What is Arbitration

 

WESLEY MANAGEMENT COMPANY – Jupiter, FL

12/29/2020 – What is Arbitration

WHAT IS ARBITRATION

Arbitration can be viewed as a private trial, and the agreement to arbitrate is usually included in the terms of the agreement giving rise to the dispute. The process is governed by the American Arbitration Association (AAA), or Judicial Arbitration and Mediation Services (JAMS), whom have their own set of rules and procedures for the proceedings.

Is Arbitration a Good Alternative to the Court System

Previously arbitration was not viewed favorably as it can impose limitations to awards & judgments, especially in large cases. However there are some benefits which may make it a favorable method of dispute resolution in other cases.

1. Faster Process & Resolution. The process is overseen by an Arbitrator who does not have a caseload similar to a state or federal judge, and moves efficiently. Hearings can be easier to schedule & obtain, and final hearing produced much sooner than a trial. In retrospect, it is common for civil trial process to take four times longer than Arbitration to resolve a dispute.

2. Confidentiality. Arbitration is private and attended only by those selected & agreed upon by all parties. The parties usually agree to keep all aspects of the arbitration confidential, especially when when proprietary or sensitive company information, including reputations are involved. On the other hand, sealing a court record in state or federal court is usually difficult and rarely-granted.

3. Selection of Arbitrator. The parties also select their arbitrator, allowing a neutral person with experience relevant to the dispute, and whose qualifications will appreciate and understand the issues. In complex cases, the parties can request a panel of three arbitrators, who collectively bring more knowledge and experience to the process. In retrospect, judges come from varied backgrounds, and may not have experience or knowledge of, the law pertaining to your case.

4. Control Over the Process. The parties are able to provide some control over the process, and can tailor the process to their needs and the particulars of their relationship. The parties dictate how discovery is handled; the use of witnesses and depositions, and the length of the process, including the date and length of the final hearing. Furthermore, the parties can schedule the hearings outside of normal business hours, and hearing locations, to mitigate impact to the parties ongoing operations which is not usually accommodated in civil proceedings.

5. Finality of Decision. Arbitration usually does not provide for appeal, although it can have positive effect. One or both parties may wish to resolve the dispute quickly and avoid mounting legal costs, but also to obtain a timely determination of the dispute, to focus upon normal business operations. Appeals may be allowed in some cases, but usually only to a second arbitrator, which again can be streamlined.

6. Flexibility. Arbitration again is tailored to the parties, and does not require rules of evidence and procedure like a civil trial. Whereas some evidence or testimony would be barred in the courts due to a technicality, the arbitration can allow presentation of such evidence or testimony.

Who is an Arbitrator?

The arbitrator is usually an attorney or former judge and oversees all aspects of the arbitration, and presides over the final hearing. It is similar to a civil proceeding, but streamlined with respect to the discovery process, rules of evidence, and pleadings requirements.

The choice of whether to arbitrate can be an appealing method of dispute resolution, which depends on the facts of your dispute and nature of your business. While Arbitration is more appealing to larger, multi-state businesses, smaller businesses can benefit with Arbitration when the nature of the dispute involves concerns the nature of the business more than procedural. Consider reviewing an Arbitration clause with your At tourney.

About Company

WESLEY MANAGEMENT COMPANY Consulting company servicing Owners, (POA/HOA) Associations, Developers & Contractors with capital improvements and construction projects. Providing management consulting services in the areas of:

• Construction Management: Administration & coordination to deliver a project from inception to completion; meeting the Client’s budget & standards

• Owner/Contractor Representation: Observations verifying work proceeds per specification; confirming installations are monitored for compliance with the contract documents

• Expert Opinion & Witness: Post construction claims analysis, forensic observation & accountability

• Insurance & Mitigation Inspections: Inspections & observations for purchase, or insurance verification & discount

Mission Statement

Assisting to complete contract obligations & achieve Client satisfaction

Licensing & Insurance

Licenses, Certificates of Insurance and pre-qualification information may be furnished upon request. Our firm maintains State, Federal and OSHA requirements for Safety Plans, HAZCOM Communication, Drug Free Work Place and as an Equal Opportunity Employer.

Licensed for commercial drone/UAS operations per FAA Part 107 Certification. Professional liability and job specific aerial drone insurance can be provided.

Certificates

Members of the Company hold certifications for specialty trades, training & licensing, in addition to State required continuing education.

History

Over thirty years experience in providing construction management on projects to $150M.

For more information, visit wesleymanagement.com or call 561 316 7678.

PRESS RELEASE & BLOG TERMS & CONDITIONS OF USE

ACCEPTANCE OF TERMS: Please read the following terms and conditions of use carefully, as use of this press release/blog post, including applicable source(s) and website(s), is subject to the following terms of use. Please do not use, or rely upon this information, if you do not agree to these terms.

COPYRIGHT AND REPRODUCTION NOTICE: Copyright © WESLEY MANAGEMENT COMPANY LLC (Company); all rights reserved. Most material and information, including site design, text, graphics, and the selection and arrangement thereof are copyrighted by Company. Company’s logo, graphics and icons are trademarks of the Company, and may not be copied, reproduced, republished, posted, transmitted, or distributed in any way without proper written authorization from Company. Other trademarks, product names, and company names or logos used here are the property of their respective owners. Notwithstanding, you (User) are hereby granted nonexclusive, nontransferable, limited license to use information for User’s personal, informational, non-commercial purposes, provided the content is not modified or altered in any way, and copyright or trademarks rights are not infringed upon.

DISCLAIMER & CONDITIONS OF USE: All rights reserved. Material provided is for informational purposes only, and should not be taken as an indication of current or future results, nor offered as advice on any particular matter. Transmission of this information is not intended to create, and receipt does not constitute a relationship between Company and the User. The User should refrain from acting on the basis of any matter contained in Company’s sites without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue. Any reference to legal principles or law is provided for better understanding of the subject, and may become outdated or inapplicable.

The Company assumes no liability for any content posted, submitted, communicated, shared, discussed or generated through blogs, discussion boards, or other public areas (“User Generated Content”), nor do we guarantee its truthfulness, accuracy or completeness.

THIRD PARTY CONSENT: To the extent that goods, services and any other content are available from third parties through this press release/blog post, Company is not liable, or responsible in any manner for your dealings and/or interaction with third parties. Company assumes no liability for any mistakes, misstatements, defamation, omissions, falsehoods, opinions, representations or any other form or content or communication from a third party.

PRIVACY STATEMENT: User understands Internet Service Providers (ISP) and Web Content/Hosting Providers (WHP) monitor Users for their use and analytics. Users understand information provided will be used by various ISP & WHP providers and made available to Third Parties without Company's consent or knowledge.

TERMINATION AND CHANGE: Information may be changed or updated without notice. Company has no liability for the timeliness, deletion, failure to store, inaccuracy or improper delivery of any data or information contained within this site.

INDEMNIFICATION: You agree to indemnify, defend, and hold Company, its agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers, attorneys, advertisers, product and service providers, and affiliates harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, arising out of violation of these Terms and Conditions of Use.

Important Changes in 2017 A201 General Conditions Form

 

WESLEY MANAGEMENT COMPANY – Jupiter, FL

12/15/2020 – Important Changes in 2017 A201 General Conditions Form

IMPORTANT CHANGES IN 2017 AIA201 GENERAL CONDITIONS FORM

In 2017, the AIA made changes to the A201 General Conditions document, which affects the AIA family of documents for Owner/Contractor, Contractor/Subcontractor agreements and others. We will focus this discussion upon the changes affecting Owner, Contractor & Subcontractor agreements.

Section 1.6: Notice

In recognition to modern electronic communication, Section 1.6.1 expressly provides notice can be provided by electronic transmission, if a method for electronic transmission is set forth in the Agreement. This allows the parties to establish email can be used for proper notice by specifically indicating in 2017 Owner-Contractor Agreements. However, Notices of Claim per Section 15.1.3 must be in writing and continued to be delivered by certified or registered mail, or by courier providing proof of delivery.

While allowing electronic transmission for most types of notices, Notices of Claims continue to be required by formal written notice delivered in a manner which provides proof of delivery. Participants must continue to remain aware of timely and proper notices and receipt, in the current era of largely electronic communication.

Sections 1.7 and 1.8: Technology and Digital Data

Again, due to the electronic transmission of documents, Section 1.7 requires parties to agree upon protocols governing the transmission and use of electronically transmitted documents. Section 1.7 also requires use of E203-2013, Building Information Modeling and Digital Data Exhibit, for establishing use, transmission and exchange of the electronically transmitted documents, including building information modeling (BIM). The 2017 Owner/Contractor agreements (except A105 and B105) require E203-2013 to be an exhibit of the agreement.

The new Section 1.8 makes clear the importance of the parties agreeing to E203-2013 protocols as required by Section 1.7, by providing any use, or reliance upon any portion of a BIM without agreement to E203-2013 Exhibit, shall be at the using party’s sole risk and without liability to others.

These sections address the inclusion and use of electronic drawings (under the recognition of electronically transmitted documents). Previously there were complications regarding use of the electronic drawings due to copyright, which affected distribution and use of these documents.

Section 3.7.4: Concealed or Unknown Conditions

Revisions to this section changed one important provision, which is the limit for Contractor to notify Owner/Architect of differing site conditions. The time limit was reduced from 21 days down to 14 days.

This prompt notice suffices to allow the Owner and Architect time to assess the situation and make decisions to avoid delays. Therefore, Contractors will need to be at the ready to provide notice when conditions are encountered to ensure their right to make claim. Subcontractors must also be aware of this requirement as there is a flow down relationship in the Contractor/Subcontractor family of documents.

Section 11: Insurance and the Insurance Exhibit

Article 11 made several changes related to insurance and bonds. For 2017, the AIA created an Insurance and Bonds Exhibit A as an exhibit to the Owner/Contractor agreements, replacing much of the articles former language. The creation of this Insurance Exhibit addresses the various insurance coverages and limits in significantly more detail than prior Article 11 language, and provides choices regarding a multitude of potentially necessary coverage.

There is emphasis for two (2) important insurance requirements by Owner in the Exhibit:

1. First, builder’s risk and general liability insurance shall provided by Owner. It requires Owner to purchase and maintain insurance written on a builder’s risk “all-risks” completed value, to cover the total value of the entire project on replacement cost basis. Furthermore, the builder’s risk insurance shall be maintained until Substantial Completion, or replaced with coverage for the total value of the project through the end of the Contractor’s period for correction of the Work.

2. Second, when work involves existing structure or constructing an addition, the property insurance must also cover the existing structure against direct physical loss or damage on a replacement cost basis. The Exhibit provides the Owner is responsible for all loss not covered because of a deductible or retention.

The Insurance Exhibit also requires the Contractor to purchase and maintain a number of different lines of insurance, including commercial general liability, automobile liability, workers’ compensation, and employer’s liability. It includes a checklist for other lines, such as professional liability, pollution liability and maritime liability if the work involves those hazards.

The Insurance Exhibit also provides a checklist & identifies certain exclusions or restrictions which may limit a Contractor’s commercial general liability policy, including:

1. Claims by one insured against another insured;

2. Claims for property damage to the Contractor’s work arising out of the products completed operations hazard where the damaged Work or the Work out of which the damage arises was performed by a Subcontractor;

3. Claims for indemnity under Section 3.18 of the A201 arising out of injury to employees of the insured;

4. Claims related to residential, multifamily or other projects, if the Work is to be performed on such a project;

5. Claims where the work involves such hazards, such as roofing, exterior insulation finish systems (EIFS), earth subsidence, or explosion, collapse and underground hazards.

Having these provisions as part of an exhibit, separate from the contract is a welcome addition and helps facilitates the parties to provide Insurance requirements to their insurance brokers and Subcontractors for evaluation and completion.

Section 14.4.3: Termination for Convenience

There is also a significant change to the Owner’s payment obligations in the case of the Owner’s decision to terminate the Contractor for convenience.

Previously, the Owner had the right to terminate the Contractor for convenience, but the Contractor was entitled to receive payment for Work executed, and costs incurred by termination, along with reasonable overhead and profit on the Work not executed. A related provision in the (flow down) Contractor/Subcontractor agreement entitled subcontractors to the same relief in the case of a termination for convenience.

Per the revision, Section 14.4.3 removes the Contractor’s right to recover for lost anticipated overhead and profit on Work not executed, and substitutes a termination fee to be negotiated by the parties and identified in the Owner/Contractor agreement. If the parties do not negotiate a termination fee at the time of contract execution, the default is the Owner does not have to pay the Contractor for lost anticipated overhead and profit. However, this is not aligned in the flow down language to the Contractor/Subcontractor agreements, leaving the Contractor liable to Subcontractors for lost overhead & profits.

This revision is most significant to the Contractor, as there is no protections from Subcontractor (O&P) claims if terminated for convenience. The fill in the blank provision could suffice for Contractor’s O&P for negotiations, but providing a reasonable figure for multiple Subcontractor O&P would be nearly impossible and surely result without agreement at time of contract issuance.

About Company

WESLEY MANAGEMENT COMPANY Consulting company servicing Owners, (POA/HOA) Associations, Developers & Contractors with capital improvements and construction projects. Providing management consulting services in the areas of:

• Construction Management: Administration & coordination to deliver a project from inception to completion; meeting the Client’s budget & standards

• Owner/Contractor Representation: Observations verifying work proceeds per specification; confirming installations are monitored for compliance with the contract documents

• Expert Opinion & Witness: Post construction claims analysis, forensic observation & accountability

• Insurance & Mitigation Inspections: Inspections & observations for purchase, or insurance verification & discount

Mission Statement

Assisting to complete contract obligations & achieve Client satisfaction

Licensing & Insurance

Licenses, Certificates of Insurance and pre-qualification information may be furnished upon request. Our firm maintains State, Federal and OSHA requirements for Safety Plans, HAZCOM Communication, Drug Free Work Place and as an Equal Opportunity Employer.

Licensed for commercial drone/UAS operations per FAA Part 107 Certification. Professional liability and job specific aerial drone insurance can be provided.

Certificates

Members of the Company hold certifications for specialty trades, training & licensing, in addition to State required continuing education.

History

Over thirty years experience in providing construction management on projects.

For more information, visit wesleymanagement.com or call 561 316 7678.

PRESS RELEASE & BLOG TERMS & CONDITIONS OF USE

ACCEPTANCE OF TERMS: Please read the following terms and conditions of use carefully, as use of this press release/blog post, including applicable source(s) and website(s), is subject to the following terms of use. Please do not use, or rely upon this information, if you do not agree to these terms. 

COPYRIGHT AND REPRODUCTION NOTICE: Copyright © WESLEY MANAGEMENT COMPANY LLC (Company); all rights reserved. Most material and information, including site design, text, graphics, and the selection and arrangement thereof are copyrighted by Company. Company’s logo, graphics and icons are trademarks of the Company, and may not be copied, reproduced, republished, posted, transmitted, or distributed in any way without proper written authorization from Company. Other trademarks, product names, and company names or logos used here are the property of their respective owners. Notwithstanding, you (User) are hereby granted nonexclusive, nontransferable, limited license to use information for User’s personal, informational, non-commercial purposes, provided the content is not modified or altered in any way, and copyright or trademarks rights are not infringed upon. 

DISCLAIMER & CONDITIONS OF USE: All rights reserved. Material provided is for informational purposes only, and should not be taken as an indication of current or future results, nor offered as advice on any particular matter. Transmission of this information is not intended to create, and receipt does not constitute a relationship between Company and the User. The User should refrain from acting on the basis of any matter contained in Company’s sites without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue. Any reference to legal principles or law is provided for better understanding of the subject, and may become outdated or inapplicable. 

The Company assumes no liability for any content posted, submitted, communicated, shared, discussed or generated through blogs, discussion boards, or other public areas (“User Generated Content”), nor do we guarantee its truthfulness, accuracy or completeness.

THIRD PARTY CONSENT: To the extent that goods, services and any other content are available from third parties through this press release/blog post, Company is not liable, or responsible in any manner for your dealings and/or interaction with third parties. Company assumes no liability for any mistakes, misstatements, defamation, omissions, falsehoods, opinions, representations or any other form or content or communication from a third party.

PRIVACY STATEMENT: User understands Internet Service Providers (ISP) and Web Content/Hosting Providers (WHP) monitor Users for their use and analytics. Users understand information provided will be used by various ISP & WHP providers and made available to Third Parties without Company's consent or knowledge.

TERMINATION AND CHANGE: Information may be changed or updated without notice. Company has no liability for the timeliness, deletion, failure to store, inaccuracy or improper delivery of any data or information contained within this site.

INDEMNIFICATION: You agree to indemnify, defend, and hold Company, its agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers, attorneys, advertisers, product and service providers, and affiliates harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, arising out of violation of these Terms and Conditions of Use.

Require that contractor name the owner as an additional insured

 

WESLEY MANAGEMENT COMPANY – Jupiter, FL

12/01/2020 – Require that contractor name the owner as an additional insured

REQUIRE THAT CONTRACTOR NAME THE OWNER AS AN ADDITIONAL INSURED

Contractors and subcontractors often designate owners as “additional insureds” on their insurance policies, which means policy coverage is extended to the owner. This is a common practice with commercial general liability policies, and individuals and entities can be given additional insured status.

The protection provided to owners is more limited than the policyholder’s. The specifics depend on the policy, but additional insured status affords some crucial protection, such as:

1. Defense coverage (when a third party sues the additional insured, the policy can address the claim in a way that legal defense fees, court fees, and settlement or judgment costs don’t come out of the additional insured’s pocket)

2. Coverage for certain third-party lawsuits (often including claims of bodily injuries, property damage, and advertising injuries. Most often, additional insureds are added to general liability insurance policies, but in certain situations they may be added to property insurance policies.

About Company

WESLEY MANAGEMENT COMPANY Consulting company servicing Owners, (POA/HOA) Associations, Developers & Contractors with capital improvements and construction projects. Providing management consulting services in the areas of:

• Construction Management: Administration & coordination to deliver a project from inception to completion; meeting the Client’s budget & standards

• Owner/Contractor Representation: Observations verifying work proceeds per specification; confirming installations are monitored for compliance with the contract documents

• Expert Opinion & Witness: Post construction claims analysis, forensic observation & accountability

• Insurance & Mitigation Inspections: Inspections & observations for purchase, or insurance verification & discount

Mission Statement

Assisting to complete contract obligations & achieve Client satisfaction

Licensing & Insurance

Licenses, Certificates of Insurance and pre-qualification information may be furnished upon request. Our firm maintains State, Federal and OSHA requirements for Safety Plans, HAZCOM Communication, Drug Free Work Place and as an Equal Opportunity Employer.

Licensed for commercial drone/UAS operations per FAA Part 107 Certification. Professional liability and job specific aerial drone insurance can be provided.

Certificates

Members of the Company hold certifications for specialty trades, training & licensing, in addition to State required continuing education.

History

Over thirty years experience in providing construction management on projects.

For more information, visit wesleymanagement.com or call 561 316 7678.

PRESS RELEASE & BLOG TERMS & CONDITIONS OF USE

ACCEPTANCE OF TERMS: Please read the following terms and conditions of use carefully, as use of this press release/blog post, including applicable source(s) and website(s), is subject to the following terms of use. Please do not use, or rely upon this information, if you do not agree to these terms. 

COPYRIGHT AND REPRODUCTION NOTICE: Copyright © WESLEY MANAGEMENT COMPANY LLC (Company); all rights reserved. Most material and information, including site design, text, graphics, and the selection and arrangement thereof are copyrighted by Company. Company’s logo, graphics and icons are trademarks of the Company, and may not be copied, reproduced, republished, posted, transmitted, or distributed in any way without proper written authorization from Company. Other trademarks, product names, and company names or logos used here are the property of their respective owners. Notwithstanding, you (User) are hereby granted nonexclusive, nontransferable, limited license to use information for User’s personal, informational, non-commercial purposes, provided the content is not modified or altered in any way, and copyright or trademarks rights are not infringed upon. 

DISCLAIMER & CONDITIONS OF USE: All rights reserved. Material provided is for informational purposes only, and should not be taken as an indication of current or future results, nor offered as advice on any particular matter. Transmission of this information is not intended to create, and receipt does not constitute a relationship between Company and the User. The User should refrain from acting on the basis of any matter contained in Company’s sites without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue. Any reference to legal principles or law is provided for better understanding of the subject, and may become outdated or inapplicable. 

The Company assumes no liability for any content posted, submitted, communicated, shared, discussed or generated through blogs, discussion boards, or other public areas (“User Generated Content”), nor do we guarantee its truthfulness, accuracy or completeness.

THIRD PARTY CONSENT: To the extent that goods, services and any other content are available from third parties through this press release/blog post, Company is not liable, or responsible in any manner for your dealings and/or interaction with third parties. Company assumes no liability for any mistakes, misstatements, defamation, omissions, falsehoods, opinions, representations or any other form or content or communication from a third party.

PRIVACY STATEMENT: User understands Internet Service Providers (ISP) and Web Content/Hosting Providers (WHP) monitor Users for their use and analytics. Users understand information provided will be used by various ISP & WHP providers and made available to Third Parties without Company's consent or knowledge.

TERMINATION AND CHANGE: Information may be changed or updated without notice. Company has no liability for the timeliness, deletion, failure to store, inaccuracy or improper delivery of any data or information contained within this site.

INDEMNIFICATION: You agree to indemnify, defend, and hold Company, its agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers, attorneys, advertisers, product and service providers, and affiliates harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, arising out of violation of these Terms and Conditions of Use.