and sealed. That isn't necessarily our case, if we are doing a leasing plan (as-is documentation) all that is shown is the current configuration of the suite(s). I'm looking more along the lines of an indemnification/hold harmless type of thing that would protect us if an undocumented change has been made to the suite since our field work. Also we have a separate title block that does not include a stamp for leasing plans since there is not an architectural design, only documentation of existing spaces.
xcentric:
Thanks for the tip on the E-series and the C-series. C-106 might just be what I'm looking for.Last edited on Thu Sep 25th, 2008 07:18 pm by jeckle303
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Coach
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Posted: Thu Sep 25th, 2008 07:59 pm |
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Then just note the date of the field survey on the drawing with a disclaimer...
"Contractor shall verify all field conditions..." etc.
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jeckle303
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Posted: Thu Sep 25th, 2008 08:13 pm |
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| Coach, thanks for all the input, I guess I'm looking for more than a standard disclaimer note on the drawings.
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shinto909
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Posted: Thu Sep 25th, 2008 08:14 pm |
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THE UNDERSIGNED AGREES TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD XXX, LLC HARMLESS FROM ANY AND ALL CLAIMS, SUITS, LIABILITY, DAMAGES OR COSTS INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS OF DEFENSE ARISING FROM ANY REUSE OR MODIFICATION OF THE ELECTRONIC FILES BY THE UNDERSIGNED OR ANY PERSON OR ENTITY WHICH ACQUIRES OR OBTAINS THE ENCLOSED ELECTRONIC FILES FROM OR THROUGH THE UNDERSIGNED WITHOUT THE PRIOR WRITTEN AUTHORIZATION OF XXX, LLC.
XXX, LLC MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED AS TO THE ACCURACY OF THE INFORMATION PROVIDED VIA ELECTRONIC MEDIA, AND THE UNDERSIGNED AGREES THAT UTILIZATION AND CONVERSION OF THIS MEDIA TO OTHER SYSTEMS OF THIS DATA IS AT THEIR OWN RISK. THE USER HEREBY AGREES AND RECOGNIZES THAT DESIGNS, PLANS AND DATA STORED ON ELECTRONIC MEDIA INCLUDING, BUT NOT LIMITED TO, COMPUTER DISK AND MAGNETIC TAPE, MAY BE SUBJECT TO UNDETECTABLE ALTERATION AND/OR UNCONTROLLABLE DETERIORATION. THE USER HEREBY AGREES AND RECOGNIZES THAT DESIGNS, PLANS AND DATA STORED ON ELECTRONIC MEDIA INCLUDING, BUT NOT LIMITED TO, COMPUTER DISK AND MAGNETIC TAPE, MAY BE SUBJECT TO UNDETECTABLE ALTERATION AND/OR UNCONTROLLABLE DETERIORATION.
XXX, LLC SHALL BEAR NO RESPONSIBILITY FOR THE INFORMATION IN THE ELECTRONIC DATA FILES ONCE IT LEAVES THE OFFICE OF XXX, LLC. THE UNDERSIGNED UNDERSTANDS THAT THE ELECTRONIC DATA FILE IS SUBJECT TO APPLICABLE COPYRIGHT LAWS AND AGREES TO BE BOUND BY SAME.
edit-sorry, font was huge
Last edited on Thu Sep 25th, 2008 08:15 pm by shinto909
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Coach
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Posted: Thu Sep 25th, 2008 08:31 pm |
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jeckle303 wrote: Coach, thanks for all the input, I guess I'm looking for more than a standard disclaimer note on the drawings. And I guess I don't see the need to worry.
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jeckle303
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Posted: Thu Sep 25th, 2008 08:33 pm |
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Coach wrote:
jeckle303 wrote: Coach, thanks for all the input, I guess I'm looking for more than a standard disclaimer note on the drawings. And I guess I don't see the need to worry.
I guess when you're licensed you will.
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Coach
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Posted: Thu Sep 25th, 2008 10:18 pm |
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jeckle303 wrote: Coach wrote:
jeckle303 wrote: Coach, thanks for all the input, I guess I'm looking for more than a standard disclaimer note on the drawings. And I guess I don't see the need to worry.
I guess when you're licensed you will. Nope. Too much worrying leads to paralysis.
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brudgers
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Posted: Thu Sep 25th, 2008 10:38 pm |
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jeckle303 wrote: Coach wrote:
jeckle303 wrote: Coach, thanks for all the input, I guess I'm looking for more than a standard disclaimer note on the drawings. And I guess I don't see the need to worry.
I guess when you're licensed you will.
I'm a pessimist, and this doesn't worry me.
Then again, I don't shoot CAD files off to just anyone. There has to be a damn good reason for it, and regurgitating my CAD files as shop drawings is not one of them.
If an owner wants CAD files for future use, it needs to be in the contract.
The example disclaimer is structured like a contract, except that no consideration has been given to the architect (so maybe it's not valid)...or maybe it is a contract and the files are actually goods (since they're not architectural services).
On the other hand, if it's a contract between the architect and a third party such as a subcontractor that opens up another bag of tapeworms.
The disclaimer also gives the person signing it implied authority to disseminate the cad files to other persons.
And who is actually supposed to do all the indemnifying and holding harmless?
The company receiving the files?
The CAD jocky who signed the thing? ----> (good luck with that)
Just use a reasonable standard of care typical of other local architects.
And talk with an attorney.
They look like this:
Attached Image (viewed 169 times):
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jeckle303
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Posted: Fri Sep 26th, 2008 12:41 am |
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brudgers wrote:
Then again, I don't shoot CAD files off to just anyone. There has to be a damn good reason for it, and regurgitating my CAD files as shop drawings is not one of them.
We also work with interior designers (not directly contracted with us) and food service equipment providers (not directly contracted with us), the lease plan was an example of where the CAD release could be used. There are several other instances that it would be helpful to have the release drawn up.
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shinto909
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Posted: Fri Sep 26th, 2008 02:26 pm |
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jeckle303 wrote: brudgers wrote:
Then again, I don't shoot CAD files off to just anyone. There has to be a damn good reason for it, and regurgitating my CAD files as shop drawings is not one of them.
We also work with interior designers (not directly contracted with us) and food service equipment providers (not directly contracted with us), the lease plan was an example of where the CAD release could be used. There are several other instances that it would be helpful to have the release drawn up.
brudgers you are correct, electronic files are treated as goods and not services. producing the file in the first place is a service. i chose that example because it is fairly generic but i think it helps with the protection goals.
here is my opinion- the architect should already be protected by intellectual copywrite by other forms of law, such as you can sue a guy if he takes your plans and reuses them to build another building without your consent
but in some cases you must give permission for your files to be used by others to help a project (for an HVAC overlay, for example) and a form may help establish and limit the intended use by others
there is also a danger of files being altered in a way that results in a dangerous construction condition, and this is something that must be protected against.
and always remember- no means and methods. ever. never ever.
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brudgers
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Posted: Fri Sep 26th, 2008 03:29 pm |
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shinto909 wrote: jeckle303 wrote: brudgers wrote:
Then again, I don't shoot CAD files off to just anyone. There has to be a damn good reason for it, and regurgitating my CAD files as shop drawings is not one of them.
We also work with interior designers (not directly contracted with us) and food service equipment providers (not directly contracted with us), the lease plan was an example of where the CAD release could be used. There are several other instances that it would be helpful to have the release drawn up.
Are you contractually obligated to provide CAD files to the Interior Designer and Equipment Providers?
A release is no substitute for a contract in my opinion.
I'm not advocating being a prick, but I'm not in favor of giving away services either. If you think you're taking on meaningful risk, you should be compensated.
And if you're taking it risk while working on the Owner's behalf, then it should be adressed in your contract with the Owner.
brudgers you are correct, electronic files are treated as goods and not services. producing the file in the first place is a service. i chose that example because it is fairly generic but i think it helps with the protection goals.
here is my opinion- the architect should already be protected by intellectual copywrite by other forms of law, such as you can sue a guy if he takes your plans and reuses them to build another building without your consent
but in some cases you must give permission for your files to be used by others to help a project (for an HVAC overlay, for example) and a form may help establish and limit the intended use by others
Why should you do the HVAC contractor's work for them, or the work of the Owner's other consultants? These services should be adressed in the Owner Architect agreement up front. Do your really think you can force O'Rielly Plumbing to pay your legal expenses?
there is also a danger of files being altered in a way that results in a dangerous construction condition, and this is something that must be protected against.
Don't release them, that's the most direct way. The second most direct way is to release the information in a way that's not alterable, such as jpg...if they're just using it for backgrounds that should be sufficient, anyway. Sending out a CAD file and not expecting it to be altered or reused is unrealistic in my opinion.
and always remember- no means and methods. ever. never ever.
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Coach
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Posted: Fri Sep 26th, 2008 05:31 pm |
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This thread is a perfect example of things getting blown out of proportion when there's a basic misunderstanding of the issues and perceptions of liability.
As I read jeckle's posts, the entire concern revolves around someone relying on jeckle's as-built and the possibility that the building has been modified in the interim.
I see no exposure to liability whatsoever, but let's say that I agree with you and there is, I have two questions:
1) Why are you not protected with a simple disclaimer on the drawing that states it was, to the best of your knowledge, accurate at the time produced but you make no warranties, express or implied, as to its accuracy?
2) Why is a digital file any different than a hard copy? Are you worried that anyone who has ever referenced your plans can potentially sue you if the building has changed since it was drawn?
If you're really that concerned, nothing said here should satisfy you. Talk to your attorney.
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Coach
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Posted: Fri Sep 26th, 2008 05:35 pm |
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shinto909 wrote: and always remember- no means and methods. ever. never ever. What does this mean?
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shinto909
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Posted: Fri Sep 26th, 2008 05:40 pm |
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| the Architect must never take responsibility for means and methods of construction. you will be sued.
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Coach
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Posted: Fri Sep 26th, 2008 05:47 pm |
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| Define means and methods.
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jeckle303
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Posted: Fri Sep 26th, 2008 05:50 pm |
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Coach wrote:
Define means and methods.
Means and Methods refer to construction equipment, operations, practices, procedures, and related activities.
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Coach
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Posted: Fri Sep 26th, 2008 05:54 pm |
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jeckle303 wrote: Coach wrote:
Define means and methods.
Means and Methods refer to construction equipment, operations, practices, procedures, and related activities. I'd like to see a spec book that didn't get into some of that.
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shinto909
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Posted: Fri Sep 26th, 2008 05:57 pm |
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Coach wrote: Define means and methods.
per A201 4.2.2:
§ 4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Section 3.3.1.
http://books.google.com/books?id=FxTKjnMMoI4C&pg=PA265&lpg=PA265&dq=means+and+methods+of+construction&source=web&ots=M4uoEU7Y-n&sig=HZREM3c_2i21MCTNrF0UKBFOSm8&hl=en&sa=X&oi=book_result&resnum=6&ct=result#PPA264,M1
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Coach
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Posted: Fri Sep 26th, 2008 06:01 pm |
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| You are confusing construction with contract documents.
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jeckle303
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Posted: Fri Sep 26th, 2008 06:02 pm |
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Coach wrote:
I'd like to see a spec book that didn't get into some of that.
I'm not disagreeing that it's not, you just asked the definition.
Back to the original intent of the post, an earlier comment talked about the C-106-2007 AIA document, here's the synopsis:
C106™–2007 Digital Data Licensing Agreement
C106–2007 serves as a licensing agreement between two parties who otherwise have no existing licensing agreement for the use and transmission of digital data, including instruments of service. C106–2007 defines digital data as information, communications, drawings, or designs created or stored for a specific project in digital form. C106–2007 allows one party to (1) grant another party a limited non-exclusive license to use digital data on a specific project, (2) set forth procedures for transmitting the digital data, and (3) place restrictions on the license granted. In addition, C106–2007 allows the party transmitting digital data to collect a licensing fee for the recipient’s use of the digital data.
This is close to what I was looking for. Thanks everyone for the input.
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shinto909
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Posted: Fri Sep 26th, 2008 06:04 pm |
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Coach wrote: You are confusing construction with contract documents.
i am not confusing anything.
heres an example from a true story:
an architect used a nonstandard contract and did not reference 201 and did not disclaim responsibility for construction means and methods.
2 subcontractors were working on the ceiling of a two story space off of 2 ladders with som planks between them. ladder broke and 1 guy died. the architect was sued and went out of business. as i said, true story
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Coach
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Posted: Fri Sep 26th, 2008 06:09 pm |
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shinto909 wrote: Coach wrote: You are confusing construction with contract documents.
i am not confusing anything.
heres an example from a true story:
an architect used a nonstandard contract and did not reference 201 and did not disclaim responsibility for construction means and methods.
2 subcontractors were working on the ceiling of a two story space off of 2 ladders with som planks between them. ladder broke and 1 guy died. the architect was sued and went out of business. as i said, true story
So? Some idiot allowed himself to be sued. I dare say that you're leaving out some important facts. I would just like you to see how far you'll get trying to produce CD's with no means or methods. You are indeed confused.
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shinto909
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