An Administrator's Guide to California Private School Law

Chapter 17 – Construction

claim exceeds a certain amount or if mediation is unsuccessful. If a school is considering including an arbitration provision, it should consider the rules that will govern any arbitration, including whether the arbitration is binding. Schools should also confirm that their insurance company will cover the costs of arbitration. C. A RCHITECT D ISPUTES Most disputes between the architect and the school will be for breach of the contract. The school may also, depending on the specific facts, maintain a cause of action for professional negligence against the architect. Keep in mind, however, that including such a cause of action will generally trigger the architect’s errors and omissions policy and the issuing insurance company will be involved in the lawsuit. This may facilitate or hinder settlement of the lawsuit with the architect. Other potential causes of action between the school and the architect include indemnity and contribution (in the event of claims or a lawsuit by the contractor or other parties in the project), misrepresentation, and negligence. Like contractors, before an architect may file a lawsuit against the school, it may have to exhaust the dispute resolution process if such a process is set forth in the contract documents. Before the school may proceed with a lawsuit against an architect for professional negligence, the school must obtain an opinion from another architect that the project architect was negligent in the performance or failure to perform work required by the contract. 2431 The school’s legal counsel must prepare and file a declaration with the lawsuit setting forth that the school obtained this opinion. The school is only required to disclose the identity of the architect who provided the opinion under specified limited circumstances. Litigation involving architects is often costly to prosecute and defend. This is because the school and the architect will generally retain experts, who must be deposed and prepared for trial. D. S UBCONTRACTOR A ND S UPPLIER D ISPUTES Mechanics lien and stop payment notice litigation is generally initiated by subcontractors or suppliers filing a complaint with the proper court. Schools should immediately forward a copy of the complaint to legal counsel upon receipt. Legal counsel will obtain information regarding the project in order to properly analyze the school’s options and liability exposure. Schools should maintain the following documents and information to assist in that analysis:

 A complete copy of the bid and contract documents between the school and the general contractor, including all approved amendments, addenda, and change orders;  A copy of the payment bond for the project, if any;  The progress and status of the project;  All stop payment notices that have been filed with the school and any that may be expected;

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