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List of Forms by Chapter - Chapter 1 — Representing the Architect
- I. [1.1] Introduction
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II. Transactional Issues - [1.2] Licensing and Ethics
- [1.3] Need To Be Licensed Generally
- [1.4] Individuals
- [1.5] Firm
- Illinois Architecture Practice Act of 1989 and Regulations
- [1.6] What Is the Practice of Architecture?
- [1.7] Professional Conduct
- Under Direct Supervision and Control
- [1.8] In General
- [1.9] Impact of Outside Drafting Services
- [1.10] Licensing for Out-of-State Projects
- Trying To Obtain the Project
- [1.11] Responding to a Requests for Proposal
- [1.12] Whether To Submit a Proposal
- [1.13] Competitive Bidding of Professional Services
- [1.14] Structure of the Design Team
- [1.15] Assessing the Project
- [1.16] Project Risk vs. Reward
- [1.17] Assessing the Details
- [1.18] Assessing the Client
- [1.19] Project Delivery Method
- [1.20] Traditional Project Delivery
- [1.21] Fast-Tracking
- [1.22] Construction Management
- [1.23] Design-Build
- [1.24] Summary
- [1.25] Ensuring Payment
- [1.26] Verifying the Ability To Pay
- [1.27] Limited Liability Entities as Clients
- [1.28] Contractual Incentives and Protection
- [1.29] Additional Services
- [1.30] Extent of the Owner’s Representative’s Authority
- [1.31] Retainers and Cash Flow
- [1.32] Options When Payment Is Late
- [1.33] Contracts for Preliminary Services
- [1.34] Describing and Defining Typical Preliminary Services
- [1.35] Preparing the Preliminary Contract
- [1.36] Ownership/License of Intellectual Property
- [1.37] Right To Finish the Project
- [1.38] Standard of Care
- [1.39] Damage Limitation
- [1.40] Waiver of consequential damages
- [1.41] Limitation of liability
- [1.42] Completing Someone Else’s Design
- [1.43] Working with Third-Party Consultants
- Collateral Issues
- [1.44] Confidentiality Agreements During the Proposal Phase
- [1.45] Documenting Important Communications
- [1.46] Signed Confirmation
- [1.47] Confirming Letter
- [1.48] Note to the File
- III. [1.49] Standard Form Contracts
- IV. Modern Trends
- V. Appendix
- Chapter 2 — Representing the Private Owner, Including Financing the Project
- I. [2.1] Introduction
- II. [2.2] Site Selection and Due Diligence
- III. [2.9] Choice of Business Entity
- IV. [2.16] Engagement of the Design and Construction Professionals
- V. [2.22] Deciding How the Project Will Be Funded
- VI. [2.23] Cost Estimates — Construction Budget
- VII. [2.26] Allocation of Risks
- [2.27] Cost Overruns
- [2.28] Delays
- [2.29] Payment and Performance Bonds
- [2.30] Insurance Considerations
- [2.31] Workers’ Compensation
- [2.32] Automobile
- [2.33] Commercial General Liability
- [2.34] Builders Risk
- [2.35] Environmental
- The Spearin Doctrine Warranty of Sufficiency of Plans and Specifications
- [2.36] In General
- [2.37] The Implied Warranty/Spearin Doctrine
- [2.38] The Moorman Doctrine — Economic Loss
- [2.39] Waiver of Consequential Damages
- [2.40] Liquidated Damages in Illinois
- VIII. [2.41] Conclusion
- Chapter 3 — Representing the Public Owner
- I. [3.1] Introduction
- II. What Constitutes a Public Project?
- III. [3.5] Enabling Legislation
- IV. Applicable Construction Procurement Laws
- V. [3.12] Project Programming Issues
- VI. [3.13] Other Financing Alternatives
- [3.14] State Government and Other Units of Local Government
- [3.15] Traditional Financing from Revenues and Receipts
- [3.16] Bond Financing
- [3.17] General Obligation Bond Financing
- [3.18] Revenue Bond Financing
- Bond-Related Statutes
- [3.19] The Bond Authorization Act
- [3.20] The General Obligation Bond Act
- [3.21] Bond Financing by Local Governments
- [3.22] Certificates of Participation
- [3.23] Turnkey Projects
- [3.24] Not-for-Profit Corporation-Issued Bonds
- [3.25] Tax-Increment Financing
- [3.26] Impact Fees
- [3.27] Grants and Allocations
- [3.28] Energy Savings Contracts
- [3.29] School Districts and Special Districts
- VII. Land Acquisition and Site Access
- VIII. [3.32] Geotechnical Studies and Archeological, Environmental, and Other Issues
- IX. Selecting and Engaging the Design Professional
- [3.33] Statutory Provisions
- Exemption from Compliance with the Acts
- [3.34] Existence of a Relationship with a Design Professional
- [3.35] Bona Fide Emergencies
- [3.36] Notice to Listed Firms or Publication
- [3.37] Selection Procedure
- [3.38] Definition of the Design Needs by the Owner’s Construction Program
- [3.39] Compliance with the Statutory Selection Procedure
- [3.40] Design Fees as a Criterion in the Selection Process
- X. [3.41] Selecting the Construction Delivery System
- XI. Resolving Interjurisdictional Disputes: How It All Fits Together — Or Does It?
- [3.42] In General
- [3.43] Federal Construction Projects
- [3.44] State Construction Projects
- Municipal Construction Issues
- [3.45] State Laws
- [3.46] Municipal Authority over Governmental Construction Projects
- [3.47] School Construction Projects
- [3.48] State Laws
- [3.49] Municipal Authority over School Construction Projects
- [3.50] Building Permits
- [3.51] Municipal Zoning Authority over School Construction
- [3.52] Community College Issues
- [3.53] State University Issues
- [3.54] Other Jurisdictional Battles Between Units of Local Government
- XII. [3.55] Public-Private Partnerships and the Constitutional Prohibition Concerning Private Use of Public Property
- XIII. The Public Entity’s Historical Information Base
- XIV. [3.59] Quality Control — In-House Expertise
- XV. Project Labor Agreements
- [3.60] In General
- [3.61] Definition of a “Project Labor Agreement”
- [3.62] Federal Labor Law and Project Labor Agreements in Public Construction
- [3.63] Other Legal Issues Bearing on Public Construction Project Labor Agreements
- [3.64] Illinois Executive Order No. 2003-13
- [3.65] Federal Executive Orders
- [3.66] Policy Considerations Bearing on the Use of Project Labor Agreements
- [3.67] Nondiscrimination Against Nonunion Contractors
- XVI. Minority, Women, and Disadvantaged Business Enterprise Requirements in Public Contracting
- XVII. [3.73] Conclusion
- XVIII. Appendix — Checklists
- Chapter 4 — Representing the General Contractor
- I. [4.1] Introduction
- II. [4.2] The Construction Contract
- Types of General Contracts
- [4.3] Build-to-Print Contract
- [4.4] Fixed-Price Contract
- [4.5] Cost-Plus Contract
- [4.6] Construction Management Contract
- [4.7] Letter of Agreement
- Material Terms for the General Contract
- [4.8] Determining Costs and Fees
- [4.9] Project Requirements and Specifications
- [4.10] Liquidated Damages/Bonuses for Early Completion
- [4.11] Choosing To Use/Discontinue the Use of Subcontractors
- [4.12] Surety Bonds for Contractors
- [4.13] Insurance
- [4.14] Liability Insurance for Owners
- [4.15] Liability Insurance for Contractors
- Typical Risks Encountered by Contractors
- [4.16] Getting Paid
- [4.17] Responsibility for Damaged or Destroyed Property During Construction
- [4.18] Clauses Related to Site Conditions
- [4.19] Delays to Completion of the Project
- [4.20] Determining Liability for Defective Work
- [4.21] The Difference in Contractor Warranties
- [4.22] Remedies for Breach
- [4.23] Determining Damages
- [4.24] Public Projects
- [4.25] The Bid Package
- [4.26] Substitution of Materials, Products, or Equipment
- [4.27] Clarity of the Scope
- [4.28] Award of the Contract
- III. [4.29] Conclusion
- IV. [4.30] Sample Construction Agreement
- Chapter 5 — Representing the Specialty Trade Contractor
- I. [5.1] Introduction
- II. What Is a Specialty Contractor?
- III. [5.4] Bidding the Job
- IV. Considering Whether To Submit a Bid or Price on a Particular Project
- [5.11] Type of Project
- Type and Financial Backing of Ownership
- [5.12] Payment
- Public Projects
- [5.13] Illinois Municipal Bodies
- [5.14] State of Illinois
- [5.15] Federal Projects
- [5.16] Specifically Specified Products or Sources of Materials
- [5.17] Private Projects
- [5.18] Mixed-Ownership Projects and Public-Private Partnerships
- [5.19] Bonded Projects
- [5.20] Other Considerations
- [5.21] Prevailing Wage Acts
- [5.22] Minority Business, Women’s Business, Disadvantaged Business, and Small Business Enterprises Participation
- [5.23] Ability To Meet the Schedule
- [5.24] Ability To Meet the Bonding Requirements
- [5.25] Insurance Requirements
- [5.26] Communication Requirements
- [5.27] Are the Plans and Specifications Sufficiently Complete?
- [5.28] Impact of a Pay-If-Paid Clause
- [5.29] Termination-for-Convenience Provisions
- V. [5.30] Construction Delivery Systems and the Trade Contractor
- [5.31] Prime Contractor Delivery System
- [5.32] Design-Bid-Build Delivery System
- [5.33] Developer as Owner and Contractor Delivery System
- [5.34] Multi-Prime Contracts Delivery System
- [5.35] Construction Manager as Agent of the Owner Delivery System
- [5.36] Construction Manager at Risk Delivery System
- [5.37] Design-Build Delivery System
- [5.38] Lean (Collaborative Construction)
- [5.39] Building Information Modeling
- VI. [5.40] Subcontractor and Supplier: Different Laws Apply
- Chapter 6 — Representing the Construction Lender
- I. [6.1] Introduction
- II. Due Diligence
- [6.2] Borrower Information
- [6.3] Organizational Documents
- [6.4] Title Review
- [6.5] Purchase and Sale Agreement
- [6.6] Vesting Deed
- [6.7] Ground Lease
- [6.8] Space Leases
- [6.9] Credit Issues Related to the Borrower — Character, Capacity, and Capital: The 3 Cs
- [6.10] Property Tax Information
- Property Information
- Zoning
- [6.11] In General
- [6.12] Wetlands
- [6.13] Survey
- [6.14] Environmental Assessment
- [6.15] Flood Certification
- [6.16] Availability of Utilities
- [6.17] Project Information
- Permits and Licenses
- [6.18] What Permits/Licenses Need To Be Obtained Prior to Construction?
- [6.19] What Entities Must Approve?
- [6.20] Plans and Specifications
- [6.21] Has Local Authority Approval Been Obtained?
- [6.22] Will the Land Support the Structure?
- [6.23] Is the Construction Schedule Realistic?
- [6.24] Appraisal
- [6.25] Insurance
- [6.26] Budget
- [6.27] Architect and Construction Contract Approval and Assignment
- [6.28] Takeout Commitment Review
- III. Initial Loan Documentation
- IV. Loan Documentation
- [6.32] The Construction Loan Agreement
- [6.33] Representations and Warranties
- [6.34] Disbursements
- [6.35] Initial Disbursement
- [6.36] Subsequent Disbursements
- [6.37] Borrower Covenants
- [6.38] Construction-Specific Default Provisions
- [6.39] Construction-Related Remedies
- [6.40] Miscellaneous Provisions
- [6.41] The Mortgage
- [6.42] Collateral Assignment of Construction Contract, Architect’s Contract, Plans and Specifications, and Design-Build Contract and Powers of Attorney
- [6.43] Guaranty of Completion
- [6.44] Promissory Note
- Alexandra R. Cole
Alexandra R. Cole
Alexandra R. Cole is a Partner with Perkins Coie LLP in Chicago, where she focuses on real estate transactions and development, hospitality, international real estate, project finance, and construction law. In addition to writing for IICLE®, Ms. Cole has been a presenter for numerous professional organizations, including for the Society of Illinois Construction Attorneys, Crew Resilient Leadership Workshop, and American College of Real Estate Lawyers. Ms. Cole is ranked by Chambers USA as one of America’s Leading Lawyers in Construction, Real Estate, and Leisure and Hospitality. She has also received the Women in Real Estate 2010 Career Achievement Award from the Illinois Real Estate Journal. She is a member of American College of Real Estate Lawyers, a member of the Steering Committee for the Society of Illinois Construction Attorneys, and a Founding Board Member of the Hospitality Industry Bar Association. Ms. Cole received her B.A. cum laude from DePauw University and her J.D. from the University of Chicago Law School.
- Edward L. Filer
Edward L. Filer
Edward L. Filer is Of Counsel at Roetzel & Andress, LPA, in Chicago, where he focuses on construction, real estate, and banking law. He is consistently selected by his peers as a Super and Leading Lawyer in the area of Construction Law. He currently serves as the Partner in Charge of the Chicago office of Roetzel & Andress, LPA as well as the Cochair of its construction group. He is a member of the Illinois Society of Construction Lawyers, the Illinois Banking Association, and the Construction Financial Risk Managers Association. Filer received his B.A. from the University of Michigan and his J.D., with honors, from the University of Wisconsin Law School.
- Scott R. Fradin
Scott R. Fradin
Scott R. Fradin is a Principal and Cochair of the firm’s Construction Group at Much Shelist, P.C., in Chicago. He is also a licensed architect. Fradlin is a member of the American Bar Association’s Forum on Construction Law, a member and Past President of the Society of Illinois Construction Attorneys, and a Past Chair of the Chicago Bar Association’s Construction Law and Mechanics Lien Subcommittee. He has been recognized by Chambers USA and the Leading Lawyers Network as a top Illinois lawyer in the area of construction law and has been named one of the top real estate attorneys in the Midwest by Midwest Real Estate News. Fradin received his B.S. and M.S. from the University of Illinois and his J.D. Order of the Coif with high honors from Chicago-Kent Chicago of Law.
- Mark C. Friedlander
Mark C. Friedlander
Mark C. Friedlander is a Partner with Schiff Hardin LLP in Chicago, where he concentrates his practice in construction law. He is an adjunct professor at the University of Illinois at Chicago Graduate School of Architecture, he is on the Editorial Board for the Journal of Construction Accounting & Taxation, and he is a frequent speaker and author on topics relating to design-build construction and other areas of construction law. Mr. Friedlander was rated #1 in Illinois Construction Law by Leading Lawyers Magazine — Real Estate, Construction & Environmental Edition, named an Illinois Super Lawyer, and rated #1 in National Construction Litigation Practice by Chambers USA. He is on the Board of Governors for the American College of Construction Lawyers, President of the Society of Illinois Construction Attorneys, and Chair of the Professional Practices and Contracts Committee with the Design-Build Institute of America. Mr. Friedlander received his B.A. with high honors from the University of Michigan and his J.D. from Harvard Law School.
- Samuel H. Levine
Samuel H. Levine
Samuel H. Levine is Of Counsel to Bryce Downey & Lenkov LLC in Chicago, where he concentrates in mortgage foreclosure, real estate litigation, construction, and mechanics lien. He is a member of the Illinois State Bar Association and Past Chair of its Collections and Bankruptcy, Real Estate, and Construction Law Section Councils; a member and Past President of the Society of Illinois Construction Attorneys; and a Past Chair of the Bankruptcy and Real Estate Litigation Committee of the American College of Real Estate Lawyers. Mr. Levine received his B.A. from Washington University in St. Louis and his J.D. from the Chicago-Kent College of Law.
- Lorence H. Slutzky
Lorence H. Slutzky
Lorence H. Slutzky is the Principal at the Law Office of Lorence H. Slutzky, Ltd., in Glenview, where he concentrates in the law of architecture, engineering, procurement, and construction of the built environment. Mr. Slutzky is a fellow of the American College of Construction Lawyers and a founder, officer, and former president of the Society of Illinois Construction Attorneys. He has acted in the capacity of an advisor, negotiator, litigator, mediator, and arbitrator and was for many years an adjunct professor at the University of Illinois Chicago’s School of Law’s postgraduate Center for Real Estate Law teaching construction law. He is admitted to practice in Illinois and recently retired from the Florida Bar, where he was certified as a Construction Specialist. Mr. Slutzky received his B.S. from Southern Illinois University, attended the University of Exeter, England, through William & Mary, and received his J.D. from the University of Illinois Chicago School of Law.
- Adam C. Toosley
Adam C. Toosley
Adam C. Toosley is a Partner at Smith Gambrell Russell LLP in Chicago, where he focuses his practice on real estate. He received his undergraduate degree from the University of Illinois Urbana-Champaign and his J.D. from the University of Illinois College of Law.
- Joseph B. VanFleet
Joseph B. VanFleet
Joseph B. VanFleet is a Managing Partner at Howard & Howard Attorneys PLLC in Peoria, where he concentrates his practice in business litigation. He is a member of the American and Illinois State Bar Associations and the American Inns of Court. Mr. VanFleet received his B.S. with high honors from the University of Illinois and his J.D. from the University of Illinois College of Law.
Representing the Parties to a Construction Project (ARCHIVED 2015 EDITION)
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