© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 1 The Spearing Doctrine and Definitions of “Complete” Construction Documents Presented by Barbara R. Gadbois, Esq. of GIBBS, GIDEN, LOCHER,TURNER & SENET LLP 2029 Century Park East 34th Floor Los Angeles, California (310) Burbank, California October 15, 2009

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 2 Owner Warranty of Plans & Specifications United States v. Spearin, 248 U.S. 132 (1918) Owner impliedly warrants that the project can be constructed from the plans and specifications.

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 3 Public Works Limitations on Transfer of Risk §1104. Responsibility for completeness and accuracy of plans and specifications. No local public entity, charter city or charter county shall require a bidder to assume responsibility for the completeness and accuracy of architectural or engineering plans and specifications on public works projects, except on clearly designated design build projects. Nothing in this section shall be construed to prohibit a local public entity, charter county from requiring a bidder to review architectural or engineering plans and specifications prior to submission of a bid, and report any errors and omissions noted by the contractor to the architect or owner. The review by the contractor shall be confined to the contractor’s capacity as a contractor, and not as a licensed design professional.

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 4 Architect’s Standard of Care Professional Negligence Standard Absent express warranty, no promise that plans are defect-free or fit for intended use.

© 2006 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 5 Contractor’s Responsibility Build According to Plans and Specifications Within Contract Time and Contract Price

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 6 Owner-Architect Contract Provisions AIA B Construction Documents Submittals

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved CONSTRUCTION DOCUMENTS The Architect shall provide Construction Documents based on the approved Design Development Documents and updated budget for the Cost of the Work. The Construction Documents shall set forth in detail the requirements for construction of the Project. The Construction Documents shall include Drawings and Specifications that establish in detail the quality levels of materials and systems required for the Project. AIA DOCUMENT B

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 8 AIA DOCUMENT B

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 9 AGC DOCUMENT NO CONSTRUCTION DOCUMENTS Based on the approved Design Development Documents and updated estimate of the Cost of Construction and Project Schedule, the Architect/Engineer shall prepare, for the Owner’s review and approval and the approval of governmental authorities, including any revisions necessary to secure such approvals, Construction Documents setting forth in detail the quality levels of and the requirements for construction of the Project and consisting of drawings and specifications that comply with applicable codes, laws and regulations enacted at the time of their preparation at the location of the Project.

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 10 Standard of Care Provision Architect shall perform the services in accordance with the degree of skill and learning ordinarily possessed by architects in good standing in the community regularly engaged in the design of facilities similar in scope and magnitude to the Project and must apply that knowledge with the diligence ordinarily exercised by reputable architects under similar circumstances

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 11 Non-Standard Provisions Highest Professional Standard of Care State-of-the-Art Facilities Fiduciary Relationship of Trust and Confidence/Cost Effective Services Warranty/Guaranty Traps – Promotional Statements in Proposal to Owner

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 12 Owner-Contractor Contract Provisions AIA A The Contract Documents 1.1.3The Work 1.1.5The Drawings 1.1.6The Specifications 1.2.1Correlation and Intent of Contract Documents 3.2Review of Documents and Field Conditions Not Required to Provide Design Services

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 13 Architect’s Liability California Code of Civil Procedure § Certificate of Merit

© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 14

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© 2009 Gibbs, Giden, Locher & Turner LLP - All Rights Reserved 16