Engineering assignment
qais
EGRBook.pdf
Tt
EGR445
Course
Book
2nd Ed.
ROLE OF THE
DESIGN
PROFESSIONAL
IN
SOCIETY
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Editor
John W. Tulac
Contributors
William A. Kitch
Abdul Rashidi
Jana Spruce
John W. Tulac
Cover Photograph
Alan Palermo
Interns
Clayton Becker, Columbia University (Class of 2020)
Beth Winchell, Cal Poly Pomona (B.S. 2007)
Copyright 2017 All rights reserved. No part of this course book may be reprinted, reproduced,
transmitted or utilized in any form or by any electronic, mechanical or other means,
including photocopying, microfilming, and recording, or in any information retrieval
system without the written permission of the Editor.
First Edition published in the United States in 2010 by University Readers.
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READ THIS FIRST!
This is not a typical textbook or collection of course material to be used in conjunction with a textbook. You are also required to watch some online lectures and to use other material posted on Blackboard
or access other websites to read material that is relevant to this course. You may be able to skate (barely) through this class by not doing so, but you will eventually regret missing the opportunity to
learn real-world skills that will immediately benefit you in your career. There are three themes or threads that relate to everything covered
in this course. They are:
1. Professionalism
2. The Standard of Care 3. Effective Communication
You are required to memorize and know how to apply the attributes of professionalism in all that you do in your professional lives.
You are required to memorize and apply the ordinary and professional standards of care.
You may think you know how to be an effective communicator. Most of you aren’t good writers and are even poorer public speakers. Effective communication also requires good listening skills. We can’t
teach you effective writing, speaking, and listening skills in ten weeks. We can only model them for you as well as we can. Those of you whose writing skills are deficient are at a severe disadvantage on the
exams. We urge you to seek appropriate help. This new edition of the course book renders the previous version
obsolete. All the homework assignments are new and based on the new course book. The new course book is being sold only in electronic form for two reasons: The first reason is to keep the cost low for you.
All proceeds go to the department, not to the faculty who created this course book. The second reason is to keep the course book completely current from quarter to quarter. This means the course
book is yours to keep (and well you should) as a reference work. It has no resale value.
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TABLE OF CONTENTS
PART ONE – CHAPTERS 1. Project Delivery and Selection
2. Law, Critical Thinking, and Good Communication
3. Tort Law 4. Risk
5. Contract Law
6. Contract Development 7. Business Planning and Marketing
8. Budget Planning
PART TWO – READINGS AND RESOURCES
1. Attributes of a Profession by Ernest Greenwood
2. Code of Ethics for Engineers - National Society of Professional Engineers
3. Rules of the Board for Professional Engineers and Land Surveyors – California Code of Regulations Title 16 Division 5 §§400-476 as amended 2017
4. Professional Engineer’s Act – Business and Professions Code
§§6700-6799, as amended 2017
5. List of Books about Engineers and Engineering (General Interest)
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PART THREE – CONTRACTS
1. Los Angeles Air Force Base Environmental Assessment 2. Bellevue Youth Theater Expansion
3. City of Rancho Palos Verdes Professional Services Agreement
4. Service Order General Conditions to Service Other Contracts 5. Excerpts from a Typical Construction Contract
6. Master Agreement between Inland Architects, Inc., and Big Corp.
for Architectural/Consulting Services Alliance
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The Role of the Design Professional in Society 1
Chapter 1: Project Delivery and Selection
By William A. Kitch
Main Ideas:
How do major projects actually get designed, created, and
delivered to the client or user? How are the designers and the
fabricators or builders selected? What is the role of the design
professional in this process?
In order to answer the last question we must first address
the preceding two questions. The way the project delivery is
structured defines the playing field on which the design
professional will play.
The selection process lays down the rules of the game.
Without understanding the playing field and the rules of the
game, you will be a spectator in the stands rather than a player
on the field. The goal of this article is provide structure and
language to describe the different ways projects are delivered
and designers and constructors are selected. In truth there are a
myriad of methods for both delivery and selection and many
different terms used to label the various methods.
In this article we will develop a simple but useful model for
delivery and selection. We will also build a common language for
describing the methods. As you start your professional career,
you will run into different models and different terms for project
delivery and selection; but if we do a good job in this article, you
will have a solid base to understand all the variations and flavors
that currently exist in practice.
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2 Project Delivery and Selection
Project Phases
Whatever the project, a bridge, a home, a video game
console, or a golf course, the project begins with an idea or a
need perceived by the user. It is a long road from the user’s first
perception of a need, to the delivery of the final project.
Delivering major projects is a process that can take years or
even decades. There are many steps in the process and many
different persons involved.
Nobody ever woke up in the morning and said “Hey, I
think I’d like to build a 27,000 square foot warehouse today,”
and then went and hired a contractor to build the warehouse.
Most users are not design professionals and are therefore not
able to determine the best way to meet the need they have
identified. The users’ initial statement of need is often very
simple:
• We need to reduce congestion on the 10 freeway
between the 57 and the 605.
• We need a warehouse that will meet our business
demands for the next 15 years.
• I want a larger house.
It is not possible to go from identification of a need directly
to building a solution unless the need is so simple and common
that solutions already exist and can be bought off the shelf. If
you have a very simple need such as storage for a lawnmower,
then you can buy a prefabricated storage shed and erect it in
your backyard.
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The Role of the Design Professional in Society 3
However, for needs even slightly more complex than this,
there are several steps between identifying the need and
building the solution. For any significant project it is not possible
to go directly from need to solution.
What, then, is the first step after identification of a need?
Many people would answer design. This may sound like a
reasonable Society approach; identify your need, design a
solution, and then you’re ready to build the solution.
However, this is usually a recipe for an expensive solution
that doesn’t really meet the user’s need. To understand why one
cannot jump directly from a need to design, imagine you are an
architectural & engineering designer and a user comes to you
and says “We need a warehouse that will meet our business
demands for the next 15 years.” Would you immediately start
designing the structure? Would your staff start sizing the beams
and columns, designing the façade, and lay out the parking lot?
No! And why not? Because you still don’t have the input
needed to start designing. You don’t know how big the
warehouse needs to be. You don’t know if it needs office space
and if so how much. You don’t know the user’s aesthetic
requirements. Will they be happy with a tilt-up structure or do
they want something more architecturally pleasing? Do they
want to pay for a facility that will last for 75 years or are they
happy to use it for 20 years and move on when it needs major
repair or refurbishment? How many trucks will need to be loaded
at one time? How much parking is needed?
To put it another way, the designer cannot start designing
until she has the specific requirements for the design. In this
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4 Project Delivery and Selection
example, the required square footage, amount of truck traffic,
material to be stored, aesthetic requirements, and expected life
span are all required before design can start.
So there is a step between identifying the need and
starting design. We will call that step planning. We can now
define the four phases that every project will go through:
Planning, Design, Construction, and Use (or Occupancy).
Traditionally, in the construction industry these phases
have been accomplished in a simple linear process as shown in
Figure 1.1a.
Planning
The initial phase of project delivery is the planning phase.
The objectives of this phase are to turn the user’s identified need
into a clearly defined set of requirements, develop a program
cost estimate, and identify funding resources. The first two
objectives, requirements definition and program cost estimation,
normally require the services of engineers.
Continuing with our warehouse example, the requirements
definition would start by gathering data about the project. The
designer would need to determine the square footage required
for the warehouse. This information would come from the
business records of the company and industry estimate of the
amount of storage space required for the material being stored.
The user’s operations requirements would dictate the
number of loading docks required, as well as the required
parking spaces. A preliminary site investigation may be required
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The Role of the Design Professional in Society 5
to determine whether the structure can be built on a shallow
foundation or if it will require a deep foundation.
The goal at this point is to gather all information needed
to develop a general scope for the project and identify the major
cost items.
Once the general scope is determined (square foot- age of
warehouse, office, parking requirements) the designer can
develop options for the user. Options may include different sites,
different sizes, or different quality of facilities. For each option, a
program cost must be developed. The program cost is essentially
a budgetary cost. It is generally based on historic construction
cost data and broad measures of the project scope such as
square feet of warehouse space, square feet of pavement, or
linear feet of sidewalk.
The purpose of the program cost is to provide enough
financial information to allow the owner to evaluate alternatives
and to budget funds for the project. Program level cost
estimates should include total project costs, including
construction management, permitting, and other non-
construction costs.
Generally, program costs are satisfactory if they are within
20 to 30 percent of the final project costs. Once options have
been developed with program costs, the user is able to make a
business decision about the best approach to meeting the
identified need.
In our warehouse example, the user may end up having to
choose between two sites. The first may be close to her current
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6 Project Delivery and Selection
location, thus providing low operational costs, but may provide a
limited area with no expansion capability. The alternative site
may be further away with lower construction costs and
expansion capability, but have increased operational costs due to
the distance from her current operations.
For both options the designer should provide the scope and
cost data needed for the user to evaluate and select between the
options.
The planning phase is complete when the user has
identified a general scope of the project, defined the design
requirements, determined the overall expected project costs,
and identified potential funding sources.
There are many roles for design professionals to play
during the planning phase. Designers and planners are needed
to translate the user’s need into specific design requirements, to
develop cost estimates, and to evaluate the alternatives. Some
users, such as large utility companies, or state departments of
transportation, may have the in-house engineering capability to
complete the planning function. Other users, such as retail sales
companies or small municipalities, may have to contract for the
needed engineering and planning services.
Design
When the project scope and the design requirements are
set, project design can start. The objective of the design phase is
to develop the plans and specifications needed to build the
project. The level of design detail needed will depend on the
project delivery method.
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The Role of the Design Professional in Society 7
The traditional linear system shown in Figure 1.1a
generally requires a complete set of detailed plans and
specifications. The complete plans and specs as well as a
construction cost estimate are needed before proceeding to the
construction phase. In the fast track process, shown in Figure
1.1b, it is often possible to reduce the level of detail required
during design. This can provide a significant cost savings to the
users. The differences between the linear and fast track
processes will be discussed further in the section on Project
Delivery Methods.
The design phase is, perhaps, the area most often
associated with design professionals. This certainly is the phase
of the project requiring the most extensive use of design skills
and personnel. The breadth of design skills needed will vary
greatly with type of project.
An industrial project, such as our warehouse example, will
require relatively few architectural skills and mostly engineering
skills. The design of an upscale office park, in contrast, may
require much more architectural design. Meanwhile, subdivision
design makes extensive use of urban planners, civil and
transportation engineers, and little architectural design.
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8 Project Delivery and Selection
Construction
The vast majority of work done during construction is the
actual craft and trade work required to physically complete the
project. However there is significant use of design professionals
in this phase. The project designers will complete all of the
design engineering work needed to prepare the final plans and
specifications.
However, there is still much design work needed beyond
what is included in the plans and specifications.
For example, temporary structures required only for
construction such as false work or shoring must be designed.
Construction contractors often require design services to prepare
alternative specifications or to develop specific construction
techniques. There is extensive communication between the
designer and constructor during this phase. It is common for the
Planning Design Construction Occupancy a) Traditional
Linear Process
b) Fast Track
Process
Planning
Design
Construction
Occupancy
Idea Solution
Figure 1.1: Project Phasing
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The Role of the Design Professional in Society 9
designer to have a resident engineer on site at the construction
project.
The role of this resident engineer is to communicate
between the construction contractor and the designer. The
resident engineer provides the designer and owner information
about the progress of construction and provides the construction
contractor with interpretations of the plans and specifications
from the designer. Another function required during the
construction phase is construction management. This role is
often filled by an engineer.
Occupancy
While some may think there is little role for the engineer
during the occupancy phase this is not true. The amount of
engineering services needed during occupancy will vary
significantly with the type of project, but in nearly all cases there
is a significant role for engineering.
Facility or maintenance engineering is required during the
life of most projects in order to keep the project or facility in
good operating order and to minimize the life cycle costs of
owning the facility. This is true of roads, bridges, utility systems,
and buildings.
During the initial occupancy there is a lot of
communication amongst the designer, the constructor, and the
facility or maintenance engineer. The maintenance staff may
require training to properly operate mechanical and electrical
systems. Preventative maintenance programs must be
developed often with the input of the designers.
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10 Project Delivery and Selection
There will often be discrepancies between the design
specifications and the operational capabilities. It normally
requires engineering analysis to determine if the discrepancies
are due to design deficiencies or construction problems.
It is useful to distinguish among the planning, design,
construction, and occupancy phase, but it is often difficult to
draw clear boundaries between them. Properly completing each
phase requires a mix of skills, but engineering and design skills
are required in all phases of project delivery.
Project Delivery Methods
As discussed earlier, the project delivery process requires
many different skills including finance, costing, designing,
engineering and planning. Each phase of the process has distinct
goals and requires a special mix of skills.
In all cases it requires a team or teams of people to
complete a project. How these teams are selected, organized,
and managed has significant impacts on how the project will
proceed. We will use the term “delivery method” to describe the
combination of contract organization and contractor selection
that creates the organization of teams responsible for planning,
designing, constructing, and delivering a project.
There are two critical variables that determine the type of
delivery method. These are the contract structure (number of
contracts) and the process used to select designers and
constructors.
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The Role of the Design Professional in Society 11
By evaluating these two variables we are able to classify
the most common delivery methods.
Contract Structure
Usually, the user or project owner will have to contract for
both the design and construction services needed to complete a
project. In some cases an owner may have in-house design
resources.
For example, Caltrans has extensive design capability and
performs design services for many (but not all) of their projects
with in-house resources. In most cases the owner is contracting
for both design and construction services.
There are two basic ways to organize the contracts. In the
traditional method, the owner lets two separate contracts: one
for design services and one for project construction. This
contract structure is shown in Figure 1.2a. The designer
completes the design and provides complete plans and specs for
the project.
This structure gives the owner the most control over the
design process but provides the least amount of collaboration
between the designer and the constructor. In the design-build
process, the owner lets a single contract for both design and
construction services. This contract structure is shown in Figure
1.2b.
This structure provides for the best collaboration between
designer and constructor and has the potential for reducing both
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12 Project Delivery and Selection
total time and cost of the project. However, this method gives
the owner the least control over the process.
Selection Methods
There are many different methods for selecting design and
construction services. However, most of these methods can be
classified into one of three categories: low bid, best value, and
qualification based selection.
1. Low Bid
The distinguishing characteristic of the low bid selection
process is that selection is based strictly on price. There are
different ways to specify the price. The price may be lump sum,
a single price for all services, or it may be based on unit pricing.
In unit pricing, rather than specifying the total cost of a project,
the price is divided into areas and payment for each area is
based on the unit prices.
For example, base course placement may be priced in
cubic feet of in-place compacted base course; painting may be
priced in square feet of walls painted. Regardless of how the
price is structured, this selection process is based solely on
price.
2. Best Value
The distinguishing characteristics of the best value process
are that the selection is made using both costs and some
measure of the qualifications or quality of services provided by
the bidder.
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The Role of the Design Professional in Society 13
Since it is not possible to put a monetary value on the
qualifications of the bidders, this method uses some sort of
weighting system to evaluate both qualifications and price.
The weight systems used vary greatly. Although there is
no standard weighting system, a typical best value method is
called the two step or two envelope method. In this method
bidders provide separate qualifications and cost proposals. The
qualifications are evaluated first by the owner and each
competing firm is given a score based on the firm’s
qualifications.
Next the cost proposals are evaluated. The owner then
uses the cost proposal and the qualification rating to determine
which firm is the best value to the owner. Conceptually, this
method gives the owner the ability to pay more for a higher
quality firm.
However, because it isn’t possible to put an exact cost on a
given level of quality, it is difficult to determine and defend the
tradeoff between cost and quality.
3. Qualifications Based Selection
(QBS)
The distinguishing characteristic of the QBS process is that
cost is not a selection criterion. In this process the selection is
based solely on the bidders’ qualifications. The price is
negotiated after the selection is made. The process follows these
general steps:
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14 Project Delivery and Selection
1. Owner defines general scope of work and
publishes a request for qualifications.
2. Interested firms prepare proposals listing their
qualifications, similar projects completed, and
approach to the proposed project.
3. Owner evaluates qualifications submitted and
selects the most qualified firm.
4. Owner and selected firm jointly define scope and
cost of project. This is where the price/cost tradeoffs
are made.
5. Once cost and scope are agreed upon, a contract
for the project is signed.
6. If owner and selected firm are unable to agree
upon cost and scope, owner moves on to next best
qualified bidder and attempts to negotiate cost and
scope.
Owner
General
Contractor
Responsible for
performance
A & E Firm
Responsible for
design
Owner
Design-Build Firm
Responsible for design and
performance
a) Separate contracts b) Single contract
Figure 1.2: Contract Structures
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The Role of the Design Professional in Society 15
Defining Costs
What does a project cost? The answer to this question
depends a lot on how you ask the question and to whom. In
order to be able to compare apples with apples, we must have a
common definition of costs.
We will use the following definition from the Georgia State
Financing and Investment Commission (1991).
The total construction cost (TCC) is the sum of:
• Construction Cost of Work: Material and labor
required to build the project
• General Conditions: Non material and labor costs
such as permitting, leases for site offices and staging
areas etc.
• Contractor’s Fee: Contractor’s profit
The design fees are the total cost paid for the design of the
project. The total design and construction cost (TDCC) is the
sum of:
• Total construction costs
• Design fees
Total Project Cost (TPC) is the sum of:
• Total construction costs (TCC)
• Design fees
• Balance of project costs: Costs such as construction
management fees, cost of capital, owner’s in-house
management costs, etc.
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16 Project Delivery and Selection
When comparing costs it is critical to understand if a
particular cost quote is the TCC, TDCC, or TPC.
Ultimately, the cost that should concern the owner is the
total cost of ownership (TCO) of a facility. This cost is the sum of
the TPC plus all the operations and maintenance (O&M) costs
incurred over the life of the facility. O&M costs far exceed TPC.
O&M costs often make up 80% or more of the TCO. The O&M
can be strongly impacted by the de- sign.
It is often true that one can decrease the TCO by spending
more on the TPC. For example making a building more efficient
may increase TPC but savings in O&M costs will far outweigh the
increased TPC and reduce the TCO.
Unfortunately TCO is often not considered in the project
delivery selection process.
Defining Delivery Methods
Using the variables of contract structure and selection
method we can define six different project delivery methods.
Table 1.1 identifies the various delivery methods based on the
number of contracts and selection process. Each delivery method
will be discussed in further detail.
Design-Bid-Build
Defining Characteristics: Separate contracts for
designer and builder. Builder selected solely on cost.
Other Typical Characteristics: The designer generally
completes 100% design before the build contract is let.
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The Role of the Design Professional in Society 17
Communication between designer and builder is through
the owner.
The design-bid-build process is shown in Figure 1.3. The
delivery method provides for the least interaction between the
designer and the builder. It is not amenable to fast tracking. It
does provide for the highest level of cost competition for the
construction phase since cost is the only selection criteria.
This method can be very successful for the owner for
projects with a well-defined scope that use well established
construction methods, and do not require or benefit from new or
innovative processes
Table 1.1 Project Delivery Methods
Contract Structure
Selection Process
Two Contracts
Designer & Builder
One Contract
Designer-Builder
Low Bid Design-Bid-Build Design/Build
Low bid
Best Value CM/GC
Best Value
Design/Build
Best Value
Qualifications Based
Selection
CM/GC
QBS
Design/Build
QBS
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18 Project Delivery and Selection
Construction Manager/General
Contractor with Best Value
Selection (CM/GC Best Value)
Defining Characteristics: Separate contracts for de-
signer and builder. Builder selected on qualifications and
TCC.
Other Typical Characteristics: Designer generally
completes a preliminary design before build contract is let.
Fast tracking is often used. Collaboration between designer
and builder determines final design and cost.
The CM/GC process is shown in Figure 1.4.
The delivery method generally provides for more
interaction between the designer and the builder because the
design is not complete when the builder is selected and the
owner needs to build a collaborative process with the designer
and builder to determine fi nal cost and scope.
This process is amenable to fast tracking but still requires
separate procurement time for both the design and construction
contracts. The cost portion of the evaluation in this process is
usually a guaranteed maximum TCC based on the preliminary
design. The final TCC is determined during the design and
negotiation process. In order to be able to accurately compare
costs, the preliminary design must be complete enough that
potential construction bidders can develop meaningful TCC
estimates.
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The Role of the Design Professional in Society 19
Construction Manager/General
Contractor with Qualifications
Based Selection (CM/GC QBS)
Defining Characteristics: Separate contracts for
designer and builder. Builder selected solely on
qualifications.
Other Typical Characteristics: Designer generally
completes a preliminary design before build contract is let.
Fast tracking is often used. Collaboration between designer
and builder determines final design and cost.
The process is the same as the CM/CG Best Value method
(Figure 1.4.).
The main difference between the two methods is that this
method does not require a cost proposal from potential builders
since the QBS process is based solely on qualifications. This
means that the preliminary design only needs to have a general
scope of the project.
The final project scope and cost will be negotiated after
selecting the builder. Note that in both of the CM/GC delivery
methods any cost savings realized in the design and scope
development phase go to the owner.
While this potentially provides the owner with a great deal
of value it does not incentivize the builder into taking risks that
could have potential cost savings since the builder would not
benefit from those savings.
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20 Project Delivery and Selection
Design-Build Low Bid
Defining Characteristic: A single contract for both
design and construction. Selection based solely on TDCC.
Other Typical Characteristics: Generally includes some
sort of fast track organization. Pricing usually based on a
guaranteed maximum TDCC.
The design-build process streamlines the total project
timeline by eliminating one contract procurement since both the
design and construction services are combined in a single
contract, as shown in Figure 1.5.
It also maximizes collaboration between designer and
builder since they are on the same team, under a single
manager. The low bid selection process maximizes cost
competition among bidders.
However, all of the savings a contractor might realize with
an innovative design-build idea are kept by the contractor. The
low bid selection method does not allow the owner to make cost-
schedule-scope trade-off s since the selection is based solely on
cost.
Design-Build Best Value
Defining Characteristics: A single contract for both
design and construction. Selection based on both
qualifications and TDCC.
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The Role of the Design Professional in Society 21
Other Typical Characteristics: Generally includes some
sort of fast track organization. Pricing usually based on a
guaranteed maximum TDCC.
The process is the same as other design-build delivery
methods, see Figure 1.5. Like other design-build methods, it
maximizes collaboration between designer and builder. The best-
value selection process allows the owner some control of the
cost-scope trade-off, since all bidders will generally have to
provide their design-build approach in the qualifications part of
the proposal
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22 Project Delivery and Selection
Figure 1.5: Design-Build Process
Figure 1.3: Design-Bid-Build Process
Idea Solution
Planning Design Construction Occupancy Bid
Design
contract let
Build
contract let
Figure 1.4: CM/GC Process
Idea Solution
Design
contract let
Build
contract let
Planning Pre-Design Design
Construction Occupancy RFP
Planning
Idea Solution
Design-Build
contract let
RFP Design
Construction Occupancy
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The Role of the Design Professional in Society 23
Design-Build QBS
Defining Characteristics: A single contract for both
design and construction. Selection based solely on
qualifications.
Other Typical Characteristics: Generally includes some
sort of fast track organization.
The process is the same as other design-build delivery
methods, see Figure 1.5. Like other design-build methods, it
maximizes collaboration between designer and builder. The QBS
selection process allows the owner maximum control of the
cost/scope trade-off since that negotiation occurs after selection
of the design-build contractor.
This delivery method requires the greatest sophistication
on the part of the owner to both select and negotiate with the
design-builder. Many owners use separate contracts with design
professionals to aid in the selection process.
Selecting the Best Project Delivery
Method
None of the project delivery methods is inherently better
than another. The selection of a project de-livery method will
depend on a number of variables including: policies of owner’s
organization, in-house engineering capabilities, project timeline,
and funding availability, just to name a few. What is important is
for owners, designers and builders to understand the different
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24 Project Delivery and Selection
characteristics of each method so that the project delivery
method can be carefully matched to a specific project.
The Design Professional’s Role in
Different Project Delivery Methods
Design-bid-build has been the traditional method of project
delivery, and most design professionals are familiar and
comfortable with this method. In this process the design
professional has played one of two roles: the project manager
for the owner (either on the owner’s staff or under separate
contract) or as the contract designer.
As the contract designer, operating under a design only
contract, design professionals have been used to working
directly with the owner with little direct interaction with builders.
The design-build models are quickly changing this relationship.
In most design-build contracts the prime contract is the builder,
and the designer is generally a subcontractor to, or minor
partner of, the builder. This new relationship has proved difficult
for many design professionals.
Some designers complain about the loss of authority that
comes from working for the builder rather than the owner. When
a designer works for the builder, the designer’s primary
responsibility is to the builder not the owner. Many designers
struggle to balance the responsibility to produce a low cost
design for the builder while meeting their professional standard
of care.
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The Role of the Design Professional in Society 25
Whatever role the design professional plays, it is critical
that the designer clearly understands the nature of the
relationship that is being undertaken before that designer agrees
to take on the work.
There is no reason for designers to avoid working under
design-build delivery systems rather than the traditional design-
bid-build systems they are familiar with. The designer simply
needs to understand their role in the delivery system, and how
to best apply their professional skills and standards to the
project at hand.
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26 Project Delivery and Selection
References:
Georgia State Financing and Investment Commission (2001),
Selecting the Appropriate Project Delivery Method
<http://dlg.galileo.usg.edu/ggp/id:s-ga-bf500-b-pm1-b2001-
bp75-belec-p-btext> (Dec. 12, 2007)
Associated General Contractors of America and National
Association of State Facilities Administrators (2004), Best
Practices For Use of Best Value Selections,
<http://qic.tbr.state.tn.us/Documents/Best_Value_06_07_04.do
c> (Dec. 20, 2007)
American Institute of Architects—Illinois (2000), Qualifi cations-
Based Selection A Guide Including Model Local Government
Policy and Procedures for Selecting Architects, Engineers and
Land Surveyors <http://www.acec-il.org/qbsguide.pdf> (Dec.
22, 2007)
Architects and Engineers Conference Committee of California
(1993) Qualifications-Based Selection: A Guide for the Se-lection
of Professional Consultant Services for Public Owners,
<http://www.cspe.com/FunctionalAreas/GovtAff
airs/QBSManual.pdf> (Dec. 22, 2000)
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The Role of the Design Professional in Society 27
Chapter 2: Law, Critical Thinking and
Good Communication
By John W. Tulac
Main Ideas:
Law is the framework for any civilized society (any
uncivilized society too, but we don’t want to go there).
Law covers just about everything that we do. We are
presumed to know the law. Go to the library. You’ll find several
rows of law books. You are presumed to know everything
contained in those books and they are only a very small part of
the total body of law. Remember . . .
IGNORANCE OF THE LAW IS NO EXCUSE!
Law is not for the lawyers. Law is for everyone. Anyone
can learn the basics of law relevant to everyday business and
everyday life.
Jurisprudence is concerned with the philosophy of law.
There are several schools of thought and the study of
jurisprudence is endlessly fascinating. It is also unnecessary to
our needs. For our purposes, law defines what is right or wrong
to do in our business and everyday lives. Law sets a minimum
threshold of conduct. To fall below the threshold is to engage in
unlawful conduct. Such unlawful conduct may be a civil wrong
(a tort or a breach of contract) or it may be a criminal wrong (an
act that is also deemed to harm not only the victim but against
society as well).
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28 What is Law?
In the United States, there are four sources of law. The
primary source is the United States Constitution. In a
jurisprudential sense “We the People” are the ultimate source of
law as embodied in the Constitution. The other sources of law
are statutory law, case law and common law, and administrative
or regulatory law. All four sources of law impact what we do as
businesspeople and citizens.
Exercise: When you think of law, what words come to
mind? List as many of them as you can. Give yourself fifteen
minutes.
Most people will associate law with justice. However, not
all laws are just. People also disagree about what might be just
under a given set of circumstances.
People also associate law with fairness. Law and fairness
often overlap but they are not the same things. In contract law,
the fairness of a contract is generally irrelevant. This isn’t as
difficult to accept as it might first seem. A toddler soon learns to
add “that’s not fair” to his list of most used and useful
vocabulary. However, what one comes to consider fair changes
as one grows up (of course, some people never grow up and
may need to be handled like toddlers).
Through the use of law, we hope to achieve objectively fair
and just results. And hell is paved with good intentions. Many
bad laws have been passed in the name of worthy causes. Many
had unexpected bad consequences.
Visit dumblaws.com for a hilarious collection of mostly well-
intended but nevertheless bad or just plain stupid laws. Here are
a few examples:
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The Role of the Design Professional in Society 29
• No vehicle without a driver may exceed 60 miles per hour.
• It is illegal to wear a fake moustache that causes laughter
in church.
• If two trains meet on the same track, neither shall proceed
until the other has passed.
• It is mandatory for a motorist with criminal intentions to
stop at the city limits and telephone the chief of police as
he is entering the town.
• Women are prohibited from wearing pants.
This course is not an academic exercise in the law. It is
designed to give you minimum competence in recognizing legal
issues. The focus in presenting the law is on what is practical.
You cannot learn everything you need to know in ten short
weeks. You can learn enough to recognize legal issues and to
develop an approach to prevent legal issues from becoming legal
problems. You will also learn a methodology to help you think
clearly and logically about legal issues.
Law, then, is for everybody. It is in your own best interests to
know the law that is relevant to what you do.
Law and the Design Professional
What does it mean to be a professional? As a licensed
engineer or architect you have some things in common with all
professionals including attorneys.
The law holds professionals to a higher duty or legal
responsibility than ordinary citizens for anything that is specific
or specialized to the professional’s expertise or practice. You will
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30 What is Law?
learn more about the professional standard of care, which
defines or measures this professional duty.
The law also considers a professional to be a fiduciary. A
fiduciary is subject to the highest standard of care that the law
requires of anyone. A design professional owes an obligation not
only to the client but also to the public at large. The design
professional must not only provide the client with what it wants,
but must also advise the client what it needs as well. A
professional provides services not only under contract to the
client, but with a broader responsibility to the public as well. For
a design professional, that broader responsibility includes a
commitment to public safety.
A professional is licensed. This means that the state
reserves the right to set the standards for admission to the
profession and confer the right of the individual to be known as a
professional. A professional is subject to a code of ethics.
Everyone has an obligation to be ethical. A professional,
however, is subject to specific rules of conduct that are codified
and must be followed for the professional to remain in good
standing.
Structure of Law and Legal Analysis
Law covers virtually every subject matter. Law is organized
into many categories. In this class we deal primarily with the
categories of tort and contract law.
Human beings are held accountable for their actions and
sometimes their failures to act. Conduct is examined under the
law pursuant to objective standards. The law does not require
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The Role of the Design Professional in Society 31
perfection, merely what is reasonable under the circumstances.
The law requires us to act in certain ways when we do act and
sometimes requires us to act even though we may not want to
act. How do we know when and how to act? We must learn the
applicable standard of care required under any given
circumstances. We will spend a lot of time on this concept.
Unfortunately, people do things that injure one another or
which damage or destroy property. Even an uncivilized society
has rules to deal with such things. In our society we recognize
that a wrong can be civil, criminal or both.
A civil wrong is called a tort. It is a wrong that harms an
individual or property. A crime is a wrong against society as a
whole. Not all crimes are torts and not all torts are crimes.
Examples: Defamation, which is a false statement about
another that puts that person in a bad light, is a tort, but not a
crime. Prostitution, an exchange of a sexual act for cash or other
consideration, is a crime, but not a tort. A battery, which is a
harmful or offensive touching of another without consent, is both
a tort and a crime.
A claim is an allegation of wrongdoing that has caused a
harm or loss. A cause of action is a claim recognized under the
law for which a remedy is available. A cause of action consists of
elements, each of which must be proven or the cause of action
fails. You must learn how to recognize causes of action and their
elements and how to prove or disprove each element using the
facts known or inferred.
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32 What is Law?
IRAC Methodology
An essay question allows you to communicate your
knowledge of the subject matter and your ability to apply it to a
specific question or situation. Your essay should be well
developed and organized, and clearly focused on the question
presented. You should reach the right conclusion for the right
reasons. Proper grammar, punctuation, spelling, and style are all
important to an effective essay. If your writing skills are
deficient, then you will have a difficult time with essay questions
and you owe it to yourself to get help. An inability to express
yourself effectively in writing is a serious impediment to
advancement in the business world.
IRAC stands for Issue Rule Analysis Conclusion. IRAC
methodology is a powerful way to organize and write essays
requiring legal reasoning and/or critical thinking. In fact, it is
adaptable to any subject matter. In law, IRAC is applied to a set
of facts to determine what the proper legal outcome should be.
ISSUE: The issue is the legal question presented. What
legal question is raised by the facts? There can be more than
one. Frequently, you will be given the issue. If you are given the
issue, write about it. Don’t change the issue and write about
something else. If the question simply says “Discuss,” then you
must determine and properly state the issue.
RULES: Once you know the legal issue, then you can
determine the relevant law necessary to answer the legal
question presented. In this section you should accurately and
fully state the law that you have determined to be relevant.
Relevant rules are those that relate to the development of a
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The Role of the Design Professional in Society 33
party’s position or another party’s defense or alternative
position. Select the rules that support the outcome or conclusion
you reach. In an open book or a take-home exam there is no
excuse for incorrectly stating the law. If you identify a rule as
relevant, I expect you to apply it in the analysis.
ANALYSIS: The analysis is the most important part of
your essay. It demonstrates your ability to apply the law to the
facts to answer the legal issue presented and to support the
conclusion you reach. Analysis is interpretation of facts and law
together to determine the objective truth justifying the
conclusion. Proper analysis is well organized to logically develop
the arguments for and against the issue, and explains why one
position is ultimately stronger than another is. Competent
analysis accounts for all the given facts, and leaves nothing out
in the support of the conclusion in the same manner that a proof
in geometry must include all the steps to be valid. Analysis sets
out your reasoning and explains using facts and law together
why your conclusion is correct. You will use connecting words
like “since” and “because” in your analysis. Omissions in the
development of the argument or assumptions in place of facts
are usually fatal to your proof. Thus, analysis is your proof that
you are right, based on using the proper law and applying it fully
and correctly to the evidence (facts and your interpretation of
them).
CONCLUSION: The final part of your answer is the
conclusion. The conclusion answers the legal question presented
in the issue and is your expression of the right or just result or
outcome. It should rarely be more than a sentence or two.
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34 What is Law?
Here is a different approach to understanding the IRAC
methodology:
When you are reading a case or analyzing a case problem,
ask these questions:
1. Who is the Plaintiff/ Defendant(s)?
2. What is/are the claim(s), cause(s) of action, issue(s)?
3. What are the elements of each claim or cause of action?
4. What are the defenses to each claim or cause of action?
5. Is each element proved? Use the facts/evidence to
support or negate and explain why.
6. Is each defense proved? Use the facts/evidence to
support or negate and explain why.
7. What is the result/conclusion?
If you think about it, question 2 sets the issue, questions 3
and 4 set the rules, questions 5 and 6 set the analysis, and
question 6 provides the conclusion. Poof! Instant organization of
your answer.
Unfortunately, many people suffer from a lack of writing
skills. You cannot become a good writer unless you practice.
Here is an easy and fun practice exercise:
Here is a short question followed by a model answer
written by a student to demonstrate the IRAC methodology.
Following the Model Answer is a Writing Diagnostic for an IRAC
answer.
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The Role of the Design Professional in Society 35
QUESTION
FACTS: Seller owns a forty-acre tract of land. Buyer, after
passing the land one says, sends a letter to Seller which states:
“I like your property very much. Would you like to accept
$60,000 for it?” Seller immediately writes back: “Yes, I would.
I accept your offer of $60,000 for my forty acres.” Has a
contract been formed?
MODEL ANSWER
ISSUE: Did Buyer make an offer to Seller that Seller
accepted to create a contract?
RULES OF LAW: An offer is a promise or commitment to
do or refrain from doing some specified thing in the future. An
offer must be reasonably definite or certain so that the parties
can ascertain the terms and must communicate a serious intent
by the offeror to be bound by its terms. Statements of interest
or inquiry are not offers but are invitations to negotiate. If there
isn’t an offer, there can be no acceptance.
ANALYSIS: Buyer has not made an offer to purchase
Seller’s 40 acres for $60,000 because he has not expressed a
serious intent to be bound by its terms, even though the terms
are reasonably certain. The terms are reasonably certain
because a definite price is stated and, although the property
could be described more specifically, such as location, the parties
can probably determine that they are referring to the same
parcel of land.
By stating that he liked the property very much, Buyer has
merely expressed his interest in the land. Buyer then inquires
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36 What is Law?
whether Seller would take $60,000 for the land. This question is
in the nature of a probe or trial balloon and may provide a basis
for further negotiations, but it is not an offer.
Neither statement by Buyer in his letter indicates a serious
intent to be bound. The first statement is irrelevant to intent. A
person can like many things without intending or desiring to
acquire them. The second statement is tentative, rather than
definite. It invites further discussion rather than express an
absolute intent to be bound.
Since Buyer has not made an offer, Seller cannot “accept”
and create a binding agreement. All Seller has done is
communicate his willingness to sell and reveal to the Buyer that
a contract might very well be concluded at a $60,000 purchase
price. Seller’s letter provides a basis for further discussion to
form a binding contract.
CONCLUSION: Since there has been neither an offer nor
an acceptance, no contract has been formed between Buyer and
Seller for the purchase of 40 acres of land.
Communication
Good communication is essential to good business. A
professional must write and speak well. A professional must also
listen well. Good communication requires both. Excellent
communication isn’t commonplace and requires real effort.
A design professional must speak and write with precision,
but must also learn how to recognize and respond to ambiguity.
Ambiguity is also sometimes a useful tool in negotiation and
even occasionally in contracts.
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The Role of the Design Professional in Society 37
The primary business tool of any business is the contract.
A significant portion of the course is about contract law and
contract provisions relevant to the business of the design
professional. The design professional must know and
understand the language commonly used (and often abused) in
contracts.
• A design professional must be a skilled negotiator
and mediator.
• A design professional must be an expert listener.
• Few people are born with the proverbial silver spoon
in mouth. Public speaking is an acquired skill. It
requires practice.
• People must learn how to write well. Writing
requires practice.
• Active listening takes patience and is developed only
through practice.
• Are you willing to do what it takes to become a good
communicator? Never stop working on your
communication skills. Always PRACTICE.
Constructing a Paragraph
Unfortunately, many people suffer from a lack of writing
skills. You cannot become a good writer unless you practice.
Are you a good writer? Show me!
Here is an easy and fun practice exercise:
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38 What is Law?
ASSIGNMENT
Write a six or seven sentence paragraph recommending a
favorite CD. You must follow these directions:
1. The first sentence introduces the name of the album and
the artist.
2. The second sentence describes the kind or type of music
on the album and can include something about the artist.
However, you may need a separate sentence to describe
both the music and the artist.
3. The next three sentences set forth the reasons why you
like the album and are recommending it. Be strong and
specific in your descriptions so that the reader can gain
some understanding of what you are hearing and why the
album is so good. For example, you could describe
different tracks on the album.
4. The last sentence brings your recommendation to a
conclusion. It should provide some final insight in support
of your recommendation rather than something lame like
“So in conclusion you should buy this CD.”
Not a music fan? No excuse. Adapt the assignment to
recommend a favorite movie, book, or video game instead. If
you can’t think of something fun to write about and recommend
with enthusiasm to someone else, you desperately need a
hobby.
Use the writing diagnostic attached at the end of this article
to evaluation your paragraph. You may wish to ask a friend to
do this for you. The only way to improve your writing is through
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The Role of the Design Professional in Society 39
practice. You must write, have your writing critiqued, correct
your writing and have it critiqued again.
If you cannot easily do this assignment, you need to get help to
improve your writing to do well in this course.
Paraphrasing
Paraphrasing is an effective way to determine whether you
have understood someone or that someone has understood you.
Paraphrasing is explaining what you have just read or heard in
other words.
Example: “Ignorance of the law is no excuse.”
Paraphrase: One is required to know the law and follow it.
Example: “The pen is mightier than the sword.”
Paraphrase: Ideas are stronger than force.
Example: “Give me liberty or give me death.”
Paraphrase: Freedom is worth dying for.
How would you paraphrase these sayings? Put your paraphrase
here:
Later in this course, you will be asked to paraphrase detailed
contract clauses as part of your learning experience.
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40 What is Law?
Critical Thinking1
What does it mean to be a professional? What does it mean
to you to be a professional? That’s not the same question, is it?
What does it mean to think critically? Do you think you
know how to do it? Do you actually do it? That’s not the same
question, is it?
Engineers concerned with good thinking must be as rigorous
in their approach as lawyers are in their approach. A critical
thinker in any discipline must possess certain intellectual traits
and regularly and routinely apply intellectual standards to
elements of thought.
The standards are clarity, accuracy, precision, relevance,
depth, breadth, logic, significance, fairness, and ethics. What do
each of these terms mean?
The elements are purposes, questions, points of view,
information, inferences, concepts, implications, and
assumptions. What do each of these terms mean?
The required traits are intellectual humility, intellectual
autonomy, intellectual integrity, intellectual courage, intellectual
perseverance, intellectual empathy, confidence in reason, and
fair-mindedness.
Egocentric thinking and action are to be avoided by the
true professional.
You will be asked to make use of the above standards,
elements and traits in this course and throughout your
professional and personal life.
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The Role of the Design Professional in Society 41
NOTES
1 Adapted from The Thinker’s Guide to Engineering Reasoning,. Richard Paul, Robert
Niewoehner, and Linda Elder, Foundation for Critical Thinking, 2006
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42 What is Law?
WRITING DIAGNOSTIC
TEST NUMBER______________________
GRADE___________
FACTORS Yes/No Ratings: Superior, Excellent, Average, Fair, Poor
1. Y/N Followed directions for the question
2. Y/N Followed IRAC Format
3. Y/N Stated the Issue if not given in question
4. Y/N The Issue is well and correctly stated
5. Y/N Relevant rules are correctly stated
6. Y/N Relevant rules are fully stated
7. Y/N Facts are fully considered in analysis
8. Y/N Facts are correctly stated in analysis
9. Y/N Facts and law are used together to support conclusion
10. Y/N Rules are applied properly to facts
11. Y/N All elements of relevant cause of action are discussed
12. Y/N All possible defenses are discussed
13. Y/N The analysis is logically organized and presented
14. Y/N The analysis is well-reasoned
15. Y/N Required or permissible inferences are made
16. Y/N The conclusion is correctly stated
17. Y/N Structure of the paper is clear
18. Y/N Each paragraph is coherent
19. Y/N Transitions from one idea/element to next are logical
20. Y/N Sentence structure is correct
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The Role of the Design Professional in Society 43
21. Y/N Sentences are well written and varied (not awkward)
22. Y/N Word choices are correct
23. Y/N Punctuation errors are few
24. Y/N Spelling errors are few
25. Y/N Grammar errors are few
Result: The conclusion is correct/incorrect and/but
1. All relevant material is covered fully and correctly
2. Substantially all relevant material is covered correctly
3. Some relevant material is omitted and/or there are weaknesses or
errors in the analysis
4. Significant relevant material is omitted and/or there are major
weaknesses or errors in the analysis
5. The analysis is general and conclusionary
6. The analysis is superficial
7. Is unsupported by the analysis
8. The analysis is so wrong, incomplete or disorganized as to be
nonexistent
Comments:
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44 Tort Law
Chapter 3: Tort Law
By John W. Tulac
Introduction
A tort is a civil wrong for which the law provides a remedy.
Everyone is free to do as one wants, provided one does not
interfere with the equal freedom of others. Tort law protects
people and property by imposing reasonable limitations on the
otherwise unbridled freedom to act.
We may have the power to do something, but not the right
to do it under a given set of circumstances. For example, I can
possess a gun and have the power to use it, but I do not have
the right to point it at you and demand your laptop computer.
Every tort arises out of an act or an omission (not acting
when there is a duty to act or acting when there is a duty not to
act).
Act or conduct requirements: What someone should have
done under the circumstances.
Omission requirements: What someone should refrain from
doing under the circumstances. Example: Don’t yell “Fire!” in
a crowded theater when there isn’t a fire. It could cause a
stampede for the exits and people could get hurt.
This Article is at most an outline of the most important
aspects of tort law. You are required to use the Internet to learn
more about torts at web sites such as findlaw.com,
wikipedia.com and nolo.com. These are examples. Run a
search for different terms. There is a wealth of free information
available.
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The Role of the Design Professional In Society 45
Classification of Torts
Torts are classified as intentional, negligent, and strict.
Torts can be further classified as acts harmful to persons, acts
harmful to property, or acts harmful to both.
Intentional Torts
An intentional tort is one that is purposely done. The
actor’s intent does not actually have to be to cause actual harm.
It is sufficient that the person doing the act acted deliberately
and knew or should have known that the act was likely to cause
harm.
Examples of intentional torts:
• Assault
• Battery
• Conversion
• Defamation
• Fraud
• Intentional Infliction of Emotional Distress
• Invasion of Privacy
• Nuisance
• Sexual Harassment
• Trespass to Property
“Intentional torts” require that the plaintiff prove the
element of intent.
There are two types of rules to define intent:
1. Doing an act for the purpose of causing the
consequences. Yes, I did it and I’m glad I did.
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46 Tort Law
2. Doing an act that creates a substantial probability
(or substantial certainty) of causing the damages.
A person is presumed to have intended the natural and
probable consequences of his or her conduct. This presumption
is rebuttable.
Distinguish proof of motive from proof of intent. Motive
addresses why someone acted. Intent addresses the mental
state associated with the act or omission.
Each intentional tort is comprised of other elements in
addition to intent. Every element must be proved or the cause
of action for that particular tort fails. We will not be studying
intentional torts and their elements in this class. We will focus
only on the torts of negligence, professional negligence and
strict/product liability.
Negligence
A negligent act is one that is done carelessly, recklessly,
thoughtlessly, or foolishly and results in harm. The actor did not
intend to cause harm, but should have known better than to act
that way.
We do a lot of stupid things, but most of the time we don’t
cause any harm to ourselves or to others or to property. You’ve
heard the phrase “No harm, no foul.” Negligence is like that.
Strict Liability
Under certain circumstances, liability can be absolute if a
harm or loss results, regardless of intent or the amount of
caution or control we used. Certain activities are ultra-
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The Role of the Design Professional In Society 47
hazardous, but nevertheless have sufficient beneficial effects
that we do not want to ban them outright. We permit such
activities but hold the operator strictly liable for any resulting
harm or loss. This is known as strict liability.
Using nitroglycerine is an example of strict liability.
Product liability is an example of strict liability.
Negligence
Elements of the Plaintiff’s Cause of
Action for Negligence or
Professional Negligence
1. Duty
2. Breach of Duty
3. Causation
4. Damages
All elements must be proved to establish that someone is
negligence. If an element is not proved the defendant wins. If
plaintiff provides evidence in support of each element, the
plaintiff has established a prima facie case of negligence. The
burden of proof then shifts to the defendant to show by way of
affirmative defense why defendant should prevail.
We will now examine each element of negligence in detail.
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48 Tort Law
Legal Duty and the Standard of Care
Tort law is based on the concept of legal duty. Everyone
must follow the legal duty to act around others in a reasonable
way as a reasonable person would under the circumstances.
Legal duty is all about knowing how to act (or sometimes to
refrain from acting) under the circumstances.
The standard of care, which defines a specific legal duty for
specific circumstances, is based on reasonableness, not
perfection. Ask: What would an ordinary person of ordinary
means and ability do under the same or similar circumstances?
This is known as the Reasonable Person Test.
The standard of care is the objective description of the legal
duty. It tells us what to do. It sometimes tells us how to do it.
Legal duty as measured by the standard of care moves from
the general to the specific.
Example: A driver of a motor vehicle must always
operate and maintain the vehicle in such a way as to avoid
harming others or property. This is the general duty of care for
drivers of motor vehicles.
A reasonable person would never drive faster than it is safe
to drive for the circumstances and or above any speed limit
designated for the area. This is a more specific standard of care
for how to drive a motor vehicle, but it is still general.
A reasonable person will not exceed 25 miles per hour in a
residential area and will slow to 15 miles per hour in a school
zone when children are present. This is an example of a specific
standard of care for a specific circumstance. To follow a
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The Role of the Design Professional In Society 49
standard of care means that first be able to state a specific
standard of care for the circumstance.
Breach of Duty
This is the easiest element in concept. Any conduct that
falls below the standard of care for a legal duty is a breach of
that duty. If you have a duty to come to a full and complete
stop at a stop sign and you instead roll through it (the infamous
California stop), you have breached your legal duty by violating
the standard of care. The breach occurs whether or not you
cause any harm.
Obviously, you cannot logically determine that there is a
breach of duty until you know what the legal duty is. If there is
no legal duty for which there is a standard of care, there cannot
be a breach of that duty. In this course, you will be asked to
determine the standard of care for particular circumstances.
Causation
Causation has two parts:
1. Actual cause (also known as physical cause).
2. Legal cause (also known as proximate cause).
Both parts must be found in order for the element of causation
to be proved.
There are two tests for actual cause:
(a) But For Test: But for the defendant’s conduct,
would the
plaintiff’s injuries have occurred? In other
words, if the defendant’s conduct didn’t happen
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50 Tort Law
would the plaintiff’s injuries have occurred. If
no, then there is actual cause. If yes, then
there isn’t actual cause. Yes, I know. It seems
backwards, but think it through. It makes
sense.
(b) The Substantial Factor Test: Was the defendant’s
conduct a substantial factor in bringing about
the plaintiff’s injury
(i) Only Factor: Actual cause need not be the
“sole contributing factor”
(ii) Most Substantial Factor: Actual cause
need not be the “most” substantial factor
(iii) Comparative Liability: Can result where
damage results from more than one
substantial factor
Legal cause (proximate cause) examines the legal
sufficiency of causation. In other words, is the connection
between the breach of the duty and the injury strong enough so
that it is right, just, and fair to impose liability. This is a very
narrow inquiry for which there is a test known as the
foreseeability test. Would an ordinary person of ordinary means
and ability know and understand that if she breaches her duty f
care (whatever it might be) she could cause harm or loss to
someone or something? If so, then the connection between the
breach and the injury is legally sufficient and there is proximate
cause. Please note that this is a simplified version of a complex
legal concept.
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The Role of the Design Professional In Society 51
Damages
Remember “no harm; no foul” as a general proposition. In
this course, we will give you the damages. You will not have to
determine them.
Special damages are actual or compensatory damages that
are out of pocket. If someone negligently injures you in an
automobile accident and you incur medical expenses and miss
work time you are entitled to reimbursement for your medical
expenses and your salary or wage for the time you missed work.
Special damages also include the present value of future medical
expenses and lost income in serious injury cases.
General damages are awarded for intangible, but
nevertheless real losses to your quality of life as a result of
someone else’s wrongful conduct. Damages can be awarded for
pain and suffering, emotional distress, and many other things.
You hurt. That is worth something. You can’t go bowling while
your leg is mending. Yes, that is worth something.
Compensation for injury must be reasonable and must
naturally flow as a consequence of the defendant’s conduct,
including the severity of the wrongful act or omission. Damages
can be awarded for personal injury to the plaintiff, the plaintiff’s
property, reputation, privacy, business interest, pain and
suffering, emotional distress, etc.
Punitive damages are rare, but can be awarded for
intentional torts and even more rarely for egregious (gross)
negligence
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52 Tort Law
Affirmative Defenses
Once the Plaintiff has established each element of the cause
of action for negligence, the burden of proof has been met and a
prima facie case for the defendant’s negligence has been made.
The burden of proof then shifts to the defendant to show why
liability should not be imposed.
Defendant can raise one or more affirmative defenses to
show either that Plaintiff is in whole or part responsible for her
own harm or loss or that someone other than Defendant is
responsible in whole or part for the plaintiff’s harm or loss or
both Plaintiff and one or more other parties are in whole or part
responsible.
The modern view of affirmative defenses in negligence and
professional negligence cases is based on comparative fault, also
called comparative negligence. Comparative fault is used to
compare the conduct of all the parties to the case and assess a
percentage of fault, the total of which will always add up to one
hundred percent (100%).
Example 1: You hit the rear of someone’s car. Absent any
other information, you are 100% at fault for the accident and all
the plaintiff’s damages.
Example 2: You hit the rear of someone’s car. The
plaintiff is not wearing her seatbelt. In California, each occupant
of a vehicle is required to wear seatbelt at all times and is
presumed to be 50% at fault for her personal injuries if she isn’t
wearing it. Thus, the defendant is 50% at fault and plaintiff is
50% at fault for plaintiff’s personal injuries. Defendant would be
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The Role of the Design Professional In Society 53
100% at fault for the property damage to plaintiff’s vehicle since
the seatbelt is irrelevant to the property damage).
Professional Negligence
Professional negligence is established in the same way as
ordinary negligence, but under the measure of the professional
standard of care.
The Professional Standard of Care
A professional is held to a higher standard of care for
activities directly connected to the professional’s specialized
expertise. The higher standard applies only to what the
professional does as a professional in the capacity as a
professional. The higher standard of care does not apply to
ordinary activities of the professional. For example, the
professional is held to the ordinary standard of care for operating
a vehicle even if it is being used “on the job.”
Ask: What would a professional of ordinary means and
ability within the same or similar area of professional expertise
do under the same or similar circumstances in the same or
similar geographic area?
The conduct of a surgeon in a rural area with a properly
equipped hospital cannot be directly compared with the conduct
of a surgeon at UCLA practicing surgery with state of the art
equipment and facilities. This would not be fair. Like must be
compared to like.
However, if a professional claims to be more than he or she
is, that professional can be held to the standard of the higher
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54 Tort Law
level of expertise that was claimed. If a professional licensed in
one state acts in another state (or, more likely, under the
licensed authority of a professional in another state), that out-of-
state professional can be held to a higher standard of care than
if the same work was done in the home state. A professional
licensed in another state or foreign jurisdiction doing
subcontracted work for a licensed professional is held to the
professional standard of care in which the licensed professional
is located and the final work product is delivered.
The professional standard of care is determined primarily by
expert opinion – that is, by other professionals in the same or
similar filed stating based on their expertise and experience what
the professional standard of care must be for particular
circumstances. Experts may disagree, in which case the trier of
fact, judge or jury, must assess qualifications, demeanor, and
other factors bearing on the credibility of the expert to
determine which expert to believe.
Expert testimony is necessary where the judge or jury
would not have the knowledge to determine an outcome without
expert help. Few people know anything about particle physics,
so expert testimony about particle physics would be allowed.
The courts have standards to prevent “junk-science” testimony
from being offered.
The professional standard of care may also be established
by a specific statute or regulation addressing a matter of
professional performance.
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The Role of the Design Professional In Society 55
California Jury Instructions
The follow jury instruction (BAJI 6.37, 6.37.1 & 6.37.2) is
that given in California Superior Courts to describe the
professional standard of care.
BAJI 6.37
“In performing professional services for a client a [specific
professional] has the duty to have that degree of learning
and skill ordinarily possessed by reputable [specific design
professional] practicing in the same or a similar locality
and under similar circumstances.
“It is a further duty to use the care and skill ordinarily
used in like cases by reputable members of the same
profession practicing in the same or a similar locality under
similar circumstances, and to use reasonable diligence and
best judgment in the exercise of professional skill and in
the application of learning, in an effort to accomplish the
purpose for which the professional was employed.
A failure to fulfill any such duty is negligence.”
This jury instruction has been problematic for a couple of
reasons. First, the jury must be given evidence of what is a
“reputable” member of the specific profession.
Second, the expression “best judgment” implies the highest
possible competence or decision-making when, in fact, the law
does not require perfection. The exercise of best judgment of a
junior engineer may be perfectly competent and within the
standard of care, even though a more experienced engineer or
one of the objectively best engineers in the country might
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56 Tort Law
exercise best judgment in a different way. Therefore, expert
testimony is always required to determine whether a design
professional has breached a duty of care.
The final sentence of the jury instruction is technically
incorrect. The failure to fulfill a duty of care is a breach of the
duty of care, but is not per se negligence. Negligence requires
proof of causation as well.
BAJI 6.37.1
“It is the duty of a [specific professional] who holds himself
or herself out as a specialist in a particular field of
[specify], to have the knowledge and skill ordinarily
possessed, and to use the care and skill ordinarily used by
reputable specialists practicing in the same field and in the
same or a similar locality and under similar
circumstances.”
This instruction is often given when the case involved a
specific specialty or subfield within which a professional is
practicing.
BAJI 6.37.2
“A [specific professional] is not necessarily negligent
because he or she errs in judgment or because his or her
efforts prove unsuccessful. However, a [specific
professional] is negligent if the error in judgment or lack of
success is due to a failure to perform any of the duties as
defined in these instructions.”
A professional is not a guarantor of results and a
professional’s work is not judged by a standard of perfection.
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The Role of the Design Professional In Society 57
The most difficult task sometimes is to go from a general
description of the standard of care to a specific description of the
standard of care for specific circumstances. For example, our
general legal duty when we drive a motor vehicle is to always
drive it in a manner that is safe under the circumstances and to
never go beyond any stated maximum like a posted speed limit.
For the specific circumstances, such as a school zone or a
blizzard, we further describe the specific legal duty (The DMV
conveniently gathers such rules for us in a nice little pamphlet.
Thus, when we park a car on the hill we know that we have the
specific legal duty to put the car in park, set the emergency
brake, and turn the wheels in the appropriate direction.
The Legal Origin the Professional
Standard of Care for Engineers and
Design Professionals
The modern approach to professional negligence for
engineers and other design professionals began with the United
States Supreme Court Case, United States v. Spearin (1918) and
evolved into what is known as the Spearin Doctrine. The
Spearin Doctrine originally protected contractors from liability
against claims of defective or nonconforming work. The
contractor could defend by showing that something was built
according to the plans and specifications that were provided to
the contractor. If the structure was built as specified, but fails in
some respect or does not function as intended, it is not the
contractor’s fault. Thus, the Spearin Doctrine shifts the
responsibility to the architects and engineers.
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58 Tort Law
Similarly, the architects and engineers cannot be liable
(legally responsible) for professional negligence for something
that is built by others that fails or does not work as intended, if
the plans and specifications were not followed.
Review Exercise for the
Professional Standard of Care
So now, let’s see how well you can determine the professional
standard of care. Assume you are a licensed civil engineer
based in Los Angeles, California:
1. Define the general professional legal duty of care you
must follow.
2. You are asked to provide design services for a new
bridge over the Los Angeles River using new lightweight
composite materials that have not previously been used
in bridge construction. Define the specific standard of
care you must follow.
3. You are asked to design a conventional arch-type bridge
over the River Kwai in Thailand. Assuming Thailand has
laws similar to the United States, define the specific
standard of care you must follow.
4. You park on the street to visit a client that has an office
near the top of a steep hill. Define the specific standard
of care you must follow.
5. You contract with the owner of the property to provide
consulting services reviewing the plans and specifications
of a licensed architect and a licensed civil engineer for a
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The Role of the Design Professional In Society 59
building to be constructed in Corona, California. Define
the specific standard of care you must follow.
Strict Statutory Product Liability
1. Act: The product must be in commerce (that is, sold or
for sale) and is defective. The defect can result from
design, manufacture, or subsequent handling in transit,
storage or sale.
2. The defendant is normally engaged in business of selling
such products. Any party in the product chain can be
liable from the designer to the manufacturer to the
wholesaler/distributor to the retailer.
3. The product must be unreasonably dangerous* to the
user and consumer because of its defective condition.
*This element is not required in California and some
other states.
4. The plaintiff must incur some physical harm to self or
property from the use or consumption of the product.
5. No substantial change of the goods from the time the
product was sold to the time of injury.
6. Causation: same analysis as for negligence
7. Injury – Damages:
a) Actual or compensatory damages only (in the absence
of an intentional tort theory).
b) Affirmative defenses and limitations on recovery:
(a) Assumption of Risk: (knowledge of the risk and
voluntary conduct accepting the risk)
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60 Tort Law
(b) Misuse of the Product: Similar to assumption of
the risk – limited by courts if misuse is
reasonably foreseeable
(c) Comparative Fault: E.g., plaintiff who fails to take
precautions against a known defect may have
recovery reduced
(d) Statutes of Repose: The limited time within which
a plaintiff can file a product liability suit begins
to run on an earlier date than the statue of
limitations
(e) Bystander Liability: May require “reasonable
foreseeability”
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NOTES
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62 Risk
Chapter 4: Risk
By William A. Kitch and John W. Tulac
What is risk?
An engineer might define risk as a quantative value using
a formula. However, a lawyer would view this approach as too
narrow. Risk is also qualitative in nature. Risk springs not only
from averaged or calculated results, but from deviations from
the average or norm, from the outliers at the far reaches of the
tails, and from outcomes never even imagined. Peter
Bernstein’s Against the Gods, The Remarkable Story of Risk is an
excellent reference for engineers and businesspeople alike.
The purpose of this article is to develop a framework to use
to indentify, evaluate and manage risks. Those who can manage
risk will be able to seize opportunities from those who depend
upon luck or chance.
Components of Risk
There are many definitions for risk. However, most definitions
contain the following components:
• Danger: cost, loss, or damage
• Uncertainty: probability, possibility, statistical chance
• Opportunity: potential benefits
We will develop our formal definition of risk later using these
components.
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The Role of the Design Professional in Society 63
Process of Risk Management
If we are going to successfully manage risks, we need a
process we can follow to ensure our risk management is
effective. We will be using the following process:
1. Identification
2. Evaluation: qualitative or quantitative
3. Allocation: determining who has the best ability to
manage a specific risk
4. Management and Mitigation: techniques to
determine, minimize and prevent harm or loss
including:
• Insurance: professional, business, legal
• Preventive law
• Compliance planning
We will now discuss the steps in the process.
Identification
Identification is the most critical step in the risk
management process. If we fail to identify a key risk, the rest of
our planning process may be meaningless. We can spend all the
time we want evaluating a risk, but if we fail to evaluate the
important risks, our work will have little value.
It will be impossible to identify risk if you do not know what
your goals and objectives are. Therefore before trying to
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64 Risk
identify your risk, you must first clearly articulate your goals and
objectives.
Once you have finished defining your goals and objectives,
list the key steps or processes that will be needed to achieve
your goals. Then list all the key player in the processes. Now
you’re ready to identify your risks. Simply make a list of all the
actions or things that could happen which would prevent you
from achieving your goals. This is a brainstorming time. Don’t
toss out a risk because it sounds silly or you don’t think it will
really happen. Just identify the potential negative things and
write them down. We will evaluate the risks in the next step.
Risk analysis bridges tort law and contract law. Tort law
defines responsibilities and liabilities arising out of risk and
imposes duties. Contract law allocates responsibilities and
liabilities regarding risk.
Evaluation
Once we have a comprehensive list of risks we can start the
evaluation process. It is important that we use a systematic and
consistent method to evaluate the risks. We can use subjective
measurements to evaluate the risks so long as we apply our
measurements in a systematic manner.
Measuring Risk
If we are going to make logical decisions about how to manage
risk, we must first be able to measure risk. Mathematically, risk
is defined as
R = Pf x Cf (4.1)
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The Role of the Design Professional in Society 65
Where: R is the numerical risk, Pf is the probability of failure,
and Cf is the cost of failure, in dollars.
People often confuse risk with the probability of failure or
with the cost of failure. According to Equation 4.1, risk, R, is a
combination of both the probability and cost of failure. This is a
very important concept. There are some things that have a very
high cost (like death) but which are very unlikely. An example
might be being caught in a bombing on the Cal Poly Pomona
campus. The cost of such an event could be your life, but the
probability of this event is very low, therefore the risk is
relatively low. Another type of event that can have a very low
risk is something that is very likely, but which carries with it little
cost.
For example if you park on campus without a purchasing a
pass, the probability of getting a ticket is fairly high. However
the cost of the ticket is relatively low (at least compared with
many other costs associated with owning and operating an
automobile). You may still wish to avoid this risk by purchasing
a pass and that’s the whole point of risk assessment. If you can
quantify your risk in terms of a likely cost, then you can
determine whether or not it is worthwhile to pay for actions that
can reduce your risk.
In some business it is possible to make very good
measures of the actual probability and cost of events and use
these measures to compute accurate values for the risk of
events. Insurance companies do this all the time. That is the
only way that can set premiums and make money. However, it
is often impossible or too costly to get accurate measurements
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66 Risk
of the probabilities and/or costs of events. When you can’t
quantitatively measure risk, a qualitative measurement of risk is
usually possible. While qualitative risk measurement is less
accurate than quantitative risk measurement, it can still be a
valuable tool in managing risk
Qualitative Risk Measurement: Risk
Matrix
One simple and effective method of qualitative risk
measurement is to build a risk matrix. Let’s describe the
process using an example. Suppose we want to evaluate the
risk of parking on campus. The first step would be to define our
goals and objectives. For our example we will assume our goals
are to find a safe parking place that allows us to get to class on
time and stay within our budget.
Next we need to list every event that would cause failure or be
a problem when attempting to park on campus. That list might
look something like this:
1. Can’t find a place in time and are late to class
2. Can’t find a place in time and are late to an exam
3. Car is damaged in parking lot
4. Car is stolen from parking lot
5. Receive a ticket for illegal parking
6. Forget where you parked and are late getting home
The next step is to make up a qualitative scale for the
probability of each event happening and a qualitative scale for
the cost of an event should it happen. Let’s use the following
scales
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The Role of the Design Professional in Society 67
Probability:
a) Unlikely: Probably happens less than once a year
b) Likely: Probably happens once a month
c) Very Likely: Probably happens once a week or
more often
Cost:
a) Low: Painless, wouldn’t even count the cost
b) Moderate: Ouch, that’s costly, but won’t break the
bank
c) High: Oh no, I can’t afford that
Now for each of our events we rate its probability and cost.
Event Probability Cost
1) Late to
class
Very Likely Low
2) Late to
exam
Likely Moderate
3) Car
damage
Likely Moderate
4) Car
stolen
Unlikely High
5) Get
ticket
Likely Moderate
6) Late
getting
home
Unlikely Low
We now evaluate the risk by plotting the events on a risk
matrix. The risk matrix is simply a two dimensional figure with
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68 Risk
the probability listed on one axis and cost on the other axis.
Figure 4.1 depicts a risk matrix for our example.
In the risk matrix, events that lie in the upper right hand
portion of the matrix are the riskiest events. Those that lie in
the lower left hand portion are the least risky. In this example
we have arbitrarily divided the risk into the five levels shown.
Using our example we would categorize our risks as shown in
Table 4.1.
Using this analysis method we discover that our highest
risk is being late to an exam. If we simply evaluated the risk
based on cost, we might have said that getting our car stolen
was the biggest risk. But that’s not the case; while it has the
biggest cost it also has a low probability. Also not that being
late for an exam and class both have high probability, but one
has a larger cost and is therefore more risky.
When evaluating risk it is important to include both cost
and probability. Risk is a combination of the two. It is also
important to use a systematic method to evaluate risk. Finally,
we don’t need exact numbers on cost and risk to perform an
evaluation. Even a simple qualitative evaluation like the risk
matrix can help us to identify and manage risks.
Allocation
Risk allocation is the process of identifying which person or
party has the best ability to manage each risk and who benefits
if a risk is avoided. We then assign risk based on a party’s
ability to manage and benefit from the management of that risk.
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The Role of the Design Professional in Society 69
As we look at each risk we will find that they generally fall
into one of the following cases.
a) One party has ability to both manage the risk and
benefit from managing it
b) One party has the ability to manage the risk but
another party is the main beneficiary
c) The management and benefits associated with a
risk are shared among two or more parties
d) No one has control over the risk
Table 4.1: Tabulated risks from example
Risk
Level
Events
Very
High none
High 2) Late to exam
Moderate
1) Late to class,
3) Car Damage,
4) Car stolen
Low 4) Get ticket
Very Low 6) Late getting
home
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70 Risk
P ro
b a
b il it
y
Cost
1) Late to class
2) Late to exam
5) Get ticket
3) Car
damage
6) Late
getting home
Low Medium High
V e
ry L
ik e
ly
L ik
e ly
U
n li k e
ly
4) Car stolen
Figure 4.1: Risk Matrix
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The Role of the Design Professional in Society 71
It should be obvious in case-a that the risk should be
assigned to the party who can manage and benefit from the risk.
In case-b we should try and change processes to align the
management and benefit. Many risks fall into case-c and they
must be spread appropriately among the responsible parties.
Case-d is a situation where our only ability to manage the risk
may be to pay someone to take the risk for us by buying
insurance.
In our example, the risks associated with Events 1, 2, 5,
and 6 clearly belong to the person parking the car, since that
person has the ability to manage these risks and will benefit if
they are managed. The parker has some control over Events 3
and 4, but much of the risk of these events is beyond the control
of the parker.
Management and Mitigation
Now that we have identified, evaluated and assigned our
risks it is time to develop mitigations that will allow us to control
and manage our risks. We will use our example to illustrate this
process.
The most important risk for us to manage is our highest
risk: missing an exam, Event 2. There are two obvious
mitigations for this risk.
1. Allow extra travel time to campus on exam days
2. Buy a parking pass so we can park close to campus
Notice that these two mitigations will also manage the risk
of being late to a regular class, Event 1, and the risk of getting a
ticket, Event 5.
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72 Risk
We have two other moderate risks that we should mitigate:
Event 3-Car damage, and Event 4-Stolen car. We have some
ability to manage these risk by choosing safer parking spots,
locking our car, and not leaving valuables in our car, but much of
the risk is not under our control. This is a case where buying
insurance might be a good way to mitigate our risk.
Your mitigation doesn’t end when you devised your mitigations.
If you don’t implement your mitigations they won’t do you any
good. It is critical that you establish processes and procedures
to ensure your mitigations are properly implemented. For
example, our mitigation to leave early for campus on exam days
won’t do any good if we forget or don’t know when we have an
exam. Our implementation plan for this mitigation might be to
put all our exams in our I-Phone at the beginning of each
quarter with an alarm the day before the exam. This will help
ensure we leave in time to park and get to our exams.
Risk Management Tools for the Design
Professional
The generic tools such as the risk matrix are valuable for
design professionals and should be part of your risk
management tool kit. However, there are some other tools you
should be aware of.
Perhaps the most valuable tool for risk management is the
contract. A formal contract lets you handle risk professionally.
It can be used to allocate risks by informing the parties of their
responsibilities. It should identify things outside the control of
the parties, particularly unpreventable or uninsurable risks. One
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The Role of the Design Professional in Society 73
of the greatest sources of risk is misunderstandings between
parties. A well-written contract can significantly reduce the
probability of misunderstandings, thereby reducing risk. Finally,
a contract can be used to establish mitigations, particularly
complicated mitigations that require the cooperation and
coordination of several parties.
One of the most powerful risk management tools available
to anyone is to just say “No.” Walking away from a bad deal is
the ultimate risk eliminator.
Compliance Planning
Regulatory Compliance carries significant risks to today’s
design professional. There are a myriad of local, state, and
federal laws that require compliance. These regulations cover
many areas including: environmental compliance, employment
law, fiscal accounting and reporting. In some cases failure to
comply with regulations can bankrupt a company or put a
company officer in jail.
Regulatory compliance programs are designed to
• Prevent violations
• Detect violations early
• Respond quickly to any violation
• Report compliance to regulators
Steps to establishing a corporate compliance program
1. Assess activities in areas subject to regulation
2. Obtain the commitment internally from all involved
parties
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74 Risk
3. Create policies and programs for compliance
4. Implement the program
a) Education and training
b) Controls, procedures, and recordkeeping
c) Review and revise regularly
d) Audit (internal, external)
e) Reporting and disclosure system
f) Revise and update (circles back to step 1)
The adage “an ounce of prevention is worth a pound of
cure” applies to regulatory compliance. A good compliance plan
can mitigate many risks.
Summary
Risks are unavoidable. They are part of our everyday life.
Risks present opportunities to those who can manage them well.
Rather than avoid all risks our objective should be to manage
risks for our benefit.
Risk is not just the probability of failure. It is the
combination of the probability of failure and the cost of that
failure. In order to manage risks we must first identify the risks,
evaluate each risk, and then allocate the risk to the appropriate
party. We can then develop a mitigation plan to help us manage
risks. The plan must be properly implemented or it is of no
value.
Perhaps the most important risk management tool for the
design professional is a contract. The contract helps to identify,
allocate and mitigate risks.
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References
The Risk Management Toolkit, Mitre Corporation,
http://www.mitre.org/work/sepo/toolkits/risk/index.html
Notes
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76 Summary of Contract Law
Chapter 5: Summary of Contract Law
By John W. Tulac
Main Ideas
Studies have shown that the two most important
components for an economy to develop are education to create
knowledge and a rule of law that protects private contract and
private property rights. Property rights, real and personal,
tangible and intangible, contribute to the development of wealth
by the ability to barter or exchange them. Money is a medium
for exchange. The basis by which people are able to get what
they want or need is the contract.
A contract creates a binding obligation or commitment
between two or more parties for which the law recognizes a duty
to perform and provides a remedy in the event of
nonperformance of the obligation or commitment.
Contract Elements
A contract exists when the following four elements are
present:
1. Agreement. Agreement, which consists of an offer and
an acceptance, forms or makes the contract.
2. Consideration. Consideration is the subject matter of
the contract.
3. Contractual Capacity. The parties making the
contract must be legally competent to do so.
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The Role of the Design Professional in Society 77
4. Legality. The subject matter or consideration must be
lawful.
In addition, the courts look at two other aspects to
determine whether a contract can be enforced. These are
affirmative defenses to the enforceability of the contract. They
are:
1. Form. Some contracts must be in writing to be
enforceable
2. Genuineness of assent. The agreement must be
volitional or voluntary, that is entered into by one’s own
free will that is not wrongfully induced or coerced into
agreement.
Types and Classification of Contracts
Contracts are classified in a variety of ways, including:
Bilateral or Unilateral
A bilateral contract is formed by the mutual exchange of
promises. Joe promises to mow Jim’s lawn and Jim promises to
pay Joe $25.00 for mowing the lawn. A unilateral contract is
formed by the exchange of a promise and the actual
performance by one of the parties. Jim promises to pay Joe
$25.00 if Joe mows Jim’s lawn. By then mowing the lawn Joe
makes the contract and performs it at the same time. Obviously,
unilateral contracts can present some risk to the
accepting/performing party.
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78 Summary of Contract Law
Express or Implied
An express contract is one that is written or oral. An
implied-in-fact contract arises out of the conduct of the parties.
An implied-in-law contract, also called quasi-contract, is not an
actual contract at all but rather is a remedy by which a court will
enforce some promises upon which the other party is found to
have been reasonably entitled to rely. It is smart contracting
practice to make express contracts, preferably in writing, even
when the law does not require a writing.
Voidable and Void Contracts
This distinction is the bane of business law students. A
voidable contract is a true contract but one or both parties has
the right to withdraw from the contract for various legal reasons
such as fraud, mutual mistake of fact, undue influence or
wrongful coercion. A void contract is not a true contract at all,
but rather is a nullity. An illegal contract lacks the element of
legal subject matter and therefore is void. A contract to
distribute cocaine is a void contract.
Executory and Executed Contracts
An executory contract has not yet been performed or fully
performed. An executed contract has been performed. As is so
typical in the English language an executed contract also means
a contract that is signed by the parties. Written contracts must
be signed, at least by the party to be charged with performance,
but obviously good contracting practice requires all parties to
sign.
Contracts are subject to interpretation. A contract will be
given the plain meaning of its language. Ordinary words are
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The Role of the Design Professional in Society 79
given their ordinary meaning. Specialized words are given their
specialized meaning within the relevant context. A contract that
is intended to be complete on its face and so states will not
require external or parole explanation as to its terms. A contract
for the sale of chicken can be fulfilled by any bird that is a
chicken, young or old, small or large, roaster or fryer or stew
bird. For a particular kind of chicken to be delivered under
contract, the parties would need to use an adjective to further
describe the subject matter.
There are many other rules for interpretation of contracts
terms. Terms are interpreted to preserve the existence of
contract, to give it a lawful purpose over an unlawful one, to give
more weight to customized or negotiated terms over preprinted
or boilerplate terms, to resolve ambiguous terms if possible so
that the contract can be enforced, to make use of trade or
market customs and practices to explain terms etc.
Offer and Acceptance
Offer
A contract is made or formed by an offer and an
acceptance.
An offer is a promise to do or refrain from doing some
specified thing in the future. The promise can be made
expressly in words, oral or written, or implied by conduct.
An offer consists of three parts:
1) The offeror must have serious objective intent to bind,
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80 Summary of Contract Law
2) The terms of the offer must be reasonably definite and
certain, and
3) The offer must be effectively communicated between the
parties. Once these three requirements are met, the offer can
then be accepted and an agreement can be formed, potentially
resulting in a contract, given other elements are met.
Intent is measured by the offeror’s objective intent (the
party’s action and words) and not by their subjective intent
(internal assumptions, intentions and beliefs). Offers made in
obvious anger, jest or excessive excitement are not considered
offers with objective intent because any reasonable person
would not presume this to be a serious offer.
Expressions of opinion (such as, “This Honda will probably
run like a corvette when we’re through with it!”), statements of
intent (“I plan to sell my vector dynamics textbook for $80 after
this quarter”), preliminary negotiations, agreements to agree,
advertisements (these are generally considered as solicitations
or invitations to negotiate), and actions are generally not
considered contractual offers.
Though the contract’s terms may vary, some terms must
be either expressly stated in the offer, or capable of being
inferred from it. Typically, an offer must identify the parties, the
subject matter of the potential contract, the consideration to be
paid, the time of payment, and time of delivery or performance.
However, the contract may still be enforceable if the parties
clearly show intent to form a contract but have left out a
particular term, in which case the courts may infer a reasonable
term. If the terms are too vague, the court will not implement a
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The Role of the Design Professional in Society 81
term and the contract will not be enforceable. In a contract for
the sale of goods, only the quantity term must be expressly
stated; all other terms may be implied.
The third and final requirement of an offer is
communication of the parties. The offeror must effectively
communicate the offer to the offeree. One cannot accept an
offer of which she has no knowledge.
There are two means by which an offer may be terminated:
via the actions of the parties or operation of law. The offeror
may terminate the offer by revocation or the offeree may
terminate the offer by rejection. An offeror generally may
revoke the offer at any time prior to acceptance; however, in the
event of an option contract, promissory estoppel can render an
offer irrevocable for a stated time. With the exception of public
offers, revocation is not effective until received by the offeree.
Rejection occurs when the offeree demonstrates a clear intent
not to be bound by the offer and is not effective until received by
the offeror. An offer can also be terminated by a counteroffer by
the offeree. It is also possible to make a counteroffer without
rejecting the offer, but this is somewhat tricky to do.
An offer can also be terminated by operation of law by one
of four ways: lapse of time, destruction, death or incompetence,
and illegality. An offer will terminate by either a reasonable
period of time or at the end of the stated time. Destruction of
the subject matter, illegality of the offer or death / incompetence
of either of the parties will also terminate the offer.
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82 Summary of Contract Law
Acceptance
In order to complete the agreement, the offeree must
accept the offer. An acceptance must be both unequivocal and
communicated in order to legally form a contractual agreement.
For an acceptance to be unequivocal, it must follow the
mirror image rule: the acceptance must match the terms of the
offer. If the offeree makes any material changes to the terms of
the offer, it can be deemed a counteroffer, thereby voiding the
original offer and by which means the offeree would then
become the offeror. However, statements of opinion like “I
accept, but I wish it hadn’t been so expensive,” and inquiries, “I
accept, but are you willing to lower the price?” are still
considered unequivocal and therefore an acceptance. Whereas a
statement like “I accept, but only if you give me a discounted
price” is not unequivocal acceptance and would be a rejection
and a counteroffer. As long as there are no conditions to
acceptance given (as in, “I accept, if there is a discount.”), then
the acceptance is effective.
Generally, silence cannot act as acceptance, even if the
offeror states “By your silence, I conclude you’re accepting the
offer.” However, there are a few instances in which silence may
operate as acceptance: when the offeree accepts services
rendered by the offeror even though she had the opportunity to
reject them and it is reasonably understood there is an
expectation of compensation. Such silence would lend itself to
the formation of an implied-in-fact contract. The offeree is
legally obligated to compensate the offeror for the benefit
received. Another means by which silence operates as an
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The Role of the Design Professional in Society 83
acceptance is when the offeree has prior dealings with the
offeror.
Acceptance, much the same as an offer, generally requires
a communication since most contracts are bilateral. In a bilateral
contract, communication of acceptance is necessary. In a
unilateral contract, performance serves as acceptance so
notification becomes irrelevant unless otherwise requested by
the offeror.
The only other acceptable acceptance by silence is with
regards to a solicitation: if an offeror makes an offer with
definite terms and conditions in response to a solicitation, the
offeree must reject the offer or their silence will serve as
acceptance.
Finally, the mode and timeliness of acceptance must be
considered. The general rule in bilateral contracts is that the
acceptance is timely if it occurs before the offer terminates.
Typically the timeliness of an acceptance follows the mailbox
rule: when the acceptance is deposited in the mail the
acceptance becomes valid (if mail is the authorized mode of
communication). Authorized means of communication are either
expressly or impliedly authorized by circumstantial facts,
generally the same manner by which the offer was made or
faster (ex: a fax is faster than the mail and is a writing, so a fax
is impliedly authorized). As soon as authorized means of
communication are used, the contract is formed.
When a mode of communication is not specified, acceptance
becomes effective upon receipt of the acceptance and may be
made by any reasonable means. Generally when an offeree
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84 Summary of Contract Law
sends an acceptance by means other than that express or
implied, acceptance is effective when received, unless it was
timely sent and timely received, then acceptance is effective on
dispatch, regardless of means used. However, there are a few
exceptions: if the acceptance is not properly dispatched, then it
generally is effective only upon being received by the offeror;
the offeror can expressly state that acceptance is not effective
until receipt by offeror; if the offeree sends both an acceptance
and a rejection (perhaps a rejection and then changes their
mind) then the first communication received determines the
formation of the contract.
Consideration
Consideration is the subject matter of a contract.
Consideration flows from and to each party. Each party gives
something. Each party gets something in return.
The primary reason for the enforceability of promises is
consideration. In order for consideration to exist, there must be
a legal value and a bargained-for exchange. Legal value can
include a promise of action that has no prior legal duty,
performance one is not otherwise obligated to undertake and
forbearance (refraining from performance of an act that is
otherwise legal).
However, in order for there to be proper consideration, there
must also be a bargained-for exchange. For there to be a
bargained-for exchange, the promise from the promissor must
be an incentive for the promisee to return the promise.
Bargained-for exchange is what distinguishes contracts from
gifts.
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In other words, it is what each party receives as the benefit
of making the contract. Each party gives something; each party
gets something in return. Each part of giving and getting is
consideration.
If valid consideration exists, courts will rarely examine the
adequacy of consideration (the value or amount of consideration
given). Generally, however, as long as consideration is legally
sufficient (both a bargained-for exchange and of legal value) the
courts will not review the consideration unless there is an
extreme case in which inadequacy might indicate fraud, duress,
or undue influence. In other words, a person is free to make a
bad deal and won’t be excused from it unless it is wrongfully
induced.
Once a party has agreed to terms, it undertakes a
“preexisting” duty to perform as agreed despite most changes in
circumstances. However, should the parties encounter
unforeseen difficulties upon performance of the contract,
additional consideration may be allowed to maintain the fair
equity of the original contract. For example:
Joe is hired by NASA as an independent contractor to
develop a new telescope. The parties have agreed upon
a contract price of $5,000,000 for the development and
production of a high-powered telescope. While Joe is
building the telescope in area 51, a freak meteor crash-
lands on his laboratory, completely destroying his work
and maiming Joe in the process. To rebuild the
telescope and the laboratory necessary for the process,
Joe would have to incur thousands of dollars worth of
expenses. This unforeseen (and unforeseeable)
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86 Summary of Contract Law
difficulty would exempt Joe from the preexisting duty
rule, providing a basis for unilateral contract
modification or termination.
However, if the economy overheats and inflation results,
which increases the costs of materials instead of a rogue meteor
crashing into the laboratory, then the courts would assert the
preexisting duty rule because the inflation is not an “unforeseen
difficulty” but rather a risk customarily assumed in business.
However, parties could mutually choose to rescind or cancel the
contract.
A promise of consideration made for events that have already
occurred lacks bargained-for exchange and thus is
unenforceable. For example:
Beth offers to pay Danielle $1,000 for passing vector
statics last quarter. Danielle did not have to perform or
forbear anything in order to receive the payment. One
cannot bargain for something that has already occurred.
Thus, the contract would be unenforceable.
The issue of consideration usually arises when performance
by one or more of the parties is uncertain, the settlement of
claims, and whether or not promises are enforceable without
consideration.
Some promises are illusory. For example:
Cal Poly Pomona sends out a bulletin stating that, “If a
significant portion of the student body attends summer
classes, Parking Services will lower the cost of student
parking passes by $40.” This is an illusory promise
given that “a significant portion” is ambiguous at best
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The Role of the Design Professional in Society 87
and completely up to the discretion of the university.
There is no bargained-for exchange and thus, no
consideration and no contractual obligation.
A unilateral option-to-cancel clause may also make a
promise illusory and the contract unenforceable. A major
automobile company once issued new contracts to all its
suppliers and made them sign or the suppliers would no longer
be used. The contracts essentially said that the auto company
would buy whatever it wanted in whatever quantities it wanted
whenever it wanted (or not). A supplier successfully challenged
the contract as not truly a contract at all.
Consideration can nevertheless be valid even when the exact
performance is uncertain, as is common in requirements and
output contracts. In brief, a requirements contract is when the
seller provides the buyer with the goods of any given type that
the buyer “requires.” An output contract is a contract in which
the buyer agrees to purchase all of the seller’s output or product.
These types of contracts are typical of oil and energy contracts.
For example:
The Big One Oil Co. builds a new oil refinery station in
the middle of Alaska. The station requires coal to
operate, so The Big One Oil Co. contracts with Little
Timmy Mining to supply the refinery station with all of
its coal-fueling requirements for the next 20 years.
This would be an example of a requirements contract.
If Texaco contracts to buy all the refined oil products
Big Oil produces at its Alaskan refinery, it has made an
output contract.
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88 Summary of Contract Law
It is important to understand the nature consideration for a
number of reasons, one of which is settlement. Settlement
usually includes accord and satisfaction, or a release and
covenant not to sue. In the case of debt, the parties can agree
to an accord and satisfaction: an agreement in which the debtor
offers, and the creditor accepts, payment or performance of
something other than what was originally agreed in satisfaction
of the claim. . For an accord to occur there must first be a
dispute regarding the amount of debt. From there the parties
can create an accord, after which is executed, satisfaction of the
debt can take place. If the debt is liquidated, however, an
accord and satisfaction cannot take place because the amount of
the debt is fixed or has previously been ascertained, as in the
case of a bank loan. There is thus no consideration due to the
preexisting obligation that would be present in a liquidated debt
settlement. And yet, if the debt is unliquidated, or in dispute,
then an accord and satisfaction can occur, discharging the debt.
A release, on the other hand, is an agreement that bars any
further recovery beyond the agreed upon terms of the release.
A release is generally binding if it has consideration given for the
release, is made in good faith and is in a signed writing.
Jesse McDaniel is an engineer engaged by Boss Man Big
to design and produce a new fuel injection system for
Mr. Big’s new line of 2009 high performance super cars.
Upon completion of the fuel injection system, the design
is implemented into the super cars and production goes
into full swing. After a few months, it’s discovered that
the fuel injection system’s design causes the car to
misfire during acceleration in 60% of the vehicles.
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The Role of the Design Professional in Society 89
When the problem is traced to McDaniel’s faulty design,
Big makes a claim against McDaniel. McDaniel then
offers Big $100,000 for a release from any further
liability. Even if later it is discovered that damages
from the faulty fuel injection system design equates to
roughly $2.5 million, Big would still be legal barred from
suing McDaniel for the recovery of further damages.
You would therefore be further ahead to understand the
full extent of your damages before signing a release.
In California, a covenant not to sue, unlike a release, does
not bar one of the parties from further recovery. A covenant
not to sue replaces one contractual obligation with a legal
action based on a valid claim.
Instead of a release, McDaniel agrees to redesign the
fuel injection system, correcting the errors for Big’s
agreement to not sue for damages. If McDaniel fails to
develop a new fuel injection system, then Big can sue
for breach of contract.
There are only a few rare cases in which consideration is
not required: promises to pay debts barred by the statute of
limitations, promises under promissory estoppel and
charitable contributions. If a creditor fails to sue for the
recovery of a debt within the statute of limitations, the law
then bars the creditor from doing so after this period.
However, the debtor can agree to pay a past debt regardless
of this restriction; in which case no consideration would be
necessary. Under the doctrine of promissory estoppel, even
though the promise may lack consideration, if the promise is
clear and definite, the promise detrimentally and reasonably
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90 Summary of Contract Law
relied on the promise, the promise is substantial and if justice
is better served with the enforcement of the promise, then
the promise may be enforced despite its lacking
consideration. Generally, charitable contributions are not
legally enforceable, as they lack consideration and are
typically deemed as gifts. However, should promissory
estoppel exist (such as the charity detrimentally relied on the
contribution for some specific purpose), then the promise
may be enforceable.
Capacity and Legality
Contracts exist between two or more persons with legal
capacity, generally two or more mentally competent adults
(though minors can enter contracts, they generally have the
right to disaffirm any contract except for necessaries of food,
clothing and shelter). Generally, in the business world capacity
is presumed since most business is conducted by legally
competent adults.
The contract’s subject matter must be that of a legal one to
be enforceable. For example, a contract for the sale of heroin
would not be enforceable due to the illegal nature of the subject
matter. However, there are some cases in which the majority of
the contract might be legal and only parts of it are illegal. The
courts can choose to enforce the legal parts and reject or void
the illegal parts as long as doing so would not affect the essence
of the bargain. In this case the contract is considered severable
and the illegal parts of the contract can be “severed.” The only
types of contracts that are contrary to public policy, and yet still
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The Role of the Design Professional in Society 91
enforceable, are: contracts in the restraint of trade or covenants
not to compete (anticompetitive agreements).
Statute of Frauds
The statute of frauds basically states that certain types of
contracts must be in writing and signed by one or more of the
parties to be enforceable (at the very least, the party to be
charged with performance must have signed the contract and
the other party can then generally enforce the contract even if
she did not also sign it). Contracts that are governed by the
statute of frauds include: interests in land, performance cannot
be completed within one year, collateral or secondary contracts,
promises in consideration of marriage, sale of goods under the
UCC for goods priced $500 or more. The statute of frauds is
directed to the form of the contract and is a defense to the
enforcement of a claimed contract.
Genuineness of Assent
Another significant defense to the enforceability of a contract
is the lack of genuineness of assent; both parties must genuinely
and voluntarily intend to be bound by the contract as defined by
its terms. There may be a lack of genuineness of assent due to
a mistake, misrepresentation, duress or undue influence.
Mistakes can take the form of either bilateral or unilateral
mistakes of fact and/or mistakes of value.
A bilateral, or mutual, mistake arises when both parties
mistake a material fact. Should a bilateral mistake occur, either
party could choose to rescind or cancel the contract. A bilateral
mistake can also occur if the parties attach a different meaning
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92 Summary of Contract Law
to a term, material to the contract. Either party, in this case,
would still be able to rescind or cancel the contract. However,
should one of the parties mistake a material fact in a unilateral
mistake, the party is not entitled to any relief from the contract.
There are, however, two exceptions to this rule: if one party
knew of or should have known of the mistake, then the contract
may not be enforceable. The second exception is that of
mathematical errors made inadvertently and without negligence.
Should this second exception occur, such as in a mistake in
addition, subtraction, division or multiplication, then the contract
may be rescinded or cancelled. In the case of mistakes of value,
where the mistake concerns a future market value or quality of
the contract’s subject matter, the contract may typically be
enforced by either party. Due to the subjective nature of
“value,” mistakes of value hold no legal significance.
Fraudulent misrepresentation occurs when a material fact is
misrepresented, one party has the intent to deceive and the
innocent party has justifiably relied on the misrepresentation,
and thereby resulting in injury. An innocent party fraudulently
induced to enter a contract is able to rescind the contract and be
restored to his or her original position or to enforce contract and
seek damages for injury as a result of the fraud. An innocent
party may only be able to collect damages if injury has been
incurred. Note that a representation of future facts or
predictions is not considered a fraudulent misrepresentation and
is thereby not subject to claims of fraud. And yet, fraudulent
misrepresentations can occur by conduct. For example,
Suppose that Boileon wants to sell you a “like new” car
that has “never been damaged.” However, Boileon has
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The Role of the Design Professional in Society 93
put a cheap resin fiberglass compound on the front
fenders of the car to cover up the car’s prior damage.
Boileon does not tell you this car was ever in an
accident. Because Boileon has covered up the damage
and not informed you of the prior damage and the
makeshift repair, it would be considered a fraudulent
misrepresentation and concealment.
Misrepresentations of the law, however, do not entitle a party
to relief because parties are assumed to know state and local
law. An exception to this rule is when that misrepresentation is
by a person of profession known to require more knowledge of
the law than an average person, such as a lawyer. Silence can
usually not be construed as fraudulent misrepresentation unless
the seller fails to disclose a serious material fact that the seller is
under an obligation to disclose that may drastically alter the
buyer’s decision; for example:
Suppose that you were planning to buy a pre-owned
vehicle. However, two years prior the car had been in
an accident and although the exterior fiberglass and
paint had been restored to its “original look,” there was
major damage to the car’s frame; weakening it and
potentially seriously impairing the overall safety of the
automobile. This concealment of important information
would be considered a fraudulent misrepresentation.
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Performance and Remedies
The primary reason for contracts is to benefit from the
resulting performance; people make contracts to get what they
want or need.
Most contracts are absolute promises in which performance
must occur or else the promising party is in breach of contract.
However, sometimes performance is contingent upon an event,
or condition. A condition is a possible future event that triggers
the performance or termination of a legal obligation. Should the
condition(s) not be satisfied, the legal obligations will be
discharged, be suspended, or otherwise change.
There are three types of conditions: conditions precedent,
subsequent, and concurrent. Condition precedent requires the
condition is fulfilled prior to performance. Conditions subsequent
terminate a party’s promise to perform and concurrent
conditions occur when each party’s absolute duty to perform is
contingent on the other’s simultaneous performance. Conditions
can either be express or implied.
Time is a condition, express or implied. Time is generally
not of the essence in most contracts even though the parties so
state. The reason why timely performance is essential must be
clearly stated in the contract or else mere delay in performance,
though technically a breach is not actionable in the absence of
showing damages resulting from the delay.
Most contracts are performed to the full or substantially
full satisfaction of the parties. Thus, the majority of contracts are
discharged by performance; the contract comes to an end when
both parties have fulfilled their duties. Performance can either
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The Role of the Design Professional in Society 95
be complete or substantial. Complete performance can only be
achieved if all terms are satisfied; however, substantial
performance need only be performed in good faith to enforce the
contract against the other party. If one of the parties willfully
fails to complete full performance, the terms will not have been
substantially performed in good faith and he or she is this
subject to breach.
There are several ways in which a contract may be
discharged. As with many elements of contractual formation and
development, the contract can be discharged by agreement.
Parties can agree to discharge the contract in and of itself, or
can agree to form a new contract with the express purpose of
discharging the original agreement.
A contract may also be discharged by a mutual rescission,
which takes place when both parties make an agreement, which
satisfies legal requirements for a contract. A rescission allows
for both parties to return to their original positions prior to the
agreement.
For a novation to discharge a contractual obligation, both
of the parties agree to substitute a third party or one of the
original parties. To form a novation, courts require (1) a
previous and valid obligation, (2) an agreement between all
parties to the new contract, (3) discharge of the previous party,
and (4) a valid new contract.
A discharge can also occur by means of a compromise, or
settlement agreement, occurring when a genuine dispute over
contractual obligations arises. The agreement will substitute for
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96 Summary of Contract Law
the contract, expressly or impliedly discharging the prior
contractual obligations.
When parties agree to accept performance different than
performance originally contracted for, it becomes known as
discharge by accord and satisfaction. Much the same a
settlement agreement, accord and satisfaction substitute as a
means of discharge, except, unlike a settlement agreement, the
substitution is in the form of performance, rather than
agreement.
When circumstances become uncertain, discharge of
contractual obligations may arise due to operation of law. Such
a release of duties can manifest in a number of ways, including:
alteration (a material alteration of the contract without consent);
statute of limitations (a delay in filing suit bars the availability of
remedy); bankruptcy (discharging the debtor’s contractual
obligations); and the impossibility or impracticability of
performance (via death or incapacitation, illegality of the
performance, destruction of the subject matter, other obstacles
that may make performance highly impractical).
The general remedy for breach of contract is compensatory
damages. Compensatory damages are determined by the
difference between the performance as required by the terms of
the contract and the performance that is actually rendered.
Compensatory damages are limited to the value of the contract
itself, plus the incidental costs of covering or curing the breach
of the contract by obtaining the same performance from some
other party.
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Consequential damages are damages beyond the contract itself
caused by the breach of the contract and for which the breaching
party had expressly promised to pay in the event of breach.
Consequential damages can be very costly and therefore
contracting parties do not willingly agree to be liable for them.
Express exclusion of consequential damages is far more
common.
Punitive damages cannot be obtained under contract law.
However a fraud perpetrated under a contract may also be
pursued as a tort claim for which punitive damages may be
awarded. However, punitive damage awards are rare and that is
why such an award sometimes is front-page news. Most
punitive damage awards are later set aside or substantially
reduced by post-trial motions or appeals, but the reductions
weeks or months later rarely make the front pages; people
therefore tend to have a falsely skewed sense of punitive
damages.
Certain equitable remedies are also available in contract matters.
Equitable relief includes: rescission, which sets aside the
contract and puts the parties back in their original positions prior
to making the contract; reformation, which fixes a demonstrable
mistake in the contract; and injunction, which can prohibit one
or more parties from taking certain action under or contrary to a
provision of the contract.
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Chapter 6: Contract Development
By John W. Tulac
Contracts don’t write themselves! Just like short stories,
magazine articles, or technical reports it can be hard work to
prepare a well-written contract. This article provides you some
guidelines to use in the preparation of written contracts.
Some Principles
When preparing any type of contract an excellent principle
is to develop the relationship then build the deal. After all, the
contract is supposed to document the relationship two or more
parties wish to have. It only makes sense to understand that
relationship before you make the deal.
The Rotary Four-Way Test is good place to start. Ask the
following questions about the proposed contract.
1. Is it the Truth?
2. Is it fair for all concerned?
3. Will it build good will and better relationships?
4. Will it be beneficial for all concerned?
Many people think the goal of negotiating a contract is to
gain an advantage over the other party or parties in the
contract. However, this is a recipe for future performance
problems, disagreements, and litigation. The concept of
Principled Contracting strives for balance and fairness among all
parties. Principled contracts are much more likely to be
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The Role of the Design Professional in Society 99
successfully executed, than one-sided contracts. Here are some
Rules of Thumb for Principled Contracting.
1. Know your counterpart.
2. Say what you mean and mean what you say.
3. Keep it simple, stupid.
4. Balanced contracts get performed. Inequitable
contracts don’t.
5. If the subject matter is important to you, get it in
writing.
6. Do more than the contract requires.
7. Know when to walk away.
Build Contracts by Asking Questions
Questioning is a good technique for developing principled
contracts. Ask simple questions when developing contracts.
Questioning is also useful when applying the IRAC methodology.
Keep asking questions until you have all the answers.
Here are some good questions to ask when developing
contracts for goods
1. What do you want?
2. How many do you want?
3. When do you want them?
4. Where do you want them?
5. What happens if they are late?
6. How much is it/are they?
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100 Contract Development
7. When is payment due?
8. In what form is payment due?
9. What happens if ____?
10. Who is responsible if___?
Here are some good questions to ask when developing
contracts for services
1. What do you want?
2. What do you already have?
3. When do you want it?
4. Where do you want it?
5. What happens if something is late?
6. How much will the work cost?
7. When is payment due?
8. In what form is payment due?
9. What happens if ____?
10. Who is responsible if___?
If you think about it, these ten questions embody the four
professional requirements of a contract: Scope, Schedule, Price,
and Terms & Conditions.
These principles and questions are useful tools in the
development of contracts. However, it’s often difficult to ask
and answer these questions at the start of developing a contract.
It often helps to have a guide or template to start from.
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Contract Development Checklist
In the real world developing contracts for professional
services are not simple. There are many contract guidelines and
sample contracts available for design professionals. Some
professional organizations also have well-prepared (if often
overly long) contracts that you can buy and modify. Every
design professional should have her own suite of contracts (for
simple to complex work) ready to offer any potential client.
The following checklist addresses many but not all of the
terms that might be found in a contract for professional design
services:
1. Scope: Describe in as much detail as necessary
what the assignment is. Sometimes, only a result is
necessary. Example: I will design a widget for you.
Sometimes there are multiple “deliverables,” all of
which need to be itemized and sometimes described
in great detail. In the latter case, it is better practice
to include an exhibit setting forth a very detailed
scope of work. When in doubt, it is better to be
detailed and specific, particularly if compensation is
based in whole or in part on line-item deliverables.
2. Schedule: Be realistic about how long it will take to
accomplish the Scope of Work to be able to do it well
without being rushed. Rush assignments do occur,
in which case consider charging a premium for the
shortened Schedule. How long will the contract last?
This is the term of the contract
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3. Price (based on your cost): Pricing services involves
more than establishing hourly billing rates based on
the experience. It starts with how much time it
costs to produce something. Once produced, that
something has value, if it can be used over and over
again. Value billing puts a price on that something.
Value billing is also used to determine what
something might be worth to the client and therefore
what the client might be willing to pay for that
something. Expenses must also be considered.
Some expenses, such as overhead or administrative
expenses, must be absorbed by the price. Other
expenses that are specific to the contract may be
reimbursable. How to price professional services is
beyond the scope of this section of the book.
4. Terms and Conditions: This section of the chapter
is not all-inclusive. You will encounter some other
terms and conditions as a result of reading the
sample contracts for two class exercises and also the
final exam. These terms and conditions do not
necessarily come in any particular order in a
contract, although logic and custom and practice
often determine the order of appearance of some
terms. Also, there is an online lecture that will be
posted on Blackboard for you to access. We start
first with some terms (a-f) that do not belong in your
professional services contract.
a. Standard of Care: The standard of care is the
law. The contract does not need to include a
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The Role of the Design Professional in Society 103
clause for the standard of care. If it does, make
sure it precisely and correctly states the applicable
standard of care. A design professional can agree
in contract to a higher standard of care than the
law requires. That is not a good idea.
b. Time is of the Essence: This is a frequently
encountered term that should never be in your
professional services contract. It means time is
important. It means time is money. Legally, it
means absolutely nothing by itself, but it can be
extremely dangerous when put in context of
establishing the right to consequential damages.
See chapter 5 section describing damages.
c. Absolutes: Do not include promises of absolute
conditions of performance, especially about things
that depend on external factors and may or are
outside of your control.
d. Exculpatory Clauses: The client will seek to
excuse itself from any and all liability and prevent
you from doing the same with respect to any
potential liability, no matter how narrow.
Exculpatory clauses rarely work in favor of the
design professional, so it is better to keep them
entirely out of the professional services contract.
e. Terms found in construction contracts or sales
of goods: Design professionals don’t build things
or sell goods as a general rule. Terms that relate
to the building of things or the sale and delivery of
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104 Contract Development
goods are not appropriate in professional services
contracts. A Design-Build contract is an
exception.
f. Guarantees or Warranties of Work: Since the
design professional does not build, it the design
professional cannot guarantee or warrant the
results of design work. Indeed, it is unethical to do
so and therefore is prohibited. Clients will attempt
to get the design professional to do so in contract
anyhow. You cannot agree. A design professional
can guarantee or warrant something that is factual
in nature. Example: The design professional can
warrant (represent) that she possesses a valid civil
engineering license in the State of California an
that the license is current and in good standing.
Example: A design professional can warrant
(represent) that he has never been subject to
discipline or been sued.
g. Remedies for Breach of Contract: The legal
remedy for breach of contract is damages. The
general measure of damages for breach of contract
is compensatory damages. It is possible for a
design professional to agree to be responsible for
consequential damages; however, this is
extremely dangerous and can wipe out a design
professional’s business and personal assets in the
event of a catastrophic claim of loss. See the
section regarding damages in Chapter 5. Since
design services are personal services, a design
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The Role of the Design Professional in Society 105
professional cannot be compelled to provide them.
Thus, specific performance is not a contract
remedy for a design professional’s breach of
contract. Finally, punitive damages are not
recoverable as a remedy for breach of contract.
However, if the act or omission that causes a
breach of contract is also an intentional tort, then it
is possible to recover punitive damages under the
tort claim.
h. Indemnity: Indemnity is a simple concept that
has been made incredibly complicated, divisive,
and expensive through custom and practice in
design services contracts and construction
contracts. Indemnity is an agreement made in
contract by two or more parties allocating
responsibility to pay for damages to third parties
arising out of the performance of the contract
(including torts that might be committed in the
performance of the contract). A third party is
someone who is not a party to the contract. Thus
indemnity is allocation through contract of liability
for damages. Allocation can be made to one party
or another to the contract regardless of that party’s
actual fault. Design professionals should seek to
avoid agreeing to be liable for damages through
indemnity for things that they did not in fact cause.
Design professionals should also avoid agreeing to
indemnify for things that are outside the coverage
of their insurance. At the very least, if a design
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106 Contract Development
professional agrees to an onerous indemnity
clause, she gets something in return like a higher
price for services or a limit on the indemnity
remedy to the amount of insurance, etc.
i. Insurance: Insurance may or may not be
ethically mandatory, depending on the state, but it
is always a good idea. A design professional is
often required to state their insurance coverage in
the contract for professional services. Sometimes,
a client will wan a higher level of coverage than the
design professional currently carries, in which case
it is perfectly reasonable to ask the client to pay
the additional premium for the higher coverage.
j. Change Orders or Amendments: Changes to
the contract should always be made in writing.
The legal term for a change to an signed contract
is an amendment. The term change order
originates in construction law, but is applicable to
professional services. However, beware of overly
complicated processes or contract language to
carry out a change order or you will be asked to
provide your change in service, which may also
mean an upward change in price, before the
change order is approved and signed by the client,
particularly if the client is a large company. Then
you may find that you performed the changed
service for free. It is a dirty trick. Never provide a
change in service, until the change is documented
as a singed amendment to the contract.
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k. Ownership of Deliverables: Does the client own
the design and all the related work papers and
documents that evidence the design? The client
often demands ownership. The design professional
usually resists. It is a matter resolved by
agreement in contract. Although fairness is not a
legal element of any contract, it is often extremely
unfair to the design professional to have sold all
rights to a design in exchange for one payment
when the client intends to use the design (or some
aspect of the design) over and over again.
l. Confidentiality: Information exchanged between
the design professional and client is often sensitive
or subject to trade secret, and needs to be
protected from inadvertent or intentional disclosure
to others who do not have a need or right to know.
A confidentiality clause sets forth the kind of
protection to be given to confidential or proprietary
information. A separate Confidentiality Agreement
is often prepared and executed to allow the parties
to discuss candidly all matters to determine
whether they will enter into a contract for
professional services.
m. Termination of Contract: Sometimes a contract
needs to end early. The design professional should
be paid for all work completed up to the time of
termination, along with work in progress that has
not been completed or billed yet and documentable
expenses incurred in anticipation of full
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108 Contract Development
performance of the contract. And good luck getting
all that. Termination for Cause means that the
contract is being terminated for breach of contract.
Termination for Convenience means that the
client, never the design professional is terminating
the contract because it wants to do so. The
government entities are allowed to do that. Private
parties should never be allowed to do so without
paying for the privilege to terminate.
n. Waiver: A party to a contract can waive a right it
otherwise possesses. For example the parties can
waive the right to sue and defend in court in favor
of private arbitration. Be very wary of waiving
rights.
o. Conditions: A condition means that something
must occur before (condition precedent), during
(condition concurrent), or after (condition
subsequent) the performance of some particular
part of the contract. Having all the necessary
information from the client before being obligated
to perform is an example of a condition precedent.
p. Dispute Resolution: Consider alternative dispute
resolution such as arbitration and mediation.
Include a provision for recovering attorney fees for
the prevailing party in the event of a dispute;
otherwise, attorney fees are not generally
recoverable for cases arising out of breach of
contract.
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The Role of the Design Professional in Society 109
q. Other terms: There are many other terms that can
be included in this checklist. Here are a few
common practices. It is always a good idea to
include the full and formal name of the client,
address and contact information, as well as the
title and authority of the person signing the
contract if the client is a company. A contract
signed by a person lacking authority may not be
enforceable. The contract should be dated,
usually as of the time it is signed. If performance
is expected to start at a later date, then that later
date should be specified in the contract. I like to
include a purpose clause in the contract; although
there is no legal requirement for a purpose clause,
it sets forth the reason(s) why the parties are
making this contract. I also like to make good use
of recitals, which are statements of fact about the
parties, the project or scope of work, or other
material information upon which my client is
entitled to rely in choosing to enter into a contract
with the other party(ies). In the event of an
ambiguity or a dispute, these statements of fact
can be vey useful.
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The Ideal Professional Services
Contract
The ideal professional services contract may not exist, but if it
did, it would have the following features:
1. All design professional liability is based on negligence.
2. The design professional is liable for compensatory
damages only.
3. There is a maximum dollar limit on the design
professional’s liability.
4. There aren’t any guarantees, warranties, one-sided
indemnity clauses or exculpatory clauses.
5. There is a reasonable amount of time to accomplish the
scope of work for reasonable compensation.
Contract Review
A design professional must become good at reviewing
contracts or contract changes prepared by clients and lawyers
for clients. Multiple drafts with revisions are often prepared.
The design professional, not just the design professional’s
lawyer, must read each draft in its entirety every time, not just
the changes that might be redlined. The other side could
selectively choose to turn off redlining and then you might miss
a key change. Yes, this is another dirty trick, one that I think is
highly unethical if done deliberately. It happens. Don’t let it
happen to you.
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The second reason is that subsequent revisions might
require the design professional to rethink and then renegotiate
other clauses previously agreed.
Regulatory Law
Regulatory law may impose additional requirements on
what must be contained in a written professional services
contract. These requirements will vary from state to state. For
example, California requires a licensed engineer to include the
license number in the contract.
California requires the following:
Requirements: Before the Professional Engineer or Professional Land Surveyor begins work, they need to sign a written contract with their client, or his or her representative. However, there are exemptions. The written contract must include, but not be limited to, all of the following:
1. A description of services to be provided by the Professional Engineer or Professional Land Surveyor,
2. A description of any basis of compensation applicable to the contract, and method of payment agreed upon by the parties,
3. The name, address, and license or certificate number of the Professional Engineer or Professional Land Surveyor, and the name and address of the client,
4. A description of the procedure that the Professional Engineer or Professional Land Surveyor and the client will use to accommodate additional services, and
5. A description of the procedure to be used by any party to terminate the contract. Exemptions: A written contract is not required under the following circumstances:
1. The client will not be compensating the Professional Engineer or Professional Land Surveyor for their services.
2. The Professional Engineer or Professional Land Surveyor has a current or prior contractual relationship with the client to provide professional services, and the client has paid the Professional Engineer or Professional Land Surveyor all of the fees that are due under that contract.
3. The client knowingly states in writing, after full disclosure of this requirement, that a written contract need not be used.
4. Professional services are rendered by a Professional Engineer or Professional Land Surveyor to another Professional Engineer or
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112 Contract Development
Professional Land Surveyor; an architect; a contractor; a geologist or geophysicist; a manufacturing, mining, public utility, research and development, or other industrial corporation, if the services are provided in connection with or incidental to the products, systems, or services of that corporation or its affiliates; or a public agency.
Notes
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Chapter 7: Business Planning and Marketing
By: Abdul Rashidi, William A. Kitch, and Jana Spruce
Main Ideas
Every organization whether in manufacturing, retail, or
professional service, requires a business plan. The plan defines
the objectives and nature of the business, as well as strategies
and an implementation plan for carrying out the strategies. The
business plan must be prepared in a clear and concise manner
so that it becomes the roadmap for the operation and success of
the business.
A business plan typically includes and addresses, in detail, the
following major components:
1. The organization plan
2. The marketing plan
3. The financial plan
4. Project Analysis (for engineering services)
While the above components are necessary and essential
for an organization, the marketing plan is arguably the most
critical component. The marketing plan is the most dynamic and
costly component in a business plan. It is a leading element in
the business plan. Successful marketing allows an organization
to grow and to be profitable. Inadequate or misdirected
marketing, on the other hand, results in shrinking and can even
business failure. In 2009 we witnessed two of the three US auto
companies (a historic business giant) crumble and undergo
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114 Business Planning and Marketing
bankruptcy because of their inability to predict future market
desires (buyers desires) and their appetite for high-efficiency,
low-cost, and highly-reliable cars. In contrast, the successful
marketing plan and execution of the rival foreign auto industry
helped them survive the financial crises of 2008-2009 and
continue their high-level sales in the US.
This chapter will discuss all four elements of the business plan.
However, the bulk of the contents will cover the marketing plan
because of the key role it plays in business planning. The
financial planning section of the business plan will be expanded
in Chapter 8.
The Organization Plan
The organization plan describes the nature of the business,
long-term strategies, business operating model, and it may
include the following elements:
1. Description of the Business
This element includes the type of business, a mission
statement, and a business model and strategy which should
include both short-term and long-term objectives.
2. Type of Products or Services
For a manufacturer, this element provides a description of the
products, availability and distribution of the products, and other
relevant information. For a professional service provider, it
provides a description of the current and future products,
general and unique special services.
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The Role of the Design Professional in Society 115
3. Geographic Location
This element provides an overview of the company and
describes the company headquarters and current and projected
locations. It not simply a list of operating locations, but should
identify the legal and geopolitical regions in which the company
operates.
4. Organization Legal Structure
This element describes the company’s legal structure (e.g.,
corporation, partnership, etc.) and why the selected legal
structure is advantageous for this company.
5. Management Structure
This element describes how roles and responsibilities are
divided among the key leadership in a company. It should
include an organization chart, a listing of owners and/or
corporate officers, the roles and responsibilities key personnel,
and often salaries. It may include resumes to show the
management strengths of key personnel.
6. Human Resources
This element provides current and future number of
employees and positions plus requirements for level of
education, professional and experience qualifications. It may
also include budgetary information on salaries and benefit costs.
7. Other Elements
The organization plan also include a number of other elements
which provide Information on the accounting system used, the
accounting company employed, monthly or periodic financial
analysis, preparation of profit and loss statements, tax
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116 Business Planning and Marketing
preparation, attorney services for legal matters, type and cost of
insurance and the insurance carrier used.
Marketing Basics for Engineers
What is marketing?
The common framework for analyzing a marketing strategy is
called the Marketing Mix. The Marketing Mix consists of the three
C's and the four P's. The Cs consist of company, customer and
competition. This business tool is quite commonly used for the
analysis of a business plan and the creation and execution of a
marketing plan. There are many variations that add P's or C's.
For our purposes, we will stick with the originals and apply them
to engineering services.
First, we look at the three C's, Company, Customer, and
Competition.
Company
To analyze this aspect of marketing, we look at the company
from both an internal and external perspective. We can do this
by asking a series of questions. How did the company start?
What was the personality of the founder(s)? What is the
company focus? What is the culture of the company? What is the
image? Is the firm younger, scrappy and on the cutting edge of
technology while delivering a high quality product? Or perhaps
the company is older, sage, reliable and trustworthy. If your
marketing plan does not match the truth of the company, clients
will recognize the mismatch.
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Customer
Next we look at the business' target customer. Is there a target
customer? How is their customer defined? Having a clearly
defined and narrow target enables clearer messaging. If you say
your customer is "everyone," you don't really know your
customer. For this element, it can be very helpful to analyze not
only the types of companies you want to sell to, but the
personalities of the individuals who make the decisions. Do you
work for a high-rolling, fast paced residential developer who is
stretching every dollar and on a tight schedule? Or is your target
customer an agency with a very stable budget, lots of
bureaucracy and no rush? How you sell to each of these would
be very different. You will find it very difficult to be all things to
all clients.
Competition
There are always other things your customer could do with their
dollar. There are always options. If you say you "don't have any
competition," you are only showing your ignorance of your
competition. Sometimes, your competition is the option to do
nothing. Some of your potential customers will choose that.
Differentiation is very important in marketing. How is your
company or your product different than the competition? In
order to sway your potential customers or clients, you need to
understand your competition and be able to articulate why you
are superior. Regardless of the selection method for bids,
qualifications are important. Understanding how you measure up
to the competition can inform your next key hire or help decide if
the firm wants to pay for additional education for employees.
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118 Business Planning and Marketing
Next, let's look at the Four Ps. They are promotion, product,
price, and placement.
Promotion
Promotion is what most people think of as marketing, as
promotion encompasses all forms of communicating with
customers. Promotion includes advertising, messaging, public
relations (PR), discounts, proposal writing, business cards, logos,
etc. As you can see in this article, marketing is much more than
just advertising or promotion. Promotion is what you tell your
customers and how you tell them. Marketing is the overall
business strategy.
Product
This one sounds easy, right? Understanding your product and
the value it provides a customer or client is critical to successful
marketing strategy. Let's take, for example, a minor league
baseball team. Are they selling 11 guys in tight pants running
around a field? No. Nobody would buy that. What are they
selling? One team decided that they were selling family
entertainment. This slight shift in their understanding of their
product changed everything about their marketing strategy.
Family entertainment meant that they needed to provide clean,
safe restrooms with diaper changing tables. The bleachers
needed to be clean. They added a park-like area behind the
outfield where parents could take their active kids to stretch and
play while still seeing the game. They added more prizes and
giveaways for families and kids. They emphasized a funny, non-
threatening mascot on their marketing and merchandising. As a
result, they sold a little less beer, but a lot more tickets, food
and merchandise. So, ask yourself. What is your product? What
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service do you provide? When clients sign a contract with you,
what are they expecting to get? Are you selling a set of detailed
plans? Or are you selling vision, confidence and knowledge?
Price
The important thing to understand with price is that it can
convey more than just a number. Think of some higher priced
items you would buy, such as a name brand watch. Why are
people willing to pay more for a Tag Heuer? Why do people shop
at Wal-mart? Price is a strategy. As you probably learned in
economics, raising your price usually means you sell fewer units.
Will you make more profit with a higher price? That depends. If
you are a low-cost provider, you may not need fancy conference
tables, glossy report covers and all the latest technology and
equipment. If you are higher priced, clients will expect those
extras as well as top customer service. Some clients expect that
if they are paying more that they will be your firm's top priority.
In some cases, your choice of work will drive price, such as
union-only jobs or prevailing wage. It is up to your firm to decide
your pricing strategy and make sure it fits with the other
elements in the marketing strategy.
Placement
Marketing gurus needed a P word that stood for how you
physically get your product to your customer, so they came up
with placement. It can also be thought of as location or
distribution. For this element we ask, where do clients go to find
your product? That is placement. In the case of an engineering
design firm, where do clients go to find the product? They can't
stop at a 7-11 and find custom bridge plans next to the Doritos.
There is no middle-man distributor. In design firms, as with
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120 Business Planning and Marketing
many professional services, most work comes from relationships.
You have to know someone. You have to develop a relationship
with those clients so that they will know your firm and think of
you when they have work, they will like you and want to work
with you, they develop trust in you and feel confident that you
will give them the best service, then they will not only ask you to
bid on their work, but refer you to others. This is why we
emphasize professional behavior and communications in this
course. When you meet with a client, you are the advertising for
your firm. Your actions, and your words are the label.
As you can see, marketing is more than just advertising.
Marketing guides your business plan and a cohesive strategy for
building the business. If you have a strong strategy, your
marketing mix will sound repetitive. If you read through your
analysis of the mix and the elements are not all in alignment,
your strategy is weak. Just declaring that you are going to work
harder than the other guy is not a business plan. Your strategy
needs to be strong and it needs to permeate your firm.
The Marketing Plan
The essence of marketing is to identify current and future
needs and desires in the marketplace and then align a
company’s products, skills, and resources to fulfill those needs
and desires. The basic understanding of marketing is important
not only to engineers and engineering managers but to everyone
working in a company. If the marketing process is accomplished
efficiently, it will make everyone better off by creating strong
opportunities and challenges, a higher standard of living,
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enhanced life style, etc. With the advancement in technology,
improved world economy, globalization and higher standard of
living throughout the developed countries, the importance of
marketing has increased during the past decade and will
continue into the future.
One might ask: why marketing? Here are a few reasons:
• Marketing is required and without it cannot depend on
future work
• Marketing does cost money, but the money spent is an
investment for future income - as the saying goes,
there’s no free lunch
• Successful marketing requires in-depth planning – need
to know where and why we’re spending money on
marketing
• Marketing is everyone’s job, everybody does it – even
the new staff engineer
Elements of Marketing
Many views and opinions are offered and discussed in the
literature about functions of marketing. Although there are many
different approaches to marketing they all contain many of the
same key principles. The simple approach to key elements of
marketing offered by Hise 1 is discussed here. These key
elements and their brief descriptions are as follows:
• Product advertising
• Product pricing
• Collecting product market information
• Product management
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122 Business Planning and Marketing
• Product physical distribution
• Product distribution channel management
• Personal selling
1. Product Advertising
Product advertising is concerned with informing the users or
buyers regarding the availability of services and goods so they
can purchase them to fulfill their needs and desires. In product
advertising, the important duties performed are advertising
budget determination, media selection for advertising,
advertising message preparation, and advertisement
effectiveness monitoring and testing.
2. Product Pricing
Product pricing is concerned with pricing products and
services. People involved with pricing, generally management,
will make many decisions, such as price objectives, basic price
setting procedure, price changes procedure, discount policy,
establishing product prices, etc.
3. Product Market Information
Product market information is collected by the marketing
research unit of a company and is provided to the decision
makers. This information deals with finding out market needs,
buyer’s quality desires, and satisfaction with the current
products and services. The information is typically collected on
the following items:
• Size of population and trends in areas under
consideration
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• Size of potential customers
• Potential sales volume
• Identification of profitable and unprofitable segments of
the market
• Types of buyers
• Purchasing decision makers
• Product price range
• Competition
• Types of advertising
• Company image in the market
4. Product Management
The main responsibility of this element is to develop new
products and services which meet and exceed the requirements
of the buyer. This task or responsibility is usually accomplished
through the collaboration of the production and the research and
development departments of the company. Example decisions
include: types and quality of product, warranties, the brand
name, product support in the field, etc.
5. Product Physical Distribution
This element deals with the manufactured goods movement
from the plant to the end users. The manufactured goods
transportation and storage are the two major items involved in
this element. In the physical distribution area, warehouse types,
locations, and sizes are important. The other duties associated
with this task are making decisions regarding customer service,
optimum number of items in the inventory, mode of
transportation, shipment size, etc.
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124 Business Planning and Marketing
6. Product Distribution Management
In the manufacturing goods industry, the companies generally
use middlemen such as wholesalers and retailers to market their
produced goods. In this case, the wholesalers and retailers are
the distribution channels. Major duties of this function are
making decisions on whether or not to use middlemen, selecting
middlemen, performing distribution channels effectiveness
analysis, etc.
However, in the professional engineering business, middlemen
are not used and mass distribution is not applicable. Selling and
marketing is performed by designated company individuals, such
as the company office manager and project managers.
7. Personal Selling
Personal selling is similar to the aforementioned product
advertising element but the difference is that personal selling
makes use of personal resources to inform customers and clients
about the existence of products which can satisfy their needs. In
other words, the marketing personnel call on customers and
clients. This method is widely used in marketing professional
engineering services.
Marketing Approach
An effective marketing plan is a process which starts with an
in-depth viability analysis of the market, assessing the needs
and desires of the buyers, setting objectives for product
development, developing strategies for sale of product, and
finishes with a feedback control system to ensure compatibility
between the product quality and buyers’ needs. It is also an
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interactive process, so that the output of each stage is checked
to see what impact it may have on the earlier stages and to
modify as necessary.
The value of this process is that it moves from the general to
the specific; from the overall objectives of the organization down
to the individual action plan, with a visible audit trail.
1. Perform Market Analysis
Market analysis identifies the needs of the market. Once the
needs are known, the company can decide on the best plan to
serve the identified market, etc.
Marketing analysis focuses on:
• Looking in - who are we, what do we do?
• Looking back - what have we done well in the past?
• Looking out - who are we working for?
• Looking ahead - what changes are coming?
An analysis of the past leads to an understanding of the
future. Therefore, trend analysis is often performed to prepare
predictive future business models. These models serve as the 1,
5, and 10-year business and marketing plans.
A typical example of a market analysis for the Hotshot
Structural Engineering firm is presented in Figure 1. This
analysis of the last fiscal year’s income and revenue indicated
that this firm added 5% new client for 15:1 revenue/cost ratio –
is this okay? While the revenue/cost ratio for the 5% new client
is relatively high for this firm, however the added client justifies
the cost.
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126 Business Planning and Marketing
2. Perform Environmental Analysis
Environmental analysis is concerned with evaluation and
assessment of the competition, health of economy, availability of
technology, legal aspects, cultural issues and others.
3. Establish Product Objectives
The next step is to establish objectives. A firm usually set two
types of objectives:
• Strategic objectives - The strategic objectives are
long term, taking more than one year to accomplish,
and are the core objectives of the firm. They are
established early on as part of the organizational
planning activities, and include such items as volume of
sales, % annual growth, % share of the market, %
profit and geographical locations. These objectives are
set by the company owners and upper management.
• Tactical objectives - The tactical objectives are
generally short term, often one year long, and are
assigned to the firm's marketing and other
departments.
4. Achieve Strategic Objectives
In this step, through several combinations of products and
markets, the marketing and management personnel make
decisions relative to achievement of strategic objectives. The
four different product/market combinations used are presented
in Figure 2.
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5. Achieve Tactical Objectives
This step is concerned with accomplishing tactical objectives.
It starts with first translating the high-level strategic objectives
into lower-level tactical objectives and then developing specific
action plans for implementation. In marketing professional
services, the strategic objectives are first translated into regional
and office-level strategies and then refined to specific-project-
level action plans. Examples are: switching the advertising
media and updating brochures to increase the number of
potential users, offering seminars to increase clients/customers
product knowledge, developing a strategic marketing plan for
winning a project, etc.
A typical marketing/business plan may include the following
product line categories and segment classifications. This serves
as a useful tool for both marketing and budget and project
management analysis purposes.
• Marketing Product Area –major product areas which a
firm is performing business in and delivering their
products
• Marketing Segments – types of products within a
product area
• Marketing Sub-segments – types of products within a
segment area
• Marketing Unit – projects within a sub-segment,
segment and/or a product area
An example of the business plan for MWW, Inc. Environmental
Engineering is presented in Figure 3.
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128 Business Planning and Marketing
6. Setup Marketing Organization
The next step is to set up the best marketing organization to
achieve these objectives. Marketing organization is concerned
with the basic organizational approach, determining the span of
control, degree of specialization, centralization/decentralization
of product development, size and training of marketing
personnel, and procedure for motivating marketing persons.
7. Establish a Feedback Control System
The objective of the feedback control system is to monitor the
performance of the marketing activities and provide feedback on
their effectiveness. To conduct this activity, the company should
establish the monitoring aspect of the marketing operation, the
measuring criterion, the performance standards.
The Financial Plan
Financial plan includes all financial documents and records
that indicate past, current, and future finances. This section of
the business plan quantifies everything that was stated in the
organizational and marketing plans. For this reason, this part of
the business plan is done following completion of the other two
parts.
Major documents that will be included in the financial plan are
briefly described below. The information should be developed
and organized in the order presented below because they build
on each other, utilizing information from the ones previously
developed.
1. Financial Needs
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A financial need statement is required if the business is
seeking financing and loans. It should cover the purpose and
amount of loan needed and how the funds will be used.
2. Budget and Cash Flow Analysis
This document interprets the business plan requirements and
expresses them in terms of dollars and provides cash inflow and
outflow projections over a period of time. It is of prime interest
to the lender and shows how the business intends to financially
operate and to repay the loan.
3. Income Projections
A business prepares a Income Profit and Loss Statement (P&L
Statement) for each operating year. This statement is typically
prepared at the beginning of a fiscal year covering the previous
12 months of operation. Utilizing the records of the past year
and the budgetary requirements of the marketing plan for the
next 3 to 5 years, income projections are then prepared.
4. Profit and Loss Statement
The profit and loss statement covers a company’s financial
activity over a period of time (monthly, quarterly, annually). It
provides a moving picture showing what has happened in the
business and it is an excellent tool for assessing business health.
5. Balance Sheet
A balance sheet is a summary of Assets, Liabilities, and Net
Worth of the company as of a certain date. It gives a picture of
the firm's financial conditions at a particular time and shows
whether a firm’s financial position is strong or weak. Balance
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130 Business Planning and Marketing
sheets may also be projected for the current or coming years
utilizing the budget and income projections.
6. Financial Statement Analysis
Utilizing income statements and balance sheets, it is easy to
develop a comparative analysis of several years financial
statement to study trends for overall company business
growth/decline, business market sector growth/decline,
comparison of this business with competition, P&L trends, etc.
Results are expressed as ratios or percentages that can be used
to compare this business with industry standards. These
analyses are also important documents in determining whether
or not a loan is justified. Typical analysis include: liquidity
analysis, return on investment, debt ratios, profitability analysis,
etc.
7. Financial History
This is a summary of financial information of a company from
its start to the present.
Project Analysis
Project analysis is a process of collecting relevant existing
information on company projects and conducting trend analysis
in an effort to develop a predictive business model. The model
will assist the company decision makers to make realistic and
informed decisions relative to the strategic objectives and goals.
A typical project analysis may include the following:
• Develop a project analysis form (see attached PAF)
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• Gather records (technical, performance and financial)
on all projects done in the last 5 years
• Complete the PAF for each project
• Develop a project analysis spreadsheet from the PAFs
• Develop criteria for analysis
• Perform analysis and present the results both in tabular
and graphical formats
• Research, review, and document future (1, 5 and 10-
year horizons) market potentials, market shares,
volatility, and variability in the company’s established
product lines
• Develop trends and predictive models for the business
plan
References
1. Hise, R.T., P.L. Gillette and J.K. Ryans; Basic Marketing:
Concepts. Cambridge, MA, Winthrop Publishers, Inc. 1979
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132 Business Planning and Marketing
Figure 1. Typical marketing analysis
Figure 2. Product market combinations to fulfill strategic objectives
Figure 3: Business Plan Components
Annaual Sales Revenue/Cost Presentaiton
Hotshot Structural Engineering, Inc.
% Total sales = 20 % Total sales = 5
Revenue/Cost ratio Revenue/Cost ratio
25:1 15:1
% Total sales = 60 % Total sales = 15
Revenue/Cost ratio Revenue/Cost ratio
30:1 20:1
Existing New
Client
E x is
ti n
g
N e w
S e rv
ic e
Same product,
same market
Same product,
different market
Different product,
same market
Different product,
different market Product/
market
combinations
to fulfill
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Figure 4: Typical Project Analysis Form showing key data that must be gathered
for each project
MWW, Inc. Environmental Engineering
General Marketing and Planning Categories
Product line Planning Design Construction
Management
Design Build
Construction
Segment - Environmental Studies - Water - Water - Water
- Master Plans - Wastewater - Wastewater - Wastewater
Subsegment - Water - Plants - Plants - Plants
- Wastewater - Pump stations - Pump stations - Pump stations
Marketing Unit - Project 1 - Project 1 - Project 1 - Project 1
- Project 2 - Project 2 - Project 2 - Project 2
- Project 3 - Project 3 - Project 3 - Project 3
Project Analysis Form (PFA) General Marketing and Planning Categories MWW, Inc. Environmental Engineering
Item Description
Year
Project Name (MU)
New Project
Existing Project
Services Provided
Owner
Client
Project Location
Project size, $
Fee (MWW)
Profit, %
Problems/Issues
Product line
Segment
Subsegment
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Chapter 8: Budget Planning
By Abdul Rashidi and William A. Kitch
As discussed in Chapter 7, the financial component of the
Business Plan contains the following elements
1. Financial Needs
2. Budget and Cash Flow Analysis
3. Income Projections
4. Profit and Loss Statement
5. Balance Sheet
6. Financial Statement Analysis
7. Financial History
Budget planning, the task of categorizing income and
expenses and tracking funds in each category, is at the core of
all financial planning. Without a budget it is impossible to
complete the rest of the financial plan. Therefore this Article will
present the budget planning process as the core of the financial
plan. It will also introduce a simple profit and loss statement to
demonstrate an important application of the budgeting process.
Budget planning
Budgeting encourages a business entity to develop the
most efficient strategies for being profitable and expanding
business. Budgeting also help a firm to use its financial and
human resources in an effective way.
Efficient budgeting process also incorporates
comprehensive review and analysis of past trends and data
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135
pertinent to the business. This analysis assists a company on
many facts including type of market and geographic locations,
business organization structure needed, the amount of money to
be invested, the marketing strategies required, and the type and
number of resources to hire.
Budgeting can also provide additional benefits, such as an
increased awareness of costs and revenue, monitoring of
company goals, and a model for performance evaluation and
changes.
A simple budget plan includes the following major
components:
1. Revenue - the amount of money a company earns. For a
consulting engineering business, the primary source of
revenue is from professional services or from the sale of
technical professionals’ man-hours. The man-hour rates are
adjusted by a factor, called Labor Multiplier Factor, expressed
as % of salary, to account for salary cost, overhead, and
profit. Overhead and profit are needed to run a company's
business. A few important terms to note are:
• The utilization rate –This is the % of an employee's time
charged to a project.
• The hourly invoice or billing rate – This rate includes
three items: the salary cost, the overhead cost, and the
profit margin. Overhead includes indirect salary cost, and
other expenses for running a business, such as the payroll
taxes, insurance, and general and administrative
expenses. More on this topic later.
• Labor Multiplier Factor (LMF) – This factor incorporates
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136
all costs (salary and non-salary) and profit into a single
multiplier, and it is expressed as a multiplier of the salary.
The intent is to have adequate
revenue to meet company's financial goals and objectives.
• Revenue sources - include: the professional services
(labor man-hour), reimbursement expenses, purchased
(subcontract) services, and equipment charges.
2. Cost - the amount of money a company spends to maintain a
successful operation. Basically, there are two cost categories:
Direct and Indirect costs. Direct cost includes primarily salary
expenses for labor directly charged to a project. Indirect cost,
also called overhead, includes: indirect labor (expenses for
labor not charged to a project) and other non-salary costs.
• Labor cost
• Direct labor - time spent on projects and it is chargeable
• Indirect labor - time not chargeable to projects (office
admin, marketing, attending conferences, education and
training, etc)
• Material Cost
• Direct Material - chargeable to projects (also called
other direct costs or ODC)
• Indirect Material - non-chargeable to projects
• Overhead Cost - Overhead includes: indirect labor
(expenses for labor not charged to a project); payroll
burden; and general and administration expenses.
Overhead costs are essential to running a business
operation. An example of typical overhead expenses, for
engineering services, is presented in Table 1.
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• Payroll burden - amount of money provided for payroll
taxes, SDI, vacation and sick leave, health insurance -
Payroll burden is applied to direct and indirect labor.
• General & Admin (G&A) costs - amount of money
provided for running a business, including: rent,
supplies, utilities, professional insurance, bank loan
interest, equipment lease, autos, income tax,
professional services, etc. Payroll burden and G&A are
developed from past records, updated annually and it
pays for all expenses NOT chargeable to projects.
• Total Overhead = Indirect labor +Payroll burden
+ G&A
3. Profit - Business is about making money in a professional
and ethical way. Money allows business to improve and
expand and to sustain competition. Profit pays for training
and education, contingency reserve, self-insurance,
improving and expanding business operation, retirement,
employee bonuses, stockholders, etc.
Profit = Revenue – Cost
• Revenue - Income from services provided or total
sale
• Cost - Cost of all labor, material, and overhead
Budget Worksheet
Budget worksheet is a simple tool to display and
capture the major components of a company's business,
including: revenue, cost, and profit. It is a simple model to
estimate, project, and predict outcomes. It is also used to
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138
monitor and evaluate business performance, and to control
budgeting process—in other words, it is a model for change.
An example of a step-by-step preparation of a budget
worksheet is presented below. In this example two case
scenarios are reviewed, including:
• Case 1- Labor multiplier factor is not given. Budget
calculation therefore revolves around assuming
employees utilization rates and invoice rates and then
checking the resulting LMF and profit margin.
• Case 2- Labor multiplier factor as well as overhead
factors are available from the company's last year's
actual records. Budget calculation is therefore simple
and easy and the goal is to adjust the staff utilization
rates in doer to arrive at a reasonable profit margin,
perhaps exceeding the company goal.
Note that a budget worksheet can be used for business
planning and monitoring of an office as well as an individual
projects.
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Total Revenue $ 1,366,04 Ave. LMF(Rev/ Dir Labor) 3.01
Budget Worksheet Calculation
Case 1- Labor Multiplier Factor is Not Given
Labor Costs Revenue
Name Title Annual
Salary ($)
Total
Hours
Hrly
Salary
Planned %
Utilization
Direct
Hours
Indirect
Hours
Direct Indirect Invoice
Hourly
Rate
Labor
Multiplier
(LMF)
Revenue
Maria Principal $125,000 2,080 60 30% 624 1,456 $37,500 $87,500 180 3.00 112,320
Harry Project
Manager
$115,000 2,080 55 85% 1,768 312 $97,750 $17,250 170 3.07 300,560
Yousef Project
Engineer
$95,000 2,080 46 85% 1,768 312 $80,750 $14,250 140 3.07 247,520
Rebecca Staff
Engineer
$67,000 2,080 32 85% 1,768 312 $56,950 $10,050 97 3.01 171,496
Kit Staff
Engineer
$67,000 2,080 32 85% 1,768 312 $56,950 $10,050 97 3.01 171,496
Fran CAD
Operator
$42,000 2,080 20 85% 1,768 312 $35,700 $6,300 61 3.02 107,848
John Office
Manager
/Mart
$100,000 2,080 48 50% 1,040 1,040 $50,000 $50,000 145 3.02 150,800
Gaspar Admin
Asst
$30,000 2,080 14 50% 1,040 1,040 $15,000 $15,000 40 2.77 41,600
Beth Accountant $45,000 2,080 22 50% 1,040 1,040 $22,500 $22,500 60 2.77 62,400
$686,000 18,720
12,584 6,136 $453,100 $232,900 Total Revenue $ 1,366,040
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Part A - Revenue Calculations:
Revenue for an engineering consulting firm comes primarily from sale of
man-hours, or the number of hours charged to projects for a given period of time.
To determine the annual revenue, the following factors are important:
• The utilization rate for all employees, or the % of their time
charged to a project.
• The hourly invoice or billing rate. This rate includes three items:
the salary cost, the overhead cost, and the profit margin. Overhead
includes indirect salary cost, and other expenses for running a
business, such as the payroll taxes, insurance, and general and
administrative expenses. More on this topic later
1. Prepare a spreadsheet and list all employees and their annual salaries
2. There are 2080 working hours in one year. Calculate Hourly Salary by
dividing the annual salary to the total hours for each employee.
3. Assign % Utilization (this is the % of their time charged to a project).
4. Using the % utilization, calculate Direct Hours by multiplying utilization
rate to the total hours.
5. Calculate Indirect Hours by subtracting direct hours form total hours.
6. Calculate Direct Cost by multiplying hourly rate to direct hours.
7. Calculate Indirect Cost by multiplying hourly rate to indirect hours.
8. Assign Hourly Rates for invoicing projects. These rates should cover the
salary cost as well as the overhead cost and profit (typical profit is 10% of
total cost).
9. Calculate Labor Multiplier Factor (LMF) by dividing the invoice hourly
rate to the hourly salary. This number should be close to last year's
average LMF (typical LMF for an engineering consulting firm ranges
from 2.6 to 3.2).
10. Calculate Revenue by multiplying invoice hourly rate to direct hours.
11. Calculate Total Revenue by adding individual revenue items.
12. Calculate Average LMF by dividing total revenue to direct labor cost.
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Budget Worksheet Calculation
Case 1- Labor Multiplier Factor is Not Given
Labor Costs Revenue
Name Title Annual
Salary
($)
Total
Hours
Hrly
Salary
Planned %
Utilization
Direct
Hours
Indirect
Hours
Direct Indirect Invoice
Hourly
Rate
Labor
Multiplier
(LMF)
Revenue
Maria Principal $125,000 2,080 60 30% 624 1,456 $37,500 $87,500 180 3.00 112,320
Harry Project Manager $115,000 2,080 55 85% 1,768 312 $97,750 $17,250 170 3.07 300,560
Yousef Project Engineer $95,000 2,080 46 85% 1,768 312 $80,750 $14,250 140 3.07 247,520
Rebecca Staff Engineer $67,000 2,080 32 85% 1,768 312 $56,950 $10,050 97 3.01 171,496
Kit Staff Engineer $67,000 2,080 32 85% 1,768 312 $56,950 $10,050 97 3.01 171,496
Fran CAD Operator $42,000 2,080 20 85% 1,768 312 $35,700 $6,300 61 3.02 107,848
John Office Manager/Mart $100,000 2,080 48 50% 1,040 1,040 $50,000 $50,000 145 3.02 150,800
Gaspar Admin Asst $30,000 2,080 14 50% 1,040 1,040 $15,000 $15,000 40 2.77 41,600
Beth Accountant $45,000 2,080 22 50% 1,040 1,040 $22,500 $22,500 60 2.77 62,400
$686,000 18,720 12,584 6,136 $453,100 $232,900 Total Revenue $ 1,366,040
Total Revenue 1,366,040 Direct Costs Labor $453,100
Indirect Costs (Overhead)
Payroll Burden $198,940 Indirect Labor $112,500
G&A $468,000
Total OH $779,440
Total Costs (Direct + Indirect)
$1,232,540 Profit (Revenue - Total Costs) $133,500
Profit % 10.8%
Average Labor Multiplier 3.01 (Revenue/ Dir Labor)
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Part B- Cost Calculations:
Basically, there are two cost categories: Direct and Indirect costs. Direct
cost includes primarily salary expenses for labor directly charged to a project.
Indirect cost, also called overhead, includes: indirect labor (expenses for labor
not charged to a project); payroll burden; and general and administration
expenses. Overhead costs are essential to running a business operation. An
example of typical overhead expenses, for engineering services, is presented
in Table 1.
1. For purposes of budget calculation, costs are further divided into Direct
and Indirect components. Direct cost equals to Direct Labor cost, as
calculated in the budget worksheet. Indirect costs represent the costs
necessary to run the company operation. They cannot be directly charged
to a project but can be included as an overhead.
2. Calculate Overhead Costs - An example of the typical overhead costs for
our case project is presented in Table 1. As shown, the components costs
are either calculated or based on last year's actual data. Typical total
overhead cost ranges 150–180% of direct labor cost.
3. Calculate Overhead Multiplier Factor for each overhead component by
dividing that overhead cost to total direct labor cost.
4. Calculate Breakeven Overhead Multiplier Factor by dividing the total
overhead cost by the total direct labor cost.
5. Calculate Labor Multiplier Factor (LMF) by adding profit, expressed as
multiplier factor, to the Breakeven Multiplier. Typical LMF ranges from
2.8 to 3.2.
Part C - Profit Calculations:
1. Profit Margin - Minimum Profit goal is determined by company
management as a % of the total cost. It ranges from 815%.
2. Profit amount is calculated as: Revenue - Total cost.
3. Profit is also expressed as % of total cost. This is done by dividing the
profit amount to the total cost, and then converting it to %.
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1 In general, preparation of a budget worksheet is much easier because the cost-side data is readily available from the previous year's operation and
are applied to the current- budget year.
Budget Worksheet Calculation
Case 2 - Labor Multiplier Factor is Given
Labor Costs Revenue
Annual Total Planned % Direct Indirec
t
Labor Invoice Name Title Salary ($) Hours Hrly
Salary
Utilization Hours Hours Direct Indirect Multiplier
(LMF)
Hourly Rate Revenue
Maria Principal $125,000 2,080 60 30% 624 1,456 $37,500 $87,500 3 180.29 112,500
Harry Project Manager $115,000 2,080 55 85% 1,768 312 $97,750 $17,250 3 165.87 293,250
Yousef Project Engineer $95,000 2,080 46 85% 1,768 312 $80,750 $14,250 3 137.02 242,250
Rebecca Staff Engineer $67,000 2,080 32 85% 1,768 312 $56,950 $10,050 3 96.63 170,850
Kit Staff Engineer $67,000 2,080 32 85% 1,768 312 $56,950 $10,050 3 96.63 170,850
Fran CAD Operator $42,000 2,080 20 85% 1,768 312 $35,700 $6,300 3 60.58 107,100
John Office Mnager/Mart $100,000 2,080 48 50% 1,040 1,040 $50,000 $50,000 3 144.23 150,000
Gaspar Admin Asst $30,000 2,080 14 50% 1,040 1,040 $15,000 $15,000 3 43.27 45,000
Beth Accountant $45,000 2,080 22 50% 1,040 1,040 $22,500 $22,500 3 64.90 67,500
$686,000 18,720 12,584 6,136 $453,100 $232,900 Total Revenue 1,359,300
%DL Cost Direct Labor 100.0 $453,100
Payroll OH 43.9 $198,911 Ind labor OH 24.8 $112,369 General & Admin 103.3 $468,052
Total Cost 1,232,432
Profit (Revenue -Total Costs) 126,868 Profit % 10.3%
Average Labor Multiplier 3.00
(Revenue/ Dir Labor)
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Part A -Revenue Calculations:
1. Prepare a spreadsheet- Steps 1 to 7 is same as presented before.
2. Determine LMF from previous year's actual overhead data and planned profit margin for the budget year.
For this example, the LMF is 3.0 which include a 10% profit.
3. Incorporate the LMF into this spreadsheet.
4. Calculate Invoice hourly rates by multiplying hourly salary to the LMF.
5. Calculate revenue by multiplying invoice rate to the direct labor.
6. Generate total revenue, by adding individual revenue items.
7. Determine rates for overhead components as % of direct labor, from previous year's actual overhead data
and incorporate them into this worksheet. For this example, the values are: payroll = 43.9%, indirect
labor = 24.8% and G&A=103.3%.
8. Calculate total indirect cost, applying the above overhead rates.
9. Calculate profit and compare it to the planned 10% profit goal. Adjust the LMF, if profit is desired.
Part B- Cost Calculations:
1. Cost calculations are much simpler as the overhead multiplier factors are determined from previous
year's actual data.
2. Incorporate the overhead multiplier factors, as well as profit into the spreadsheet, and calculate total cost.
Part C- Profit Calculations:
1. Profit calculation is the same as presented before.
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Table 1 - Example - Establishing Overhead Costs and Rates
Payroll Burden
Cost % of Total
Salary Holiday 18,795 3%
Paid Time Off (PTO) 37,589 5% Group Health Insurance 109,760 16% Group Life Insurance 13,720 2%
Group LTD Insurance 6,860 1% Worker's Comp Insurance 34,300 5% Education 34,300 5%
Professional dues and licenses 6,860 1% Profit sharing/Pension 162,966 15% Payroll Taxes ( SS and Medicare) 54,880 8% Other benefits 20,580 3%
Total $ 198,940
Indirect Labor
Accounting $22,500 3% Marketing $25,000 4% Admin $15,000 2%
Others $50,000 7% Total $ 112,500
General and Admin (G&A)
Rent 60,000 9% Auto 24,000 3% Equipment leases 48,000 7% Maintenance /repairs 48,000 7%
Supplies 24,000 3% Prof. Insurance 60,000 9% Prof. Services 48,000 7% Bank Loan interest 84,000 12% Other Taxes 24,000 3% Misc. 48,000 7%
Total $ 468,000
Total Overhead
OH Multiplier as
% of $ Dir. Labor
Payroll Burden 198,940 43.9
Indirect Labor 112,500 24.8 G&A 468,000 103.3
Total Cost $ 779,440 172.0
Dir Labor Multiplier Factor
Direct Labor (from budget WS) $453,100 100.0
Breakeven Multiplier = Direct labor +
Overhead
Multiplier 272.0
Profit as % total costs 10% 27.2
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Labor Multiplier Factor as % 299.2
Labor Multiplier Factor 2.992
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Attributes of a Profession • 65
Ernest Greenwood, “Attributes of a Profession.” Copyright © 1957 National Association of Social Workers. Permission to reprint granted by the publisher.
The professions occupy a position of great importance on the American scene.1 In a society such as ours, characterized by minute division of labor based upon technical specialization, many important features of social organizations are dependent upon professional functions. Professional activity is coming to play a predominant role in the life patterns of increasing numbers of individuals of both sexes, occupying much of their waking mo- ments, providing life goals, determining behavior, and shaping personality. It is no wonder, therefore, that the phenomenon of professionalism has be- come an object of observation by sociologists.2 Th e sociological approach to professionalism is one that views a profession as an organized group which is constantly interacting with the society that forms its matrix, which performs its social functions through a network of formal and informal relationships, and which creates its own subculture requiring adjust- ments to it as a prerequisite for career success.3
1 Talcott Persons, “Th e Professions and Social Structure,” Social Forces, .17 (May 1939), 457-467. 2 Th eodore Caplow, Th e Sociology of Work, (Minneapolis: University of Minnesota Press, 1954). 3 Oswald Hall, “Th e Stages of a Medical Career,” Th e American Journal of Sociology, 53 (March 1948), 327-336; “Types of Medical Careers,” Th e American Journal of Sociology, 55 (November 1949), 243 253; “Sociological Research in the Field of Medicine: Progress and Prospects,” American Sociological Review, 16 (October 1951), 639-644.
Within the professional category of its occupa- tional classifi cation the United States Census Bureau includes, among others, the following: accountant, architect, artist, attorney, clergyman, college profes- sor, dentist, engineer, journalist, judge, librarian, natural scientist, optometrist, pharmacist, physician, social scientist, social worker, surgeon, and teacher.4 What common attributes do these professional oc- cupations possess which distinguish them from the nonprofessional ones? After a careful canvass of the sociological literature on occupations, this writer has been able to distill fi ve elements, upon which there appears to be consensus among the students of the subject, as constituting the distinguishing attributes of a profession.5 Succinctly put, all professions seem to possess: (1) systematic theory, (2) authority, (3) community sanction, (4) ethical codes, and (5) a culture. Th e purpose of this article is to describe fully these attributes.
Before launching into our description, a prelimi- nary word of caution is due. With respect to each of the above attributes, the true diff erence between a
4 U.S. Bureau of the Census, 1950 Census of Population: Classifi ed Index of Occupations and Industries (Washington, D.C.; Government Printing Offi ce, 1950). 5 Th e writer acknowledges his debt to his former students at the School of Social Welfare, University of California, Berkeley, who, as members of his research seminars, assisted him in identifying and abstracting the sociological literature on occupations. Th eir conscientious assistance made possible the formulation presented in this paper.
Attributes of a Profession
By Ernest Greenwood
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66 • Role of the Design Professional in Society
professional and a nonprofessional occupation is not a qualitative but a quantitative one. Strictly speaking, these attributes are not the exclusive monopoly of the professions; nonprofessional occupations also possess them, but to a lesser degree. As is true of most social phenomena, the phenomenon of professionalism can- not be structured in terms of clearcut classes. Rather, we must think of the occupations in a society as dis- tributing themselves along a continuum.6 At one end of this continuum are bunched the well-recognized and undisputed professions, (e.g., physician, attorney, professor, scientist); at the opposite end are bunched the least skilled and least attractive occupations, (e.g., watchman, truckloader, farm laborer, scrubwoman, bus boy). Th e remaining occupations, less skilled and less prestigious than the former, but no more so than the latter, are distributed between these two poles. Th e occupations bunched at the professional pole of the continuum possess to a maximum degree the at- tributes about to be described. As we move away from this pole, the occupations possess these attributes to a decreasing degree. Th us, in the less developed profes- sions, social work among them, these attributes appear in moderate degree. When we reach the mid-region of the continuum, among the clerical, sales, and crafts occupations, they occur in still lesser degree; while at the unskilled end of the continuum the occupations possess these attributes so minimally that they are virtually nonexistent. If the reader keeps this concept of the continuum in mind, the presentation will less likely appear as a distortion of reality.
SYSTEMATIC BODY OF THEORY7
It is often contended that the chief diff erence between a professional and a nonprofessional occupation lies
6 Th e occupational classifi cation employed by the U. S. Census Bureau is precisely such a continuum. Th e categories of this classifi cation are: (a) professionals and semiprofessional technical workers; (b) proprietors and managers,· both farm and non-farm, and offi cials; (c) clerical, sales, and kindred workers; (d) crafts- men, skilled workers, and foremen; (e) operatives and semiskilled workers; and (f) laborers, unskilled, service, and domestic work- ers. (U.S. Bureau of the Census, op. cit.). 7 Th e sequence in which the fi ve attributes are discussed in this paper does not refl ect upon their relative importance. Th e order
in the element of superior skill. Th e performance of a professional service presumably involves a series of unusually complicated operations, mastery of which requires lengthy training. Th e-models referred to in this connection are the performances of a surgeon, a concert pianist, or a research physicist. However, some nonprofessional occupations actually involve a higher order of skill than many professional ones. For example, tool-and-die making, diamond-cutting, monument-engraving, or cabinet-making involve more intricate operations than school teaching, nurs- ing, or social work. Th erefore, to focus on the element of skill per se in describing the professions is to miss the kernel of their uniqueness.
Th e crucial distinction is this: the skills that char- acterize a profession fl ow from and are supported by a fund of knowledge that has been organized into an internally consistent system, called a body of theory. A profession’s underlying body of theory is a system of abstract propositions that describe in general terms the classes of phenomena comprising the profession’s focus of interest. Th eory serves as a base in terms of which the professional rationalizes his operations in concrete situations. Acquisition of the professional skill requires a prior or simultaneous mastery of the theory underlying that skill. Preparation for a profes- sion, therefore, involves considerable preoccupation with systematic theory, a feature virtually absent in the training of the non professional. And so trea- tises are written on legal theory, musical theory, social work theory, the theory of the drama, and so on; but no books appear on the theory of punch-pressing or pipefi tting or bricklaying.
Because understanding of theory is so important to all professional skill, preparation for a profession must be an intellectual as well as a practical experi- ence. On-the-job training through apprenticeship, which suffi ces for a nonprofessional occupation, becomes inadequate for a profession. Orientation in theory can be achieved best through formal education· in an academic setting. Hence the appearance of the professional school, more often than not university af- fi liated, wherein the milieu is a contrast to that of the trade school. Th eoretical knowledge is more diffi cult to master than operational procedures; it is easier to
selected has been dictated by logical considerations.
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Attributes of a Profession • 67
learn to repair an automobile than to learn the prin- ciples of the internal combustion engine. Th ere are, of course, a number of free-lance professional pursuits (e.g., acting, painting, writing, composing, and the like) wherein academic preparation is not mandatory. Nevertheless, even in these fi elds various “schools” and “institutes” are appearing, although they may not be run along traditional academic lines. We can generalize that as an occupation moves toward professional status, apprenticeship training yields to formalized education, because the function of theory as a groundwork for practice acquires increasing importance.
Th e importance of theory precipitates a form of ac- tivity normally not encountered in a nonprofessional occupation, viz., theory construction via systematic research. To generate valid theory that will provide a solid base for professional techniques requires the ap- plication of the scientifi c method to the service-related problems of the profession. Continued employment of the scientifi c method is nurtured by and in turn reinforces the element of rationality.8 As an orienta- tion, rationality is the antithesis of traditionalism. Th e spirit of rationality in a profession encourages a critical, as opposed to a reverential, attitude toward the theoretical system. It implies a perpetual readiness to discard any portion of that system, no matter how time-honored it may be, with a formulation dem- onstrated to be more valid. Th e spirit of rationality generates group self-criticism and theoretical con- troversy. Professional members convene regularly in their associations to learn and to evaluate innovations in theory. Th is produces an intellectually stimulating milieu that is in marked contrast to the milieu of a nonprofessional occupation.
In the evolution of every profession there emerges the researcher-theoretician whose role is that of scien- tifi c investigation and theoretical systematization. In technological professions9 a division of labor thereby evolves, that between the theory-oriented and the
8 Parsons, op. cit. 9 A technology is a profession whose aim is to achieve controlled changes in natural relationships. Convention makes a distinction between technologists who shape nonhuman materials and those who deal with human beings. Th e former,are called engineers; the latter practitioners.
practice-oriented person. Witness the physician who prefers to attach himself to a medical research center rather than to enter private practice. Th is division may also yield to cleavages with repercussions upon intraprofessional relationships. However, if properly integrated, the division of labor produces an acceler- ated expansion of the body of theory and a sprouting of theoretical branches around which specialties nucleate. Th e net eff ect of such developments is to lengthen the preparation deemed desirable for entry into the profession. Th is accounts for the rise of graduate professional training on top of a basic college education.
PROFESSIONAL AUTHORITY
Extensive education in the systematic theory of his discipline imparts to the professional a type of knowledge that highlights the layman’s comparative ignorance. Th is fact is the basis for the professional’s authority, which has some interesting features.
A nonprofessional occupation has customers; a professional occupation has clients. What is the dif- ference? A customer determines what services and/or commodities he wants, and he shops around until he fi nds them. His freedom of decision rests upon the premise that he has the capacity to appraise his own needs and to judge the potential of the service or of the commodity to satisfy them. Th e infallibility of his decisions is epitomized in the slogan: “Th e customer is always right!” In a professional relationship, however, the professional dictates what is good or evil for the client, who has no choice but to accede to professional judgment. Here the premise is that, because he lacks the requisite theoretical background, the client can- not diagnose his own needs or discriminate among the range of possibilities for meeting them. Nor is the client considered able to evaluate the caliber of the professional service he receives. In a nonprofessional occupation the customer can criticize the quality of the commodity he has purchased, and even demand a refund. Th e client lacks this same prerogative, having surrendered it to professional authority. Th is element of authority is one, although not the sole, reason why a profession frowns on advertising. If a profes- sion were to advertise, it would, in eff ect, impute to the potential client the discriminating capacity to
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68 • Role of the Design Professional in Society
select from competing forms of service. Th e client’s subordination to professional authority invests the professional with a monopoly of judgment. When an occupation strives toward professionalization, one of its aspirations is to acquire this monopoly.
Th e client derives a sense of security from the professional’s assumption of authority. Th e authorita- tive air of the professional is a principal source of the client’s faith that the relationship he is about to enter contains the potentials for meeting his needs. Th e professional’s authority, however, is not limitless; its function is confi ned to those specifi c spheres within which the professional has been educated. Th is qual- ity in professional authority Parsons calls functional specifi city.10 Functional specifi city carries the following implications for the client-professional relationship.
Th e professional cannot prescribe guides for facets of the client’s life where his theoretical competence does not apply. To venture such prescriptions is to in- vade a province wherein he himself is a layman, and, hence, to violate the authority of another professional group. Th e professional must not use his position of authority to exploit the client for purposes of personal gratifi cation. In any association of superordination- subordination, of which the professional-client relationship is a perfect specimen, the subordinate member—here, the client—can be maneuvered into a dependent role. Th e psychological advantage which thereby accrues to the professional could constitute a temptation for him. Th e professional must inhibit his impulses to use the professional relationship for the satisfaction of the sexual need, the need to manipulate others, or the need· to live vicariously. In the case of the therapeutic professions it is ideally preferred that client-professional intercourse not overfl ow the pro- fessional setting. Extraprofessional intercourse could be used by both client and professional in a manner such as to impair professional authority, with a con- sequent diminution of the professional’s eff ectiveness.
Th us far we have discussed that phase of profes- sional authority which expresses itself in the client- professional relationship. Professional authority, however, has professional-community ramifi cations. To these we now turn.
10 Parsons, op. cit.
SANCTION OF THE COMMUNITY
Every profession strives to persuade the community to sanction its authority within certain spheres by conferring upon the profession a series of powers and privileges. Community approval of these powers and privileges may be either informal or formal; formal approval is that reinforced by the community’s police power.
Among its powers is the profession’s control over its training centers. Th is is achieved through an ac- crediting process exercised by one of the associations within the profession. By granting or withholding accreditation, a profession can, ideally, regulate its schools as to their number, location, curriculum con- tent, and caliber of instruction. Comparable control is not to be found in a nonprofessional occupation.11 Th e profession also acquires control over admission into the profession. Th is is achieved via two routes. First, the profession convinces the community that no one should be allowed to wear a professional title who has not been conferred it by an accredited pro- fessional school. Anyone can call himself a carpenter, locksmith, or metal-plater if he feels so qualifi ed. But a person who assumes the title of physician or attor- ney without having earned it conventionally becomes an impostor. Secondly, the profession persuades the community to institute in its behalf a licensing system for screening those qualifi ed to practice the profes- sional skill. A sine qua non for the receipt of the license is, of course, a duly granted professional title. Another prerequisite may be an examination before a board of inquiry whose personnel have been drawn from the ranks of the profession. Police power enforces the licensing system; persons practicing the professional skill without a license are liable to punishment by public authority.12
11 To set up and run a school for fl oral decorating requires no approval from the national fl orists’ association, but no school of social work could operate long without approval of the Council on Social Work Education. 12 Many nonprofessional occupations have also succeeded in obtaining licensing legislation in their behalf. Witness the plumb- ers, radio operators, and barbers, to mention a few. However, the sanctions applied against a person practicing a nonprofessional occupation are·much less severe than is the case when a profes- sional occupation is similarly involved.
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Attributes of a Profession • 69
Among the professional privileges, one of the most important is that of confi dentiality. To facilitate effi cient performance, the professional encourages the client to volunteer information he otherwise would not divulge. Th e community regards this as privileged communication, shared solely between client and professional, and protects the latter legally from encroachments upon such confi dentiality. To be sure, only a select few of the professions, notably medicine and law, enjoy this immunity. Its very rarity makes it the ultimate in professionalization. Another one of the professional privileges is a relative immu- nity from community judgment on technical matters. Standards for professional performance are reached by consensus within the profession and are based on the existing body of theory. Th e lay community is pre- sumed incapable of comprehending these standards and, hence, of using them to identify malpractice. It is generally conceded that a professional’s performance can be evaluated only by his peers.
Th e powers and privileges described above consti- tute a monopoly granted by the community to the professional group. Th erefore, when an occupation strives toward professional status, one of its prime objectives is to acquire this monopoly. But this is diffi cult to achieve, because counter forces within the community resist strongly the profession’s claims to authority. Th rough its associations the profession wages an organized campaign to persuade the com- munity that it will benefi t greatly by granting the monopoly. Specifi cally the profession seeks to prove: that the performance of the occupational skill requires specialized education; that those who possess this education, in contrast to those·who do not, deliver a superior service; and that the human need being served is of suffi cient social importance to justify the superior performance.
REGULATIVE CODE OF ETHICS
Th e monopoly enjoyed by a profession vis-à-vis clients and community is fraught with hazards. A monopoly can be abused; powers and privileges can be used to protect vested interests against the public
weal.13 Th e professional group could peg the price of its services at an unreasonably high level; it could restrict the numbers entering the occupation to create a scarcity of personnel; it could dilute the caliber of its performance without community awareness; and it could frustrate forces within the occupation push- ing for socially benefi cial changes in practices.14 Were such abuses to become conspicuous, widespread, and permanent, the community would, of course, revoke the profession’s monopoly. Th is extreme measure is normally unnecessary, because every profession has a built-in regulative code which compels ethical behav- ior on the part of its members.
Th e profession’s ethical code is part formal and part informal. Th e formal is the written code to which the professional usually swears upon being admitted to practice; this is best exemplifi ed by the Hippocratic Oath of the medical profession. Th e informal is the unwritten code, which nonetheless carries the weight of formal prescriptions. Th rough its ethical code the profession’s commitment to the social welfare becomes a matter of public record; thereby insuring for itself the continued confi dence of the community. Without such confi dence the profession could not retain its monopoly. To be sure, self-regulative codes are characteristic of all occupations, nonprofessional as well as professional. However, a professional code is perhaps more explicit, systematic, and binding; it certainly possesses more altruistic overtones and is more public service-oriented.15 Th ese account for the frequent synonymous use of the terms “professional” and “ethical” when applied to occupational behavior.
While the specifi cs of their ethical codes vary among the professions, the essentials are uniform. Th ese may be described in terms of client-professional and colleague-colleague relations.
Toward the client the professional must assume an emotional neutrality. He must provide service to
13 Abraham Flexner, “Is Social Work a Profession?” in Proceedings of the National Conference of Charities and Corrections (Chicago: 1915), pp. 576-590.
Robert K. Merton, “Bureaucratic Structure and Personality,” in Alvin Gouldner (ed.), Studies in Leadership (New York: Harper &: Row, Publishers, 1950), pp. 67-79. 14 Merton, op. cit. 15 Flexner, op. cit. Parsons, op. cit.
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70 • Role of the Design Professional in Society
whoever requests it, irrespective of the requesting cli- ent’s age, income, kinship, politics, race, religion, sex, and social status. A nonprofessional may withhold his services on such grounds without, or with minor, cen- sure; a professional cannot. Parsons calls this element in professional conduct universalism. In other words, only in his extraoccupational contacts can the profes- sional relate to others on particularistic terms, i.e., as particular individuals with concrete personalities attractive or unattractive to him. In his client contacts particularistic considerations are out of place. Parsons also calls attention to the element of disinterestedness in the professional-client relationship.16 In contrast to the nonprofessional, the professional is motivated less by self-interest and more by the impulse to perform maximally. Th e behavior corollaries of this service orientation are many. For one, the professional must, under all circumstances, give maximum caliber ser- vice. Th e nonprofessional can dilute the quality of his commodity or service to fi t the size of the client’s fee; not so the professional. Again, the professional must be prepared to render his services upon request, even at the sacrifi ce of personal convenience.
Th e ethics governing colleague relationships de- mand behavior that is cooperative, equalitarian, and supportive. Members of a profession share technical knowledge with each other. Any advance in theory and practice made by one professional is quickly disseminated to colleagues through the professional associations.17 Th e proprietary and quasi-secretive attitudes toward discovery and invention prevalent in the industrial and commercial world are out of place in the professional. Also out of place is the blatant competition for clients which is the norm in so many nonprofessional pursuits. Th is is not to gainsay the existence of intraprofessional competition; but it is a highly regulated competition, diluted with cooperative ingredients which impart to it its char- acteristically restrained quality. Colleague relations must be equalitarian; intraprofessional recognition should ideally be based solely upon performance in
16 Parsons, op. cit. 17 Arlien Johnson, “Professional Standards and How Th ey Are Attained,” Journal of American Dental Association, 31 (September 1944), 1181-1189.
practice and/or contribution to theory.18 Here, too, particularistic considerations must not be allowed to operate. Finally, professional colleagues must support each other vis-à-vis clientele and community. Th e professional must refrain from acts which jeopardize the authority of colleagues and must sustain those whose authority is threatened.19
Th e ways and means whereby a profession enforces the observance of its ethical code constitute a case study in social control. Self-discipline is achieved informally and formally.
Informal discipline consists of the subtle and the not-so-subtle pressures that colleagues exert upon one another. An example in this connection is the phe- nomenon of consultation and referral.20 Consultation is the practice of inviting a colleague to participate in the appraisal of the client’s need and/or in the planning of the service to be rendered. Referral is the practice of aff ording colleagues access to a client or an appointment. Th us, one colleague may refer his client to another, because lack of time or skill prevents his rendering the needed service; or he may recommend another for appointment by a prospective employer. Since professional ethics precludes aggressive compe- tition and advertising, consultation and referral con- stitute the principal source of work to a professional. Th e consultation-referral custom involves professional colleagues in a system of reciprocity which fosters mutual interdependence. Interdependence facilitates social control; chronic violation of professional eti- quette arouses colleague resentment, resulting in the cessation of consultation requests and referrals.
A more formal discipline is exercised by the professional associations, which possess the power to criticize or to censure, and in extreme cases to bar recalcitrants. Since membership in good standing in the professional associations is a sine qua non of pro- fessional success, the prospect of formal disciplinary action operates as a potent force toward conformity.
18 Flexner, op. cit. 19 Th is partly explains why physicians do not testify against each other in malpractice suits. 20 Hall, op. cit.
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Attributes of a Profession • 71
THE PROFESSIONAL CULTURE
Every profession operates through a network of for- mal and informal groups. Among the formal groups, fi rst there are the organizations through which the profession performs its services, these provide the institutionalized setting where professional and client meet. Examples of such organizations are hospital, clinic, university, law offi ce, engineer- ing fi rm, or social agency. Secondly, there are the organizations whose functions are to replenish the profession’s supply of talent and to expand its fund of knowledge. Th ese include the educational and the research centers. Th ird among the formal groups are the organizations which emerge as an expression of the growing consciousness-of kind on the part of the profession’s members, and which promote so-called group interests and aims. Th ese are the professional associations. Within and around these formal orga- nizations extends a fi ligree of informal groupings: the multitude of small, closely knit clusters of colleagues. Membership in these cliques is based on a variety of affi nities: specialties within the profession; affi liations with select professional societies; residential and work propinquity; family, religious, or ethnic background; and personality attraction.
Th e interaction of social roles required by these formal and informal groups generate a social confi gu- ration unique to the profession, viz., a professional culture. All occupations are characterized by formal and informal groupings; in this respect the professions are not unique. What is unique is the culture thus begotten. If one were to single out the attribute that most eff ectively diff erentiates the professions from other occupations, this is it. Th us we can talk of a professional culture as distinct from a nonprofessional culture. Within the professions as a logical class each profession develops its own subculture, a variant of the professional culture; the engineering subculture, for example, diff ers from the subcultures of medicine and social work. In the subsequent discussion, however, we will treat the culture of the professions as a generic phenomenon. Th e culture of a profession consists of its values, norms, and symbols.
Th e social values of a professional group are its basic and fundamental beliefs, the unquestioned premises upon which its very existence rests. Foremost among these values is the essential worth of the service which
the professional group extends to the community. Th e-profession considers that the service is a social good and that community welfare would be immea- surably impaired by its absence. Th e twin concepts of professional authority and monopoly also possess the force of a group value. Th us, the proposition that in all service-related matters the professional group is infi nitely wiser than the laity is regarded as beyond argument. Likewise nonarguable is the proposition that acquisition by the professional group of a service monopoly would inevitably produce social progress. And then there is the value of rationality; that is, the commitment to objectivity in the realm of theory and technique. By virtue of this orientation, nothing of a theoretical or technical nature is regarded as sacred and unchallengeable simply because it has a history of acceptance and use.
Th e norms of a professional group are the guides to behavior in social situations. Every profession develops an elaborate system of these role defi nitions. Th ere is a range of appropriate behaviors for seeking admittance into the profession, for gaining entry into its formal and informal groups, and for progressing within the occupation’s hierarchy. Th ere are appro- priate modes of securing appointments, of conduct- ing referrals, and of handling consultation. Th ere are proper ways of acquiring clients, of receiving and dismissing them, of questioning and treating them, of accepting and rejecting them. Th ere are correct ways of grooming a protégé, of recompensing a sponsor, and of relating to peers, superiors, or subordinates. Th ere are even group-approved ways of challenging an outmoded theory, of introducing a new technique, and of conducting an intraprofessional controversy. In short, there is a behavior norm covering every standard interpersonal situation likely to recur in professional life.
Th e symbols of a profession are its meaning-laden items. Th ese may include such things as: its insignias, emblems, and distinctive dress; its history, folklore, and argot; its heroes and its villains; and its stereotypes of the professional, the client, and the layman.
Comparatively clear and controlling group values, behavior norms, and symbols, which characterize the professions, are not to be encountered in nonprofes- sional occupations.
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72 • Role of the Design Professional in Society
Our discussion of the professional culture would be incomplete without brief mention of one of its central concepts, the career concept. Th e term career is, as a rule, employed only in reference to a profes- sional occupation. Th us, we do not talk about the career of a bricklayer or of a mechanic; but we do talk about the career of an architect or of a clergy- man. At the heart of the career concept is a certain attitude toward work which is peculiarly professional. A career is essentially a calling, a life devoted to “good works.”21 Professional work is never viewed solely as a means to an end; it is the end itself. Curing the ill, educating the young, advancing science are values in themselves. Th e professional performs his services pri- marily for the psychic satisfactions and secondarily for the monetary compensations.22 Self-seeking motives feature minimally in the choice of a profession; of maximal importance is affi nity for the work. It is this devotion to the work itself which imparts to profes- sional activity the service orientation and the element of disinterestedness. Furthermore, the absorption in the work is not partial, but complete; it results in a total personal involvement. Th e work life invades the after-work life, and the sharp demarcation between the work hours and the leisure hours disappears. To the professional person his work becomes his life.23
21 Th e term calling literally means a divine summons to undertake a course of action. Originally, it was employed to refer to religious activity. Th e Protestant Reformation widened its meaning to include economic activity as well. Henceforth divinely inspired “good works” were to be both secular and sacred in nature. Presumably, then, any occupational choice may be a response to divine summons. In this connection it is interesting to note that the German word for vocation is Beruf, a noun derived from the verb Berufen, to call. 22 Johnson, op. cit. 23 Th e all-pervading infl uence of work upon the lives of profes- sionals results in interesting by-products. Th e members of a pro- fession tend to associate with one another outside the work setting (Oswald Hall, “Th e Stages of a Medical Career,” op. cit.). Th eir families mingle socially; leisure time is spent together; “shop talk” permeates social discourse; and a consensus develops. Th e profes- sion thus becomes a whole social environment, nurturing char- acteristic social and political attitudes, patterns of consumption and recreation, and decorum and Weltanschauung. See Caplow, op. cit.; and William H. Form, “Toward an Occupational Social
Hence the act of embarking upon a professional ca- reer is similar in some respects to entering a religious order. Th e same cannot be said of a nonprofessional occupation.
To succeed in his chosen profession, the neophyte must make an eff ective adjustment to the profes- sional culture.24 Mastery of the underlying body of theory and acquisition of the technical skills are in themselves insuffi cient guarantees of professional success. Th e recruit must also become familiar with and learn to weave his way through the labyrinth of the professional culture. Th erefore, the transforma- tion of a neophyte into a professional is essentially an acculturation process wherein he internalizes the social values, the behavior norms, and the symbols of the occupational group.25 In its frustrations and rewards it is fundamentally no diff erent from the acculturation of an immigrant to a relatively strange culture. Every profession entertains a stereotype of the ideal colleague; and, of course, it is always one who is thoroughly adjusted to the professional culture.26 Th e poorly acculturated colleague is a deviant; he is regarded as “peculiar,” “unorthodox,” “annoying,” and in extreme cases a “troublemaker.” Whereas the professional group encourages innovation in theory and technique, it tends to discourage deviation from its social values and norms. In this internal contradic- tion, however, the professional culture is no diff erent from the larger culture of society.
One of the principal functions of the profes- sional schools is to identify and screen individuals who are prospective deviants from the professional culture. Th at is why the admission of candidates to professional education must be judged on grounds in
Psychology,” Journal of Social Psychology, 24 (February 1946), 85-99. 24 Oswald Hall, “Th e Stages of a Medical Career” and “Types of Medical Careers,” op. cit. 25 R. Clyde White, “’Social Workers in Society’: Some Further Evidence,” Social Work Journal, 34 (October 1953), 161-164. 26 Th e laity also entertain a stereotypic image of the professional group. Needless to say, the layman’s conception and the profes- sional’s self-conception diverge widely, because they are fabricated out of very diff erent experiences. Th e layman’s stereotype is fre- quently a distortion of reality, being either an idealization or a caricature of the professional type.
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Attributes of a Profession • 73
addition to and other than their academic qualifi ca- tions.27 Psychic factors presaging favorable adjustment to the professional culture are granted an importance equivalent to mental abilities. Th e professional school provides test situations through initial and graduated exposures of the novice to the professional culture. By his behavior in these social situations involving col- leagues, clients, and community, the potential deviant soon reveals himself and is immediately weeded out. Comparable preoccupation with the psychic prereq- uisites of occupational adjustment is not characteristic of nonprofessional occupations.
IMPLICATIONS FOR SOCIAL WORK
Th e picture of the professions just unveiled is an ideal type. In the construction of an ideal type some exag- geration of reality is unavoidable, since the intent is to achieve an internally coherent picture. One function of the ideal type is to structure reality in such manner that discrete, disparate, and dissimilar phenomena be- come organized, thereby bringing order out of appar- ent disorder. We now possess a model of a profession that is much sharper and clearer than the actuality that confronts us when we observe the occupational scene. What is the utility of this model for social work?
Th e preoccupation of social workers with profes- sionalization has been a characteristic feature of the social work scene for years. Flexner,28 Johnson,29 Hollis and Taylor,30 and others have written on the subject, proposing criteria which must be met if social work is to acquire professional status. Whenever social workers convene, there is the constant reaffi rmation of the urgency to achieve the recognition from the com- munity befi tting a profession. Th e union of the seven separate organizations into the National Association of Social Workers is generally regarded as an important milestone in social work history, precisely because of its potential stimulus toward professionalization.
27 Oswald Hall, “Sociological Research in the Field of Medicine: Progress and Prospects,” op. cit. 28 Flexner, op. cit. 29 Johnson, op. cit. 30 Ernest V. Hollis and Alice L. Taylor, Social Work Education in the United States (New York: Columbia University Press, 1951).
In view of all this, it is proper for social workers to possess clear conceptions of that which they so fervently seek. Th e model of the professions portrayed above should contribute to such clarifi cation; it should illuminate the goal for which social workers are striving. It is often contended that social work is still far from having attained professional status.31 But this is a misconception. When we hold up social work against the model of the professions presented above, it does not take long to decide whether to clas- sify it within the professional or the nonprofessional occupations. Social work is already a profession; it has too many points of congruence with the model to be classifi able otherwise. Social work is, however, seek- ing to rise within the professional hierarchy, so that it, too, might enjoy maximum prestige, authority, and monopoly which presently belong to a few top professions.
Th e model presented above should also serve to sensitize social workers to anticipate some of the problems that continued professionalization must inevitably precipitate. Th e model indicates that pro- gressive professionalization will involve social workers in novel relationships with clients, colleagues, agency, community, and other professions. In concluding this paper we refer briefl y to one such problem. It is no secret that social workers are not all uniformly enthu- siastic about the professionalization of social work. Bisno32 has given verbalization to a prevailing appre- hension that social workers might have to scuttle their social-action heritage as a price of achieving the public acceptance accorded a profession. Extrapolation from the sociologists’ model of the professions suggests a reality basis for these fears. It suggests that the attainment of professional prestige, authority, and monopoly by social workers will undoubtedly carry disturbing implications for the social action and social reform components of social work philosophy. Th e anticipated developments will compel social work- ers to rethink and redefi ne the societal role of their profession.
31 Flexner considered that the social work of his day was not a profession. Hollis and Taylor regard present-day social work as still in its early adolescence. 32 Herbert Bisno, “How Social Will Social Work Be?” Socia1 Work, 1, No. 2 (April 1956), 12-18.
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74 • Role of the Design Professional in Society
Th ese and other dilemmas fl owing from profes- sionalization are bound to tax the best minds among social workers for their resolution. In this connection a proper understanding of the attributes of a profes- sion would seem to be indispensable.
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PROFESSIONAL ENGINEERS ACT (Business and Professions Code §§ 6700 – 6799)
INCLUDES AMENDMENTS MADE DURING THE 2016 LEGISLATIVE SESSION
(Effective January 1, 2017, unless otherwise noted)
CHAPTER 7. PROFESSIONAL ENGINEERS
Article 1. General Provisions
6700. Professional Engineers Act This chapter constitutes the chapter on professional engineers. It may be cited as the
Professional Engineers Act.
6701. Professional engineer defined “Professional engineer,” within the meaning and intent of this act, refers to a person
engaged in the professional practice of rendering service or creative work requiring education, training and experience in engineering sciences and the application of special knowledge of the mathematical, physical and engineering sciences in such professional or creative work as consultation, investigation, evaluation, planning or design of public or private utilities, structures, machines, processes, circuits, buildings, equipment or projects, and supervision of construction for the purpose of securing compliance with specifications and design for any such work.
6702. Civil engineer defined
“Civil engineer” as used in this chapter means a professional engineer in the branch of civil engineering and refers to one who practices or offers to practice civil engineering in any of its phases.
6702.1. Electrical engineer defined
“Electrical engineer” as used in this chapter means a professional engineer in the branch of electrical engineering and refers to one who practices or offers to practice electrical engineering in any of its phases.
6702.2. Mechanical engineer defined
“Mechanical engineer” as used in this chapter means a professional engineer in the branch of mechanical engineering and refers to one who practices or offers to practice mechanical engineering in any of its phases.
6703. Responsible charge of work defined
The phrase “responsible charge of work” means the independent control and direction, by the use of initiative, skill, and independent judgment, of the investigation or design of professional engineering work or the direct engineering control of such projects. The phrase does not refer to the concept of financial liability.
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6703.1. Supervision of construction defined
“Supervision of the construction of engineering structures” means the periodic observation of materials and completed work to determine general compliance with plans, specifications, and design and planning concepts. However, “supervision of construction of engineering structures” does not include responsibility for the superintendence of construction processes, site conditions, operations, equipment, personnel, or the maintenance of a safe place to work or any safety in, on, or about the site.
For purposes of this subdivision, “periodic observation” means visits by an engineer, or his or her agent, to the site of a work of improvement.
6704. Defines who may use engineer titles
(a) In order to safeguard life, health, property, and public welfare, no person shall practice civil, electrical, or mechanical engineering unless appropriately licensed or specifically exempted from licensure under this chapter, and only persons licensed under this chapter shall be entitled to take and use the titles “consulting engineer,” “professional engineer,” or “registered engineer,” or any combination of those titles or abbreviations thereof, and according to licensure with the board the engineering branch titles specified in Section 6732, or the authority titles specified in Sections 6736 and 6736.1, or the title “engineer-in-training.”
(b) The provisions of this section shall not prevent the use of the title “consulting engineer” by a person who has qualified for and maintained exemption for using that title under the provisions of Section 6732.1, or by a person licensed as a photogrammetric surveyor.
6704.1. Title Act Review
(a) The Department of Consumer Affairs, in conjunction with the board, and the Joint Committee on Boards, Commissions, and Consumer Protection shall review the engineering branch titles specified in Section 6732 to determine whether certain title acts should be eliminated from this chapter, retained, or converted to practice acts similar to civil, electrical, and mechanical engineering, and whether supplemental engineering work should be permitted for all branches of engineering. The department shall contract with an independent consulting firm to perform this comprehensive analysis of title act registration.
(b) The independent consultant shall perform, but not be limited to, the following: (1) meet with representatives of each of the engineering branches and other
professional groups; (2) examine the type of services and work provided by engineers in all branches of
engineering and interrelated professions within the marketplace, to determine the interrelationship that exists between the various branches of engineers and other interrelated professions;
(3) review and analyze educational requirements of engineers; (4) identify the degree to which supplemental or “overlapping” work between
engineering branches and interrelated professions occurs; (5) review alternative methods of regulation of engineers in other states and what
impact the regulations would have if adopted in California; (6) identify the manner in which local and state agencies utilize regulations and
statutes to regulate engineering work; and,
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(7) recommend changes to existing laws regulating engineers after considering how these changes may effect the health, safety, and welfare of the public. (c) The board shall reimburse the department for costs associated with this
comprehensive analysis. The department shall report its findings and recommendations to the Legislature by September 1, 2002.
6705. Subordinate defined
A subordinate is any person who assists a registered professional engineer in the practice of professional engineering without assuming responsible charge of work.
6706. Good Samaritan immunity
(a) An engineer who voluntarily, without compensation or expectation of compensation, provides structural inspection services at the scene of a declared national, state, or local emergency at the request of a public official, public safety officer, or city or county building inspector acting in an official capacity shall not be liable in negligence for any personal injury, wrongful death, or property damage caused by the engineer’s good faith but negligent inspection of a structure used for human habitation or owned by a public entity for structural integrity or nonstructural elements affecting life and safety.
The immunity provided by this section shall apply only for an inspection that occurs within 30 days of the declared emergency.
Nothing in this section shall provide immunity for gross negligence or willful misconduct.
(b) As used in this section: (1) “Engineer” means a person registered under this chapter as a professional
engineer, including any of the branches thereof. (2) “Public safety officer” has the meaning given in Section 3301 of the Government
Code. (3) “Public official” means a state or local elected officer.
6706.3. References to registered engineer deemed to refer to licensed engineer
Any reference in any law or regulation to a registered engineer, or to a registered civil, electrical, or mechanical engineer, is deemed to refer to a licensed engineer, or to a licensed civil, electrical, or mechanical engineer, as the case may be.
Article 2. Administration
6710. Board name and composition; reference to previous name; sunset dates
(a) There is in the Department of Consumer Affairs a Board for Professional Engineers, Land Surveyors, and Geologists, which consists of 15 members.
(b) Any reference in any law or regulation to the Board of Registration for Professional Engineers and Land Surveyors, or to the Board for Professional Engineers and Land Surveyors, is deemed to refer to the Board for Professional Engineers, Land Surveyors, and Geologists.
(c) This section shall remain in effect only until January 1, 2020, and as of that date is repealed. Notwithstanding any other law, the repeal of this section renders the board subject to review by the appropriate policy committees of the Legislature.
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6710.1 Legislative intent – protection of the public
Protection of the public shall be the highest priority for the Board for Professional Engineers, Land Surveyors, and Geologists in exercising its licensing, regulatory, and disciplinary functions. Whenever protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount.
6711. Qualifications of board members
Each member of the board shall be a citizen of the United States. Five members shall be registered under this chapter. One member shall be licensed under the Professional Land Surveyors’ Act, Chapter 15 (commencing with Section 8700), one member shall be licensed under the Geologist and Geophysicist Act, Chapter 12.5 (commencing with Section 7800), and eight shall be public members who are not registered under this act, licensed under the Geologist and Geophysicist Act, or licensed under the Professional Land Surveyors’ Act. Each member, except the public members, shall have at least 12 years active experience and shall be of good standing in his or her profession. Each member shall be at least 30 years of age, and shall have been a resident of this state for at least five years immediately preceding his or her appointment.
6712. Appointments; term; qualifications of board members
(a) All appointments to the board shall be for a term of four years. Vacancies shall be filled by appointment for the unexpired term. Each appointment thereafter shall be for a four- year term expiring on June 30 of the fourth year following the year in which the previous term expired.
(b) Each member shall hold office until the appointment and qualification of his or her successor or until one year shall have elapsed since the expiration of the term for which he or she was appointed, whichever first occurs. No person shall serve as a member of the board for more than two consecutive terms.
(c) The Governor shall appoint professional members so that one is licensed to practice engineering as a civil engineer, one as an electrical engineer, one as a mechanical engineer, another is authorized to use the title of structural engineer, and one is a member of one of the remaining branches of engineering. One of the professional members licensed under this chapter, under Chapter 12.5 (commencing with Section 7800), or under Chapter 15 (commencing with Section 8700) shall be from a local public agency, and one shall be from a state agency.
(d) The Governor shall appoint six of the public members and the professional members qualified as provided in Section 6711. The Senate Committee on Rules and the Speaker of the Assembly shall each appoint a public member.
6713. Removal of board members
The Governor may remove any member of the board for misconduct, incompetency or neglect of duty.
6714. Appointment of executive officer; salary
The board shall appoint an executive officer at a salary to be fixed and determined by the board with the approval of the Director of Finance.
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This section shall remain in effect only until January 1, 2020, and as of that date is repealed.
6715. Roster of licensees
The board shall compile and maintain, or may have compiled and maintained on its behalf, a register of all licensees that contains information showing the name, address of record, type of branch license, license number, the date the license was issued, and the date the license will expire.
6716. Rules and regulations; meetings; quorum
(a) The board may adopt rules and regulations consistent with law and necessary to govern its action. These rules and regulations shall be adopted in accordance with the provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.
(b) The board may adopt rules and regulations of professional conduct that are not inconsistent with state and federal laws. The rules and regulations may include definitions of incompetence and negligence. Every person who holds a license or certificate issued by the board pursuant to this chapter shall be governed by these rules and regulations.
(c) The board shall hold at least two regular meetings each year. Special meetings shall be held at those times that the board rules provide. A majority of the board constitutes a quorum.
6717. Authority to define scope of practice
The board may, by regulation, define the scope of each branch of professional engineering other than civil, electrical, and mechanical engineering for which registration is provided under this chapter.
6718. Oaths and testimony
Any member of the board may administer oaths and may take testimony and proofs concerning all matters within the board’s jurisdiction.
6719. Board seal
The board shall adopt and have an official seal which shall be affixed to all certificates of registration.
6720. Per diem; expenses of board members
Each member of the board shall receive a per diem and expenses as provided in Section 103.
6721. Establish relations with other regulatory bodies
The board shall establish relations with bodies that regulate the practice of professional engineering, or closely related professions, or that register or license professional engineers in other states, and may establish relations with those bodies in other countries, for the purposes of working toward uniformly high professional standards and mutual recognition of registration and licensure.
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6726. Technical advisory committees; functions The board may establish one or more technical advisory committees to advise and assist
the board with respect to the following: (1) Application review and verification for any level of registration, licensure,
authority, or title. (2) Evaluation and investigation of potential violations of the act. (3) Amendment, repeal, adoption, or revision of board rules, regulations, policies,
and procedures.
6726.1. Membership of technical advisory committee Each member of each technical advisory committee shall be appointed by the board and
shall serve at the pleasure of the board. Each committee shall be composed of no more than five members.
6726.2. Qualifications of technical advisory committee members
Each member of each technical advisory committee shall be an expert in the branch of engineering within the committee’s jurisdiction and shall be licensed under this chapter.
6726.3. Per diem; expenses for technical advisory committee members
All the members of each technical advisory committee shall serve without compensation but shall receive per diem and expenses as provided in Section 103.
6726.4. Immunity from liability for technical advisory committee members
Each member of each technical advisory committee shall be granted the same immunity as is granted to a public employee pursuant to Article 3 (commencing with Section 820) of Chapter 1 of Part 2 of Division 3.6 of Title 1 of the Government Code.
Article 2.3 Professional Engineers Review Committees
6728. Establishment; duration
The board, when it deems necessary, may establish professional engineers review committees to hear all matters assigned by the board, including, but not limited to, any contested case which is assigned by the board. Each committee shall exist so long as the board deems that it is necessary.
6728.1. Members; appointment; qualifications
Each review committee shall consist of no fewer than three registered professional engineers appointed by the board. Each member of a committee shall have the same qualifications and shall be subject to the same rules and regulations as if he were a member of the board.
6728.2. Per diem and expenses
Each member of a committee shall receive a per diem and expenses as provided in Section 103 of this code.
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6728.3. Hearings; conduct; presence of hearing officer Except as otherwise provided in this article, all hearings which are conducted by a
committee shall be conducted in accordance with the provisions of Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2 of the Government Code.
If a contested case is heard by a committee, the hearing officer who presided at the hearing shall be present during the committee’s consideration of the case and, if requested, shall assist and advise the committee.
6728.4. Proposed decisions
At the conclusion of any hearing which is conducted by a committee, the committee shall prepare a proposed decision, in such form that it may be adopted by the board as the decision in the case, and shall transmit it to the board. The proposed decision shall be subject to the same procedure as the proposed decision of a hearing officer under subdivisions (b) and (c) of Section 11517 of the Government Code.
6728.5. Authority for rules and regulations
The board may adopt, amend or repeal, in accordance with the provisions of Chapter 3.5 (commencing with Section 11340), Part 1, Division 3, Title 2 of the Government Code, such rules and regulations as are necessary to implement these sections.
6728.6. Immunity
Each member of a professional engineers review committee or other board-appointed committee and any board-appointed representative of the board shall be granted the same immunity as is granted to a public employee pursuant to Article 3 (commencing with Section 820) of Chapter 1 of Part 2 of Division 3.6 of Title 1 of the Government Code.
Article 3. Application of Chapter
6730. Requirement for licensure to practice civil engineering, electrical engineering, and mechanical engineering
In order to safeguard life, health, property and public welfare, any person, either in a public or private capacity, except as in this chapter specifically excepted, who practices, or offers to practice, civil engineering, electrical engineering or mechanical engineering, in any of its branches in this state, including any person employed by the State of California, or any city, county, or city and county, who practices engineering, shall submit evidence that he is qualified to practice, and shall be licensed accordingly as a civil engineer, electrical engineer or mechanical engineer by the board.
6730.2. Legislative intent - requirement for responsible charge at state and local government entities
(a) It is the intent of the Legislature that the licensure requirements that are imposed upon private sector professional engineers and engineering partnerships, firms, or corporations shall be imposed upon the state and any city, county, or city and county that shall adhere to those requirements. Therefore, for the purposes of Section 6730 and this chapter, at least one licensed
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engineer shall be designated the person in responsible charge of professional engineering work for each branch of professional engineering practiced in any department or agency of the state, city, county, or city and county.
(b) Any department or agency of the state or any city, county, or city and county that has an unlicensed person in responsible charge of engineering work on January 1, 1985, shall be exempt from this requirement until that time as the person currently in responsible charge is replaced.
(c) The designated person in responsible charge of professional civil engineering work of any department or agency of the state, city, county, city and county, district, or special district pursuant to this section is responsible for compliance with subdivisions (b) and (c) of Section 8771.
6731. Civil engineering defined
Civil engineering embraces the following studies or activities in connection with fixed works for irrigation, drainage, waterpower, water supply, flood control, inland waterways, harbors, municipal improvements, railroads, highways, tunnels, airports and airways, purification of water, sewerage, refuse disposal, foundations, grading, framed and homogeneous structures, buildings, or bridges:
(a) The economics of, the use and design of, materials of construction and the determination of their physical qualities.
(b) The supervision of the construction of engineering structures. (c) The investigation of the laws, phenomena and forces of nature. (d) Appraisals or valuations. (e) The preparation or submission of designs, plans and specifications and engineering
reports. (f) Coordination of the work of professional, technical, or special consultants. (g) Creation, preparation, or modification of electronic or computerized data in the
performance of the activities described in subdivisions (a) through (f). Civil engineering also includes city and regional planning insofar as any of the above
features are concerned therein. Civil engineers registered prior to January 1, 1982, shall be authorized to practice all land
surveying as defined in Chapter 15 (commencing with Section 8700) of Division 3. [NOTE: The last registration number issued to a civil engineer registered before January
1, 1982 was 33,965.]
6731.1. Civil engineering - additional authority for engineering surveying Civil engineering also includes the practice or offer to practice, either in a public or
private capacity, all of the following: (a) Locates, relocates, establishes, reestablishes, or retraces the alignment or elevation
for any of the fixed works embraced within the practice of civil engineering, as described in Section 6731.
(b) Determines the configuration or contour of the earth’s surface or the position of fixed objects above, on, or below the surface of earth by applying the principles of trigonometry or photogrammetry.
(c) Creates, prepares, or modifies electronic or computerized data in the performance of the activities described in subdivisions (a) and (b).
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(d) Renders a statement regarding the accuracy of maps or measured survey data pursuant to subdivisions (a), (b), and (c).
6731.2. Authority to offer to practice or procure land surveying
Any registered civil engineer may offer to practice, procure, and offer to procure, land surveying work incidental to his or her civil engineering practice, even though he or she is not authorized to perform that work, provided all the land surveying work is performed by, or under the direction of, a licensed land surveyor or registered civil engineer authorized to practice land surveying. Further, any registered civil engineer may manage or conduct as manager, proprietor, or agent, a civil engineering practice which offers to practice, procure, and offers to procure, such incidental land surveying work.
6731.3 Authority to practice or offer construction project management services
A registered civil engineer may also practice or offer to practice, either in a public or private capacity, construction project management services, including, but not limited to, construction project design review and evaluation, construction mobilization and supervision, bid evaluation, project scheduling, cost-benefit analysis, claims review and negotiation, and general management and administration of a construction project.
6731.4 Responsibility for construction management services
If a registered civil engineer provides construction management services pursuant to Section 6731.3, Section 6703.1 shall not limit the responsibility of the engineer for the services actually provided.
6731.5. Electrical engineering defined
(a) Electrical engineering is that branch of professional engineering described in Section 6734.1 that embraces studies or activities relating to the generation, transmission, and utilization of electrical energy, including the design of electrical, electronic, and magnetic circuits, and the technical control of their operation and of the design of electrical gear. It is concerned with the research, organizational, and economic aspects of the above.
(b) The design of electronic and magnetic circuits is not exclusive to the practice of electrical engineering, as defined in subdivision (a).
6731.6. Mechanical engineering defined
Mechanical engineering is that branch of professional engineering described in Section 6734.2 that deals with engineering problems relating to generation, transmission, and utilization of energy in the thermal or mechanical form and also with engineering problems relating to the production of tools, machinery, and their products, and to heating, ventilation, refrigeration, and plumbing. It is concerned with the research, design, production, operational, organizational, and economic aspects of the above.
6732. Use of seal, stamp, or title by unlicensed persons; titles restricted for use by licensed persons
It is unlawful for anyone other than a professional engineer licensed under this chapter to stamp or seal any plans, specifications, plats, reports, or other documents with the seal or stamp
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of a professional engineer, or in any manner, use the title “professional engineer,” “licensed engineer,” “registered engineer,” or “consulting engineer,” or any of the following branch titles: “agricultural engineer,” “chemical engineer,” “civil engineer,” “control system engineer,” “electrical engineer,” “fire protection engineer,” “industrial engineer,” “mechanical engineer,” “metallurgical engineer,” “nuclear engineer,” “petroleum engineer,” or “traffic engineer,” or any combination of these words and phrases or abbreviations thereof unless licensed under this chapter.
6732.1. Exemption for use of title “Consulting Engineer”
Any person who has been granted permission to use the title “consulting engineer” pursuant to legislation enacted at the 1963, 1965, or 1968 Regular Session is exempt from the provisions of Section 6732 as it restricts the use of the title “consulting engineer”, and such exemption shall apply so long as the applicant remains in practice and advises the board of any change of address within 30 days of such change. The board may adopt such rules under provisions of the Administrative Procedure Act as are necessary to implement this section.
The provisions of Articles 5 (commencing with Section 6775), 6 (commencing with Section 6785), and 7 (commencing with Section 6795) of this chapter shall apply to all persons who are granted permission to use the title “consulting engineer” pursuant to legislation enacted in 1963 and 1965 and the amendments to this section enacted at the 1968 Regular Session.
6732.2 Authority for use of title “Consulting Engineer” by holder of certificate to practice photogrammetry
Any person who possesses a valid certificate to practice photogrammetry issued to him under the provisions of Chapter 15 (commencing with Section 8700) of this division may apply for, and be issued, a certificate of authority to use the title “consulting engineer,” if all of the following requirements are satisfied:
(a) Application is made on a form provided by the board and is accompanied by the fees prescribed in Section 8805.
(b) Information submitted evidences to the satisfaction of the board that the applicant has had five years of independent control in furnishing consulting photogrammetric, geodetic, or topographic surveying services or consulting surveying services in connection with fixed works as defined in Section 6731.
Authority to use the title “consulting engineer” granted under this section does not affect authorizations made under the several provisions provided in Section 6732.1.
Authority to use the title “consulting engineer” granted under this section shall remain valid only while its holder’s basic license is valid, and if it lapses it may be renewed only as provided in Article 7 (commencing with Section 6795).
The provisions of Article 5 (commencing with Section 6775), Article 6 (commencing with Section 6785), and Article 7 (commencing with Section 6795), of this chapter, shall apply to the certificates issued as provided in this section and to the persons so certificated.
6732.3. Continued use of titles for persons licensed in corrosion, manufacturing, quality, or safety engineering
(a) Any person who has received from the board a license in corrosion, manufacturing, quality, or safety engineering, and who holds a valid license under this chapter, may continue to use the branch title of the branch in which the professional engineer is legally licensed. A person
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holding a license in corrosion, manufacturing, quality, or safety engineering is subject to the license renewal provisions of this chapter.
(b) The professional engineer also may continue to use the title of "professional engineer," "licensed engineer," "registered engineer," or "consulting engineer."
6732.4. Discontinuance of examinations for licensure as corrosion, manufacturing, quality, or safety engineer
(a) Notwithstanding any other provision of law, any person who has applied for registration as a corrosion, quality, or safety engineer, and who has completed the written examination in one or more of these branch titles prior to January 1, 1999, shall be issued registration in the branch title for which the applicant was examined, provided that he or she has met all other qualifications for registration. The board shall not administer any examination for registration as a corrosion, quality, or safety engineer on or after January 1, 1999.
(b) Notwithstanding any other provision of law, any person who has applied for registration as a manufacturing engineer, and who has completed the written examination for this branch title prior to January 1, 2004, shall be issued a registration as a manufacturing engineer, provided that he or she has met all other qualifications for registration. The board shall not administer any examination for registration as a manufacturing engineer on or after January 1, 2004.
6732.5. Discontinuance of national examination; continued use of branch titles
(a) Upon the discontinuance of a national examination for a branch specified in this chapter, the board shall not be required to administer an examination for a license in that branch or be required to issue licenses in that branch.
(b) Any person who has received from the board a license in a branch for which the nation examination is discontinued, and who holds a valid license under this chapter, may continue to use the branch title of the branch in which the professional engineer is legally licensed. A person holding a license in the affected branch of engineering is subject to the license renewal provisions of this chapter. The professional engineer may also continue to use the title of "professional engineer," "licensed engineer," "registered engineer," or "consulting engineer."
6733. Use of stamp or seal when certificate not in force
It is unlawful for anyone to stamp or seal any plans, specifications, plats, reports, or other documents with the seal after the certificate of the registrant, named thereon, has expired or has been suspended or revoked, unless the certificate has been renewed or reissued.
6734. Practice of civil engineering
Any person practices civil engineering when he professes to be a civil engineer or is in responsible charge of civil engineering work.
6734.1. Practice of electrical engineering
Any person practices electrical engineering when he professes to be an electrical engineer or is in responsible charge of electrical engineering work.
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6734.2. Practice of mechanical engineering Any person practices mechanical engineering when he professes to be a mechanical
engineer or is in responsible charge of mechanical engineering work.
6735. Preparation, signing, and sealing of civil engineering documents (a) All civil (including structural and geotechnical) engineering plans, calculations,
specifications, and reports (hereinafter referred to as "documents") shall be prepared by, or under the responsible charge of, a licensed civil engineer and shall include his or her name and license number. Interim documents shall include a notation as to the intended purpose of the document, such as "preliminary," "not for construction," "for plan check only," or "for review only." All civil engineering plans and specifications that are permitted or that are to be released for construction shall bear the signature and seal or stamp of the licensee and the date of signing and sealing or stamping. All final civil engineering calculations and reports shall bear the signature and seal or stamp of the licensee, and the date of signing and sealing or stamping. If civil engineering plans are required to be signed and sealed or stamped and have multiple sheets, the signature, seal or stamp, and date of signing and sealing or stamping, shall appear on each sheet of the plans. If civil engineering specifications, calculations, and reports are required to be signed and sealed or stamped and have multiple pages, the signature, seal or stamp, and date of signing and sealing or stamping shall appear at a minimum on the title sheet, cover sheet, or signature sheet.
(b) Notwithstanding subdivision (a), a licensed civil engineer who signs civil engineering documents shall not be responsible for damage caused by subsequent changes to or uses of those documents, if the subsequent changes or uses, including changes or uses made by state or local governmental agencies, are not authorized or approved by the licensed civil engineer who originally signed the documents, provided that the engineering service rendered by the civil engineer who signed the documents was not also a proximate cause of the damage.
6735.1. Construction supervision; legal duty
The signing of civil engineering plans, specifications, reports, or documents which relate to the design of fixed works shall not impose a legal duty or responsibility upon the person signing the plans, specifications, reports, or documents to supervise the construction of engineering structures or the construction of the fixed works which are the subject of the plans, specifications, reports, or documents. However, nothing in this section shall preclude a civil engineer and a client from entering into a contractual agreement which includes a mutually acceptable arrangement for the provision of construction supervision services. Nothing contained in this subdivision shall modify the liability of a civil engineer who undertakes, contractually or otherwise, the provision of construction supervision services for rendering those services.
6735.3. Signing and sealing of electrical engineering documents
(a) All electrical engineering plans, specifications, calculations, and reports (hereinafter referred to as "documents") prepared by, or under the responsible charge of, a licensed electrical engineer shall include his or her name and license number. Interim documents shall include a notation as to the intended purpose of the document, such as "preliminary," "not for construction," "for plan check only," or "for review only." All electrical engineering plans and specifications that are permitted or that are to be released for construction shall bear the signature
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and seal or stamp of the licensee and the date of signing and sealing or stamping. All final electrical engineering calculations and reports shall bear the signature and seal or stamp of the licensee and the date of signing and sealing or stamping. If electrical engineering plans are required to be signed and sealed or stamped and have multiple sheets, the signature, seal or stamp, and date of signing and sealing or stamping shall appear on each sheet of the plans. If electrical engineering specifications, calculations, and reports are required to be signed and sealed or stamped and have multiple pages, the signature, seal or stamp, and date of signing and sealing or stamping shall appear at a minimum on the title sheet, cover sheet, or signature sheet.
(b) Notwithstanding subdivision (a), a licensed electrical engineer who signs electrical engineering documents shall not be responsible for damage caused by subsequent changes to or uses of those documents, if the subsequent changes or uses, including changes or uses made by state or local governmental agencies, are not authorized or approved by the licensed electrical engineer who originally signed the documents, provided that the engineering service rendered by the electrical engineer who signed the documents was not also a proximate cause of the damage.
6735.4. Signing and sealing of mechanical engineering documents
(a) All mechanical engineering plans, specifications, calculations, and reports (hereinafter referred to as "documents") prepared by, or under the responsible charge of, a licensed mechanical engineer shall include his or her name and license number. Interim documents shall include a notation as to the intended purpose of the document, such as "preliminary," "not for construction," "for plan check only," or "for review only." All mechanical engineering plans and specifications that are permitted or that are to be released for construction shall bear the signature and seal or stamp of the licensee and the date of signing and sealing or stamping. All final mechanical engineering calculations and reports shall bear the signature and seal or stamp of the licensee and the date of signing and sealing or stamping. If mechanical engineering plans are required to be signed and sealed or stamped and have multiple sheets, the signature, seal or stamp, and date of signing and sealing or stamping shall appear on each sheet of the plans. If mechanical engineering specifications, calculations, and reports are required to be signed and sealed or stamped and have multiple pages, the signature, seal or stamp, and date of signing and sealing or stamping shall appear at a minimum on the title sheet, cover sheet, or signature sheet.
(b) Notwithstanding subdivision (a), a licensed mechanical engineer who signs mechanical engineering documents shall not be responsible for damage caused by subsequent changes to or uses of those documents, if the subsequent changes or uses, including changes or uses made by state or local governmental agencies, are not authorized or approved by the licensed mechanical engineer who originally signed the documents, provided that the engineering service rendered by the mechanical engineer who signed the documents was not also a proximate cause of the damage.
6735.5. Use of the word “certify” or “certification”
The use of the word “certify” or “certification” by a registered professional engineer in the practice of professional engineering or land surveying constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.
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6735.6. “As built,” “as constructed,” or “record” plans If a registered civil engineer is required to provide as built, as constructed, or record plans
for improvements or grading, which plans show changes during the construction process, the following shall apply:
(a) If the registered civil engineer provided construction phase services on the project that include supervision of the construction of engineering structures, the plans shall be based upon the field observations of the registered civil engineer and his or her agents, and information received from the project owner, project contractors, and public agencies.
(b) If the registered civil engineer did not provide construction phase services on the project that include supervision of the construction of engineering structures, the plans shall be based on information received from the project owner, project contractors, and public agencies, but need not be based upon a field verification or investigation of the improvements or grades, unless the registered civil engineer is engaged to provide such field verification services.
(c) The registered civil engineer shall not be required to include a certificate or statement on as built, as constructed, or record plans that is inconsistent with or varies from the provisions of this section.
6736. Use of title “Structural Engineer”
No person shall use the title, “structural engineer,” or any combination of these words or abbreviations thereof, unless he or she is a licensed civil engineer in this state and unless he or she has been found qualified as a structural engineer according to the rules and regulations established for structural engineers by the board.
6736.1. Use of title “Soil Engineer,” “Soils Engineer,” or “Geotechnical Engineer”
(a) No person shall use the title, “soil engineer,” “soils engineer,” or “geotechnical engineer,” or any combination of these words or abbreviations thereof, unless he or she is a licensed civil engineer in this state and files an application to use the appropriate title with the board and the board determines the applicant is qualified to use the requested title.
(b) The board shall establish qualifications and standards to use the title “soil engineer,” “soils engineer, or “geotechnical engineer.” However, each applicant shall demonstrate a minimum of four years qualifying experience beyond that required for licensure as a civil engineer, and shall pass the examination specified by the board.
(c) For purposes of this section, “qualifying experience” means proof of responsible charge of soil engineering projects in at least 50 percent of the major areas of soil engineering, as determined by the board.
(d) Nothing contained in this chapter requires existing references to “soil engineering,” “soils engineering,” “geotechnical engineering,” “soil engineer,” “soils engineer,” or “geotechnical engineer,” in local agency ordinances, building codes, regulations, or policies, to mean that those activities or persons must be registered or authorized to use the relevant title or authority.
6737. Exemption - licensed architects
An architect, who holds a certificate to practice architecture in this State under the provisions of Chapter 3 of Division 3 of this code insofar as he practices architecture in its various branches, is exempt from registration under the provisions of this chapter.
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6737.1. Exemption from licensure for preparation of plans, drawings, or specifications for certain types of structures; requirement for licensure upon deviation from codes
(a) This chapter does not prohibit any person from preparing plans, drawings, or specifications for any of the following:
(1) Single-family dwellings of woodframe construction not more than two stories and basement in height.
(2) Multiple dwellings containing no more than four dwelling units of woodframe construction not more than two stories and basement in height. However, this paragraph shall not be construed as allowing an unlicensed person to design multiple clusters of up to four dwelling units each to form apartment or condominium complexes where the total exceeds four units on any lawfully divided lot.
(3) Garages or other structures appurtenant to buildings described under subdivision (a), of woodframe construction not more than two stories and basement in height.
(4) Agricultural and ranch buildings of woodframe construction, unless the building official having jurisdiction deems that an undue risk to the public health, safety or welfare is involved. (b) If any portion of any structure exempted by this section deviates from substantial
compliance with conventional framing requirements for woodframe construction found in the most recent edition of Title 24 of the California Code of Regulations or tables of limitation for woodframe construction, as defined by the applicable building code duly adopted by the local jurisdiction or the state, the building official having jurisdiction shall require the preparation of plans, drawings, specifications, or calculations for that portion by, or under the responsible charge of, a licensed engineer, or by, or under the responsible control of, an architect licensed pursuant to Chapter 3 (commencing with Section 5500). The documents for that portion shall bear the stamp and signature of the licensee who is responsible for their preparation.
6737.2. Supplementary practice by civil engineer
Nothing in this chapter shall prohibit a civil engineer, registered under the provisions of this chapter, from practicing or offering to practice any engineering in connection with or supplementary to civil engineering studies or activities as defined in Section 6731.
6737.3. Exemption - licensed contractors
A contractor, licensed under Chapter 9 (commencing with Section 7000) of Division 3, is exempt from the provisions of this chapter relating to the practice of electrical or mechanical engineering so long as the services he or she holds himself or herself out as able to perform or does perform, which services are subject to the provisions of this chapter, are performed by, or under the responsible charge of a registered electrical or mechanical engineer insofar as the electrical or mechanical engineer practices the branch of engineering for which he or she is registered.
This section shall not prohibit a licensed contractor, while engaged in the business of contracting for the installation of electrical or mechanical systems or facilities, from designing those systems or facilities in accordance with applicable construction codes and standards for work to be performed and supervised by that contractor within the classification for which his or her license is issued, or from preparing electrical or mechanical shop or field drawings for work
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which he or she has contracted to perform. Nothing in this section is intended to imply that a licensed contractor may design work which is to be installed by another person.
6738. Engineering businesses
(a) This chapter does not prohibit one or more civil, electrical, or mechanical engineers from practicing or offering to practice, within the scope of their license, civil (including geotechnical and structural), electrical, or mechanical engineering as a sole proprietorship, partnership, limited liability partnership, firm, or corporation (hereinafter called business), if all of the following requirements are met:
(1) A civil, electrical, or mechanical engineer currently licensed in this state is an owner, partner, or officer in charge of the engineering practice of the business.
(2) All civil, electrical, or mechanical engineering services are performed by or under the responsible charge of a professional engineer licensed in the appropriate branch of professional engineering.
(3) If the business name of a California business contains the name of any person, then that person shall be licensed as a professional engineer, a licensed land surveyor, a licensed architect, or a geologist registered under the Geologist and Geophysicist Act (Chapter 12.5 (commencing with Section 7800)). Any offer, promotion, or advertisement by the business that contains the name of any individual in the business, other than by use of the name of an individual in the business name, shall clearly and specifically designate the license or registration discipline of each individual named. (b) An out-of-state business with a branch office in this state shall meet the requirements
of subdivision (a) and shall have an owner, partner, or officer who is in charge of the engineering work in the branch in this state, who is licensed in this state, and who is physically present at the branch office in this state on a regular basis. However, the name of the business may contain the name of any person not licensed in this state if that person is appropriately registered or licensed in another state. Any offer, promotion, or advertisement that contains the name of any individual in the business, other than by use of the names of the individuals in the business name, shall clearly and specifically designate the license or registration discipline of each individual named.
(c) The business name of a California engineering business may be a fictitious name. However, if the fictitious name includes the name of any person, the requirements of paragraph (3) of subdivision (a) shall be met.
(d) A person not licensed under this chapter may also be a partner or an officer of a civil, electrical, or mechanical engineering business if the requirements of subdivision (a) are met. Nothing in this section shall be construed to permit a person who is not licensed under this chapter to be the sole owner of a civil, electrical, or mechanical engineering business, unless otherwise exempt under this chapter.
(e) This chapter does not prevent an individual or business engaged in any line of endeavor other than the practice of civil, electrical, or mechanical engineering from employing or contracting with a licensed civil, electrical, or mechanical engineer to perform the respective engineering services incidental to the conduct of business.
(f) This section shall not prevent the use of the name of any business engaged in rendering civil, electrical, or mechanical engineering services, including the use by any lawful successor or survivor, that lawfully was in existence on December 31, 1987. However, the business is subject to paragraphs (1) and (2) of subdivision (a).
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(g) A business engaged in rendering civil, electrical, or mechanical engineering services may use in its name the name of a deceased or retired person provided all of the following conditions are satisfied:
(1) The person’s name had been used in the name of the business, or a predecessor in interest of the business, prior to and after the death or retirement of the person.
(2) The person shall have been an owner, partner, or officer of the business, or an owner, partner, or officer of the predecessor in interest of the business.
(3) The person shall have been licensed as a professional engineer, or a land surveyor, or an architect, or a geologist, (A) by the appropriate licensing board if that person is operating a place of business or practice in this state, or (B) by the applicable state board if no place of business existed in this state.
(4) The person, if retired, has consented to the use of the name and does not permit the use of the name in the title of another professional engineering business in this state during the period of the consent. However, the retired person may use his or her name as the name of a new or purchased business if it is not identical in every respect to that person’s name as used in the former business.
(5) The business shall be subject to the provisions of paragraphs (1) and (2) of subdivision (a). (h) This section does not affect the provisions of Sections 6731.2 and 8726.1. (i) A current organization record shall be filed with the board for all businesses engaged
in rendering civil, electrical, or mechanical engineering services. (j) This section shall remain in effect only until January 1, 2019, and as of that date is
repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.
6739. Exemption - federal officers and employees
Officers and employees of the United States of America practicing solely as such officers or employees are exempt from registration under the provisions of this chapter.
6740. Exemption - subordinates
A subordinate to a civil, electrical or mechanical engineer licensed under this chapter, or a subordinate to a civil, electrical or mechanical engineer exempted from licensure under this chapter, insofar as he acts solely in that capacity, is exempt from licensure under the provisions of this chapter. This exemption, however, does not permit any such subordinate to practice civil, electrical or mechanical engineering in his own right or to use the titles listed in Section 6732, 6736, and 6736.1.
6741. Exemption - nonresidents
Any person, firm, partnership, or corporation is exempt from registration under the provisions of this chapter who meets all the following:
(a) Is a nonresident of the State of California. (b) Is legally qualified in another state to practice as a civil, electrical, or mechanical
engineer. (c) Does not maintain a regular place of business in this state. (d) Offers to but does not practice civil, electrical, or mechanical engineering in this
state.
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6742. Exemption - real estate broker or salesperson making appraisals and valuations
Any person, firm, or corporation holding a license as real estate broker or real estate salesperson, when making appraisals and valuations of real estate properties, while engaged in the business or acting in the capacity of a real estate broker or a real estate salesperson, within the meaning of the Real Estate Law is exempt from registration under the provisions of this chapter.
6743. Effect of chapter on professional land surveyors
This chapter does not affect Chapter 15 of Division 3 of this code, relating to surveyors, except insofar as this chapter is expressly made applicable.
6744. Exemption - land owner
This chapter does not require registration for the purpose of practicing civil engineering, by an individual, a member of a firm or partnership, or by an officer of a corporation on or in connection with property owned or leased by the individual, firm, partnership, or corporation, unless the civil engineering work to be performed involves the public health or safety or the health and safety of employees of the individual, firm, partnership or corporation.
6745. Exemption from licensure for certain building alterations
This chapter does not prohibit any person, firm or corporation from furnishing, either alone or with subcontractors, labor and materials, with or without plans, drawings, specifications, instruments of service or other data covering such labor and materials:
(a) For store fronts, interior alterations or additions, fixtures, cabinet work, furniture or other appliances or equipment.
(b) For any work necessary to provide for their installation. (c) For any alterations or additions to any building necessary to or attendant upon the
installation of such store fronts, interior alterations or additions, fixtures, cabinet work, furniture, appliances or equipment; provided, such alterations do not affect the structural safety of the building.
6746. Exemption - communications companies under the Public Utilities Commission
Plans, specifications, reports and documents relating to communication lines and equipment prepared by employees of communications companies which come under the jurisdiction of the Public Utilities Commission, and by employees of contractors while engaged in work on communication equipment for communications companies which come under the jurisdiction of the Public Utilities Commission, are not subject to the provisions of this chapter.
6746.1. Exemption - employees of the communications industry
The provisions of this act pertaining to licensure of professional engineers other than civil engineers, do not apply to employees in the communication industry, nor to the employees of contractors while engaged in work on communication equipment. However, those employees may not use any of the titles listed in Section 6732, 6736, and 6736.1, unless licensed.
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6747. Exemption – industrial corporations and public utilities (a) This chapter, except for those provisions that apply to civil engineers and civil
engineering, shall not apply to the performance of engineering work by a manufacturing, mining, public utility, research and development, or other industrial corporation, or by employees of that corporation, provided that work is in connection with, or incidental to, the products, systems, or services of that corporation or its affiliates.
(b) For purposes of this section, “employees” also includes consultants, temporary employees, contract employees, and those persons hired pursuant to third-party contracts.
6748. Nuclear power plants
(a) Notwithstanding Section 6747, this chapter applies to engineering work approved by a person employed by a privately or publicly owned utility in the planning, designing, construction, operation, or maintenance of a nuclear powerplant which is owned or operated by the utility.
(b) Any engineering work subject to subdivision (a) shall be approved by a professional engineer registered in the applicable discipline of engineering specified in Section 6732.
6749. Written contracts
(a) A professional engineer shall use a written contract when contracting to provide professional engineering services to a client pursuant to this chapter. The written contract shall be executed by the professional engineer and the client or the client’s representative prior to the professional engineer commencing work, unless the client knowingly states in writing that work may be commenced before the contract is executed. The written contract shall include, but not be limited to, all of the following:
(1) A description of the services to be provided to the client by the professional engineer.
(2) A description of any basis of compensation applicable to the contract, and the method of payment agreed upon by the parties.
(3) The name, address, and license or certificate number of the professional engineer, and the name and address of the client.
(4) A description of the procedure that the professional engineer and the client will use to accommodate additional services.
(5) A description of the procedure to be used by both parties to terminate the contract. (b) This section shall not apply to any of the following:
(1) Professional engineering services rendered by a professional engineer for which the client will not pay compensation.
(2) A professional engineer who has a current or prior contractual relationship with the client to provide engineering services, and that client has paid the professional engineer all of the fees that are due under the contract.
(3) If the client knowingly states in writing after full disclosure of this section that a contract which complies with the requirements of this section is not required.
(4) Professional engineering services rendered by a professional engineer to any of the following:
(A) A professional engineer licensed or registered under this chapter. (B) A land surveyor licensed under Chapter 15 (commencing with Section 8700).
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(C) An architect licensed under Chapter 3 (commencing with Section 5500). (D) A contractor licensed under Chapter 9 (commencing with Section 7000). (E) A geologist or a geophysicist licensed under Chapter 12.5 (commencing with
Section 7800). (F) A manufacturing, mining, public utility, research and development, or other
industrial corporation, if the services are provided in connection with or incidental to the products, systems, or services of that corporation or its affiliates.
(G) A public agency. (c) “Written contract” as used in this section includes a contract that is in electronic
form.
Article 4. Registration
6750. Application for certification as an engineer-in-training or licensure as a professional engineer; examination fees
(a) An application for licensure as a professional engineer or certification as an engineer- in-training shall be made to the board on the prescribed form, with all statements made therein under oath, and shall be accompanied by the fee prescribed by this chapter. An application for licensure as a professional engineer shall specify, additionally, the branch of engineering in which the applicant desires licensure.
(b) The board may authorize an organization specified by the board pursuant to Section 6754 to receive directly from applicants payment of the examination fees charged by that organization as payment for examination materials and services.
6751. Qualifications for certification as an engineer-in-training or licensure as a professional engineer
(a) The applicant for certification as an engineer-in-training shall comply with all of the following:
(1) Not have committed acts or crimes constituting grounds for denial of licensure under Section 480.
(2) Successfully pass the first division of the examination. (3) Satisfactorily complete three years or more of postsecondary engineering
education, three years or more of engineering experience, or a combination of postsecondary education and experience in engineering totaling three years. (b) The board need not verify the applicant’s eligibility for certification as an engineer-
in-training other than to require the applicant to sign a statement of eligibility on the application form.
(c) The applicant for licensure as a professional engineer shall comply with all of the following:
(1) Not have committed acts or crimes constituting grounds for denial of licensure under Section 480.
(2) Furnish evidence of six years or more of qualifying experience in engineering work satisfactory to the board evidencing that the applicant is competent to practice the character of engineering in the branch for which he or she is applying for licensure.
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(3) Be certified as an engineer-in-training in this state, be certified as an engineer-in- training or engineer intern in another state or territory of the United States, or be exempt therefrom.
(4) Successfully pass the second division of the examination.
6751.2. Foreign applicants The board may consider the professional experience and education acquired by applicants
outside the United States which in the opinion of the board is equivalent to the minimum requirements of the board established by regulation for professional experience and education in this state.
6751.5. Rules for approval of engineering school curricula
The board shall by rule establish the criteria to be used for approving curricula of schools of engineering.
6752. Civil engineer experience
An applicant for registration as a civil engineer must have gained his experience under the direction of a civil engineer legally qualified to practice.
6753. Equivalents for experience; education; teaching
With respect to applicants for licensure as professional engineers, the board: (a) Shall give credit as qualifying experience of four years, for graduation with an
engineering degree from a college or university the curriculum of which has been approved by the board.
(b) May at its discretion give credit as qualifying experience up to a maximum of two years, for graduation with an engineering degree from a nonapproved engineering curriculum or graduation with an engineering technology degree in an approved engineering technology curriculum.
(c) May at its discretion give credit as qualifying experience of up to one-half year, for each year of successfully completed postsecondary study in an engineering curriculum up to a maximum of four years credit. A year of study shall be at least 32 semester units or 48 quarter units.
(d) May at its discretion give credit as qualifying experience not in excess of five years, for a postgraduate degree in a school of engineering with a board-approved undergraduate or postgraduate curriculum.
(e) May at its discretion give credit as qualifying experience for engineering teaching, not in excess of one year, if of a character satisfactory to the board.
The sum of qualifying experience credit for subdivision (a) to (e), inclusive, shall not exceed five years.
6753.5. Experience in the armed forces
All applicants shall be given equal credit for engineering experience in the armed forces of United States as with any other comparable engineering experience.
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6754. Examinations in general Examination for licensure shall be held at such times and places as the board shall
determine. The second division of the examination for all branches specified in Section 6732 shall be
administered at least once each year. Work of the board relating to examination and licensure may be divided into committees
as the board shall direct. The scope of examinations and the methods of procedure may be prescribed by board rule.
The board may make arrangements with a public or private organization to conduct the examination. The board may contract with a public or private organization for materials or services related to the examination.
6755. Examination requirements; waivers
(a) Examination duration and composition shall be designed to conform to the following general principle: The first division of the examination shall test the applicant’s knowledge of appropriate fundamental engineering subjects, including mathematics and the basic sciences; the second division of the examination shall test the applicant’s ability to apply his or her knowledge and experience and to assume responsible charge in the professional practice of the branch of engineering in which the applicant is being examined.
(b) The board may by rule provide for a waiver of the first division of the examination for applicants whose education and experience qualifications substantially exceed the requirements of subdivision (a) of Section 6751.
(c) The board may by rule provide for a waiver of the second division of the examination for persons eminently qualified for licensure in this state by virtue of their standing in the engineering community, their years of experience, and those other qualifications as the board deems appropriate.
6755.1. Additional second division examination requirements
(a) The second division of the examination for registration as a professional engineer shall include questions to test the applicant’s knowledge of state laws and the board’s rules and regulations regulating the practice of professional engineering. The board shall administer the test on state laws and board rules regulating the practice of engineering in this state as a separate part of the second division of the examination for registration as a professional engineer.
(b) On and after April 1, 1988, the second division of the examination for registration as a civil engineer shall also include questions to test the applicant’s knowledge of seismic principles and engineering surveying principles as defined in Section 6731.1. No registration for a civil engineer shall be issued by the board on or after January 1, 1988, to any applicant unless he or she has successfully completed questions to test his or her knowledge of seismic principles and engineering surveying principles.
The board shall administer the questions to test the applicant’s knowledge of seismic principles and engineering surveying principles as a separate part of the second division of the examination for registration as a civil engineer.
It is the intent of the Legislature that this section confirm the authority of the board to issue registrations prior to April 1, 1988, to applicants based on examinations not testing the applicant’s knowledge of seismic principles and engineering surveying principles as defined in Section 6731.1.
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6756. Certification as an engineer-in-training
(a) An applicant for certification as an engineer-in-training shall, upon meeting all of the requirements prescribed in subdivisions (a) and (b) of Section 6751, relating to fundamental engineering subjects, be issued a certificate as an engineer-in-training. A renewal or other fee, other than the application and examination fees, shall not be charged for this certification. The certificate shall become invalid when the holder has qualified as a professional engineer as provided in Section 6762.
(b) An engineer-in-training certificate does not authorize the holder thereof to practice or offer to practice civil, electrical, or mechanical engineering work, in his or her own right, or to use the titles specified in Sections 6732, 6736, and 6736.1.
(c) It is unlawful for anyone other than the holder of a valid engineer-in-training certificate issued under this chapter to use the title of “engineer-in-training” or any abbreviation of that title.
6757. Separate applications for licensure in each branch of engineering
Applicants who profess to be qualified in more than one branch of engineering shall be required to file an application for each branch in which they wish to be registered.
6758. Re-examination
An applicant failing in an examination may be examined again upon filing a new application and the payment of the fee fixed by this chapter.
6759. Comity applicants
The board, upon application therefor, on its prescribed form, and the payment of the fee fixed by this chapter, may issue a certificate of registration as a professional engineer, without written examination, to any person holding a certificate of registration issued to him or her by any state or country when the applicant’s qualifications meet the requirements of this chapter and rules established by the board. The board shall not require a comity applicant to meet any requirement not required of California applicants. For purposes of this section, equivalent second division examinations shall be written examinations prepared by or administered by a state or territory either by single or combined branch at the level generally administered by the board to persons who passed or were exempted from the first division examination. Applicants who have passed an equivalent second division combined branch or a single branch examination in a branch not recognized for registration in California shall be registered in the branch in which their experience and education indicate the closest relationship.
6762. Licensure as professional engineer
Any applicant for licensure as a professional engineer, upon meeting all of the requirements prescribed in subdivision (c) of Section 6751 and who and has otherwise qualified hereunder as a professional engineer, shall have a certificate of registration issued to him or her as a professional engineer in the particular branch for which he or she is found qualified.
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6762.5. Retired license (a) The board shall issue, upon application and payment of the fee established by Section
6799, a retired license (registration), to an engineer who has been licensed by the board for a minimum of 5 years within California and a minimum of 20 years within the United States or territory of the United States, and who holds a license that is not suspended, revoked, or otherwise disciplined, or subject to pending discipline under this chapter.
(b) The holder of a retired license issued pursuant to this section shall not engage in any activity for which an active engineer’s license is required. An engineer holding a retired license shall be permitted to use the titles “retired professional engineer,” “professional engineer, retired,” or either of those titles with the licensee’s branch designation inserted for the word “professional” for example, “retired civil engineer” or “civil engineer, retired.”
(c) The holder of a retired license shall not be required to renew that license. (d) In order for the holder of a retired license issued pursuant to this section to restore his
or her license to active status, he or she shall pass the second division examination that is required for initial licensure with the board.
6763. Structural engineer title authority; soil engineer, soils engineer, or geotechnical engineer title authority
Application for authority to use the title “structural engineer,” “soil engineer,” “soils engineer,” or “geotechnical engineer” shall be made to the board on forms prescribed by it and shall be accompanied by the fee fixed by this chapter.
An applicant for authority to use the title “structural engineer,” “soil engineer,” “soils engineer,” or “geotechnical engineer” who has passed the examination prescribed by the board, or an applicant for authority to use the title “soil engineer,” “soils engineer,” or “geotechnical engineer” whose application is submitted prior to July 1, 1986, and who has otherwise demonstrated that he or she is qualified, shall have a certificate of authority issued to him or her.
For purposes of this chapter, an authority to use the title “structural engineer,” “soil engineer,” “soils engineer,” or “geotechnical engineer” is an identification of competence and specialization in a subspecialty of civil engineering and necessitates education or experience in addition to that required for registration as a civil engineer.
6763.1. Structural engineer examination requirements
An applicant to use the title “structural engineer” shall have successfully passed a written examination for structural engineering that is administered by a nationally recognized entity approved by the board.
6763.5. Refund to unqualified applicants
If an applicant for licensure as a professional engineer, for certification as an engineer-in- training, or for authorization to use the title “structural engineer” or “soil engineer” is found by the board to lack the qualifications required for admission to the examination for such licensure, certification, or authorization, the board may, in accordance with the provisions of Section 158 of this code, refund to him or her one-half of the amount of his or her application fee.
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6764. Seal or stamp Each professional engineer licensed under this chapter shall, upon licensure, obtain a seal
or stamp of a design authorized by the board bearing the licensee’s name, number of his or her certificate or authority, the legend “professional engineer” and the designation of the particular branch or authority in which he or she is licensed.
6765. Duplicate certificate or license
A duplicate certificate of registration to replace one lost, destroyed, or mutilated may be issued subject to the rules and regulations of the board. The duplicate certificate fee fixed by this chapter shall be charged.
6766. Evidence of licensure
An unsuspended, unrevoked and unexpired certificate and endorsement of registry made under this chapter, is presumptive evidence in all courts and places that the person named therein is legally registered.
Article 4.5. Reporting Requirements
6770. Licensees required to report criminal convictions, civil action judgments, settlements, arbitration awards, and administrative actions
(a) A licensee shall report to the board in writing the occurrence of any of the following events that occurred on or after January 1, 2008, within 90 days of the date the licensee has knowledge of the event:
(1) The conviction of the licensee of any felony. (2) The conviction of the licensee of any other crime that is substantially related to the
qualifications, functions, and duties of a licensed professional engineer. (3) A civil action settlement or administrative action resulting in a settlement against the
licensee in any action alleging fraud, deceit, misrepresentation, breach or violation of contract, negligence, incompetence, or recklessness by the licensee in the practice of professional engineering if the amount or value of the settlement is greater than fifty thousand dollars ($50,000).
(4) A civil action judgment or binding arbitration award or administrative action resulting in a judgment or binding arbitration award against the licensee in any action alleging fraud, deceit, misrepresentation, breach or violation of contract, negligence, incompetence, or recklessness by the licensee in the practice of professional engineering if the amount or value of the judgment or binding arbitration award is twenty-five thousand dollars ($25,000) or greater.
(b) The report required by subdivision (a) shall be signed by the licensee and set forth the facts that constitute the reportable event. If the reportable event involves the action of an administrative agency or court, the report shall set forth the title of the matter, court or agency name, docket number, and the date the reportable event occurred.
(c) A licensee shall promptly respond to oral or written inquiries from the board concerning the reportable events, including inquiries made by the board in conjunction with license renewal.
(d) Nothing in this section shall impose a duty upon any licensee to report to the board the occurrence of any of the events set forth in subdivision (a) either by or against any other licensee.
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(e) Failure of a licensee to report to the board in the time and manner required by this section shall be grounds for disciplinary action.
(f) For the purposes of this section, a conviction includes the initial plea, verdict, or finding of guilt; a plea of no contest; or pronouncement of sentence by a trial court even though the conviction may not be final or sentence actually imposed until all appeals are exhausted.
6770.1. Courts required to report of convictions of licensees
Within 30 days of entry of a conviction described in paragraphs (1) and (2) of subdivision (a) of Section 6770, a settlement described in paragraph (3) of subdivision (a) of Section 6770, or a judgment described in paragraph (4) of subdivision (a) of Section 6770, by a court of this state that has been notified that the defendant is a licensee of the board, the court that rendered the conviction, settlement, or judgment shall report that fact to the board and provide the board with a copy of the conviction or judgment and any orders or opinions of the court accompanying or ordering the conviction, settlement, or judgment.
6770.2. Professional liability insurers required to report of civil action judgments, settlements, or arbitration awards against licensees
(a) Within 30 days of payment of all or any portion of any civil action judgment, settlement, or binding arbitration award described in Section 6770 against a licensee of the board, any insurer providing professional liability insurance to that licensee shall report to the board the name of the licensee; the amount or value of the judgment, settlement, or binding arbitration award; the amount paid by the insurer; and the identity of the payee.
(b) Within 30 days of payment of all or any portion of any civil action judgment, settlement, or binding arbitration award described in Section 6770 against a licensee of the board, any state or local government agency that self-insures that licensee shall report to the board the name of the licensee; the amount or value of the judgment, settlement, or binding arbitration award; the amount paid; and the identity of the payee.
6770.3. Applicability of Sections 6770, 6770.1, and 6770.2
The requirements of Sections 6770, 6770.1, and 6770.2 shall apply if a party to the civil action, settlement, or arbitration award is or was a sole proprietorship, partnership, firm, corporation, or state or local government agency in which the licensee is or was an owner, partner, member, officer, or employee and is or was the licensee in responsible charge of that portion of the project that was the subject of the civil judgment, settlement, or arbitration award.
6770.4. Effect of article on confidential agreements
(a) Notwithstanding any other provision of law, a licensee shall not be considered to have violated a confidential settlement agreement or other confidential agreement by providing a report to the board as required by this article.
6770.5. Authority to adopt regulations
The board may adopt regulations to further define the reporting requirements of Sections 6770, 6770.1, and 6770.2.
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6770.6. Operation of article This article shall become operative on January 1, 2008, only if an appropriation is made
from the Professional Engineer's and Land Surveyor's Fund for the 2007-08 fiscal year in the annual Budget Act to fund the activities of this article, and sufficient hiring authority is granted to the board pursuant to a budget change proposal to provide sufficient staffing to implement this article.
Article 5. Disciplinary Proceedings
6775. Complaints; investigations; board action against the license of a professional engineer
The Board may, upon its own initiative or upon the receipt of a complaint, investigate the actions of any professional engineer licensed under this chapter and make findings thereon.
By a majority vote, the board may publicly reprove, suspend for a period not to exceed two years, or revoke the certificate of any professional engineer licensed under this chapter on any of the following grounds:
(a) Any conviction of a crime substantially related to the qualifications, functions and duties of a licensed professional engineer, in which case the certified record of conviction shall be conclusive evidence thereof.
(b) Any deceit, misrepresentation, or fraud, in his or her practice. (c) Any negligence or incompetence in his or her practice. (d) A breach or violation of a contract to provide professional engineering services. (e) Any fraud, deceit, or misrepresentation in obtaining his or her certificate as a
professional engineer. (f) Aiding or abetting any person in the violation of any provision of this chapter or any
regulation adopted by the board pursuant to this chapter. (g) A violation in the course of the practice of professional engineering of a rule or
regulation of unprofessional conduct adopted by the board. (h) A violation of any provision of this chapter or any other law relating to or involving
the practice of professional engineering.
6775.1. Complaints; investigations; board action against the certificate of an engineer-in- training
The board may, upon its own initiative or upon the receipt of a complaint, investigate the actions of any engineer-in-training and make findings thereon.
By a majority vote, the board may revoke the certificate of any engineer-in-training: (a) Who has been convicted of a crime as defined in subdivision (a) of Section 480. (b) Who has committed any act that would be grounds for denial of licensure pursuant to
Section 480 or 496. (c) Who has committed any act of fraud, deceit, or misrepresentation in obtaining his or
her engineer-in-training certificate or certificate of registration, certification, or authority as a professional engineer.
(d) Who aids or abets any person in the violation of any provision of this chapter or any regulation adopted by the board pursuant to this chapter.
(e) Who violates Section 119 with respect to an engineer-in-training certificate. (f) Who commits any act described in Section 6787.
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(g) Who violates any provision of this chapter or any regulation adopted by the board pursuant to this chapter.
6775.2. Failure or refusal to respond in an investigation
(a) The failure of, or refusal by, a licensee or a certificate holder to respond to a written request from a representative of the board to cooperate in the investigation of a complaint against that licensee or certificate holder constitutes a cause for disciplinary action under Section 6775 or 6775.1.
(b) This section shall remain in effect only until January 1, 2020, and as of that date is repealed.
6776. Conduct of proceedings
The proceedings under this article shall be conducted in accordance with Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with Section 11400), and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the board shall have all the powers granted therein.
6777. Reinstatement of revoked license
The board may reissue a certificate of registration, certification, or authority, to any person whose certificate has been revoked if a majority of the members of the board vote in favor of such reissuance for reasons the board deems sufficient.
6779. Revocation upon conviction
A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge substantially related to the qualifications, functions and duties of a registered professional engineer is deemed to be a conviction within the meaning of this article. The board may order the certificate suspended or revoked, or may decline to issue a certificate, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such person to withdraw his plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information or indictment.
6780. Petitions for reinstatement of revoked license or modification of penalty
(a) A petitioner may petition the board for reinstatement or modification of penalty, including reduction, modification, or termination of probation, after the following minimum periods have elapsed from the effective date of the decision ordering the disciplinary action, or if the order of the board or any portion of it is stayed by a court of law, from the date the disciplinary action is actually implemented in its entirety:
(1) Except as otherwise provided in this section, at least three years for reinstatement of a certificate that was revoked or surrendered. However, the board may, in its sole discretion, specify in its order of revocation or surrender a lesser period of time that shall be at minimum one year.
(2) At least two years for early termination of a probation period of three years or more. (3) At least one year for early termination of a probation period of less than three years.
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(4) At least one year for reduction or modification of a condition of probation. (b) The board shall notify the Attorney General of the filing of the petition. The
petitioner and the Attorney General shall be given timely notice by letter of the time and place of the hearing on the petition, and the petitioner and the Attorney General shall be given the opportunity to present both oral and documentary evidence and argument to the board. The petitioner shall at all times have the burden of proof to establish by clear and convincing evidence that he or she is entitled to the relief sought in the petition.
(c) The board itself or an administrative law judge, if one is designated by the board, shall hear the petition and shall prepare a written decision setting forth the reasons supporting the decision.
(d) The board may grant or deny the petition or may impose any terms and conditions that it reasonably deems appropriate as a condition of reinstatement or reduction or modification of the penalty.
(e) No petition shall be considered while the petitioner is under sentence for any criminal offense, including any period during which the petitioner is on court-imposed probation or parole. No petition shall be considered while there is an accusation or petition to revoke probation pending against the petitioner.
(f) The board may, in its discretion, deny without hearing or argument any petition that is filed pursuant to this section within a period of two years from the effective date of a prior decision following a hearing under this section.
(g) Judicial review of the board's decision following a hearing under this section may be sought by way of a petition for writ of administrative mandamus pursuant to Section 1094.5 of the Code of Civil Procedure. The party seeking to overturn the board's decision shall have the burden of proof in any mandamus proceeding. In the mandamus proceeding, if it is alleged that there has been an abuse of discretion because the board's findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in light of the whole record.
(h) The following definitions apply for purposes of this section: (1) "Certificate" includes certificate of registration or license as a professional engineer;
certificates of authority to use the titles "structural engineer," "geotechnical engineer," "soil engineer," "soils engineer," or "consulting engineer;" and certification as an engineer-in-training.
(2) "Petitioner" means a professional engineer or an engineer-in-training whose certificate has been revoked, suspended, or surrendered or placed on probation.
Article 6. Offenses Against the Chapter
6785. Authority to investigate
The board shall have the power, duty, and authority to investigate violations of the provisions of this chapter.
6786. Duty to prosecute
It is the duty of the respective members of the legal system to prosecute all persons charged with the violation of any of the provisions of this chapter.
It is the duty of the executive officer of the board, under the direction of the board, to aid these officers in the enforcement of this chapter.
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6787. Acts constituting a misdemeanor Every person is guilty of a misdemeanor: (a) Who, unless he or she is exempt from licensure under this chapter, practices or offers
to practice civil, electrical, or mechanical engineering in this state according to the provisions of this chapter without legal authorization.
(b) Who presents or attempts to file as his or her own the certificate of licensure of a licensed professional engineer unless he or she is the person named on the certificate of licensure.
(c) Who gives false evidence of any kind to the board, or to any member thereof, in obtaining a certificate of licensure.
(d) Who impersonates or uses the seal of a licensed professional engineer. (e) Who uses an expired, suspended, surrendered, or revoked certificate issued by the
board. (f) Who represents himself or herself as, or uses the title of, a licensed or registered civil,
electrical, or mechanical engineer, or any other title whereby that person could be considered as practicing or offering to practice civil, electrical, or mechanical engineering in any of its branches, unless he or she is correspondingly qualified by licensure as a civil, electrical, or mechanical engineer under this chapter.
(g) Who, unless appropriately registered, manages, or conducts as manager, proprietor, or agent, any place of business from which civil, electrical, or mechanical engineering work is solicited, performed, or practiced, except as authorized pursuant to subdivision (d) of Section 6738 and Section 8726.1.
(h) Who uses the title, or any combination of that title, of “professional engineer,” “licensed engineer,” “registered engineer,” or the branch titles specified in Section 6732, or the authority titles specified in Sections 6736 and 6736.1, or “engineer-in-training,” or who makes use of any abbreviation of such title that might lead to the belief that he or she is a licensed engineer, is authorized to use the titles specified in Section 6736 or 6736.1, or holds a certificate as an engineer-in-training, without being licensed, authorized, or certified as required by this chapter.
(i) Who uses the title “consulting engineer” without being licensed as required by this chapter or without being authorized to use that title pursuant to legislation enacted at the 1963, 1965 or 1968 Regular Session.
(j) Who violates any provision of this chapter.
6788. Repair fraud Any person who violates any provision of subdivisions (a) to (i), inclusive, of Section
6787 in connection with the offer or performance of engineering services for the repair of damage to a residential or nonresidential structure caused by a disaster for which a state of emergency is proclaimed by the Governor pursuant to Section 8625 of the Government Code, or for which an emergency or major disaster is declared by the President of the United States, shall be punished by a fine up to ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for 16 months, or for two or three years, or by both the fine and imprisonment, or by a fine up to one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.
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Article 7. Revenue
6795. Certificate renewal time periods
Certificates of registration as a professional engineer, and certificates of authority, shall be valid for a period of two years from the assigned date of renewal. Biennial renewals shall be staggered on a quarterly basis. To renew an unexpired certificate, the certificate holder shall, on or before the date of expiration indicated on the renewal receipt, apply for renewal on a form prescribed by the board, and pay the renewal fee prescribed by this chapter.
6795.1. Notice of pending expiration; contents; second notice
Within 60 to 90 days prior to the expiration of a certificate of registration or certificate of authority, the board shall mail to the registrant or authority holder a notice of the pending expiration. That notice shall include application forms for renewal. If there is no response by the expiration date, the board shall provide a second notice to the registrant’s or authority holder’s address.
6795.2. Assessment to reinforce knowledge of state laws and board rules and regulations
(a) At the time of renewal specified in Section 6795 or 6796, the board shall administer an assessment of the certificate holder to reinforce the certificate holder’s knowledge of state laws and the board’s rules and regulations. Failure to complete this assessment within 60 days after the date of expiration of the certificate may result in disciplinary action under Section 6775, but shall not affect the renewal of the certificate.
(b) The crime in subdivision (j) of Section 6787 shall not apply to this section. (c) The board shall not charge the certificate holder a fee for the administration or
development of the assessment. (d) For the purposes of this section, “assessment” means an online program that contains
educational reading material and questions. The material shall be based on state law and the board’s rules and regulations relating to the practice of professional engineers. The scope of the assessment shall be limited to the board’s top five types of violations related to the administrative and procedural aspects of the practice of professional engineers and any changes or additions to existing law related to such administrative and procedural aspects.
6796. Renewal of expired certificate
Except as otherwise provided in this article, certificates of registration as a professional engineer and certificates of authority may be renewed at any time within five years after expiration on filing of application for renewal on a form prescribed by the board and payment of all accrued and unpaid renewal fees. If the certificate is renewed more than 60 days after its expiration, the certificate holder, as a condition precedent to renewal, shall also pay the delinquency fee prescribed by this chapter. Renewal under this section shall be effective on the date on which the application is filed, on the date on which the renewal fee is paid, or on the date on which the delinquency fee, if any, is paid, whichever last occurs.
The expiration date of a certificate renewed pursuant to this section shall be determined pursuant to Section 6795.
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6796.1. Expiration of suspended certificate; renewal
A suspended certificate is subject to expiration and shall be renewed as provided in this article, but such renewal does not entitle the holder of the certificate, while it remains suspended and until it is reinstated, to engage in the activity to which the certificate relates, or in any other activity or conduct in violation of the order or judgment by which it was suspended.
6796.2. Expiration of revoked certificate
A revoked certificate is subject to expiration as provided in this article, but it may not be renewed. If it is reinstated after its expiration, the holder of the certificate, as a condition precedent to its reinstatement, shall pay a reinstatement fee in an amount equal to the renewal fee in effect on the last regular renewal date before the date on which it is reinstated, plus the delinquency fee, if any, accrued at the time of its revocation.
6796.3. Failure to renew certificate within five years
(a) Certificates of registration as a professional engineer, and certificates of authority to use the title “structural engineer,” “soil engineer,” or “consulting engineer” that are not renewed within five years after expiration may not be renewed, restored, reinstated, or reissued. After five years after expiration, the holder of a certificate may apply for and obtain a new certificate subject to the following:
(1) He or she has not committed any acts or crimes constituting grounds for denial of licensure under Section 480.
(2) He or she takes and passes the examination, if any, that would be required of him or her if he or she were then applying for the certificate for the first time.
(b) The board may, by regulation, provide for the waiver or refund of all or any part of the application fee in those cases in which a certificate is issued without an examination pursuant to this section.
6796.5. Effect of renewal of expired or delinquent certificate
Once an expired or delinquent certificate of registration or certificate of authority is renewed pursuant to Section 6796, all of the following shall apply:
(a) The board shall continue to have full jurisdiction and authority over the certificate holder as if the authority had not expired or become delinquent.
(b) The work performed by the certificate holder during a period of expiration or delinquency shall be deemed lawful and validly performed as to persons or entities other than the authority holder.
(c) The renewal of a registration or certificate of authority shall not affect liability issues regarding work performed during a period of expiration or delinquency, nor does the fact of performance during a period of expiration or delinquency affect liability issues.
6797. Accounting and deposit of funds
(a) The department shall receive and account for all money derived from the operation of this chapter and, at the end of each month, shall report such money to the Controller and shall pay it to the Treasurer, who shall keep the money in a separate fund known as the Professional Engineer’s, Land Surveyor’s, and Geologist’s Fund.
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(b) For accounting and recordkeeping purposes, the Professional Engineer’s, Land Surveyor’s, and Geologist’s Fund shall be deemed to be a single special fund, and shall be available for expenditure only for the purposes as are now or may hereafter be provided by law.
(c) The fees and civil penalties received under this chapter shall be deposited in the Professional Engineer’s, Land Surveyor’s, and Geologist’s Fund. All moneys in the fund are hereby appropriated for the purposes of this chapter.
(d) This section shall become operative on July 1, 2016.
6798. Refunds The board may make refunds of all fees in accordance with Section 158 of this code.
6799. Fee schedule (a) The amount of the fees prescribed by this chapter shall be fixed by the board in
accordance with the following schedule: (1) The fee for filing each application for licensure as a professional engineer and each
application for authority level designation at not more than four hundred dollars ($400) and for each application for certification as an engineer-in-training at not more than one hundred dollars ($100).
(2) The fee to take an examination administered by a public or private organization pursuant to Section 6754 shall be no greater than the actual cost of the development and administration of the examination and may be paid directly to the organization by the applicant.
(3) The renewal fee for each branch of professional engineering in which licensure is held, and the renewal fee for each authority level designation held, at no more than four hundred dollars ($400).
(4) The fee for a retired license at not more than 50 percent of the professional engineer application fee in effect on the date of application.
(5) The delinquency fee at not more than 50 percent of the renewal fee in effect on the date of reinstatement.
(6) The board shall establish by regulation an appeal fee for examination. The regulation shall include provisions for an applicant to be reimbursed the appeal fee if the appeal results in passage of examination. The fee charged shall be no more than the costs incurred by the board.
(7) All other document fees are to be set by the board by rule. (b) Applicants wishing to be examined in more than one branch of engineering shall be
required to pay the additional fee for each examination after the first.
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Board Rules and Regulations Relating to the Practices of Professional Engineering and Professional Land Surveying
California Code of Regulations
Title 16, Division 5 §§ 400-476
Article 1. General Provisions
400. Introduction.
These regulations are adopted by the Board in order to implement and make specific the Professional Engineers Act and the Professional Land Surveyors’ Act, Business and Professions Code Sections 6700, et seq., and 8700, et seq., respectively.
401. Declaratory Decisions.
No decision or opinion issued by or on behalf of the Board for Professional Engineers, Land Surveyors, and Geologists shall be considered a declaratory decision pursuant to Government Code section 11465.10 through 11465.70 unless the decision or opinion specifically states that it is a declaratory decision issued pursuant to Government Code sections 11465.10 through 11465.70.
403. Location of Offices.
The principal office of the Board is 2535 Capitol Oaks Drive, Suite 300, Sacramento, 95833-2944. All correspondence relating to the activities of the Board, including applications, renewals, and remittances, shall be directed to the Board’s office.
404. Definitions.
For the purpose of the rules and regulations contained in this chapter, the following terms are defined. No definition contained herein authorizes the practice of engineering as defined in the Professional Engineers Act.
(a) “ABET” means ABET, Inc., formerly known as the Accreditation Board for Engineering and Technology.
(b) “Agricultural engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand and apply engineering principles to the design, construction, and use of specialized equipment, machines structures and materials relating to the agricultural industry and economy. It requires knowledge of the engineering sciences relating to physical properties and biological variables of foods and fibers; atmospheric phenomena as they are related to agricultural operations; soil dynamics as related to traction, tillage and plant-soil-water relationships; and human factors relative to safe design and use of agricultural machines. The safe and proper application and use of agricultural chemicals and their effect on the environment are also concerns of the agricultural engineers. The above
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definition of agricultural engineering shall not be construed to permit the practice of civil, electrical or mechanical engineering, nor professional forestry.
(c) “Approved Cooperative Work-Study Engineering Curriculum” refers to any curriculum under an ABET accredited cooperative work-study engineering program.
(d) “Approved Cooperative Work-Study Land Surveying Curriculum” refers to any curriculum under an ABET accredited cooperative work-study surveying program.
(e) “Approved Engineering Curriculum” refers to any curriculum under an ABET accredited engineering program leading to a baccalaureate degree in engineering.
(f) “Approved Engineering Technology Curriculum” refers to any curriculum under an ABET accredited engineering program leading to a four-year degree or a baccalaureate degree in technology.
(g) “Approved Land Surveying Curriculum” refers to any curriculum under an ABET accredited program leading to a baccalaureate degree.
(h) “Approved Post-Graduate Engineering Curriculum” refers to any curriculum under an ABET accredited engineering program leading to a master’s degree in engineering or to a post- graduate degree earned from an engineering program where the baccalaureate degree program is accredited by ABET.
(i) “Board” means the Board for Professional Engineers, Land Surveyors, and Geologists.
(j) “Chemical engineering” is that branch of professional engineering which embraces studies or activities relating to the development and application of processes in which chemical or physical changes of materials are involved. These processes are usually resolved into a coordinated series of unit physical operations and unit chemical processes. It is concerned with the research, design, production, operational, organizational, and economic aspects of the above. The above definition of chemical engineering shall not be construed to permit the practice of civil, electrical or mechanical engineering.
(k) “Civil engineer” refers to a person who holds a valid license in the branch of civil engineering, as defined in Section 6702 of the Code.
(l) “Civil engineering” is that branch of professional engineering as defined in Section 6731 of the Code.
(m) “Code” means the Business and Professions Code. (n) “Consulting engineer” refers to any professional engineer who holds a valid license
under the provisions of the code, or a person who possesses a valid authorization issued pursuant to Section 6732.2 of the Code, or a person who holds a valid exemption from provisions of the chapter as provided for in Sections 6704 and 6732.1 of the Code.
(o) “Control system engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand the science of instrumentation and automatic control of dynamic processes; and requires the ability to apply this knowledge to the planning, development, operation, and evaluation of systems of control so as to insure the safety and practical operability of such processes. The above definition of control system engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(p) “Corrosion engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand the environmental corrosion behavior of materials; and requires the ability to apply this knowledge by recommending procedures for control, protection and cost effectiveness, resulting from the investigation of
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corrosion causes or theoretical reactions. The above definition of corrosion engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(q) “Electrical engineer” refers to a person who holds a valid license in the branch of electrical engineering, as defined in Section 6702.1 of the Code.
(r) “Electrical engineering” is that branch of professional engineering as defined in Section 6731.5 of the Code.
(s) “Engineer-in-training” refers to a person who has been granted a certificate as an “engineer-in-training” in accordance with Section 6756 of the Code.
(t) “Fire protection engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand the engineering problems relating to the safeguarding of life and property from fire and fire-related hazards; and requires the ability to apply this knowledge to the identification, evaluation, correction, or prevention of present or potential fire and fire related panic hazards in buildings, groups of buildings, or communities, and to recommend the arrangement and use of fire resistant building materials and fire detection and extinguishing systems, devices, and apparatus in order to protect life and property. The above definition of fire protection engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(u) For the sole purpose of investigating complaints and making findings thereon under Sections 6775 and 8780 of the Code, “incompetence” as used in Sections 6775 and 8780 of the Code is defined as the lack of knowledge or ability in discharging professional obligations as a professional engineer or land surveyor.
(v) “Industrial engineering” is that branch of professional engineering which requires such education and experience as is necessary to investigate, to design, and to evaluate systems of persons, materials and facilities for the purpose of economical and efficient production, use, and distribution. It requires the application of specialized engineering knowledge of the mathematical and physical sciences, together with the principles and methods of engineering analysis and design to specify, predict, and to evaluate the results to be obtained from such systems. The above definition of industrial engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(w) “Land surveying” is that practice defined in Section 8726 of the Code. (x) “Land surveyor” refers to a person who holds a valid license as a land surveyor, as
defined in Section 8701 of the Code. (y) “Land surveyor-in-training” refers to a person who has been granted a certificate as a
“land surveyor-in-training” in accordance with Section 8747 (a) of the Code. (z) “Manufacturing engineering” is that branch of professional engineering which
requires such education and experience as is necessary to understand and apply engineering procedures in manufacturing processes and methods of production of industrial commodities and products; and requires the ability to plan the practices of manufacturing, to research and develop the tools, processes, machines, and equipment, and to integrate the facilities and systems for producing quality products with optimal expenditure. The above definition of manufacturing engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(aa) “Mechanical engineer” refers to a person who holds a valid license in the branch of mechanical engineering, as defined in Section 6702.2 of the Code.
(bb) “Mechanical engineering” is that branch of professional engineering as defined in Section 6731.6 of the Code.
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(cc) “Metallurgical engineering” is that branch of professional engineering, which requires such education and experience as is necessary to seek, understand and apply the principles of the properties and behavior of metals in solving engineering problems dealing with the research, development and application of metals and alloys; and the manufacturing practices of extracting, refining and processing of metals. The above definition of metallurgical engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(dd) For the sole purpose of investigating complaints and making findings thereon under Sections 6775 and 8780 of the Code, “negligence” as used in Sections 6775 and 8780 of the Code is defined as the failure of a licensee, in the practice of professional engineering or land surveying, to use the care ordinarily exercised in like cases by duly licensed professional engineers and land surveyors in good standing.
(ee) “Non-Approved Engineering Curriculum” refers to any engineering program that has not been accredited by ABET.
(ff) “Non-Approved Land Surveying Curriculum” refers to any land surveying program that has not been accredited by ABET.
(gg) “Nuclear engineering” is that branch of professional engineering which requires such education and experience as is necessary to apply the principles of nuclear physics to the engineering utilization of nuclear phenomena for the benefit of mankind; it is also concerned with the protection of the public from the potential hazards of radiation and radioactive materials. Nuclear engineering is primarily concerned with interaction of radiation and nuclear particles with matter. Nuclear engineering requires the application of specialized knowledge of the mathematical and physical sciences, together with the principles and methods of engineering design and nuclear analysis to specify, predict and evaluate the behavior of systems involving nuclear reactions, and to ensure the safe, efficient operation of these systems, their nuclear products and by-products. Nuclear engineering encompasses, but is not limited to, the planning and design of the specialized equipment and process systems of nuclear reactor facilities; and the protection of the public from any hazardous radiation produced in the entire nuclear reaction process. These activities include all aspects of the manufacture, transportation and use of radioactive materials. The above definition of nuclear engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(hh) “Petroleum engineering” is that branch of professional engineering which embraces studies or activities relating to the exploration, exploitation, location, and recovery of natural fluid hydrocarbons. It is concerned with research, design, production, and operation of devices, and the economic aspects of the above. The above definition of petroleum engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(ii) “Professional engineer” refers to a person engaged in the practice of professional engineering as defined in Section 6701 of the Code.
(jj) “Professional engineering” within the meaning of this chapter comprises the following branches: agricultural engineering, chemical engineering, civil engineering, control system engineering, corrosion engineering, electrical engineering, fire protection engineering, industrial engineering, manufacturing engineering, mechanical engineering, metallurgical engineering, nuclear engineering, petroleum engineering, quality engineering, safety engineering, and traffic engineering.
(kk) “Quality engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand and apply the principles of product
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and service quality evaluation and control in the planning, development and operation of quality control systems, and the application and analysis of testing and inspection procedures; and requires the ability to apply metrology and statistical methods to diagnose and correct improper quality control practices to assure product and service reliability and conformity to prescribed standards. The above definition of quality engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(ll) “Safety engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand the engineering principles essential to the identification, elimination and control of hazards to people and property; and requires the ability to apply this knowledge to the development, analysis, production, construction, testing, and utilization of systems, products, procedures and standards in order to eliminate or optimally control hazards. The above definition of safety engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
(mm) “Soil engineer” refers to a civil engineer who holds a valid authorization to use the title “soil engineer,” as provided in Section 6736.1 of the Code.
(nn) “Soil engineering,” as it relates to the authorization to use the title “soil engineer,” is the investigation and engineering evaluation of earth materials including soil, rock, groundwater and man-made materials and their interaction with earth retention systems, structural foundations and other civil engineering works. The practice involves application of the principles of soil mechanics and the earth sciences, and requires a knowledge of engineering laws, formulas, construction techniques and performance evaluation of civil engineering works influenced by earth materials.
The terms “geotechnical engineer” and “soils engineer” are deemed to be synonymous with the term “soil engineer.”
(oo) “Structural engineer” refers to a civil engineer who holds a valid authorization to use the title “structural engineer,” as provided in Section 6736 of the Code.
(pp) “Structural engineering” for the purposes of structural authority is the application of specialized civil engineering knowledge and experience to the design and analysis of buildings (or other structures) which are constructed or rehabilitated to resist forces induced by vertical and horizontal loads of a static and dynamic nature. This specialized knowledge includes familiarity with scientific and mathematical principles, experimental research data and practical construction methods and processes. The design and analysis shall include consideration of stability, deflection, stiffness and other structural phenomena that affect the behavior of the building (or other structure).
(qq) “Traffic engineering” is that branch of professional engineering which requires such education and experience as is necessary to understand the science of measuring traffic and travel and the human factors relating to traffic generation and flow; and requires the ability to apply this knowledge to planning, operating, and evaluating streets and highways and their networks, abutting lands and interrelationships with other modes of travel, to provide safe and efficient movement of people and goods. The above definition of traffic engineering shall not be construed to permit the practice of civil, electrical, or mechanical engineering.
404.1. Responsible Charge– Professional Engineering.
(a) As used in the Professional Engineers Act, the term “responsible charge” directly relates to the extent of control a professional engineer is required to maintain while exercising
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independent control and direction of professional engineering services or creative work and to the engineering decisions which can be made only by a professional engineer.
(1) Extent of Control. The extent of control necessary to be in responsible charge shall be such that the engineer:
(A) Makes or reviews and approves the engineering decisions defined and described in subdivision (a)(2) below.
(B) In making or reviewing and approving the engineering decisions, determines the applicability of design criteria and technical recommendations provided by others before incorporating such criteria or recommendations. (2) Engineering Decisions. The term “responsible charge” relates to engineering
decisions within the purview of the Professional Engineers Act. Engineering decisions which must be made by and are the responsibility of the engineer
in responsible charge are those decisions concerning permanent or temporary projects which could create a hazard to life, health, property, or public welfare, and may include, but are not limited to:
(A) The selection of engineering alternatives to be investigated and the comparison of alternatives for the project.
(B) The selection or development of design standards or methods, and materials to be used.
(C) The decisions related to the preparation of engineering plans, specifications, calculations, reports, and other documents for the engineered works.
(D) The selection or development of techniques or methods of testing to be used in evaluating materials or completed projects, either new or existing.
(E) The review and evaluation of manufacturing, fabrication or construction methods or controls to be used and the evaluation of test results, materials and workmanship insofar as they affect the character and integrity of the completed project.
(F) The development and control of operating and maintenance procedures. (3) Reviewing and Approving Engineering Decisions. In making or reviewing and
approving engineering decisions, the engineer shall be physically present or shall review and approve through the use of communication devices the engineering decisions prior to their implementation.
(b) Responsible Charge Criteria. In order to evaluate whether an engineer is in responsible charge, the following must be considered: The professional engineer who signs engineering documents must be capable of answering questions asked by individuals who are licensed by the Board in the appropriate branch of professional engineering relevant to the project and who are fully competent and proficient by education and experience in the field or fields of professional engineering relevant to the project. These questions would be relevant to the engineering decisions made during the individual’s participation in the project, and in sufficient detail to leave little question as to the engineer’s technical knowledge of the engineering performed. It is not necessary to defend decisions as in an adversarial situation, but only to demonstrate that the individual in responsible charge made, or reviewed and approved, them and possessed sufficient knowledge of the project to make, or review and approve, them.
Examples of questions to be answered by the engineer could relate to criteria for design, methods of analysis, methods of manufacture and construction, selection of materials and systems, economics of alternate solutions, and environmental considerations. The individual
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should be able to clearly express the extent of control and how it is exercised and to demonstrate that the engineer is answerable within said extent of control.
(c) Successor Licensee. In situations when the professional engineer in responsible charge of an engineering project is unavailable to complete the project or when the project is a site specific adaptation of a previous design, a professional engineer (hereinafter referred to as the “successor licensee”) may assume responsible charge of the project as long as the successor licensee exercises the requisite extent of control and assumes responsibility for the engineering decisions as required by subdivision (a) and meets the criteria described in subdivision (b), as well as meeting the requirements of the Professional Engineers Act and Sections 411 and 415. Except as provided in Sections 6735, 6735.3, and 6735.4 of the Code, the original licensee is not relieved of any responsibility arising from the engineering services of which he or she was in responsible charge.
(d) Portions of Projects. Nothing in this section prohibits a professional engineer from providing services for portions of or to add to or to modify an engineering project engineered under the responsible charge of another licensee as long as the professional engineer exercises the requisite extent of control and assumes responsibility for the engineering decisions as required by subdivision (a) and meets the criteria described in subdivision (b), as well as meeting the requirements of the Professional Engineers Act and Sections 411 and 415. The professional engineer need only be in responsible charge of the portions, additions, or modifications or the portion of the project affected by the addition or modification and not of the entire project. Except as provided in Sections 6735(b), 6735.3(b), and 6735.4(b) of the Code, the original licensee is not relieved of any responsibility arising from the engineering services of which he or she was in responsible charge.
(e) The term “responsible charge” does not refer to any of the following: (1) the concept of financial liability; (2) management control in a hierarchy of professional engineers except as each of
the individuals in the hierarchy exercises independent engineering judgment and thus responsible charge;
(3) such administrative and management functions as accounting, labor relations, personnel performance standards, marketing of services, or goal setting. While an engineer may also have such duties in this position, it should not enhance or decrease one’s status of being in responsible charge of the engineering.
404.2. Responsible Charge– Professional Land Surveying.
(a) The term “responsible charge” directly relates to the extent of control a licensed land surveyor or civil engineer legally authorized to practice land surveying (hereinafter referred to as “legally authorized civil engineer”) is required to maintain while exercising independent control and direction of land surveying work or services, and the land surveying decisions which can be made only by a licensed land surveyor or legally authorized civil engineer.
(1) Extent of Control. The extent of control necessary to be in responsible charge shall be such that the land surveyor or legally authorized civil engineer:
(A) Makes or reviews and approves the land surveying decisions defined and described in subdivision (a)(2) below.
(B) In making or reviewing and approving the land surveying decisions, determines the applicability of survey criteria and technical recommendations provided by others before incorporating such criteria or recommendations.
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(2) Land Surveying Decisions. The term “responsible charge” relates to land surveying decisions within the purview of the Professional Land Surveyors’ Act.
Land surveying decisions which must be made by and are the responsibility of the land surveyor or legally authorized civil engineer in responsible charge are those decisions concerning permanent or temporary work which could create a hazard to life, health, property, or public welfare, and may include, but are not limited to:
(A) Selecting the methods, procedures, and tolerances of field work. (B) Determining calculation and adjustment methods. (C) Determining and specifying the information to be shown on maps or
documents furnished in connection with land surveying services, including the format of the information and the format of the maps or documents.
(D) The decisions related to the preparation of maps, plats, land surveying reports, descriptions, and other land surveying documents furnished in connection with the land surveying services.
(E) Reviewing the sufficiency and accuracy of the work product. (3) Reviewing and Approving Land Surveying Decisions. In making or reviewing
and approving land surveying decisions, the land surveyor or legally authorized civil engineer shall be physically present or shall review and approve through the use of communication devices the land surveying decisions prior to their implementation.
(b) Responsible Charge Criteria. In order to evaluate whether a person authorized to practice land surveying is in responsible charge, the following must be considered: The land surveyor or legally authorized civil engineer who signs surveying documents must be capable of answering questions asked by licensees of the Board who are fully competent and proficient by education and experience in the field or fields of professional land surveying relevant to the project. These questions would be relevant to the decisions made during the individual’s participation in the project, and in sufficient detail to leave little question as to the land surveyor’s or legally authorized civil engineer’s technical knowledge of the work performed. It is not necessary to defend decisions as in an adversarial situation, but only to demonstrate that the individual in responsible charge made, or reviewed and approved, them and possessed sufficient knowledge of the project to make, or review and approve, them.
Examples of questions to be answered by the land surveyor or legally authorized civil engineer could relate to criteria for measurement, surveying methods, analysis, and conclusions made including, but not limited to, the retracement of government surveys, interpretation and construction of deed descriptions, conflicts between construction drawings and actual conditions, determination of the proper control datum and epoch, application of proportion methods and analysis of evidence related to written and unwritten property rights. The individual shall be able to clearly express the extent of control and how it is exercised and to demonstrate that the land surveyor or legally authorized civil engineer is answerable within said extent of control.
(c) Successor Licensee. In situations when the professional land surveyor or legally authorized civil engineer in responsible charge of a land surveying project is unavailable to complete the project, a professional land surveyor or legally authorized civil engineer (hereinafter referred to as the “successor licensee”) may assume responsible charge of the project as long as the successor licensee exercises the extent of control and assumes responsibility for the surveying decisions as required by subdivision (a) and meets the criteria described in subdivision (b), as well as meeting the requirements of the Professional Land Surveyors’ Act and Sections 411 and 415. Except as provided in Section 8761.2 of the Code, the original licensee is
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not relieved of any responsibility arising from the land surveying services of which he or she was in responsible charge.
(d) Portions of Projects. Nothing in this section prohibits a professional land surveyor or legally authorized civil engineer from providing services for portions of or to add to or to modify a land surveying project performed under the responsible charge of another licensee as long as the professional land surveyor or legally authorized civil engineer exercises the requisite extent of control and assumes responsibility for the land surveying decisions as required by subdivision (a) and meets the criteria described in subdivision (b), as well as meeting the requirements of the Professional Land Surveyors’ Act and Sections 411 and 415. The professional land surveyor or legally authorized civil engineer need only be in responsible charge of the portions, additions, or modifications or the portion of the project affected by the addition or modification and not of the entire project. Except as provided in Section 8761.2 of the Code, the original licensee is not relieved of any responsibility arising from the land surveying services of which he or she was in responsible charge.
(e) The term “responsible charge” does not refer to any of the following: (1) the concept of financial liability; (2) management control in a hierarchy of land surveyors or legally authorized civil
engineers except as each of the individuals in the hierarchy exercises independent land surveying judgment and thus responsible charge;
(3) such administrative and management functions as accounting, labor relations, personnel performance standards, marketing of services, or goal setting. While a land surveyor or legally authorized civil engineer may also have such duties in this position, it should not enhance or decrease one’s status of being in responsible charge of the work.
405. Delegation of Certain Functions.
(a) Whenever it is stated in these rules that the “Board” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the Board specifically has reserved the same for its own, exclusive action.
(b) Whenever it is stated the “executive officer” may or shall exercise or discharge any power, duty, purpose, function, or jurisdiction, the executive officer of the Board has the authority to act thereon.
(c) Any party in interest may appeal to the Board for review of the actions and decisions of the executive officer.
(d) Nothing herein prohibits the executive officer from redelegating to his/her subordinates as provided in Section 18572 of the Government Code.
(e) The power and discretion conferred by law upon the Board to receive and file accusations; issue notices of hearing, statements to respondent and statements of issues; receive and file notices of defense; determine the time and place of hearings under Section 11508 of the Government Code, issue subpoenas and subpoenas duces tecum, set and calendar cases for hearing and perform other functions necessary to the businesslike dispatch of the business of the Board in connection with proceedings under the provisions of Sections 11400 through 11529 of the Government Code, prior to the hearing of such proceedings; and the certification and delivery or mailing of copies of decisions under Section 11518 of said Code are hereby delegated to and conferred upon the executive officer, or to his/her designee.
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407. Fees. (a) All fees required by provisions of the code as implemented by the board shall be
transmitted by money order, bank draft, cash or check, payable to the Department of Consumer Affairs, at Sacramento. (b) The following is the prescribed application fee for:
(1) Authority to use the title “structural engineer” $125 (2) Authority to use the title “geotechnical engineer” $125 (3) Licensure as a professional engineer $125 (4) Licensure as a professional land surveyor $125 (5) Certification as an engineer-in-training or as a land surveyor-in-training $50
(c) The following is the prescribed examination fee for state-specific examinations: (1) California Special Civil Seismic Principles $150 (2) California Special Civil Engineering Surveying $150 (3) Geotechnical Engineering $150 (4) California State-Specific Land Surveying $150 (5) Traffic Engineering $150 (d) The two-year biennial renewal fee for a license that expires on or after July 1, 2012,
shall be $115. The two-year biennial renewal fee for a license that expires between October 1, 2005, and June 30, 2012, shall be $125.
(e) The fee for an examination appeal filed pursuant to Rule 444 shall be $134.00. (f) The fee for each retired license shall be $62.50; no renewal fee or other fee shall be
charged for the retired license. (As used in this subdivision, "license" includes certificate of registration or license as a professional engineer, licensure as a professional land surveyor, and certificates of authority to use the titles "structural engineer," "geotechnical engineer," "soil engineer," "soils engineer," or "consulting engineer.")
(g) Fees required under provisions of this rule transmitted through the United States mail shall be deemed filed on the date shown by the post office cancellation mark stamped on the envelope containing it, or on the date mailed if satisfactory proof is made that mailing occurred on an earlier date.
(h) Renewal applications filed with the Board more than thirty (30) days after 12 midnight on the expiration date pursuant to the Professional Land Surveyors’ Act and more than sixty (60) days after 12 midnight on the expiration date pursuant to the Professional Engineers Act and not accompanied by the prescribed delinquent penalty fee equal to 50 percent of the renewal fee, shall be returned by the executive officer with a statement of the reason therefor.
(i) Refund of fees submitted to the Board shall be made only as follows: (1) Any application fees or penalties imposed and collected illegally, by mistake,
inadvertence or error shall be refunded in full.
408. Meetings. (a) The board will meet at times and places within California designated by the board and
shall hold at least two regular meetings each year. (b) Special meetings of the board shall be called from time to time by the Board president
when necessary. Special meetings shall also be called by the executive officer upon a written request signed by two board members.
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(c) All meetings will be noticed in accordance with the requirements of the Bagley- Keene Open Meeting Act (Government Code Sections 11120 et seq.).
410. Certificates.
(a) Certificates and licenses will be issued in the order in which the applicants qualify. (b) A duplicate of a certificate issued in accordance with Section 6765 of the Professional
Engineers Act or Section 8749 of the Professional Land Surveyors’ Act shall be issued only to replace one lost, destroyed, or mutilated, upon a written request accompanied by a fee of $10 and an affidavit verifying the loss, destruction or mutilation of the previous certificate. The affidavit of lost license must be submitted on a form provided by the Board.
411. Seal and Signature.
(a) The seal required by Section 6764 of the Code shall be not less than one and one-half (1½) inches in diameter and shall contain the following information:
(1) Within the top border of seal: Either “Professional Engineer,” “Registered Professional Engineer,” or “Licensed Professional Engineer.”
(2) Within the bottom border of seal: “State of California.” (3) In the center of seal: (A) Licensee’s name as it appears on the certificate issued by the Board or as
abbreviated pursuant to subdivision (d); (B) Number of certificate or authority; and, (C) Branch or authority of engineering in which licensed. The seal shall be of a design similar to those shown below and shall bear at minimum
those elements specified above.
(b) The seal authorized by Section 8750 of the Code shall be not less than one and one- half (1 ½) inches in diameter and shall contain the following information:
(1) Within the top border of the seal: Either “Professional Land Surveyor” or “Licensed Land Surveyor.”
(2) Within the bottom border of the seal: “State of California.” (3) In the center of the seal: (A) Licensee’s name as it appears on the certificate issued by the Board or as
abbreviated pursuant to subdivision (d); and, (B) Number of certificate.
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The seal shall be of a design similar to those shown below and shall bear at minimum those elements specified above.
(c) The seal may be obtained by the licensee from any source. (d) The seal may contain an abbreviated form of the licensee’s given name or a
combination of initials representing the licensee’s given name provided the surname listed with the Board appears on the seal and in the signature.
(e) The seal shall be capable of leaving a permanent ink representation, a permanent impression, or an electronically-generated representation on the documents. The signature may be applied to the documents electronically.
(f) Preprinting of blank forms with the seal or signature, the use of decals of the seal or signature, or the use of a rubber stamp of the signature is prohibited.
(g) (1) All professional engineering plans, specifications, reports, or documents (hereinafter referred to as “documents”) shall be signed and sealed in accordance with the requirements of the Professional Engineers Act and any other laws related to the practice of professional engineering and shall be signed and sealed in a manner such that all work can be clearly attributed to the licensee(s) in responsible charge of the work.
(2) All maps, plats, reports, descriptions, or other professional land surveying documents (hereinafter referred to as “documents”) shall be signed and sealed in accordance with the requirements of the Professional Land Surveyors’ Act and any other laws related to the practice of professional land surveying and shall be signed and sealed in a manner such that all work can be clearly attributed to the licensee(s) in responsible charge of the work.
(3) When signing and sealing documents containing work done by, or under the responsible charge of, two or more licensees, the signature and seal of each licensee in responsible charge shall be placed on the documents with a notation describing the work done under each licensee’s responsible charge.
(h) Each licensee shall include the date of signing and sealing immediately below or next to the signature and seal.
412. Address Change.
Each person who is an applicant for or a holder of a certificate or license issued by the Board shall file his or her address of record with the Board. Within thirty (30) days after any change to his or her address of record, he or she shall notify the Board in writing of such change.
415. Practice Within Area of Competence.
A professional engineer or land surveyor licensed under the Code shall practice and perform engineering or land surveying work only in the field or fields in which he/she is by education and/or experience fully competent and proficient.
Nothing in this regulation shall be construed: (1) to prohibit a professional engineer from signing plans which include engineering work in areas other than that in which he/she is fully
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competent and proficient, if such work was performed by other engineers who were fully competent and proficient in such work; (2) to prohibit a professional engineer from performing engineering work or a land surveyor from performing land surveying work in areas which involve the application of new principles, techniques, ideas or technology; (3) to prohibit a professional engineer from supervising other engineers or a land surveyor from supervising other land surveyors who may respectively be performing engineering work or land surveying work in areas other than those in which the supervising professional engineer or supervising land surveyor is fully competent and proficient; and (4) to prohibit a professional engineer from signing plans which include engineering work, portions of which were designed or required by any governmental agency.
416. Substantial Relationship Criteria.
For the purpose of denial, suspension, or revocation of the license of a professional engineer or a land surveyor pursuant to Division 1.5 (commencing with Section 475) of the Business and Professions Code, a crime or act shall be considered substantially related to the qualifications, functions, and duties of a professional engineer or land surveyor if, to a substantial degree, it evidences present or potential unfitness of a professional engineer or land surveyor to perform the functions authorized by his or her license in a manner consistent with the public health, safety, or welfare. Such crimes or acts shall include, but not be limited to, those involving the following:
(a) For professional engineers, any violations of the provisions of the Professional Engineers Act or aiding and abetting any person in such a violation;
(b) For land surveyors, any violations of the provisions of the Professional Land Surveyors’ Act or aiding and abetting any person in such a violation;
(c) A conviction of a crime arising from or in connection with the practice of professional engineering or land surveying.
418. Criteria for Rehabilitation.
(a) When considering the denial of an application for certification as an engineer-in- training or a land surveyor-in-training, or for licensure as a professional engineer, or for licensure as a professional land surveyor, or for authority to use the title “structural engineer,” or for authority to use the title “geotechnical engineer,” under Section 480 of the Code, the Board will consider the following criteria in evaluating the rehabilitation of the applicant and his or her present eligibility for such a licensure or authority:
(1) The nature and severity of the act(s) or crime(s) under consideration as grounds for denial.
(2) Evidence of any act(s) committed prior to or subsequent to the act(s) or crime(s) under consideration as grounds for denial which could also be considered as grounds for denial under Section 480 of the Code.
(3) The time that has elapsed since commission of the act(s) or crime(s) referred to in subdivision (1) or (2).
(4) The extent to which the applicant has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the applicant.
(5) Any evidence of rehabilitation submitted by the applicant. (6) Total criminal record.
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(7) If applicable, evidence of expungement proceedings pursuant to Section 1203.4 of the Penal Code. (b) When considering the suspension or revocation of the certification of an engineer-in-
training or a land surveyor-in-training, or the license of a professional engineer or a professional land surveyor, or the authority to use the title “structural engineer,” or the authority to use the title “geotechnical engineer” under Section 490 of the Code, the Board will consider the following criteria in evaluating the rehabilitation of such person and his or her present eligibility to retain his or her license:
(1) The nature and severity of the act(s) or crime(s) under consideration as grounds for suspension or revocation.
(2) Evidence of any act(s) committed prior to or subsequent to the act(s) or crime(s) under consideration as grounds for suspension or revocation which could also be considered as grounds for suspension or revocation under Section 490 of the Code.
(3) The time that has elapsed since commission of the act(s) or crime(s) referred to in subdivision (1) or (2).
(4) The extent to which the licensee has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the license.
(5) Any evidence of rehabilitation submitted by the licensee. (6) Total criminal record. (7) If applicable, evidence of expungement proceedings pursuant to Section 1203.4
of the Penal Code. (c) When considering a petition for reinstatement of the certification of an engineer-in-
training or a land surveyor-in-training, or the license of a professional engineer or a professional land surveyor, or the authority to use the title “structural engineer,” or the authority to use the title “geotechnical engineer,” the Board shall evaluate evidence of rehabilitation submitted by the petitioner, including but not limited to the following:
(1) Educational courses, including college-level courses, seminars, and continuing professional development courses, completed after the effective date of the Board’s decision ordering revocation.
(2) Professional engineering or land surveying work done under the responsible charge of a licensee in good standing or under the direction of a person legally authorized to practice.
(3) Payment of restitution to the consumer(s) by the petitioner. (4) Actual or potential harm to the public, client(s), employer(s), and/or employee(s)
caused by the action(s) that led to the revocation or that could be caused by the reinstatement of the certificate, license, or authority.
(5) The criteria specified in subsection (b)(1) through (7), as applicable. (6) Disciplinary history, other than criminal actions, after the revocation. (7) Recognition by the petitioner of his or her own actions and/or behavior that led to the
revocation. (8) Correction of the petitioner’s actions and/or behavior that led to the revocation.
419. Disciplinary Orders. For violations of Business and Professions Code sections 6775 and/or 8780 which result
in an order issued in accordance with Chapters 4.5 and 5 of Part 1 of Division 3 of Title 2 of the Government Code against a professional engineering and/or a professional land surveying
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license, the following provisions shall apply to disciplinary orders contained in decisions of the Board:
(a) The minimum disciplinary order shall be reproval. The maximum disciplinary order shall be revocation of the license.
(b) If warranted by extenuating and/or mitigating factors in the matter, the disciplinary order may be stayed by an express condition that the respondent comply with probationary conditions. The minimum time period in which the respondent shall have to comply with the conditions shall be two years. For purposes of this section, this time period shall be known as the “period of probation.”
(c) All decisions containing stayed disciplinary orders as described in subdivision (b) shall include the following probationary conditions:
(1) The respondent shall obey all laws and regulations related to the practices of professional engineering and professional land surveying.
(2) The respondent shall submit such special reports as the Board may require. (3) The period of probation shall be tolled during the time the respondent is
practicing exclusively outside the state of California. If, during the period of probation, the respondent practices exclusively outside the state of California, the respondent shall immediately notify the Board in writing.
(4) If the respondent violates the probationary conditions in any respect, the Board, after giving the respondent notice and the opportunity to be heard, may vacate the stay and reinstate the disciplinary order which was stayed. If, during the period of probation, an accusation or petition to vacate stay is filed against the respondent, or if the matter has been submitted to the Office of the Attorney General for the filing of such, the Board shall have continuing jurisdiction until all matters are final, and the period of probation shall be extended until all matters are final.
(5) Upon successful completion of all of the probationary conditions and the expiration of the period of probation, the respondent’s license shall be unconditionally restored. (d) All decisions containing stayed disciplinary orders as described in subdivision (b)
may include one or more of the following probationary conditions: (1) The respondent’s license shall be suspended for a period not to exceed two years.
If a suspension of the license is ordered, it shall begin on the effective date of the decision.
(2) Within 60 days of the effective date of the decision, the respondent shall successfully complete and pass the California Laws and Board Rules examination, as administered by the Board.
(3) The respondent shall successfully complete and pass a course in professional ethics, approved in advance by the Board or its designee. The probationary condition shall include a time period in which this course shall be successfully completed which time period shall be at least 60 days less than the time period ordered for the period of probation.
(4) Within 30 days of the effective date of the decision, the respondent shall provide the Board with evidence that he or she has provided all persons or entities with whom he or she has a contractual or employment relationship such that the relationship is in the area of practice of professional engineering and/or professional land surveying in which the violation occurred with a copy of the decision and order of the Board and shall
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provide the Board with the name and business address of each person or entity required to be so notified. During the period of probation, the respondent may be required to provide the same notification to each new person or entity with whom he or she has a contractual or employment relationship such that the relationship is in the area of practice of professional engineering and/or land surveying in which the violation occurred and shall report to the Board the name and address of each person or entity so notified.
(5) The respondent shall provide verifiable proof to the Board that restitution has been paid as ordered. The probationary condition shall include a time period in which the verifiable proof shall be provided to the Board which time period shall be at least 60 days less than the time period ordered for the period of probation. (e) In addition to the conditions as may be ordered pursuant to subdivisions (c) and/or
(d), the following conditions shall be included for the following specific violations: (1) Incompetency in the practice of professional engineering and/or professional land
surveying: (A) The respondent shall successfully complete and pass, with a grade of “C”
or better, a minimum of one and a maximum of three college-level courses, approved in advance by the Board or its designee. Such courses shall be specifically related to the area of violation. For purposes of this subdivision, “college-level course” shall mean a course offered by a community college or a four-year university of three semester units or the equivalent; “college-level course” does not include seminars. The probationary condition shall include a time period in which the course(s) shall be successfully completed which time period shall be at least 60 days less than the time period ordered for the period of probation.
(B) The respondent shall take and achieve the passing score as set by the Board for the second division examination (including the seismic principles and engineering surveying examinations for civil engineers), provided that in the event the respondent holds multiple licenses, the Board shall select the examination in the area of practice of professional engineering and/or professional land surveying in which the violation occurred and in the area of professional engineering and/or professional land surveying in which the respondent is licensed. The Board or its designee may select the specific examination questions such that the questions relate to the specific area of violation and comprise an examination of the same duration as that required of an applicant for licensure. The respondent shall be required to pay the application fee as described in Section 407 and shall be afforded all examination appeal rights as described in Sections 407, 443, and 444. The probationary condition shall include a time period in which the examination(s) shall be successfully completed which time period shall be at least 60 days less than the time period ordered for the period of probation.
(C) During the period of probation, the respondent may practice professional engineering and/or professional land surveying only under the review of a professional engineer and/or professional land surveyor licensed in the same branch as the respondent. This person or persons shall be approved in advance by the Board or its designee. Such reviewing professional engineer and/or professional land surveyor shall initial every stamped or sealed document in close proximity to the respondent’s stamp or seal.
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(2) Negligence in the practice of professional engineering and/or professional land surveying:
(A) The respondent shall successfully complete and pass, with a grade of “C” or better, a minimum of one and a maximum of three college-level courses, approved in advance by the Board or its designee. Such courses shall be specifically related to the area of violation. For purposes of this subdivision, “college-level course” shall mean a course offered by a community college or a four-year university of three semester units or the equivalent; “college-level course” does not include seminars. The probationary condition shall include a time period in which the course(s) shall be successfully completed which time period shall be at least 60 days less than the time period ordered for the period of probation. (3) Violation and/or breach of contract in the practice of professional engineering
and/or professional land surveying: (A) The respondent shall successfully complete and pass, with a grade of “C” or
better, a minimum of one and a maximum of three college-level courses, approved in advance by the Board or its designee. Such courses shall be specifically related to the area of violation. For purposes of this subdivision, “college-level course” shall mean a course offered by a community college or a four-year university of three semester units or the equivalent; “college-level course” does not include seminars. The probationary condition shall include a time period in which the course(s) shall be successfully completed which time period shall be at least 60 days less than the time period ordered for the period of probation. (4) Failure to file a record of survey and/or corner record in the practice of
professional land surveying: (A) For any records of survey and/or corner records found not to have been filed
and recorded, the respondent shall file or record, as appropriate, the required record(s) with the appropriate governmental agency within 90 days of the effective date of the decision. The respondent shall provide the Board with verifiable proof that the required record(s) have been filed or recorded, as appropriate, by the governmental agency within 30 days of such filing or recordation. If an actual suspension of the respondent’s license is ordered as a probationary condition, the record(s) required by this subdivision shall be the only professional land surveying work the respondent is allowed to perform during the suspension.
(f) If the respondent is a civil engineer who is legally authorized to practice professional land surveying and the violation involves negligence and/or incompetency in the practice of professional land surveying and if warranted by aggravating factors in the matter, the disciplinary order shall include the following condition:
(1) The existing civil engineer license shall be revoked; a new civil engineer license shall be issued which does not authorize the respondent to practice professional land surveying. Before being permitted to practice professional land surveying, the respondent shall complete and comply with all of the legal requirements for licensure as a professional land surveyor, including, but not limited to, supplying the appropriate application documents and fees and taking and passing the entire second-division examination in professional land surveying.
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In addition to the disciplinary orders described in this section, all decisions shall address recovery of the Board’s investigation and enforcement costs, as described in and authorized by Business and Professions Code section 125.3.
Notwithstanding this section, non-conforming terms and conditions may be included as part of the disciplinary order, including such other further or lesser action as the Board deems appropriate, in the interest of protecting the public health, safety, and welfare.
As used in this section, “license” includes certificate of registration or license as a professional engineer, licensure as a professional land surveyor, and certificates of authority to use the titles “structural engineer,” “geotechnical engineer,” “soil engineer,” “soils engineer,” or “consulting engineer.”
Article 2. Applications
420. Applications.
(a) Applications for certification, for licensure, or for a certificate of authority shall be: (1) Filed on a form prescribed by the executive officer and shall be typewritten. (2) Filed at the office of the Board and accompanied by the required application fee. (3) Made out properly in every respect and must contain full information. (4) Subscribed and certified to “under penalty of perjury” as provided by Section
2015.5 of the Code of Civil Procedure. (b) An application made otherwise will not be accepted by the Board and it may be
returned by the executive officer with a statement of the reason therefor. (c) Upon evaluation of the applicant’s qualifications, his/her examination results and any
other supporting data, his/her application will be either: (1) Denied without prejudice, and the application fee retained by the Board for the
Professional Engineers’ Fund. (2) Approved, and he/she will be granted the certification for which application was
made. (d) The Board may request each applicant to provide the Board with a current photograph
after an applicant has become licensed.
420.1. Applicant Fingerprint Submittal. (a) Pursuant to Section 144 of the Business and Professions Code, the Board has the
authority to obtain and review criminal offender record information. The information obtained as a result of the fingerprinting shall be used in accordance with Section 11105 of the Penal Code and to determine whether the applicant is subject to denial of license pursuant to Division 1.5 (commencing with Section 475) of the Business and Professions Code or Sections 6751, 6762.5, 6796.3, 8747.5, or 8803 of the Business and Professions Code.
(b) As a condition of application for a license, each applicant shall furnish to the Department of Justice a full set of fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search conducted through the Department of Justice.
(c) The applicant shall pay any costs for furnishing the fingerprints and conducting the searches.
(d) The applicant shall certify when applying for a license whether his or her fingerprints have been furnished to the Department of Justice in compliance with this section.
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(e) Failure to comply with the requirements of this section renders the application for license incomplete, and the application shall not be considered until the applicant demonstrates compliance with all requirements of this section.
(f) Notwithstanding any other provision of law, the results of any criminal offender record information request by either state or federal law enforcement authorities shall not be released by the Board except in accordance with state and federal requirements.
(g) This section shall apply to all applicants, including those applicants who submit applications pursuant to Sections 6750, 6758, 6759, 6763, 6796.3, 8740, 8746, 8748, and 8803 of the Business and Professions Code and Section 424.5 of Division 5 of Title 16 of the California Code of Regulations.
(h) As used in this section, “license” includes certification as an engineer-in-training or a land surveyor-in-training, certificate of registration or license as a professional engineer, licensure as a professional land surveyor, and certificates of authority to use the titles “structural engineer,” “geotechnical engineer,” “soil engineer,” “soils engineer,” or “consulting engineer.”
(i) As used in this section, the term “applicant” shall have the meaning given to it by Section 144(c) of the Business and Professions Code, which states, “the term ‘applicant’ shall be limited to an initial applicant who has never been registered or licensed by the board or to an applicant for a new licensure or registration category.”
421. Refile Application.
(a) The executive officer may prescribe a short application form for use of those applicants who, failing an examination, apply within a reasonable period of time after the date of the examination previously failed, for re-examination. This application form may be known as a refile application form. The applicant and his application for re-examination shall be subject to the same provisions of the code and rules of the board, whenever applicable, as govern the filing of an original application.
(b) The applicant for re-examination shall be assigned by the executive officer to the next scheduled examination for which his/her application qualifies him/her.
422. Final Filing Date.
(a) An application filed with the board after the final filing date announced for an examination shall not be considered for such examination.
(b) Whenever the final filing date announced for an examination falls upon a Saturday, Sunday or holiday, it shall be extended to the next business day following.
(c) If an application is filed with the board through the United States mail, it shall be deemed filed on the date shown by the post office cancellation mark stamped on the envelope containing it, or on the date mailed if satisfactory proof is made that the mailing occurred on an earlier date.
424. Experience Requirements – Professional Engineers.
(a) The engineering branches and title authorities described in Section 404, herein, overlap and some activities are common to two or more engineering branches and title authorities. The minimum number of years of qualifying experience in such overlapping engineering branches and title authorities may be used in securing licensure in any applicable engineering branch or title authority but cannot be used more than once. The only exception to this is experience credit for education. Qualifying education entitles a candidate to experience
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credit and this experience credit may be used again even though it has already been used to qualify for another examination.
(b) An applicant for licensure as a professional engineer shall be granted credit towards the experience requirement, as stated in subdivision (a), for the following education curriculum:
(1) Four (4) years experience credit for graduation from an approved engineering curriculum. (2) Two (2) years experience credit for graduation from a non-approved engineering curriculum or from an approved engineering technology curriculum. (3) Five (5) years of experience credit for graduation from an approved cooperative work-study engineering curriculum. (4) Five (5) years of experience credit for graduation from an approved post-graduate engineering curriculum. (5) One-half (1/2) year of education credit for each year of study completed in an approved engineering curriculum that did not result in the awarding of a baccalaureate degree, except that the maximum of such experience shall be two (2) years. “Life Experience Degrees” are not acceptable and will not be counted towards the
education credit. The additional actual work experience required to meet the six (6) years of experience
requirement shall have been gained after graduation, except for cooperative work study experience and post-graduate education.
The sum of qualifying experience credit for education and engineering teaching experience shall not exceed five years.
(c) Qualifying experience is that experience satisfactory to the Board which has been gained while performing engineering tasks under the responsible charge of a person legally qualified to practice in an applicant’s branch of engineering.
(1) For the purposes of this section, “legally qualified” means having an appropriate license as a professional engineer; or by being an employee of the Federal Government; or, except for civil engineers, by virtue of being an employee of a manufacturing, mining, public utility, research and development, or other industrial corporation; or by, except for civil engineers, holding an appropriate license as a contractor.
(2) Qualifying experience shall be computed on an actual time worked basis, but not to exceed forty hours per week.
(3) Applied engineering research is an engineering task for the purposes of determining qualifying experience.
(d) Computation of qualifying experience for licensure as a professional engineer or for authority to use the title “structural engineer” or “geotechnical engineer” shall be to the date of filing of the application; or it shall be to the final filing date announced for the examination if the application is filed within a period of thirty (30) days preceding the final filing date announced for such examination.
424.5. Reinstatement Requirements for Delinquent Applicants.
(a) A license which has not been renewed within the time required under Business and Professions Code section 6796.3 or 8803 is considered delinquent and, except as provided in subdivision (c), shall be reinstated if the applicant complies with the following:
(1) Submits evidence satisfactory to the Board that the applicant is qualified in the branch for which he or she is applying. This evidence shall consist of:
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(A) A completed, typewritten application on a form as specified in Section 420 accompanied by the required application fee as specified in Section 407 (b)(1)-(4).
(B) Completed appropriate reference forms as specified in Sections 427.10, 427.20, or 427.30. The submission of a reference which states that the applicant is not technically qualified to be licensed shall be grounds for denial. (2) Takes and passes the examination on the applicable state laws and board
regulations as specified in Business and Professions Code section 6755.2 or 8741.1 . (3) Takes and passes examinations on seismic principles and engineering surveying,
if he or she is a civil engineering applicant whose initial registration was issued prior to January 1, 1988.
(4) Pays all accrued and unpaid renewal fees. (5) Has not committed any acts or crimes constituting grounds for denial of licensure
under Business and Professions Code section 480. (b) An applicant who is unable to submit evidence satisfactory to the Board that he or she
is qualified as provided in subdivision (a)(1) shall take and pass the appropriate second division examination or the appropriate title authority examination in addition to the requirements specified in subdivision (a)(2)- (5) prior to reinstatement of the delinquent license.
(c) Notwithstanding subdivisions (a) and (b), the Board may pursue action, including but not limited to revocation or suspension of the license pursuant to Business and Professions Code sections 6775, 6776, 8780, and 8781, issuance of a citation containing an order to pay an administrative fine pursuant to Sections 473 through 473.4, filing of criminal charges pursuant to Business and Professions Code sections 6787 and 8792, and denial of the application pursuant to Section 420, against the applicant if evidence obtained during an investigation reveals that the applicant has violated any provision of the Business and Professions Code, the California Code of Regulations, or other applicable laws and regulations related to the practices of professional engineering or professional land surveying during the period of delinquency, including, but not limited to, practicing or offering to practice with an expired or delinquent license.
(d) The application response timeframe is as specified in Section 470 (a). (e) The Board’s time period for processing an application from receipt of the initial
application to the final decision regarding issuance or denial of licensure is as specified in Section 471.
As used in this section, “license” includes certificate of registration as a professional engineer, licensure as a professional land surveyor, and certificates of authority to use the title “structural engineer,” “soil engineer,” or “consulting engineer.”
425. Experience Requirements - Professional Land Surveyors.
(a) An applicant for licensure as a professional land surveyor shall be granted credit towards the experience requirements contained in Sections 8741 and 8742 of the Code, for the following education curriculum:
(1) Four (4) years experience credit for graduation from an approved land surveying curriculum. (2) Two (2) years experience credit for graduation from a non-approved land surveying curriculum. (3) Five (5) years of experience credit for graduation from an approved cooperative work-study land surveying curriculum.
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(4) One-half (1/2) year of education credit for each year of study completed in an approved land surveying curriculum that did not result in the awarding of a baccalaureate degree, except that the maximum of such experience shall be two (2) years. A year of study shall be at least 32 semester units or 48 quarter units, no less than 10 semester units or 15 quarter units of which shall be from classes clearly identified as being land surveying subjects. “Life Experience Degrees” are not acceptable and will not be counted towards the
education credit. (b) All qualifying work experience in land surveying shall be performed under the
responsible charge of a person legally authorized to practice land surveying. An applicant shall possess at least two years of actual responsible training experience in land surveying which shall involve at least four of the land surveying activities specified in subdivisions (a) - (g) and (k) - (n) of Section 8726 of the Code. Qualifying experience in activities specified in subdivision (a), (b), (m), and (n) of Section 8726 shall not exceed one year. Qualifying experience shall be computed on an actual time worked basis, but not to exceed forty hours per week.
(c) For purposes of Section 8742 of the Code, the term “responsible field training” experience may include, but is not limited to, the land surveying activities listed below. Under the responsible charge, direction, and review of a person legally authorized to practice land surveying, the applicant:
(1) Determines field survey methods and procedures, including selection of accuracy standards.
(2) Selects or verifies that the correct control monumentation is used to establish the designated survey datum(s) (horizontal and vertical) and selects on-the-ground locations for control monuments.
(3) Determines the relevance of monuments and physical field evidence for the purpose of establishing boundary and property lines.
(4) Reviews measurement observations for the determination of accuracy, completeness, and consistency.
(5) Reviews field notes and records for application of proper field survey procedures. (6) Plans, performs, and reviews field checks and, based on such checks, determines if
completed field surveys are accurate and sufficient. (7) Searches for boundary and control monuments; assists in analyzing field evidence for
locating boundary points and lines; identifies and describes such evidence; compares record data to found physical evidence; compares record data to measured data; documents discrepancies; assists in acquiring and documenting testimony regarding boundary locations; recommends boundary location and/or establishment; selects or verifies that the correct controlling monuments are used to locate or establish boundary points and lines; and prepares draft record documents.
(8) Coordinates the fieldwork necessary to prepare maps, plats, reports, descriptions, or other documents.
(9) Recommends when existing boundary monuments are to be replaced, selects the method(s) to be used for replacing and resetting monuments, and prepares field documentation of such work, including that necessary for Parcel Maps, Final Maps, Record of Survey Maps, and Corner Records.
(10) Functions as a party chief, chief of parties, or lead person in charge of field crew(s) in the performance of field surveys.
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(11) Plans and performs field observations using Global Positioning System technology and determines if completed field surveys are accurate and sufficient in geodetic and land surveying applications.
(12) Performs surveys to facilitate the location or construction of infrastructure and fixed works of improvement.
The enumeration of the above tasks does not preclude the Board from awarding “responsible field training” credit for training of a similar character in other current or future land surveying activities not specifically enumerated herein. It is also understood that the listed tasks are only some of those that may be considered as responsible training, and that this list is not in any way intended to enumerate all of the tasks which may be performed by licensed Professional Land Surveyors.
(d) For purposes of Section 8742 of the Code, the term “responsible office training” experience may include, but is not limited to, the land surveying activities listed below. Under the responsible charge, direction, and review of a person authorized to practice land surveying, the applicant:
(1) Performs the planning and analysis necessary for the preparation of survey documents, such as Parcel Maps, Final Maps, Record of Survey Maps, Corner Records, legal descriptions, topographic maps, plat maps, lot line adjustments, annexations, and boundary line agreements.
(2) Reduces and evaluates field data. (3) Develops procedures and systems for the collection, reduction, adjustment, and use of
land surveying data. (4) Prepares data to be used by field surveyors or field crews. (5) Coordinates the processing of maps, plats, reports, descriptions, or other documents
with local agencies, other licensed surveyors, or County Surveyors Offices. (6) Coordinates the office work necessary to prepare maps, plats, reports, descriptions, or
other documents. (7) Coordinates survey and design efforts for improvement plans as required for
sufficiency to enable proper location of improvements in the field. (8) Researches public and private records to obtain survey and title data. (9) Performs boundary analysis and determination using record descriptions, survey, and
title data. (10) Plans and coordinates the application of Global Positioning System technology
for geodetic and land surveying applications. (11) Plans, coordinates, performs, and reviews the entry of property boundary related
geo-referenced data into an electronic database. (12) Prepares topographic mapping utilizing photogrammetric methods. The enumeration of the above tasks does not preclude the Board from awarding
“responsible office training” credit for training of a similar character in other current or future land surveying activities not specifically enumerated herein. It is also understood that the listed tasks are only some of those that may be considered as responsible training, and that this list is not in any way intended to enumerate all of the tasks which may be performed by licensed professional land surveyors.
(e) Computation of qualifying experience for a license as a professional land surveyor shall be to the date of filing of the application, or it shall be to the final filing date announced for
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the examination if the application is filed within a period of thirty (30) days preceding the final filing date announced for such examination.
(f) An applicant for licensure as a land surveyor who holds a valid and unexpired license as a civil engineer is exempt from the application requirements of (subdivisions (b), (c), and (d) of this section provided he or she submits sufficient documentation that he or she has a minimum of two years of actual broad based progressive experience in land surveying as required by Business and Professions Code Section 8742(a)(3).
426.10. Qualification Requirements for Structural Authority.
An applicant for authority to use the title “structural engineer” shall comply with all of the following requirements:
(a) The applicant shall hold an unexpired, valid California license as a civil engineer. (b) The applicant shall submit evidence satisfactory to the Board that the applicant has
been in responsible charge of structural engineering qualifying experience, as defined in Section 426.11 and/or Section 426.12, for a minimum of three years subsequent to the date of examination which was passed to gain licensure as a California license as a civil engineer or as provided in Section 426.14.
{Amended, effective July 1, 2017}
426.11. Qualifying Experience for Structural Authority. “Structural Engineering qualifying experience” is defined as acceptable professional
practice in responsible charge of structural engineering projects as related to buildings (or other structures) and shall include structural design experience in all areas as specified in subdivisions (a)-(f) below because the stability of a structure is dependent upon the interaction of the individual structural components as well as the structure as a whole:
(a) Common Construction Materials - Steel, Concrete, Wood and Masonry: A structural engineer shall have experience in the use of three of the four common construction materials of steel, concrete, wood, and masonry as they relate to the design, rehabilitation and/or investigation of buildings (or other structures);
(b) Determination of Lateral Forces: A structural engineer shall have experience regarding structural design to resist lateral forces;
(c) Selection of Framing Systems: A structural engineer shall have experience regarding the selection of framing systems, including the consideration of alternatives and the selection of an appropriate system for the interaction of structural components to support vertical and lateral loads;
(d) Selection of Foundation Systems: A structural engineer shall have experience in the selection of foundation systems, including the consideration of alternatives and the selection of an appropriate type of foundation system to support the structure;
(e) Application of Code Requirements: A structural engineer shall have experience in applying local, state and federal requirements relating to design loads, materials, and detailing; and
(f) Multi-story Buildings or Equivalent Multi-level Structures: A structural engineer shall have experience with the design and detailing for the transfer of forces between stories in multi-story buildings. A multi-story building is a building which is more than one story in height and which is not exempted pursuant to Section 6737.1 of the code.
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426.12. Experience for Checking Structural Plans.
The Board shall consider the following experience as structural engineering qualifying experience, in lieu of that experience defined in Section 426.11: Professional level employment performing the checking of structural engineering plans and calculations, when performed under the immediate supervision of, and certified to by, either a civil engineer who holds a valid California license with the authority to use the title “structural engineer” in this state or a Professional Engineer who is authorized to use the title “structural engineer” registered or licensed outside of this state but registered or licensed in a state which has a comity agreement with the State of California related to structural engineering. However, an applicant who applies for authority to use the title “structural engineer” under this section shall furnish the Board with a verification of employment from each employer which lists the name(s) of the immediate supervisor of the applicant during the period of employment used as qualifying experience under this section.
426.13. Supplemental Evidence of Responsible Charge for Structural Authority.
(a) The board shall consider the following as supplemental evidence, if submitted for consideration, to assist in determining whether an applicant for structural authority possesses the requisite three (3) years of structural engineering qualifying experience at the level of responsible charge as required in Section 426.10 and defined in Sections 426.11 and 426.12:
(1) Project management experience: (A) Coordination with other disciplines such as civil, electrical and mechanical
engineers and/or architects; (B) Production of construction document packages such as calculations,
drawings and specifications; and, (C) Supervision and/or coordination of staff.
(2) Field experience: (A) Familiarity with techniques, methods and means of construction; (B) Field observation of construction for compliance to drawings and
specifications; and, (C) Field investigation of existing structures for evaluation or forensic
purposes. (b) Notwithstanding subsections (a)(1) and (a)(2), other types of experience deemed
equivalent to project management or field experience may be considered on a case-by-case basis to assist in determining whether an applicant possesses the three (3) years of structural engineering qualifying experience at the level of responsible charge as required in Section 426.10.
(c) Any experience submitted pursuant to this section shall not be considered as a substitute for the mandatory types of qualifying experience required by Section(s) 426.11 and/or 426.12.
426.14. Experience for Structural Engineering Gained Out of State.
(a) The Board may consider an application for authority to use the title “structural engineer” from an applicant who does not possess three (3) years of qualifying experience subsequent to the date of the examination which was passed to gain licensure as a California civil
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engineer but who possesses experience equivalent to that provided in Section 426.11 based upon either:
(1) A minimum of three (3) years of structural engineering qualifying experience gained after the applicant’s registration or licensure as a civil engineer in another state.
(2) A minimum of three (3) years of structural engineering qualifying experience which was gained while exempt from licensure pursuant to Section 6739 of the Code or while employed or registered or licensed in another country. Such experience shall be in addition to the experience required for licensure as a civil engineer in this state. (b) Applicants seeking approval of their structural engineering qualifying experience,
pursuant to this section, shall file their application at least six months prior to the final filing deadline to be considered for the next scheduled examination. Applicants may be required to appear for an interview regarding their structural engineering qualifying experience.
{Amended, effective July 1, 2017}
426.50. Qualification Requirements “Soil Engineer.,” “Soils Engineer,” or “Geotechnical Engineer.”
An applicant for authority to use the title “soil engineer,” “soils engineer,” or “geotechnical engineer” shall:
(a) Hold an unexpired, valid California civil engineer license as a civil engineer. (b) Submit evidence satisfactory to the Board that the minimum number of years of
qualifying experience or education has been met as required in Sections 6736.1(b) and 6763 of the Code and as defined in Section 426.51, subsequent to the date of examination which was passed to gain licensure as a California civil engineer. In addition, up Up to one year credit as of qualifying experience in responsible charge will may be given for possession of post graduate degree(s) from a Board approved school of engineering with major studies in soil engineering as listed in Section 426.51(c). Credit for post graduate degree(s) will not be given if it has already been applied to the experience requirement for civil engineering licensure.
{Amended, effective July 1, 2017}
426.51. Qualifying Experience for “Soil Engineer.” “Qualifying experience” means responsible charge of soil engineering projects. Evidence
shall be provided that the applicant has qualifying experience in the areas described in subdivisions (a), (c) and (e) and has demonstrated working knowledge in the areas described in subdivisions (a) through (e). At least one-half of the applicant’s annual full-time professional practice shall be in soil engineering, except that a teacher of soil engineering and related courses at a board approved school of engineering will be given credit for applicable consulting work as a percentage of equivalent full-time work. Applicable consulting work shall be substantiated by references and project documents.
(a) Development of programs of geotechnical investigation which includes, but is not limited to:
(1) Communication with other design consultants to determine their geotechnical input needs;
(2) Performance of literature searches, site history analyses, etc., related to surface and subsurface conditions;
(3) Formulation or engineering evaluation of field exploration and laboratory testing programs to accomplish the scope of the investigation;
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(4) Preparation or engineering evaluation of proposals. (b) Performance of geotechnical field and laboratory studies which includes, but is not
limited to: (1) Direction and/or modification of field exploration programs, as required upon
evaluation of the conditions being encountered; (2) Classification and evaluation of subsurface conditions. (3) Understanding the purposes for and being qualified to perform routine field and
laboratory tests for: (A) soil strength (B) bearing capacity (C) expansion properties (D) consolidation characteristics (E) soil collapse potential (F) erosion potential (G) compaction characteristics (H) material acceptability for use in fill (I) pavement support qualities (J) freeze-thaw properties (K) grain-size (L) permeability/percolation properties (c) Analysis of geotechnical data and engineering computations which includes, but is
not limited to: (1) Analysis of field and laboratory test results regarding: (A) soil strength (B) bearing capacity (C) expansion properties (D) consolidation characteristics (E) soil collapse potential (F) erosion potential (G) compaction characteristics (H) material acceptability for use in fill (I) pavement support qualities (J) freeze-thaw properties (K) grain-size (L) permeability/percolation properties (M) ground water conditions (N) soil dynamic properties (2) Performance of computations using test results and available data regarding: (A) bearing capacity (B) foundation type, depth, dimensions (C) allowable soil bearing pressures (D) potential settlement (E) slope stability (F) retaining systems (G) soil treatment (H) dewatering/drainage
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(I) floor support (J) pavement design (K) site preparation (L) fill construction (M) liquefaction potential (N) ground response to seismic forces (O) ground water problems; seepage (P) underpinning (d) Performance or engineering evaluation of construction, postconstruction and site
monitoring which includes, but is not limited to: (1) Performance or supervision of geotechnical testing and observation of site
grading; (2) Analysis, design and evaluation of instrumentation programs to evaluate or
monitor various phenomena in the field, such as settlement, slope creep, porewater pressures and ground water variations;
(3) Geotechnical observation during construction and/or installation, including but not limited to, spread foundations, drilled piers, piles, slurry walls, anchors, bulkheads, shoring, underpinning and subdrains;
(4) Engineering evaluation of soil related distress. (e) Preparation or engineering evaluation of geotechnical reports which includes, but is
not limited to: (1) Preparation of appropriate plans, logs, test results and other exhibits; (2) Documentation of testing and observation; (3) Preparation of written reports which present findings, conclusions and
recommendations of the investigation; (4) Preparation of specifications and guidelines for achieving the intent of
subdivision (e)(3), above.
427.10. References for Professional Engineers and Land Surveyors. (a) To assist the Board in evaluating qualifications, each applicant for licensure as a
professional engineer or a professional land surveyor shall submit completed reference forms from as many references as may be consistent with the length and character of the professional experience. Professional engineer applicants shall use the form entitled “Professional Engineer Engagement Record and Reference Form (PE09)(2010),” hereby incorporated by reference. Professional Land Surveyor applicants shall use the form entitled “Professional Land Surveyor Engagement Record and Reference Form (LS09)(2010),” hereby incorporated by reference. Professional land surveyor applicants may also use the form entitled “Log Book for Professional Land Surveyor Applicants (LB09)(2010),” hereby incorporated by reference, as an optional supplement to the “Professional Land Surveyor Engagement Record and Reference Form (LS09)(2010).”
(b) The applicant for licensure as a professional engineer or a professional land surveyor shall furnish not less than the number of references required hereafter:
(1) An applicant for a license as a professional land surveyor or as a professional engineer shall refer to not less than four persons who are authorized to practice in the discipline for which the applicant is applying and who have personal knowledge of the applicant’s qualifying experience, none of whom is a relative either by birth or marriage.
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(2) Nothing herein contained shall be construed to limit authority of the Board to seek such other information pertinent to the education and experience of the applicant as may be required to verify his or her qualifications. The Board may waive the requirement that only registered or licensed individuals give references for the applicants in disciplines other than civil engineering or land surveying when the applicants have no association with registered or licensed individuals in their work environment.
427.20. Reference Requirements for “Soil Engineer.”
(a) An applicant for authority to use the title “soil engineer” shall submit at least four completed reference forms from individuals who hold or held current, valid, unexpired California licenses as civil engineers during the time of the applicant’s experience. None of the references shall be related to the applicant by birth or marriage. At least two of these individuals shall be civil engineers who are or were actively engaged in the practice of “soil engineering.” Each civil engineer providing a reference shall clearly indicate areas of personal knowledge of the applicant’s qualifying experience. Reference forms completed by civil engineers registered or licensed outside of California, in lieu of or in addition to California references, will be considered; however, the Board may require additional information as specified in Section 427.20(d). Reference forms completed by civil engineers registered or licensed outside of the State of California shall be notarized. Information submitted by references is confidential.
(b) Notwithstanding Section 427(a), a reference form shall be submitted for each period of qualifying experience listed on the engagement record form for which the applicant desires credit.
(c) An applicant will be required to verify employment inclusive dates for each period of qualifying experience. Employment verification forms may be used for this purpose.
(d) Nothing contained in this section shall limit the authority of the Board to require that an applicant submit additional references, employment verifications and other information pertinent to education or experience to verify that the applicant has met the minimum qualifications as defined in Sections 6736.1(a) and (c) of the Code and Sections 426.50 and 426.51.
427.30. References for Structural Authority.
(a) An applicant for authority to use the title “structural engineer” shall submit at least three completed reference forms, using the form entitled “Structural Engineer Engagement Record and Reference Form (SE09)(2010),” hereby incorporated by reference, from individuals who hold current, valid California licenses as civil engineers and who are authorized by the Board to use the title “structural engineer,” or equivalent thereto, none of whom is related to the applicant by birth or marriage. Each reference shall have personal knowledge of the applicant’s qualifying experience and shall have examined the applicant’s work. It is preferred that at least one of the references has been a direct supervisor for a period of not less than six months.
(b) “Equivalent thereto” as used in this section, means a professional engineer who is authorized to use the title “structural engineer” in a state which has a comity agreement with this state related to “structural engineering.”
Reference forms completed by a “structural engineer” registered outside of this state but registered or licensed in a state which has a comity agreement with the State of California shall be notarized.
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(c) Nothing contained in this section shall limit the authority of the Board to require that an applicant submit additional references, employment verifications and other information pertinent to the applicant’s education and/or experience to verify that the applicant meets the minimum qualifications as defined in Sections 426.10, 426.11, and/or 426.13.
428. Abandoned Applications.
In the absence of special circumstances any of following actions by an applicant for certification or licensure shall be considered to constitute abandonment of the application and shall result in cancellation of the application with no refund of the application fee:
(a) Failure to provide additional information or references within 90 days following the mailing of a request by the Board’s staff; or
(b) Failure to complete that examination to which the application has been assigned within two (2) years from the date of filing of the application; or
(c) Failure to appear for examination at the designated time and place unless a postponement has been obtained in accordance with Rule 446; or
(d) Failure to appear for examination at the designated time and place after having obtained two postponements.
429. Application Appeal.
(a) An applicant who is notified by the board that his/her application has been denied may appeal to the board for re-evaluation of his/her application. An application appeal shall be filed with the board within 60 days after the date the denial notice has been mailed to him/her.
(b) An application appeal shall be made in writing and shall state the reason therefor. An appeal shall be supported by additional evidence, more references, affidavits, and supplemental information such that the board may be better informed of the applicant’s qualifications.
(c) The executive officer may deny an application appeal which is not filed within the time period provided in paragraph (a) of this rule.
(d) The executive officer shall notify each applicant who appeals under this rule of the approval of his/her appeal, or the reason for its denial.
(e) When an application has been denied, the executive officer shall also notify the applicant that he or she has the right to hearing under the Administrative Procedure Act (Government Code Section 11500 et seq.), if he or she makes a written request for hearing within 60 days after service of the notice of denial.
Article 3. Examinations
436. Schedule of Regular Written Examinations.
(a) Written examinations shall be given at intervals as determined by the board but not less than once each year.
(b) The executive officer shall publish annually, not later than three months prior to the end of each calendar year, a schedule of examinations for the following year.
(c) Whenever circumstances warrant such action the board may postpone, advance, or otherwise change without notice the examination schedule previously published.
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437. Individual Examination. (a) Individual examinations for licensure, certification, or authorization shall be either
oral or written or a combination of both, in the discretion of the Board. They may be held at times and places convenient to the Board.
(b) An applicant for licensure as a professional engineer or as a land surveyor will be considered for assignment to an individual examination provided his/her qualifications meet all the requirements of the code and rules of the Board and provided he/she holds a valid registration or license as a professional engineer as a land surveyor in another state, in the same branch in which he/she is applying; such registration or license having been obtained by passing written examinations of comparable standard to those examinations required in California.
(c) An applicant for authority to use the title “structural engineer” may be considered for the individual examination only if he/she has passed a 16-hour examination in another state which the Board may deem equivalent to the written examination for structural authority given in California. This 16-hour examination shall have been in addition to the regular examination series for registration or licensure as a professional engineer and shall have contained significant emphasis on seismic design and lateral load considerations.
438. Waiver of Fundamentals Examination.
(a) An applicant for licensure as a professional engineer whose qualifications meet all requirements of the code and rules of the Board will be allowed to appear for only the second division of the written examination prescribed by Section 6755 of the Code if he or she meets one or more of the following requirements:
(1) Holds valid licensure as a professional engineer in another branch in California. (2) Holds valid certification as an engineer-in-training in another state obtained by
passing a written examination which normally requires a minimum of eight hours to complete and in which the content of the examination is designed to test the candidate’s knowledge of fundamental engineering subjects, including mathematics and the basic sciences.
(3) Is a graduate of an approved engineering curriculum and submits satisfactory evidence to the Board that he or she has fifteen (15) years or more of additional engineering work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing engineering tasks under the direction of a person legally authorized to practice in an applicant’s branch of engineering.
(4) Is a graduate of a non-approved engineering curriculum or an approved engineering technology curriculum and submits satisfactory evidence to the Board that he or she has seventeen (17) years or more of additional engineering work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing engineering tasks under the direction of a person legally authorized to practice in an applicant’s branch of engineering.
(5) Is a graduate of an approved engineering curriculum and an approved post- graduate engineering curriculum and submits satisfactory evidence to the Board that he or she has fourteen (14) years or more of additional engineering work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing engineering tasks under the direction of a person legally authorized to practice in an applicant’s branch of engineering.
(6) Is a graduate of a non-approved engineering curriculum or an approved engineering technology curriculum and an approved postgraduate engineering curriculum and
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submits satisfactory evidence to the Board that he or she has fourteen (14) years or more of additional engineering work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing engineering tasks under the direction of a person legally authorized to practice in an applicant’s branch of engineering.
(7) Is the holder of an earned doctorate in engineering from a department or program at a university or college where the undergraduate engineering curriculum in the same branch of engineering is an approved engineering curriculum; or is serving in a tenure-track faculty position in an approved engineering curriculum at the level of Assistant Professor or higher.
(b) An applicant for licensure as a land surveyor whose qualifications meet all requirements of the code and rules of the Board will be allowed to appear for only the second division of the written examination prescribed by Section 8741 of the Code if he or she meets one or more of the following requirements:
(1) Holds valid licensure as a professional civil engineer in California. (2) Holds valid certification as an engineer-in-training a land surveyor-in-training in
another state obtained by passing a written examination in which normally requires a minimum of eight hours to complete and the content of the examination is designed to test the candidate’s knowledge of fundamental engineering subjects fundamentals of surveying subjects, including mathematics and the basic sciences.
(3) Is a graduate of an approved land surveying curriculum and submits satisfactory evidence to the Board that he or she has fifteen (15) years or more of additional land surveying work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing land surveying tasks under the direction of a person legally authorized to practice land surveying.
(4) Is a graduate of a non-approved land surveying curriculum and submits satisfactory evidence to the Board that he or she has seventeen (17) years or more of additional land surveying work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing land surveying tasks under the direction of a person legally authorized to practice in land surveying.
(5) Is a graduate of an approved land surveying curriculum and an approved post- graduate land surveying curriculum and submits satisfactory evidence to the Board that he or she has fourteen (14) years or more of additional land surveying work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing land surveying tasks under the direction of a person legally authorized to practice in land surveying.
(6) Is a graduate of a non-approved land surveying curriculum and an approved post- graduate land surveying curriculum and submits satisfactory evidence to the Board that he or she has sixteen (16) years or more of additional land surveying work experience satisfactory to the Board that has been gained in addition to graduation, or any other education experience, and while performing land surveying tasks under the direction of a person legally authorized to practice in land surveying.
(7) Holds valid certification as a land surveyor-in-training in another state obtained by passing a written examination which normally requires a minimum of eight hours to complete and the content of the examination is designed to test the candidate’s knowledge of fundamentals of land surveying including mathematics and the basic sciences.
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(c) An applicant for a California certification as an engineer-in-training or a land surveyor-in-training who holds valid certification in another state obtained as in (a)(2) or (b)(7)(2) above may be issued a California certificate.
{Amended effective October 1, 2016}
439. Examination Not Permitted. A person certified or licensed, by the board in a category or branch is not permitted to
take any portion of the examination for the same category or branch unless his or her certificate or license has expired pursuant to Section 6796.3 or Section 8803 of the Code or unless re- examination is ordered as a probationary condition pursuant to Section 419.
441. Authorization to Take Examination.
(a) After evaluating the qualifications of an applicant and establishing that person’s eligibility for the examination, in accordance with the applicable laws and regulations administered by the board, the executive officer assigns the applicant to the next scheduled examination for which the applicant qualified.
(b) Any applicant who lacks the qualifications for admission to the examination required by Chapter 7 or 15 of the code and rules of the board shall be declared ineligible; the application shall be denied and the application fee may be partially refunded in accordance with the provisions of Sections 158, 6763.5 and 8748.5 of the code. The executive officer shall notify each applicant of the reason for denying the application.
(c) Notification of the applicant’s assignment and authorization to take the examination and the location shall be postmarked at least 14 days prior to the examination date.
442. Examination Subversion.
(a) Examination subversion is the use of any means to alter the results of an examination to cause the results to inaccurately represent the competency of an examinee. Examination subversion includes, but is not limited to:
(1) Communication between examinees inside of the examination room. (2) Giving or receiving any unauthorized assistance on the examination while an
examination is in progress. (3) Having any unauthorized printed or written matter or other devices in his or her
possession which might serve to aid the examinee on the examination. (4) Obtaining, using, buying, selling, distributing, having possession of, or having
unauthorized access to secured examination questions or other secured examination material prior to, during or after the administration of the examination.
(5) Copying another examinee’s answers or looking at another examinee’s materials while an examination is in progress.
(6) Permitting anyone to copy answers to the examination. (7) Removing any secured examination materials from the examination facility. (8) Allowing another person to take the examination in the examinee’s place. (9) Placing any identifying mark upon his or her examination papers other than his or
her identification number or other identifiers as directed by the examination administrator.
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(10) Use by an examinee of any written material, audio material, video material, digital material, or any other mechanism not specifically authorized during the examination for the purpose of assisting an examinee in the examination.
(11) Writing on anything other than designated examination material. (12) Writing or erasing anything after time is called.
(b) At the discretion of the Executive Officer, if there is evidence of examination subversion by an examinee prior to, during, or after the administration of the examination, one or more of the following may occur:
(1) The examinee may be denied the privilege of taking the examination if examination subversion is detected before the administration of the examination.
(2) If the examination subversion detected has not yet compromised the integrity of the examination, such steps as are necessary to prevent further examination subversion shall be taken, and the examinee may be permitted to continue with the examination.
(3) The examinee may be requested to leave the examination facility if examination subversion is detected during the examination.
(4) The examinee may be requested to submit written advisement of his or her understanding of and intent to comply with the law.
(5) The examination results may be voided and the application and examination fee forfeited.
(6) The examinee may not be allowed to sit for an examination for up to three (3) years. (c) If examination subversion is detected after the administration of the examination, the
Executive Officer shall make appropriate inquiry to determine the facts concerning the examination subversion and may take any of the actions as described in subdivision (b).
(d) The Executive Officer reserves the right not to release the examination results to the examinee pending the outcome of any investigation of examination subversion.
(e) Removal from or voidance of one part of a multiple-part examination taken during a single examination administration may be cause for removal from or voidance of all other parts of the multiple-part examination.
443. Inspection of Examination.
(a) The following definitions as used in these regulations have the meaning expressed in this section:
(1) “Essay type problem” means an engineering or land surveying problem in which the examinee provides a free response as solution and is graded for method, computations and answers. Scoring is determined by comparing examinee solutions with pre-determined scoring plans.
(2) “Multiple-choice type problem” means an engineering or land surveying problem which requires the examinee to select an answer from a multiple response format. Computations are not considered in the grading process for multiple-choice items.
(b) Multiple-choice type problems shall not be reviewed. (c) An applicant who meets the criteria specified in subparagraph (1) below shall be
granted 8 hours to review or write an appeal for an essay type problem or problems attempted during the written examination.
(1) Who is no more than 15% below the passing score on a State specific Professional Engineering or Professional Land Surveying examination.
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(d) Time and location of the examination review or appeal session shall be designated by the executive officer.
(e) At the time of the review or appeal session, no one other than the examinee and representatives of the board shall have access to such examination papers.
(f) Evidence that the applicant erased, deleted, removed or altered the examination papers, or the material contained thereon during such inspection, may result in the applicant being disqualified by the board from taking future examinations.
(g) The applicant shall have access to his or her examination, test booklets and solutions when reviewing or preparing an appeal of an essay type problem during the time period specified in subsection (c).
444. Examination Appeal.
(a) Applicants who were unsuccessful in the Professional Engineers or Professional Land Surveyor Examination will be notified by mail with the notice of results of the date and time in which they may attend a review or appeal session. The appeal fee referred to in section 407(d) must be received by the board within twenty-one (21) days from the date of the notice of the results of his or her examination. Applicants who decide to submit an appeal will be required to submit their appeal at the end of the review or appeal session.
(b) An appeal of an essay type problem of the examination shall be made in writing; and it shall state the reason for appeal, citing the item or items against which the appeal is directed, and it shall be accompanied by the appropriate appeal fee. The applicant shall identify the specific item(s) being challenged: the specific reasons for the challenge: and cite reference materials, facts and figures to substantiate the appeal. The appeal fee shall be payable for an appeal directed at an essay type problem of the examination. An appeal may be directed to any specific essay type problem or problems or sub-parts thereof, but an appeal shall cause the entire problem to be rescored. Rescoring of an essay type problem may result in one of the following three actions: points may be added; points may be deducted; or the score may remain the same. If the appeal results in the appellant being deemed to have passed the examination, the full appeal fee shall be refunded.
(c) The executive officer may deny any appeal requesting a review of an examination that is not accompanied by information supporting the reason for such request, is not accompanied by the correct appeal fee, or is not filed within the period of time provided in paragraph (a) of this rule.
(d) The Board’s decision on an appeal of an essay type problem is final and shall not be re-evaluated. A multiple-choice type problem is not appealable.
446. Postponements.
The executive officer may grant a postponement, not to exceed two such postponements for each application to any applicant who for reasonable cause is prevented from appearing for examination at the time fixed, provided the applicant’s request for postponement and the reason therefor is filed with the principal office of the board at any time prior to the expiration of the ten (10) day period immediately following the date of such examination.
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447. Permissible Reference Material and Other Accessories. The executive officer shall advise each examinee when he/she is notified that he/she is
assigned to an examination, what reference and other materials may be used during the examination to which he/she has been assigned.
Article 4. Miscellaneous
461. Testing Laboratory Reports.
Reports issued by Testing Laboratories shall be prepared by or under the supervision of a licensed civil, electrical, or mechanical engineer as appropriate and signed or sealed by him/her whenever such reports go beyond the tabulation of test data (composition of material, breaking stress, et cetera) and proceeds to:
(a) Interpret the data to draw conclusions as to the characteristics of civil engineering structure, an electrical or mechanical device, or parts thereof.
(b) Express civil, electrical, or mechanical engineering judgment in the form of recommendations derived from the results of the test.
(c) Perform design work in the preparation of plans, specifications, and other instruments requiring licensure as a civil, electrical, and/or mechanical engineer.
463. Notice of Association or Disassociation With Partnership, Firm, or Corporation.
(a) A professional engineer who is associated as the partner, member, officer, or employee in responsible charge of professional engineering services offered or performed by a firm, partnership, or corporation shall notify the Board within thirty (30) days of such association or termination of association on a form approved by the Board.
(b) A licensed land surveyor and/or civil engineer who practices or offers to practice land surveying, according to the provisions of Section 8729 of the Code, as a partner, member, or officer of a partnership, firm, or corporation shall advise the Board within thirty (30) days of such association or termination of association on a form approved by the Board.
(c) A licensed photogrammetric surveyor who is associated as a member, partner, officer, or employee in a firm, partnership, or corporation which offers or performs photogrammetric surveying services according to the provisions of Article 5.5 of the Professional Land Surveyors’ Act shall notify the Board within thirty (30) days of such association or termination of association on a form approved by the Board.
(d) A firm which contains partners, members or officers as described above will be allowed six months following the death, disassociation, or retirement of a member, partner, or officer whose name the firm, partnership, or corporation carried in its firm title to make a written request to the Board for an investigation pursuant to the requirements of Section 6738(e) of the Code. The Board will determine if such firm is eligible to continue use of its firm title without change.
463.5 Providing Notice of Licensure.
Every licensee shall provide notice to his or her clients that the licensee is licensed by the Board for Professional Engineers, Land Surveyors, and Geologists. Notice shall be provided by one or more of the following methods:
(a) Displaying his or her wall certificate in a public area; or office; or individual work area of the premises where the licensee provides the licensed service.
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(b) Providing a statement to each client that states the client understands the licensee is licensed by the Board for Professional Engineers, Land Surveyors, and Geologists. Said statement shall be signed and dated by the client and shall be retained in the licensee’s records.
(c) Including a statement that the licensee is licensed by the Board for Professional Engineers, Land Surveyors, and Geologists either on letterhead or on a contract for services. If said statement is included on a contract for services, it shall be placed immediately above the signature line for the client in at least 12 point type.
(d) Posting a notice in a public area of the premises where the licensee provides the licensed services that states the named licensee is licensed by the Board for Professional Engineers, Land Surveyors, and Geologists. Said notice shall be in at least 48 point type.
464. Corner Record.
(a) The corner record required by Section 8773 of the Code for the perpetuation of monuments shall contain the following information for each corner identified therein:
(1) The county and, if applicable, city in which the corner is located. (2) An identification of the township, range, base, and meridian in which the corner
is located, if applicable. (3) Identification of the corner type (example: government corner, control corner,
property corner, etc.). (4) Description of the physical condition of (A) the monument as found and (B) any monuments set or reset. (5) The date of the visit to the monument when the information for the corner record
was obtained. (6) For Public Land Corners for which a corner record is required by Section 8773(a)
of the Code, a sketch shall be made showing site recovery information that was used for the corner. For other kinds of corners, a drawing shall be made which shows measurements that relate the corner to other identifiable monuments.
(7) A reference to the California Coordinate System is optional at the discretion of the preparer of the record.
(8) The date of preparation of the corner record and, as prescribed by Section 8773.4 of the Code, the signature and title of the chief of the survey party if the corner record is prepared by a United States Government or California State agency or the signature and seal of the land surveyor or civil engineer, as defined in Section 8731 of the Code, preparing the corner record.
(9) The date the corner record was filed and the signature of the county surveyor. (10) A document or filing number.
(b) A corner record shall be filed for each public land survey corner which is found, reset, or used as control in any survey by a land surveyor or a civil engineer. Exceptions to this rule are identified in Section 8773.4 of the Code.
(c) The corner record shall be filed within 90 days from the date a corner was found, set, reset, or used as control in any survey. The provisions for extending the time limit shall be the same as provided for a record of survey in Section 8762 of the Code.
(d) A corner record may be filed for any property corner, property controlling corner, reference monument, or accessory to a property corner, together with reference to record information. Such corner record may show one or more property corners, property controlling
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corners, reference monuments, or accessories to property corners on a single corner record document so long as it is legible, clear, and understandable.
(e) When conducting a survey which is a retracement of lines shown on a subdivision map, official map, or a record of survey, where no material discrepancies with these records are found and where sufficient monumentation is found to establish the precise location of property corners thereon, a corner record may be filed in lieu of a record of survey for any property corners which are set or reset or found to be of a different character than indicated by prior records. Such corner records may show one or more property corners, property controlling corners, reference monuments or accessories to property corners on a single corner record document so long as it is legible, clear, and understandable.
(f) The standard markings and standard abbreviations used by the Bureau of Land Management (formerly the General Land Office) of the United States Department of the Interior shall be used in the corner record.
(g) The corner record shall be filed on a form prescribed by the Board. The approved form is BORPELS-1297.
{NOTE: In effect through March 31, 2017}
464. Corner Record. (a) The corner record required by Section 8773 of the Code for the perpetuation of
monuments provided for in Section 8773.1 of the Code shall contain the following information for consistent with each corner identified therein:
(1) The county and, if applicable, the city in which the corner is located. (2) An identification A brief legal description of the section, township, range, base,
and meridian or the Rancho in which the corner is located, if applicable. (3) Identification of the corner type (example: e.g., government corner, control
corner, property corner, etc.). (4) Identification of the reference of the related statute (i.e., Section 8765(d), Section
8771, Section 8773, or other relevant sections of the Code). (5) Description of the physical condition of (A) the monument as found and (B) any monuments monument(s) found, set, or reset, replaced, or removed. (5) (6) The date of the visit to the monument when the information for the corner
record was obtained. (7) For corners for which the corner record is filed in accordance with Section
8765(d) of the Code, the corner record shall show the applicable provisions of the following, consistent with the purpose of the survey:
(A) All monuments found, set, reset, replaced, or removed, describing their kind, size, and location, and giving other data relating thereto.
(B) Bearing or witness monuments, basis of bearings, bearing and length of lines, scale of map, and north arrow.
(C) The relationship to those portions of adjacent tracts, streets, or senior conveyances which have common lines with the survey.
(D) Any other data necessary for the intelligent interpretation of the various items and locations of the points, lines, and areas shown, or convenient for the identification of the survey or the surveyor, as may be determined by the licensee preparing the corner record.
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(8) For corners for which the corner record is filed in accordance with any subdivision of Section 8771 of the Code, the information shown on the corner record shall also show the applicable provisions of Section 8771 of the Code.
(6) (9) For Public Land Corners for which a corner record is required by Section 8773(a) of the Code, a sketch shall be made showing site recovery information that was used for the corner. For other kinds of corners, a drawing shall be made which shows measurements that relate the corner to other identifiable monuments.
(10) Except for those corners referenced in subdivision (9), a drawing shall be made which shows measurements that relate the corner to other identifiable monuments.
(7) A reference to the California Coordinate System is optional at the discretion of the preparer of the record.
(8) (11) The date of preparation of the corner record and, as prescribed by Section 8773.4 of the Code, the signature and title of the chief of the survey party if the corner record is prepared by a United States Government or a California State agency or the signature and seal of the land surveyor or civil engineer, as defined in Section 8731 of the Code, preparing the corner record.
(9) (12) The date the corner record was filed and the signature of the county surveyor. (10) (13) A document or filing number and/or Agency Index information.
(b) A reference to the California Coordinate System is optional at the discretion of the preparer of the record.
(c) A corner record shall be filed for each public land survey corner which is found, reset, or used as control in any survey by a land surveyor or a civil engineer. Exceptions to this rule are identified in Section 8773.4 of the Code.
(c) (d) The corner record shall be filed within 90 days from the date a corner was found, set, reset, or used as control in any survey. The provisions for extending the time limit shall be the same as provided for a record of survey in Section 8762 of the Code.
(d) (e) A corner record may be filed for any property corner, property controlling corner, reference monument, or accessory to a property corner, together with reference to record information. Such corner record may show one or more property corners, property controlling corners, reference monuments, or accessories to property corners.
(f) A corner record is limited to on a single corner record document, in accordance with Section 8773.1 of the Code, and shall be so long as it is legible, clear, and understandable. A corner record may be submitted in an electronic medium if the county surveyor has a system to provide for the submittal, archiving, and distribution to the public in an electronic or hard copy format.
(e) When conducting a survey which is a retracement of lines shown on a subdivision map, official map, or a record of survey, where no material discrepancies with these records are found and where sufficient monumentation is found to establish the precise location of property corners thereon, a corner record may be filed in lieu of a record of survey for any property corners which are set or reset or found to be of a different character than indicated by prior records. Such corner records may show one or more property corners, property controlling corners, reference monuments or accessories to property corners on a single corner record document so long as it is legible, clear, and understandable.
(f) (g) The standard markings and standard abbreviations used by the Bureau of Land Management (formerly the General Land Office) of the United States Department of the Interior shall be used in the corner record.
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(g) (h) The corner record shall be filed on a form prescribed by the Board. The approved form is BORPELS-1297 “Corner Record”, (BPELSG2016 revised 06/2016), incorporated herein by reference.
{NOTE: Effective April 1, 2017}
465. Records of Survey - Public Officers. A public officer who has performed a survey which is subject to the requirements of
Section 8762 of the code, shall file a record of survey map or comply with Section 8765(a) of the code. In either event, the public officer shall file the information required by Section 8765(a) of the code relating to his or her survey within the time limit provided for in Section 8762 of the code.
470. Application Response.
(a) The following timeframes, based on taking and passing the first available examination, shall apply to applications for licensure as a professional engineer or as a professional land surveyor when an examination is required.
(1) Within 150 calendar days of receipt of an application, the Board shall inform the applicant in writing that the application is either accepted for filing or that it is deficient and what specific information or documentation is required to complete the application.
(2) A complete application shall include a score for all parts of the examination. Within 60 calendar days after the filing of a complete application, the Board shall make a decision regarding the applicant’s eligibility for licensure. (b) The following timeframes, based on taking and passing the first available
examination, shall apply to applications for certification to use the titles “Engineer-in-Training” or “Land Surveyor-in-Training” when an examination is required:
(1) Within 75 calendar days of receipt of an application, the Board shall inform the applicant in writing that the application is either accepted for filing or that it is deficient and what specific information or documentation is required to complete the application.
(2) A complete application shall include a score for the examination. Within 60 calendar days after the filing of a complete application, the Board shall make a decision regarding the applicant’s eligibility to use either the title “Engineer-in-Training” or “Land Surveyor-in-Training.” (c) The following timeframes shall apply to applications for licensure as a professional
engineer or as a professional land surveyor when comity licensure is applied for and when no examination is required:
(1) Within 125 calendar days of receipt of a comity application, the Board shall inform the applicant in writing that the application is either accepted for filing and complete or that it is deficient and what specific information or documentation is required to complete the application.
(2) Within 60 calendar days after the date of filing of a complete application, the Board shall make a decision regarding the application for licensure.
471. Processing Time.
The Board’s time periods are based upon an applicant taking and passing the first available examination and for processing an application from the receipt of the initial application
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to the final decision regarding issuance or denial of licensure based on the board’s actual performance during the two years preceding the proposal of this section:
(a) The median time was 255 days. (b) The minimum time was 10 days. (c) The maximum time was 1548 days.
472. Citations of Unlicensed Persons. (a) The Executive Officer or his or her designee may issue a citation for any violation of
any provision of law enforced by the Board to an unlicensed person who, unless otherwise exempt, is acting in the capacity of a professional engineer or a professional land surveyor .
(b) Each citation (1) shall be in writing; (2) shall describe with particularity the nature of the violation, including specific
reference to the provision or provisions of law determined to have been violated; (3) shall contain an assessment of an administrative fine, an order of abatement
fixing a reasonable period of time for abatement of the violation, or both an administrative fine and an order of abatement;
(4) shall be served on the cited person at the last known business or residence address personally or by certified mail with return receipt requested;
(5) shall inform the cited person that failure to pay the fine within 30 calendar days of the date of assessment, unless the citation is being appealed, may result in the Executive Officer applying to the appropriate superior court for a judgment in the amount of the administrative fine;
(6) shall inform the cited person that, if he/ or she desires an informal conference to contest appeal the finding of a violation, the informal conference shall be requested by written notice to the Board within 30 calendar days from service date of issuance of the citation;
(7) shall inform the cited person that, if he or she desires a hearing to contest appeal the finding of a violation, that hearing shall be requested by written notice to the Board within 30 calendar days from service date of issuance of the citation. {Amended, effective July 1, 2017}
472.1. Assessment of Administrative Fine. (a) In no event shall the administrative fine be less than $50 or exceed $5,000 for each
violation. (b) In determining the amount of an administrative fine , the Executive Officer shall
consider the following factors: (1) The nature and severity of the violation; (2) The good or bad faith exhibited by the cited person; (3) The history of previous violations; (4) The extent to which the cited person has cooperated with the Board and the
Board’s investigation; (5) The extent to which the cited person has mitigated or attempted to mitigate any
damage or injury caused by his/ or her violation; (6) Any factors in extenuation or aggravation related to the violation;
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(7) Other matters as may be appropriate. {Amended, effective July 1, 2017}
472.2. Appeal of Citations.
(a) Any person served with a citation issued pursuant to Section 472 may contest appeal the citation by submitting a written request for a hearing to the Board within 30 calendar days of service the date of issuance of the citation. Such hearings shall be conducted pursuant to the Administrative Procedure Act, Chapters 4.5 and 5, commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code.
(b) In addition to requesting a hearing as described in subsection (a), the cited person may, within 30 calendar days of service the date of issuance of the citation, submit a written request for an informal conference with the Executive Officer.
(c) The Executive Officer may, within 30 working days from receipt of a written request for an informal conference as provided in subsection (b), hold an informal conference with the cited person and/or his or her legal counsel or authorized representative. The 30-day period may be extended by the Executive Officer for good cause. Following the informal conference, the Executive Officer may shall affirm, modify, or dismiss the citation, including any administrative fine assessed or order of abatement issued. An order affirming, modifying, or dismissing the original citation shall be served on the cited person within 30 calendar days from the informal conference. Said 30-day period may be extended by the Executive Officer for good cause. Said order shall state in writing the reasons for the affirmation, modification, or dismissal of the original citation. If the order affirms or modifies the original citation, said order shall fix a reasonable period of time for abatement of the violation or payment of the fine. Service of this order shall be made as provided in Section 472. This order shall be considered the conclusion of the informal conference proceedings.
(d) If the citation is affirmed or modified following the informal conference, the cited person may request a hearing as provided in subsection (a) within 30 calendar days from service of the order described in subsection (c). The cited person shall not be permitted to request another informal conference.
(e) If the citation is dismissed after the informal conference, the request for a hearing, if any, shall be deemed to be withdrawn.
(f) Submittal of a written request for a hearing as provided in subsection (a), an informal conference as provided in subsection (b), or both stays the time period in which to abate the violation and/or to pay the fine.
(g) If the written request for a hearing as provided in subsection (a) or an informal conference as provided in subsection (b) or both is not submitted within 30 calendar days from service the date of issuance of the citation, the cited person is deemed to have waived his/ or her right to a hearing or an informal conference.
{Amended, effective July 1, 2017}
472.3. Compliance with Order. (a) If a cited person who has been issued an order of abatement is unable to complete the
correction within the time set forth in the citation because of conditions beyond his/ or her control after the exercise of reasonable diligence, then he/ or she may request from the Executive Officer an extension of time within which to complete the correction. Such a request shall be in writing and shall be made within the time set forth for abatement.
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(b) Failure of an applicant for licensure as a professional engineer or as a professional land surveyor to abate the violation or to pay the fine within the time allowed is a ground for denial of licensure.
(c) Notwithstanding any other provision of the law, the Executive Officer may waive all or part of an administrative fine if the cited person against whom the citation is assessed satisfactorily completes all the requirements for, and is issued, a license.
(d) If the cited person fails to pay all of the assessed fine within the time allowed, the Executive Officer may apply to the appropriate superior court for a judgment in the amount of the administrative fine.
(e) If a hearing as provided in Section 472.2(a) is not requested, payment of the fine shall not constitute an admission of the violation charged.
(f) Payment of the fine shall be represented as satisfactory resolution of the matter for purposes of public disclosure.
{Amended, effective July 1, 2017}
472.4. Disconnection of Telephone Service. (a) If, upon investigation, the Executive Officer has cause to believe that an unlicensed
individual acting in the capacity of a professional engineer or a professional land surveyor, who is not otherwise exempted from the provisions of the Professional Engineers Act or the Professional Land Surveyors’ Act, has violated Sections 6787 or 8792 of the Code by advertising in a telephone directory with respect to the offering or performance of services, without being properly licensed, the Executive Officer may issue a citation under Section 472 containing an order of abatement which requires the cited person to both cease the unlawful advertising and notify the telephone company furnishing services to the cited person to disconnect the telephone services furnished to any telephone number contained in the unlawful advertising, and that subsequent calls to that number shall not be referred by the telephone company to any new telephone number obtained by that person. The cited person shall provide written evidence of compliance to the Executive Officer.
(b) If the cited person fails to comply with an order of abatement as described in subsection (a) within the time allowed, the Executive Officer shall inform the Public Utilities Commission of the violation in accordance with Business and Professions Code section 149.
{Amended, effective July 1, 2017}
473. Citations of Licensed Persons. (a) The Executive Officer or his or her designee may issue a citation for any violation of
any provision of law enforced by the Board to any person who holds a license issued by the Board.
(b) Prior to the issuance of a citation in any case involving allegations of negligence and/or incompetence, as defined in Section 404, in the professional practice, the Executive Officer shall submit the alleged violation for review to at least one licensee of the Board who is competent in the branch of professional engineering or professional land surveying most relevant to the subject matter of the citation. The licensee reviewing the alleged violation shall be either a member of the Board’s professional staff, a technical advisory committee member, or an expert consultant. Upon conclusion of the review, the reviewer shall prepare a finding of fact and a recommendation based upon that finding to which the Executive Officer shall give due consideration in determining whether cause exists to issue a citation.
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(c) Each citation (1) shall be in writing; (2) shall describe with particularity the nature of the violation, including specific
reference to the provision or provisions of law determined to have been violated; (3) may contain an assessment of an administrative fine, an order of abatement fixing
a reasonable period of time for abatement of the violation, or both an administrative fine and an order of abatement;
(4) shall be served on the cited person at the address of record on file with the Board personally or by certified mail with return receipt requested;
(5) shall inform the cited person that failure to pay the fine within 30 calendar days of the date of assessment, unless the citation is being appealed, may result in disciplinary action being taken by the Board. If a citation is not contested and the fine is not paid, and may result in the full amount of the assessed fine shall be being added to the fee for renewal of the license,. A in which case the license shall not be renewed without the payment of the renewal fee and fine;
(6) shall inform the cited person that, if he/ or she desires an informal conference to contest appeal the finding of a violation, the informal conference shall be requested by written notice to the Board within 30 calendar days from service the date of issuance of the citation;
(7) shall inform the cited person that, if he or she desires a hearing to contest appeal the finding of a violation, that hearing shall be requested by written notice to the Board within 30 calendar days from service the date of issuance of the citation. {Amended, effective July 1, 2017}
473.1. Assessment of Administrative Fines.
(a) In no event shall the administrative fine be less than $50 or exceed $5,000 for each violation.
(b) In determining the amount of an administrative fine, the Executive Officer shall consider the following factors:
(1) The nature and severity of the violation; (2) The good or bad faith exhibited by the cited person; (3) The history of previous violations; (4) The extent to which the cited person has cooperated with the Board and the
Board’s investigation; (5) The extent to which the cited person has mitigated or attempted to mitigate any
damage or injury caused by his/ or her violation; (6) Any factors in extenuation or aggravation related to the violation; (7) Other matters as may be appropriate.
{Amended, effective July 1, 2017}
473.2. Appeal of Citations. (a) Any person served with a citation issued pursuant to Section 473 may contest appeal
the citation by submitting a written request for a hearing to the Board within 30 calendar days of service the date of issuance of the citation. Such hearings shall be conducted pursuant to the Administrative Procedure Act, Chapters 4.5 and 5, commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code.
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(b) In addition to requesting a hearing as described in subsection (a), the cited person may, within 30 calendar days of service the date of issuance of the citation, submit a written request for an informal conference with the Executive Officer.
(c) The Executive Officer shall may, within 30 working days of from receipt of a written request for an informal conference as provided in subsection (b), hold an informal conference with the cited person and/or his or her legal counsel or authorized representative. The 30- day period may be extended by the Executive Officer for good cause. Following the informal conference, the Executive Officer may shall affirm, modify, or dismiss the citation, including any administrative fine assessed or order of abatement issued. An order affirming, modifying, or dismissing the original citation shall be served on the cited person within 30 calendar days from the informal conference. Said 30-day period may be extended by the Executive Officer for good cause. Said order shall state in writing the reasons for the affirmation, modification, or dismissal of the original citation. If the order affirms or modifies the original citation, said order shall fix a reasonable period of time for abatement of the violation or payment of the fine. Service of this order shall be made as provided in Section 473. This order shall be considered the conclusion of the informal conference proceedings.
(d) If the citation is affirmed or modified following the informal conference, the cited person may request a hearing as provided in subsection (a) within 30 calendar days from service of the order described in subsection (c). The cited person shall not be permitted to request another informal conference. ,
(e) If the citation is dismissed after the informal conference, the request for a hearing, if any, shall be deemed to be withdrawn.
(f) Submittal of a written request for a hearing as provided in subsection (a), an informal conference as provided in subsection (b), or both stays the time period in which to abate the violation and/or to pay the fine.
(g) If the written request for a hearing as provided in subsection (a) or an informal conference as provided in subsection (b) or both is not submitted within 30 calendar days from service the date of issuance of the citation, the cited person is deemed to have waived his/ or her right to a hearing or an informal conference.
{Amended, effective July 1, 2017}
473.3. Compliance with Citations Order. (a) If a cited person who has been issued an order of abatement is unable to complete the
correction within the time set forth in the citation because of conditions beyond his/ or her control after the exercise of reasonable diligence, then he/ or she may request from the Executive Officer an extension of time within which to complete the correction. Such a request shall be in writing and shall be made within the time set forth for abatement.
(b) Failure of the cited person to abate the violation or to pay all of the assessed fine within the time allowed is grounds for suspension or revocation of the cited person’s license.
(c) If the cited person fails to pay all of the assessed fine within the time allowed, the balance due for the fine shall be added to the renewal fee for the license, and the license shall not be renewed until the fine is paid in full.
(d) If a hearing as provided in Section 473.2(a) is not requested, payment of the fine shall not constitute an admission of the violation charged.
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(e) Payment of the fine shall be represented as satisfactory resolution of the matter for purposes of public disclosure.
{Amended, effective July 1, 2017}
473.4. Disconnection of Telephone Service. (a) If, upon investigation, the Executive Officer has cause to believe that a professional
engineer or a professional land surveyor, who is not otherwise exempted from the provisions of the Professional Engineers Act or the Professional Land Surveyors’ Act, has violated Sections 6787 or 8792 of the Code by advertising in a telephone directory with respect to the offering or performance of services, without being properly licensed, the Executive Officer may issue a citation under Section 473 containing an order of abatement which requires the cited person to both cease the unlawful advertising and notify the telephone company furnishing services to the cited person to disconnect the telephone services furnished to any telephone number contained in the unlawful advertising, and that subsequent calls to that number shall not be referred by the telephone company to any new telephone number obtained by that person. The cited person shall provide written evidence of compliance to the Executive Officer.
(b) If the cited person fails to comply with an order of abatement as described in subsection (a) within the time allowed, the Executive Officer shall inform the Public Utilities Commission of the violation in accordance with Business and Professions Code section 149.
{Amended, effective July 1, 2017}
474. Establishment of Criteria. The criteria for the selection of a contractor are: professional excellence, demonstrated
competence, specialized experience of the person, education and experience, ability to meet schedules, nature and quality of completed work, reliability of the person, location and other considerations the Executive Officer deems necessary to the performance of the contract.
474.1. Request for Qualifications.
(a) Where a project requires professional engineering or land surveying services the Executive Officer shall make a statewide request for qualifications through the publications of the respective professional societies and in other appropriate publications.
(b) The request for qualifications shall contain the following information: the nature of the work, the criteria upon which the award shall be made, the name of the contact person, the address to send statements of qualifications and performance data , and the deadline by which the statements must be received.
(c) The Executive Officer shall provide a copy of each request for qualifications to all small businesses who have indicated an interest in receiving the request. A failure of the Executive Officer to send a copy of a request for qualifications to any person shall not operate to preclude any contract.
474.2. Selection of Engineers and Land Surveyors.
After expiration of the deadline stated in the publications, as specified in Section 474.1, the Executive Officer, in conjunction with no less than three persons selected by the Executive Officer, shall evaluate statements of qualifications and performance data of firms which have
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2017 PE &PLS Board Rules (16 CCR §§400-476) 47
been submitted to the Board. Based upon the statement of qualifications and performance data, a list ranking the qualified firms will be made.
From a list of three or more qualified firms, the Executive Officer shall select the first three ranked firms for contract negotiation to provide the services required. Where three qualified firms cannot be found which could provide the required service, the Executive Officer may then select from the available firms or issue a new request for proposal. Selections based on less than three firms must be documented with the names and addresses of firms contacted by the Executive Officer and the reasons why the provisions of this section could not be met. This documentation shall be maintained in the Boards Contract file.
474.3. Conflict of Interest/Unlawful Activity.
Governmental agency employees who are related to persons seeking to contract under these regulations shall not participate in any aspect of the contract review or selection process.
Further, any practice that results in an unlawful activity including, but not limited to, rebates, kickbacks, or any other unlawful consideration shall be prohibited.
474.4. Amendments.
In instances where the Board effects a necessary change in the project during the course of performance of the contract, the contractor’s compensation may be adjusted by negotiation of a mutual written agreement in a fair and reasonable amount where the amount of work to be performed by the contractor is changed from that which the parties had originally contemplated.
474.5. Contracting in Phases.
Should the Board determine that it is necessary or desirable to have a given project performed in phases, it will not be necessary to negotiate the total contract price or compensation provisions in the initial instance, provided that the Board shall have determined that the person is best qualified to perform the whole project at a fair and reasonable cost, and the contract contains provisions that the Board, at it option, may utilize the person for other phases and that the person will accept a fair and reasonable price for subsequent phases to be later negotiated and reflected in a subsequent written instrument. The procedure with regard to negotiation provided for in Section 6106 of the Public Contract Code shall be applicable. 475. Code of Professional Conduct – Professional Engineering
To protect and safeguard the health, safety, welfare, and property of the public, every person who is licensed by the Board as a professional engineer, including licensees employed in any manner by a governmental entity or in private practice, shall comply with this Code of Professional Conduct. A violation of this Code of Professional Conduct in the practice of professional engineering constitutes unprofessional conduct and is grounds for disciplinary action pursuant to Section 6775 of the Code. This Code of Professional Conduct shall be used for the sole purpose of investigating complaints and making findings thereon under Section 6775 of the Code.
(a) Compliance with Laws Applicable to a Project: A licensee shall provide professional services for a project in a manner that is
consistent with the laws, codes, ordinances, rules, and regulations applicable to that project. A licensee may obtain and rely upon the advice of other professionals (e.g.,
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2017 PE & PLS Board Rules (16 CCR §§400-476) 48
architects, attorneys, professional engineers, professional land surveyors, and other qualified persons) as to the intent and meaning of such laws, codes, and regulations. (b) Conflict of Interest:
(1) If a licensee provides professional services for two or more clients on a project or related projects, the licensee shall disclose in writing to those clients and property owners or their authorized representatives his or her relationship to those clients.
(2) If a licensee has a business association or a financial interest which may influence his or her judgment in connection with the performance of professional services, the licensee shall fully disclose in writing to his or her client(s) or employer(s) the nature of the business association or the financial interest.
(3) A licensee shall not solicit or accept payments, rebates, refunds, or commissions, whether in the form of money or otherwise, from contractors or suppliers of material, systems, or equipment in return for specifying their products to a client or employer of the licensee.
(4) A licensee, while engaged by a governmental agency as an officer, employee, appointee, agent, or consultant of that agency shall not engage in a professional engineering business or activity that may be subject to that licensee’s direct or indirect control, inspection, review, audit, or enforcement on behalf of that agency, unless the circumstances are disclosed to and approved by that agency in writing prior to such engagement. (c) Representations:
(1) A licensee shall not misrepresent his or her qualifications to a prospective or existing client or employer.
(2) A licensee shall not misrepresent to a prospective or existing client the licensee’s scope of responsibility in connection with projects or services for which the licensee is receiving or will receive compensation from that client.
(3) A licensee shall not misrepresent his or her scope of responsibility in connection with projects or services for which the licensee is claiming credit.
(4) A licensee shall not misrepresent nor permit the misrepresentation of his or her professional qualifications, or affiliations or the affiliations or purposes of the institutions, organizations, or other businesses with which he or she is associated.
(5) When providing information in connection with a person’s application for a license to practice professional engineering, a licensee shall accurately represent his or her knowledge of the applicant’s qualifications.
(6) A licensee may advertise or solicit for any services for which he or she is authorized by licensure.
(7) A licensee shall only express professional opinions that have a basis in fact or experience or accepted engineering principles.
(8) A licensee shall attribute proper credit to others for their professional work or professional contribution.
(9) A licensee shall not knowingly permit the publication or use of his or her data, reports, plans, or other professional documents for unlawful purposes.
(10) A licensee shall not falsely or maliciously injure or attempt to injure the reputation or business of others.
(11) A licensee shall not misrepresent data and/or its relative significance in any professional engineering report.
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2017 PE &PLS Board Rules (16 CCR §§400-476) 49
(d) Confidential Information: Confidential information obtained by a licensee, in his or her professional
capacity, concerning a client, employer, or other related party shall not be disclosed by the licensee without the permission of the client, employer, or other related party except for the following:
(1) Disclosures made in response to an order of the court or to a subpoena or summons enforceable by an order of the court.
(2) Disclosures made in an adjudicatory proceeding. (3) Disclosures made in response to an official inquiry from a governmental
regulatory agency. (4) Disclosures made when required by law. (5) Disclosures made upon discovering a hazard within the licensee’s field of
professional expertise which may threaten the health, safety, and welfare of the public. (6) Disclosures made when providing evidence to the Board regarding other
licensees or unlicensed individuals who may have violated the Professional Engineers Act.
(7) Disclosures made regarding illegal conduct. As used in this section, “confidential information” means information identified
as confidential by the licensee’s client, employer, or other related party. (e) Document Submittal:
(1) A licensee shall not misrepresent the completeness of the professional documents he or she submits to a governmental agency.
(2) A licensee shall not misrepresent the completeness of the professional documents he or she prepared to his or her client or to other involved parties.
476. Code of Professional Conduct – Professional Land Surveying
To protect and safeguard the health, safety, welfare, and property of the public, every person who is licensed by the Board as a professional land surveyor or professional civil engineer legally authorized to practice land surveying, including licensees employed in any manner by a governmental entity or in private practice, shall comply with this Code of Professional Conduct. A violation of this Code of Professional Conduct in the practice of professional land surveying constitutes unprofessional conduct and is grounds for disciplinary action pursuant to Section 8780 of the Code. This Code of Professional Conduct shall be used for the sole purpose of investigating complaints and making findings thereon under Section 8780 of the Code.
(a) Compliance with Laws Applicable to a Project: A licensee shall provide professional services for a project in a manner that is
consistent with the laws, codes, ordinances, rules, and regulations applicable to that project. A licensee may obtain and rely upon the advice of other professionals (e.g., architects, attorneys, professional engineers, professional land surveyors, and other qualified persons) as to the intent and meaning of such laws, codes, and regulations. (b) Conflict of Interest:
(1) If a licensee provides professional services for two or more clients on a project or related projects, the licensee shall disclose in writing to those clients and property owners or their authorized representatives his or her relationship to those clients.
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2017 PE & PLS Board Rules (16 CCR §§400-476) 50
(2) If a licensee has a business association or a financial interest which may influence his or her judgment in connection with the performance of professional services, the licensee shall fully disclose in writing to his or her client(s) or employer(s) the nature of the business association or the financial interest.
(3) A licensee shall not solicit or accept payments, rebates, refunds, or commissions, whether in the form of money or otherwise, from contractors or suppliers of material, systems, or equipment in return for specifying their products to a client or employer of the licensee.
(4) A licensee, while engaged by a governmental agency as an officer, employee, appointee, agent, or consultant of that agency shall not engage in a professional land surveying business or activity that may be subject to that licensee’s direct or indirect control, inspection, review, audit, or enforcement on behalf of that agency, unless the circumstances are disclosed to and approved by that agency in writing prior to such engagement. (c) Representations:
(1) A licensee shall not misrepresent his or her qualifications to a prospective or existing client or employer.
(2) A licensee shall not misrepresent to a prospective or existing client the licensee’s scope of responsibility in connection with projects or services for which the licensee is receiving or will receive compensation from that client.
(3) A licensee shall not misrepresent his or her scope of responsibility in connection with projects or services for which the licensee is claiming credit.
(4) A licensee shall not misrepresent nor permit the misrepresentation of his or her professional qualifications, or affiliations or the affiliations or purposes of the institutions, organizations, or other businesses with which he or she is associated.
(5) When providing information in connection with a person’s application for a license to practice professional land surveying, a licensee shall accurately represent his or her knowledge of the applicant’s qualifications.
(6) A licensee may advertise or solicit for any services for which he or she is authorized by licensure.
(7) A licensee shall only express professional opinions that have a basis in fact or experience or accepted land surveying principles.
(8) A licensee shall attribute proper credit to others for their professional work or professional contribution.
(9) A licensee shall not knowingly permit the publication or use of his or her data, reports, maps, or other professional documents for unlawful purposes.
(10) A licensee shall not falsely or maliciously injure or attempt to injure the reputation or business of others.
(11) A licensee shall not misrepresent data and/or its relative significance in any professional land surveying report. (d) Confidential Information:
Confidential information obtained by a licensee, in his or her professional capacity, concerning a client, employer, or other related party shall not be disclosed by the licensee without the permission of the client, employer, or other related party except for the following:
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2017 PE &PLS Board Rules (16 CCR §§400-476) 51
(1) Disclosures made in response to an order of the court or to a subpoena or summons enforceable by an order of the court.
(2) Disclosures made in an adjudicatory proceeding. (3) Disclosures made in response to an official inquiry from a governmental
regulatory agency. (4) Disclosures made when required by law. (5) Disclosures made upon discovering a hazard within the licensee’s field of
professional expertise which may threaten the health, safety, and welfare of the public. (6) Disclosures made when providing evidence to the Board regarding other
licensees or unlicensed individuals who may have violated the Professional Land Surveyors’ Act.
(7) Disclosures made regarding illegal conduct. As used in this section, “confidential information” means information identified
as confidential by the licensee’s client, employer, or other related party. (e) Document Submittal:
(1) A licensee shall not misrepresent the completeness of the professional documents he or she submits to a governmental agency.
(2) A licensee shall not misrepresent the completeness of the professional documents he or she prepared to his or her client or to other involved parties.
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Code of Ethics for Engineers • 75
National Society of Professional Engineers, “Code of Ethics for Engineers.” Copyright © 2006 National Society of Professional Engineers. Permission to reprint granted by the publisher.
PREAMBLE
Engineering is an important and learned profession. As members of this profession, engineers are expected to exhibit the highest standards of honesty and integrity. Engineering has a direct and vital impact on the quality of life for all people. Accordingly, the services provided by engineers require honesty, impartiality, fairness, and equity, and must be dedicated to the protection of the public health, safety, and welfare. Engineers must perform under a standard of professional behavior that requires adherence to the highest principles of ethical conduct.
I. FUNDAMENTAL CANONS
Engineers, in the fulfi llment of their professional du- ties, shall:
1. Hold paramount the safety, health, and welfare of the public.
2. Perform services only in areas of their competence.
3. Issue public statements only in an objective and truthful manner.
4. Act for each employer or client as faithful agents or trustees.
5. Avoid deceptive acts.
6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the hon- or, reputation, and usefulness of the profession.
II. RULES OF PRACTICE
1. Engineers shall hold paramount the safety, health, and welfare of the public. a. If engineers’ judgment is overruled under
circumstances that endanger life or property, they shall notify their employer or client and such other authority as may be appropriate.
b. Engineers shall approve only those engineer- ing documents that are in conformity with applicable standards.
c. Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.
d. Engineers shall not permit the use of their name or associate in business ventures with any person or fi rm that they believe is en- gaged in fraudulent or dishonest enterprise.
e. Engineers shall not aid or abet the unlawful practice of engineering by a person or fi rm.
f. Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required.
Code of Ethics for Engineers
National Society of Professional Engineers, January 2006
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76 • Role of the Design Professional in Society
2. Engineers shall perform services only in the areas of their competence. a. Engineers shall undertake assignments only
when qualifi ed by education or experience in the specifi c technical fi elds involved.
b. Engineers shall not affi x their signatures to any plans or documents dealing with subject matter in which they lack competence, nor to any plan or document not prepared under their direction and control.
c. Engineers may accept assignments and assume responsibility for coordination of an entire project and sign and seal the engineering documents for the entire proj- ect, provided that each technical segment is signed and sealed only by the qualifi ed engineers who prepared the segment.
3. Engineers shall issue public statements only in an objective and truthful manner. a. Engineers shall be objective and truthful
in professional reports, statements, or testimony. Th ey shall include all relevant and pertinent information in such reports, statements, or testimony, which should bear the date indicating when it was current.
b. Engineers may express publicly technical opinions that are founded upon knowledge of the facts and competence in the subject matter.
c. Engineers shall issue no statements, criti- cisms, or arguments on technical matters that are inspired or paid for by interested parties, unless they have prefaced their com- ments by explicitly identifying the interested parties on whose behalf they are speaking, and by revealing the existence of any interest the engineers may have in the matters.
4. Engineers shall act for each employer or client as faithful agents or trustees. a. Engineers shall disclose all known or poten-
tial confl icts of interest that could infl uence or appear to infl uence their judgment or the quality of their services.
b. Engineers shall not accept compensation, fi nancial or otherwise, from more than one
party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties.
c. Engineers shall not solicit or accept fi nancial or other valuable consideration, directly or indirectly, from outside agents in con- nection with the work for which they are responsible.
d. Engineers in public service as members, advisors, or employees of a governmental or quasi-governmental body or depart- ment shall not participate in decisions with respect to services solicited or provided by them or their organizations in private or public engineering practice.
e. Engineers shall not solicit or accept a con- tract from a governmental body on which a principal or offi cer of their organization serves as a member.
5. Engineers shall avoid deceptive acts. a. Engineers shall not falsify their qualifi ca-
tions or permit misrepresentation of their or their associates’ qualifi cations. Th ey shall not misrepresent or exaggerate their responsibil- ity in or for the subject matter of prior as- signments. Brochures or other presentations incident to the solicitation of employment shall not misrepresent pertinent facts con- cerning employers, employees, associates, joint venturers, or past accomplishments.
b. Engineers shall not off er, give, solicit, or receive, either directly or indirectly, any contribution to infl uence the award of a contract by public authority, or which may be reasonably construed by the public as having the eff ect or intent of infl uencing the awarding of a contract. Th ey shall not off er any gift or other valuable consideration in order to secure work. Th ey shall not pay a commission, percentage, or brokerage fee in order to secure work, except to a bona fi de employee or bona fi de established commer- cial or marketing agencies retained by them.
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Code of Ethics for Engineers • 77
III. PROFESSIONAL OBLIGATIONS
1. Engineers shall be guided in all their relations by the highest standards of honesty and integrity. a. Engineers shall acknowledge their errors
and shall not distort or alter the facts. b. Engineers shall advise their clients or em-
ployers when they believe a project will not be successful.
c. Engineers shall not accept outside employ- ment to the detriment of their regular work or interest. Before accepting any outside engineering employment, they will notify their employers.
d. Engineers shall not attempt to attract an engineer from another employer by false or misleading pretenses.
e. Engineers shall not promote their own interest at the expense of the dignity and integrity of the profession.
2. Engineers shall at all times strive to serve the public interest. a. Engineers shall seek opportunities to par-
ticipate in civic aff airs; career guidance for youths; and work for the advancement of the safety, health, and well-being of their community.
b. Engineers shall not complete, sign, or seal plans and/or specifi cations that are not in conformity with applicable engineering standards. If the client or employer insists on such unprofessional conduct, they shall notify the proper authorities and withdraw from further service on the project.
c. Engineers shall endeavor to extend public knowledge and appreciation of engineering and its achievements.
d. Engineers shall strive to adhere to the principles of sustainable development1 in order to protect the environment for future generations.
3. Engineers shall avoid all conduct or practice that deceives the public. a. Engineers shall avoid the use of statements
containing a material misrepresentation of fact or omitting a material fact.
b. Consistent with the foregoing, engineers may advertise for recruitment of personnel.
c. Consistent with the foregoing, engineers may prepare articles for the lay or technical press, but such articles shall not imply credit to the author for work performed by others.
4. Engineers shall not disclose, without consent, confi dential information concerning the busi- ness aff airs or technical processes of any present or former client or employer, or public body on which they serve. a. Engineers shall not, without the consent of
all interested parties, promote or arrange for new employment or practice in connection with a specifi c project for which the engi- neer has gained particular and specialized knowledge.
b. Engineers shall not, without the consent of all interested parties, participate in or represent an adversary interest in connec- tion with a specifi c project or proceeding in which the engineer has gained particular specialized knowledge on behalf of a former client or employer.
5. Engineers shall not be infl uenced in their profes- sional duties by confl icting interests. a. Engineers shall not accept fi nancial or other
considerations, including free engineering designs, from material or equipment suppli- ers for specifying their product.
b. Engineers shall not accept commissions or allowances, directly or indirectly, from contractors or other parties dealing with clients or employers of the engineer in con- nection with work for which the engineer is responsible.
6. Engineers shall not attempt to obtain em- ployment or advancement or professional engagements by untruthfully criticizing other engineers, or by other improper or questionable methods. a. Engineers shall not request, propose, or ac-
cept a commission on a contingent basis un-
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78 • Role of the Design Professional in Society
der circumstances in which their judgment may be compromised.
b. Engineers in salaried positions shall ac- cept part-time engineering work only to the extent consistent with policies of the employer and in accordance with ethical considerations.
c. Engineers shall not, without consent, use equipment, supplies, laboratory, or offi ce facilities of an employer to carry on outside private practice.
7. Engineers shall not attempt to injure, mali- ciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action. a. Engineers in private practice shall not review
the work of another engineer for the same client, except with the knowledge of such engineer, or unless the connection of such engineer with the work has been terminated.
b. Engineers in governmental, industrial, or educational employ are entitled to review and evaluate the work of other engineers when so required by their employment duties.
c. Engineers in sales or industrial employ are entitled to make engineering comparisons of represented products with products of other suppliers.
8. Engineers shall accept personal responsibility for their professional activities, provided, however, that engineers may seek indemnifi cation for ser- vices arising out of their practice for other than gross negligence, where the engineer’s interests cannot otherwise be protected. a. Engineers shall conform with state registra-
tion laws in the practice of engineering. b. Engineers shall not use association with a
nonengineer, a corporation, or partnership as a “cloak” for unethical acts.
9. Engineers shall give credit for engineering work to those to whom credit is due, and will recog- nize the proprietary interests of others. a. Engineers shall, whenever possible, name the
person or persons who may be individually responsible for designs, inventions, writings, or other accomplishments.
b. Engineers using designs supplied by a client recognize that the designs remain the prop- erty of the client and may not be duplicated by the engineer for others without express permission.
c. Engineers, before undertaking work for oth- ers in connection with which the engineer may make improvements, plans, designs, inventions, or other records that may justify copyrights or patents, should enter into a positive agreement regarding ownership.
d. Engineers’ designs, data, records, and notes referring exclusively to an employer’s work are the employer’s property. Th e employer should indemnify the engineer for use of the information for any purpose other than the original purpose.
e. Engineers shall continue their professional development throughout their careers and should keep current in their specialty fi elds by engaging in professional practice, par- ticipating in continuing education courses, reading in the technical literature, and at- tending professional meetings and seminars.
Footnote 1 “Sustainable development” is the chal- lenge of meeting human needs for natural resources, industrial products, energy, food, transportation, shelter, and eff ective waste management while conserving and protecting environmental quality and the natural resource base essential for future development.
AS REVISED JANUARY 2006
“By order of the United States District Court for the District of Columbia, former Section 11(c) of the NSPE Code of Ethics prohibiting competitive bidding, and all policy statements, opinions, rulings or other guidelines interpreting its scope, have been
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Code of Ethics for Engineers • 79
rescinded as unlawfully interfering with the legal right of engineers, protected under the antitrust laws, to provide price information to prospective clients; ac- cordingly, nothing contained in the NSPE Code of Ethics, policy statements, opinions, rulings or other guidelines prohibits the submission of price quota- tions or competitive bids for engineering services at any time or in any amount.”
Statement by NSPE Executive Committee
In order to correct misunderstandings which have been indicated in some instances since the issuance of the Supreme Court decision and the entry of the Final Judgment, it is noted that in its decision of April 25, 1978, the Supreme Court of the United States declared: “Th e Sherman Act does not require competitive bidding.”
It is further noted that as made clear in the Supreme Court decision:
1. Engineers and fi rms may individually refuse to bid for engineering services.
2. Clients are not required to seek bids for engi- neering services.
3. Federal, state, and local laws governing proce- dures to procure engineering services are not aff ected, and remain in full force and eff ect.
4. State societies and local chapters are free to actively and aggressively seek legislation for pro- fessional selection and negotiation procedures by public agencies.
5. State registration board rules of professional conduct, including rules prohibiting competi- tive bidding for engineering services, are not af- fected and remain in full force and eff ect. State registration boards with authority to adopt rules of professional conduct may adopt rules governing procedures to obtain engineering services.
6. As noted by the Supreme Court, “nothing in the judgment prevents NSPE and its members from attempting to infl uence governmental action …”
Note: In regard to the question of application of the Code to corporations vis-a-vis real persons,
business form or type should not negate nor infl uence conformance of individuals to the Code. Th e Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. Th e Code is clearly written to apply to the Engineer, and it is incumbent on members of NSPE to endeavor to live up to its provisions. Th is applies to all pertinent sections of the Code.
1420 King Street Alexandria, Virginia 22314-2794
Phone: 703/684-2800 Fax: 703/836-4875 www.nspe.org
Publication date as revised: January 2006 Publication #1102
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America the Ingenious by Kevin Baker, Artisan Kevin Baker provides an excellent survey of the innovative drive and entrepreneurial know how of the American people filled with examples of American achievement. From the computer on board Apollo 11 to the Los Angeles Aqueduct, Baker's book is a great romp through some of our best and most eclectic inventions. Power at Ground Zero by Lynne B. Sagalyn, Oxford A tour de force performance by Sagalyn over 901 pages, Power at Ground Zero examines how a neighborhood so horrifically destroyed by the worst terrorist attack in history came back even stronger. A story of politics, power, and the drive of a community to rebuild, it will no disappoint the curious or interested reader. One World Trade Center: Biography of a Building by Judith Dupre, Little, Brown and Company One World Trade Center, also known as the Freedom Tower, is the most ambitious engineering project in recent memory. It represents one of the most complex collaborations in human history. Nearly every state in the nation, a dozen countries around the world, and more than 25,000 workers helped raise the tower, which consumed ninety million pounds of steel, one million square feet of glass, and enough concrete to pave a sidewalk from New York to Chicago. Rocket Boys by Homer Hickam, Random House A beautiful memoir from one of NASA's best ever engineers, Rocket Boys chronicles Homer Hickam's upbringing in rural West Virginia, his realization of his American dream, and how he was inspired to become an engineer despite coming from a coal town that expected all its young men to go work for the mines or get out on a football scholarship. The Road Taken by Henry Pertroski, Bloomsbury USA Acclaimed engineer and historian Henry Petroski explores our core infrastructure from both historical and contemporary perspectives, explaining how essential their maintenance is to America's economic health. A compelling work of history, The Road Taken is also an urgent clarion call aimed at American citizens, politicians, and anyone with a vested interest in our economic well-being.The road we take in the next decade toward rebuilding our aging infrastructure will in large part determine our future national prosperity. The Making of the Atomic Bomb by Richard Rhodes, Simon and Schuster Perhaps the best book ever written on the Manhattan Project, The Making of the Atomic Bomb provides an unparalleled look into the politics, urgency, and spirit behind the development of the world's most devastating weapon. Richard Rhodes’s Pulitzer Prize-winning book details the science, the people, and the socio-political realities that led to the development of the atomic bomb. Empire on the Hudson by Jameson Doig, Columbia Revered and reviled in almost equal amounts since its inception, the Port Authority of New York and New Jersey has been responsible for creating and maintaining much of New York and New Jersey's transportation infrastructure―the things that make the region work. Doig traces the evolution of the Port Authority from the battles leading to its creation in 1921 through its conflicts with the railroads and its expansion to build bridges and tunnels for motor vehicles. Chronicling the adroit maneuvers that led the Port Authority to take control of the region's airports and seaport operations, build the largest bus terminal in the nation, and construct the World Trade Center, Doig reveals the rise to power of one of the world's largest specialized regional governments Invention by Design by Henry Petroski, Harvard
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Bestseller Henry Petroski delves deeper than any of his previous works into the mystery behind invention, closely examining how engineers get from idea to product. Dealing with more than just the pure science of invention, Invention by Design offers an insider's look at these political and cultural dimensions of design and development, production and construction. Empires of Light: Edison, Tesla, Westinghouse, and the Race to Electrify the World by Jill Jonnes, Random House In the final decades of the nineteenth century, three brilliant and visionary titans of America’s Gilded Age—Thomas Edison, Nikola Tesla, and George Westinghouse—battled bitterly as each vied to create a vast and powerful electrical empire. In Empires of Light, historian Jill Jonnes portrays this extraordinary trio and their riveting and ruthless world of cutting-edge science, invention, intrigue, money, death, and hard-eyed Wall Street millionaires. To Engineer is Human: The Role of Failure in Successful Design by Henry Petroski, Vintage A look at some of history's most prominent design successes and failures, To Engineer is Human explores how engineers careful planning meets reality. More than a series of fascinating case studies, "To Engineer is Human" is a work that looks at our deepest notions of progress and perfection, tracing the fine connection between the quantifiable realm of science and the chaotic realities of everyday life. Elon Musk: Tesla, SpaceX and the Quest for a Fantastic Future by Ashlee Vance, Ecco In the spirit of Steve Jobs and Moneyball, Elon Musk is both an illuminating and authorized look at the extraordinary life of one of Silicon Valley's most exciting, unpredictable, and ambitious entrepreneurs-- a real-life Tony Stark--and a fascinating exploration of the renewal of American invention and its new "makers."
Hidden Figures by Margot Lee Shetterly, William Marlow Paperbacks
Before John Glenn orbited the earth, or Neil Armstrong walked on the moon, a group of dedicated female mathematicians known as “human computers” used pencils, slide rules and adding machines to calculate the numbers that would launch rockets, and astronauts, into space. Among these problem-solvers were a group of exceptionally talented African American women, some of the brightest minds of their generation. Hidden Figures delves into that unknown history of how a few incredibly talented black women helped win the space race for America.
The Wright Brothers by David McCullough, Simon and Schuster A well written and entertaining look at the world's first powered flight, The Wright Brothers offers close insight into just how two brothers—bicycle mechanics from Dayton, Ohio—changed history forever. McCullough also makes clear how the significance of this flight was at first dramatically underrated. It would take some time for the world to catch on to what the Wright Brothers knew all along. The Great Bridge: The Epic Story of the Building of the Brooklyn Bridge by David McCullough, Simon and Schuster The dramatic and enthralling story of the building of the Brooklyn Bridge, the world’s longest suspension bridge at the time, a tale of greed, corruption, and obstruction but also of optimism, heroism, and determination, told by master historian David McCullough. This monumental book is the enthralling story of one of the greatest events in our nation’s history, during the Age of Optimism—a period when Americans were convinced in their hearts that all things were possible. The Path Between the Seas:The Creation of the Panama Canal 1870-1914 by David McCullough, Simon and Schuster
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The National Book Award–winning epic chronicle of the creation of the Panama Canal, a first-rate drama of the bold and brilliant engineering feat that was filled with both tragedy and triumph. In The Path Between the Seas, acclaimed historian David McCullough delivers a first-rate drama of the sweeping human undertaking that led to the creation of this grand enterprise. The Sky Below: A True Story of Summits, Space, and Speed by Scott Parazynski, Little A An epic memoir from a man whose life is defined by exploration and innovation, The Sky Below re- creates some of the most unforgettable adventures of our time. From dramatic, high-risk spacewalks to author Scott Parazynski’s death-defying quest to summit Mount Everest—his body ravaged by a career in space—readers will experience the life of an elite athlete, physician, and explorer. Outposts on the Frontier by Jay Chladlek, University of Nebraska Press (this one hasn't come out yet but has good editorial reviews) The International Space Station (ISS) is the largest man-made structure to orbit Earth and has been conducting research for close to a decade and a half. Yet it is only the latest in a long line of space stations and laboratories that have flown in orbit since the early 1970s. The histories of these earlier programs have been all but forgotten as the public focused on other, higher-profile adventures. Outposts on the Frontier chronicles the unprecedented cooperation between the worlds most bitter rivals, the USA and the USSR to build space stations over the past 50 years. (forthcoming) Endurance: A Year in Space, A Lifetime of Discovery by Scott Kelly, Knopf (also forthcoming, in October, but it is supposed to be a one of a kind book) A stunning memoir from the astronaut who spent a record-breaking year aboard the International Space Station--a candid account of his remarkable voyage, of the journeys off the planet that preceded it, and of his colorful formative years. (forthcoming) Apollo 8: The Thrilling Story of the First Mission to the Moon by Jeffrey Kluger, Henry Holt and Co. The untold story of the historic voyage to the moon that closed out one of our darkest years with a nearly unimaginable triumph. Written with all the color and verve of the best narrative non-fiction, Apollo 8 takes us from Mission Control to the astronaut’s homes, from the test labs to the launch pad. The race to prepare an untested rocket for an unprecedented journey paves the way for the hair- raising trip to the moon. Astrophysics for People in a Hurry by Neil deGrasse Tyson, W.W Norton and Company. What is the nature of space and time? How do we fit within the universe? How does the universe fit within us? There’s no better guide through these mind-expanding questions than acclaimed astrophysicist and best-selling author Neil deGrasse Tyson. But today, few of us have time to contemplate the cosmos. So Tyson brings the universe down to Earth succinctly and clearly, with sparkling wit, in tasty chapters consumable anytime and anywhere in your busy day, perfect for a busy but curious student who wants to know more about the universe at large.
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PART THREE
Contracts
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Los Angeles Air Force Base Environmental Assessment • 157
US Air Force, “Los Angeles Air Force Base Environmental Assessment.” Copyright © in the public domain.
PROPOSAL/WORK ACCEPTANCE SHEET
Project Name (“Project”): LAAFB Environmental Assessment ___________ Proposal No. (“Proposal”): 1234-05-001 ___________________________ Date of Proposal: 6/16/2005 _____________________________________ Project Location (“Site”): Los Angeles Air Force Base. CA _______________ Offi ce Designation: Los Angeles __________________________________ CLIENT INFORMATION Client Name: US Air Force ______________________________________ Attention: Major Jesus Peron ____________________________________ Address: 1234 Executive Ct LAAFB. CA 91111 ______________________ E-mail Address: jperongilaafb.af.mil _______________________________ Telephone Number: 310-985-1978 _______________________________ Fax Number: 310-985-1900 _____________________________________
Scope of Authorized Services: Please refer to the attached Proposal, which is incorporated herein by reference.
Th is agreement (“Agreement”) is eff ective this ____ day of ______200_ by and between CLIENT, with offi ces at the location set forth above, (“Client”) and CONSULTANT, with offi ces at _____________ , (“CONSULTANT”) (individually, “Party” and, collectively, “Parties”). In consideration of the mutual covenants expressed herein, and intending to be legally bound, the Parties agree as follows:
1. STANDARD OF CARE. CONSULTANT will perform the Scope of Authorized Services referenced above and in any subsequent change order (“Services”) as an independent contractor, using that degree of skill and care ordinarily exercised under similar conditions by reputable members of CONSULTANT’S profession practicing in the same or similar locality at the time of performance. No other warranty, express or implied, is made or intended, and the same are specifi cally disclaimed, including the implied warranties of merchantability and fi tness for a particular purpose. Any claim that Client may bring against CONSULTANT with respect to the Services to be performed by CONSULTANT must be commenced within one (1) year after the date on which Client fi rst knew or should have known of the defi cient Services upon which the claim is based.
Los Angeles Air Force Base
Environmental Assessment
Proposal 1234-05-011
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2. OPINIONS OR ESTIMATES OF COST. If included in the Services, CONSULTANT will provide esti- mates of the cost of materials, remediation or construction based on CONSULTANT’S experience on similar projects, which are not intended for Client’s or others’ use in developing fi rm budgets or fi nancial models, or making investment decisions. Client agrees that any opinion of cost is still merely an estimate.
3. PAYMENT. Client will pay CONSULTANT for performing the Services in accordance with the fee provi- sions contained in the Proposal or the above Scope of Authorized Services. CONSULTANT’S invoices are due upon receipt. If payment is not received within thirty (30) days from the date of CONSULTANT’S invoice, in addition to the invoiced amount, Client will owe interest on the unpaid balance at a rate equal to the lesser of one and one-half (1 1/2 %) percent per month or the maximum legal rate until the invoice, plus interest, is paid in full. CONSULTANT may suspend the performance of Services when any invoice is past due.
4. OWNERSHIP OF DELIVERABLES AND RELATED DOCUMENTS. All reports, drawings, plans, designs and other documents prepared by CONSULTANT pursuant to this Agreement, (collectively, “Deliverables”) including all intellectual property rights therein, remain the property of CONSULTANT.
Client agrees that the Deliverables (i) are intended for the exclusive use and benefi t of, and may be relied upon only by, Client and (ii) will not be used at a Site or for a Project not expressly provided for in this Agreement. Client does not require CONSULTANT’S permission for regulatory submittal of the Deliverables or, subject to all terms and conditions contained in this Agreement, reliance on the Deliverables provided to Client’s design team, of which CONSULTANT is a member, solely for the design of the Project for which the Deliverables were intended. Client agrees that any prospective lender, buyer, seller or other third party who wishes to rely on any Deliverables must fi rst sign CONSULTANT’S Secondary Client Agreement. Client will defend, indem- nify and hold harmless CONSULTANT, its parent, subsidiaries, affi liates and subcontractors, including their respective offi cers, directors, employees, agents, successors and assigns, (collectively, “Indemnitees”) from and against all claims, settlements, costs, expenses, liabilities, damages, penalties and interest, including attorneys’ fees and litigation expenses, (collectively, “Liabilities”) asserted against or incurred by Indemnitees as a result of any unauthorized use of, or reliance on, the Deliverables. If Client requests Deliverables on electronic media, it agrees that the electronic copy may be inaccurate or incomplete, and the document retained by CONSULTANT will be the offi cial document. Any modifi cation(s) of the electronic copy by Client will be at its own risk. Client further agrees that (i) the Deliverables may be based in part or in whole on facts and/or assumptions provided to, but not independently verifi ed by, CONSULTANT, (ii) the Deliverables will refl ect CONSULTANT’S fi ndings as to conditions that existed only at the time the Services were performed and (iii) CONSULTANT makes no representations as to any facts or assumptions provided to, but not independently verifi ed by, CONSULTANT.
5. LIMITATION OF LIABILITY. To the maximum extent permitted by law, client expressly agrees, for itself and anyone claiming by, through or under it, that the liability of consultant, its parent, subsidiaries, affi liates and subcontractors, including their respective offi cers, directors, employees, successors and assigns, for any and all causes of action whatsoever, including, without limitation, tort, contract, strict liability, indemnity or otherwise, arising out of, or in connection with, this agreement or consultant’s professional services, shall be limited to the aggregate sum, including amounts paid to third party recipients of deliverables, attorneys’ fees and all other litigation costs and expenses, if any, of fi fty thousand dollars ($50,000) or the total fees paid to consultant by client under this agreement, whichever is greater.
Client acknowledges that (i) without the inclusion of this limitation of liability provision, CONSULTANT would not have performed the Services, (ii) it has had the opportunity to negotiate the terms of this limitation of liability as part of an “arms-length” transaction, (iii) the limitation amount may diff er from the amount of
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Los Angeles Air Force Base Environmental Assessment • 159
professional liability insurance required of CONSULTANT under this Agreement, (iv) the limitation of liability provision is merely a limitation of, and not an exculpation from, CONSULTANT’S liability and (v) it has received special consideration of ten dollars ($10) for this limitation of liability provision and waives any and all rights to dispute the receipt and suffi ciency of such consideration.
6. INDIRECT DAMAGES. Each party hereby waives its rights to recover from the other party any conse- quential, indirect, or incidental damages (including, but not limited to, loss of use, income, profi ts, fi nancing or reputation), arising out of, or relating to, this agreement or the performance of the services, or both.
7. SITE OPERATIONS. If sampling or intrusive services are part of the Services, the Proposal or opinion of costs does not include the costs associated with surveying the Site to determine accurate horizontal and vertical locations of any tests, borings, or well installation locations. Client will establish test or boring locations. If surveying is required, those Services will be secured by Client. Field tests or boring locations described in the Deliverables or shown on sketches are based on information furnished by others or estimates made in the fi eld by CONSULTANT’S personnel. Such depths, dimensions, or elevations are approximations. Unless expressly stated otherwise, the Services do not include the costs of restoration of damage which is reasonably necessary to perform the Services. Client will defend, indemnify and hold harmless the Indemnitees from and against Liabilities related to, or arising from, any undisclosed or unknown surface or subsurface conditions, except to the extent such Liabilities were caused solely by the negligence of the Indemnitees.
8. SITE RESPONSIBILITY. Client will provide CONSULTANT with access to the Site and all available Site Information deemed necessary by CONSULTANT. Th e Services do not include supervision or direction of the means, methods or actual work of other consultants, contractors and subcontractors not retained by CONSULTANT. Client agrees that each such other party will be solely responsible for its working conditions and safety on the Site. CONSULTANT’S monitoring of the procedures of any such other party is not intended to include a review of the adequacy of its safety measures. It is agreed that CONSULTANT is not responsible for safety or security at the Site, other than for CONSULTANT’S employees, and that CONSULTANT does not have the right or duty to stop the work of others.
9. SAMPLES AND WASTES. Samples are generally consumed or altered during testing and are disposed of immediately upon completion of the tests. If Client directs CONSULTANT to retain any samples, CONSULTANT will take reasonable steps to retain them, at Client’s expense, but only for a mutually ac- ceptable time. CONSULTANT reserves the right to refuse storage of any samples. If the samples or wastes resulting from the Services or any soils or materials contain asbestos, molds, fungi, bacteria, viruses, or any other hazardous, radioactive or toxic substances, pollutants, and/or their constituents (collectively, “Contaminants”), CONSULTANT, at Client’s direction and expense, will either (i) return such samples, wastes, soils or materials to, or leave them with, Client for appropriate disposal or (ii) using a manifest signed by Client as generator and arranger, transport such samples, wastes, soils or materials to an approved facility selected by Client for fi nal disposal, using a transporter selected by Client. In so doing, CONSULTANT will be acting solely as an independent contractor for Client and will at no time assume title, constructive or express, to any such samples, wastes, soils, or materials. Client will defend, indemnify and hold harmless the Indemnitees from and against all Liabilities arising from the Indemnitees handling of such samples, wastes, soils or materials, except to the extent of CONSULTANT’S negligence or willful violation of any applicable law.
10. UNANTICIPATED CONDITIONS. Client will inform CONSULTANT in writing of all known Contaminants or other conditions existing on or near the Site that present a potential danger to health, the environment, or CONSULTANT’S equipment or personnel prior to commencement of the Services. Should
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CONSULTANT encounter such conditions which were not reasonably anticipated or which increase the risk or cost, or both, involved in CONSULTANT’S performance of the Services, upon notice to Client, CONSULTANT, in its sole discretion, may (i) suspend the performance of Services and submit a change order to be signed by Client prior to proceeding or (ii) discontinue the performance of Services and terminate this Agreement. If the unanticipated condition presents an immediate or potential threat to health, safety, the environment, or CONSULTANT’S equipment or personnel, CONSULTANT will immediately inform Client, so that Client can notify the appropriate government authorities. If Client fails to do so, Client will hold CONSULTANT harmless if CONSULTANT provides such notice.
11. EXCUSABLE DELAY. CONSULTANT will not be in breach of this Agreement due to any delay or failure to perform any obligation pursuant to a schedule, if such delay or schedule failure results from circumstances beyond the control of CONSULTANT. In the event of any such delay, CONSULTANT will be entitled to an extension of the time to put performance of the Services back on schedule, and CONSULTANT will be compensated for any necessary and reasonable increased costs of performance that result from such delay.
12. ENVIRONMENTAL INDEMNITY. Client (i) expressly releases the Indemnitees from all Liabilities arising from, or related to, any exposure, release, or dispersal of Contaminants on or about the Site and (ii) will defend, indemnify, and hold harmless the Indemnitees from and against all such Liabilities arising from or caused by Contaminants (“Environmental Liabilities”), except to the extent that such Environmental Liabilities are deter- mined to have been caused solely by the negligence of, or the willful violation of any applicable environmental health or safety law, by CONSULTANT.
13. TERM AND TERMINATION. Th e term of this Agreement shall commence on the month, day and year fi rst written above and shall continue in eff ect until completion of the Services and fi nal payment, unless earlier terminated by Client for its convenience upon fourteen (14) days prior written notice to CONSULTANT. In such event, Client will take possession of the Site and the materials and equipment thereon, provided that such materials and equipment have been paid for by Client. CONSULTANT will be paid for all Services performed up to the eff ective date of termination, plus reasonable demobilization expenses and expenses related to the cancellation of previously-placed orders and other commitments regarding the Project.
14. DISPUTE RESOLUTION. Th e Parties shall undertake in good faith to settle or compromise all disputes, controversies, or diff erences between them that arise out of, or are related to, the performance of a Party under this Agreement (individually, “Dispute” and, collectively, “Disputes”) by means of amicable discussions. All Disputes shall be dealt with as follows:
Any time there is a Dispute, either Party may send a written notice to the other Party setting forth a description of the Dispute (“Notice of Dispute”). If the Dispute is not resolved during the fi rst fourteen (14) days following receipt of the Notice of Dispute, either Party may seek to have the Dispute resolved by non-binding mediation pursuant to the construction industry rules of the American Arbitration Association. Promptly upon selection of a mediator, the Parties shall provide the mediator with copies of the Notice of Dispute, all related, relevant documents and a statement of their respective positions and shall request that the mediator meet with the Parties within twenty (20) days of such selection to consider and propose a resolution or a procedure for reaching a resolution.
If the Parties have not resolved the Dispute or have not agreed in a writing signed by an offi cer of both Parties to resolve the Dispute by binding arbitration, either Party, after sixty (60) days following receipt of the Notice of Dispute (regardless of whether any mediation process has occurred or is ongoing or concluded), may seek a
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Los Angeles Air Force Base Environmental Assessment • 161
resolution in any state or federal court that has jurisdiction over the Parties and the subject matter of the Dispute (“Court”) Either Party may apply to a Court for an order, if necessary, granting preliminary relief to maintain the status quo, to avoid irreparable injury, or to obtain other emergency relief at any time during the process described above. Despite such application, the Parties will continue to participate in good faith in the procedures specifi ed in this Section 14.
Th e procedures specifi ed in this Section 14. shall be the sole and exclusive procedures for the resolution of Disputes. THE PARTIES HEREBY WAIVE TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT.
15. INSURANCE. CONSULTANT maintains the following insurance coverages: a. Workers’ Compensation Insurance - statutory amount. b. Commercial General Liability Insurance - $1,000,000 per occurrence/$2,000,000 aggregate. c. Automobile Liability Insurance - $1,000,000 combined single limit. d. Professional Errors & Omissions - $1,000,000 per claim/$ 1,000,000 aggregate.
16. ASSIGNMENT. Th is Agreement may not be assigned by either Party without the written consent of the other Party, which said such consent shall not be unreasonably withheld or delayed. Client acknowledges that CONSULTANT may subcontract portions of the Services to its affi liated companies and/or utilize employees of its affi liated companies in performing the Services, without the approval of Client.
17. SURVIVAL. All of Client’s and CONSULTANT’S obligations and liabilities, including, but not limited to, Client’s defense and indemnifi cation obligations and the limitation of liability provision in Section 5, and CONSULTANT’S rights and remedies with respect thereto, shall survive completion of the Services and the expiration or termination of this Agreement.
18. SEVERABILITY. If any provision of this Agreement is deemed invalid or unenforceable, it is the intent of the Parties that this entire Agreement not be invalidated or rendered unenforceable, that the remaining provisions shall continue in full force and eff ect and the invalid or unenforceable provision shall be interpreted and enforced as closely as possible to the intent of the Parties, or deleted if a valid or enforceable interpretation is not possible under applicable law, and that the rights and obligations of the Parties shall be construed and enforced accordingly.
19. NO CONSTRUCTION AGAINST THE DRAFTER. Each of the Parties has had an opportunity to ne- gotiate the terms and conditions expressed herein; therefore, this Agreement will not be construed more strictly against either Party as the drafter.
20. INTEGRATION. Th is Agreement and other documents, if attached as exhibits hereto, constitute the en- tire Agreement between the Parties and supersede any previous written or oral contracts or negotiations. Th is Agreement and the above Scope of Authorized Services can only be changed by a written instrument signed by both Parties.
21. GOVERNING LAW. Th is Agreement shall be governed by the laws of the State of Georgia, without giving eff ect to its choice of law principles. Signed this ______ day of ___________ 200 __ _____ Signed this ______day of _____________ 200__ ____________________________________________ ____________________________________ Signature of Authorized CONSULTANT Representative Signature of Authorized Client Representative Print Name and Title Print Name and Title
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PROPOSAL #1234-05-001 FOR ENVIRONMENTAL ASSESSMENT (EA)
FOR THE CONSTRUCTION OF HAZARDOUS WASTE/MATERIAL STORAGE
BUILDING AT FORT MACARTHUR AND AREA B LOS ANGELES AIR FORCE BASE, CA
BACKGROUND
Th e U.S. Air Force has determined that completion of an environmental impact analysis is required for the demolition associated with the demolition of construction of the new hazardous waste/material storage build- ings at Fort MacArthur and Area B at Los Angeles Air Force Base (AFB), California. For the purposes of this project, and in accordance with applicable regulations, this impact analysis shall hereafter be known as the Environmental Assessment (EA).
Th e Environmental Impact Analysis Process (EIAP) is the process by which federal agencies facilitate compli- ance with environmental regulations. Th e primary legislation aff ecting these agencies’ decision-making process is the National Environmental Policy Act (NEPA) of 1969, which the Air Force implements under Air Force Instruction (AFI) 32-7061, the Environmental Impact Analysis Process, as promulgated in 32 Code of Federal Regulations (CFR) Part 989. In accordance with NEPA, federal agencies are required to take into consider- ation potential environmental consequences of proposed actions in their decision-making process. Th e intent of NEPA is to protect, restore, or enhance the environment through well-informed federal decisions. Th e federally appointed Council on Environmental Quality (CEQ) was established under NEPA to implement and oversee federal policy in this process. Th e CEQ subsequently issued Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (40 CFR sections 1500-1508). Th ese regulations specify that an Environmental Assessment be prepared to:
• Briefl y provide suffi cient analysis and evidence for determining whether to prepare an Environmental Impact Statement (EIS) or a fi nding of no signifi cant impact (FONSI);
• Aid in an agency’s compliance with NEPA when no EIS is necessary; and • Facilitate preparation of an EIS when one is necessary.
To comply with NEPA and other pertinent environmental requirements—such as the Endangered Species Act, the National Historic Preservation Act, the Clean Air Act, etc.—and to assess impacts on the environ- ment, the decision-making process would include a study of environmental issues related to the demolition of construction of the new hazardous waste/material storage buildings at Fort MacArthur and Area B.
Th e A/E consultant will utilize staff with Department of Defense (DoD) experience, including those with U.S. Air Force (USAF)-specifi c experience. Th is proposal is broken down into the following elements:
STATEMENT OF WORK
Th e following approach (by task) is proposed to be used in preparing an EA for demolition associated with the demolition of construction of the new hazardous waste/material storage buildings at Fort MacArthur and Area B at Los Angeles AFB. Th e proposed project approach is based upon work conducted at various USAF and other DoD-component bases pursuant to the procedural provisions and content of typical NEPA analyses of proposed actions of a similar nature. Th e project team includes staff with ongoing, recent, and relevant experience regarding NEPA requirements for DoD facilities.
It is A/E Consultant’s understanding that the Air Force proposes to perform some preparatory demolition and then construct and operate a new hazardous waste/material storage buildings at Fort MacArthur and Area B at Los Angeles AFB.
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Los Angeles Air Force Base Environmental Assessment • 163
Th e Fort MacArthur, Pacifi c Crest, and Pacifi c Heights MFH areas are located in the San Pedro community within the City of Los Angeles. Th e majority of Fort MacArthur is designated as an historic district. Th e Pacifi c Heights housing area comprises solely MFH and is located adjacent to retail development and the recently established White Point Nature Preserve. Th e Pacifi c Crest housing area comprises solely MFH and is surrounded by retail and non-military residential development.
Preparation of the EA shall consist of collecting, reviewing, and evaluating data to defi ne baseline environmen- tal conditions related to such factors as air quality, environmental noise conditions, socioeconomic factors, air and ground traffi c, land use, coastal zone management, and natural resources. In the context of these baseline conditions, the EA shall assess potential environmental consequences resulting from the demolition of construction of the new hazardous waste/material storage buildings at Fort MacArthur and Area B. Secondary impacts such as possible pollutant emissions, fugitive dust, storm water runoff , waste generation, possible fuel spills, and socioeconomic impacts shall also be assessed. Th e A/E Consultant will visit the two sites. A/E Consultant will coordinate with representatives from the base and the Air Force Center for Environmental Excellence (AFCEE) prior to the site visit in an eff ort to obtain as much information as practicable that is specifi c to the proposed action and the aff ected environment. Th is information should facilitate discussions at the end of the site visit that will further defi ne relevant topics and strategies for preparing the draft Description of Proposed Action and Alternatives (DOPAA).
Th e A/E Consultant shall coordinate (see task-specifi c assumptions) with federal, state, county, and local offi ces maintaining noise, air quality, ecological, and general environmental data to obtain copies of documentation relating to the site environment. Th e A/E Consultant shall also coordinate with base organizations to gather data, assess potential construction impacts, and determine measures to minimize construction impacts. Th e Air Force will assist in the identifi cation of these organizations. At a minimum, the requirements of Executive Order 12372 and AFI 32-7060, Interagency and Intergovernmental Coordination for Environmental Planning (IICEP), shall be met.
Th e A/E Consultant shall visit the base to conduct interviews and collect data. Th e A/E Consultant shall perform a search of available literature for the purpose of obtaining relevant information on operations, exist- ing conditions, and those resources most susceptible to environmental impacts. Pertinent data shall be analyzed using appropriate techniques and an interdisciplinary team of experts. Th e analyses shall include all necessary assessment and, wherever possible, shall include existing analyses if they are properly validated and verifi ed. Where data gaps exist, a reasonably expected worst-case analysis shall be performed, and identifi ed as such in the text. Current anticipated tasks included for successful completion of this project (the Environmental Assessment) are as follows:
1. Kickoff Meeting/Work Plan/Site Visit. Th e A/E Consultant will arrange for a kickoff meeting to review project objectives, goals, schedule, and anticipated deliverables. Th e A/E Consultant will determine what information is available at the installation including available mapping (GIS/ electronic format preferred), available special studies, an inventory and details of any known or sus- pected contaminated sites, specifi cs regarding the Project design and/or other construction project details, and a detailed statement of the military mission and the intended purpose and/or justifi cation for the proposed project. Th e A/E Consultant will obtain and review as much information as pos- sible prior to the site visit, compare against applicable regulations and Los Angeles AFB requirements, adjust site visit checklists as appropriate, and fi nalize logistical details. Th e A/E Consultant will pre- pare and provide meeting minutes that will serve as a Work Plan for the remainder of the project.
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Immediately after the kickoff meeting on the same day, A/E Consultant staff will conduct a site visit and review of Los Angeles AFB project sites, and in particular the areas proposed for demolition and project construction to assess the nature and magnitude of any potential environmental eff ects. Th is assessment will focus on anticipated eff ects of demolition and construction activities associated with implementa- tion of the Project as well as anticipated eff ects of long-term operation and management of the system. Th e consultant will identify and document any data gaps for preparation of the EA.
2. Administrative Draft EA. Preparation of a DOPAA and project analyses, including additional data collection and analysis of potential environmental impacts on applicable resource areas, will be presented to the Air Force for internal review and comment in the form of an Administrative Draft EA. Th e Administrative Draft EA will incorporate the DOPAA and will be prepared in accordance with Air Force Instruction (AFI) 32-7061. Format and number of copies will be consistent with CDRL requirements, as applicable.
3. Draft EA. One conference call or over-the-shoulder review to discuss results of Administrative Draft EA is recommended. Upon completion of the Administrative Draft EA review, A/E Consultant personnel will respond to comments and incorporate corrections into a Draft EA. Th e Draft EA will be distributed for agency and public review as part of the IICEP process. Format and number of copies will be consis- tent with CDRL requirements, as applicable.
4. Public Comments and Responses/Draft FONSI. Seven (7) days following the close of the comment period, a Comment and Response Matrix will be submitted. Further, provided the Draft EA has not identifi ed signifi cant environmental impacts, a Draft Finding of No Signifi cant Impact (FONSI) will be submitted.
5. Final Environmental Assessment/FONSI Preparation. A/E Consultant staff will incorporate com- ments and prepare a Final EA/FONSI. Fourteen (14) day after receiving a signed FONSI, the Final EA/ FONSI will be submitted for distribution and publication.
6. Electronic Deliverables. Th e A/E Consultant will provide electronic deliverables in the appropriate format (Word, Excel, PDF, GIS, etc.) such that Los Angeles AFB personnel can easily utilize the material in the future. Th e preferred format for these deliverables will be identifi ed during the site visit and based on interviews with Los Angeles AFB staff during the kickoff meeting.
7. Project/Program Management. Project and Program Management activities are proposed to be consis- tent with typical AFCEE requirements, including project kickoff conference call minutes documenta- tion, budget and schedule analysis, invoicing, QA/QC on deliverables, etc.
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OTHER ASSUMPTIONS
Key assumptions for each specifi c task were listed in the table above. Other assumptions in developing a fi xed-cost proposal are as follows:
• In Statement Of Work For Environmental Assessment For Th e Construction Of Th e New Hazardous Waste/Material Storage Building At Fort Macarthur And Area B, (5) Scope of Work, (2) Environmental Assessment Report, Item (h) says, “Obtain approval from regulatory agencies for construction of the facility.” LAAFB has already obtained all required permits except for approval by the State Historic Preservation Offi ce (SHPO). Th erefore, it is assumed that the only task A/E Consultant will perform to meet this item is preparation of a letter to SHPO requesting its approval of the project at Fort Mac Arthur. Th is letter will be prepared by A/E Consultant cultural resources staff and reviewed and approved by a California-certifi ed architectural historian.
• It is assumed that the subject historic building at Fort Mac Arthur has been recorded to California SHPO standards and has been evaluated as either a signifi cant or not signifi cant resource; the A/E Consultant will not record the building with SHPO, but will only prepare a letter to SHPO requesting its approval of the proposed action at Fort Mac Arthur.
• Base will provide access to proposed project areas (and will provide a support person to accompany as deemed appropriate for high security areas, if applicable).
• Electronic (preferably GIS) data for site property, buildings, master planning, traffi c and roads, etc. exists and will be made available to the A/E Consultant.
• Any and all planning documentation related to the proposed Th e Project (e.g., facilities requiring demolition, anticipated duration of construction, infrastructure required for operation, operation and maintenance procedures, etc.) will be made available to the A/E Consultant (no independent research regarding the system is anticipated to be made by the A/E Consultant).
• Based on initial evaluation of the proposed action, the following resource areas are likely to experience negligible environmental impacts: geological resources, water resources, transportation/traffi c, hazard- ous materials and wastes, air quality, socioeconomics, environmental justice, public health and safety, biological resources, land use, noise, and visual resources/aesthetics.
• Based on initial evaluation of the proposed action, the following resource areas are likely to require environmental evaluations performed by discipline specialists: air quality and cultural/historic resources.
• Input for Interagency and Intergovernmental Coordination for Environmental Planning (IICEP) and public notifi cation process (e.g., mailing lists, letter and notifi cation templates, agency consultation, etc.) will be provided by the A/E Consultant; this proposal does not include newspaper advertisement fees associated with public notifi cation.
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City of Bellevue, Washington, “Bellevue Youth Th eater Expansion.” Copyright © in the public domain.
RFP #07-123 Bellevue Youth Th eatre Expansion
City of Bellevue Proposal Information: Submit Proposals To:
Proposal Number: RFP #07-123 City of Bellevue Service First Desk 1st fl oor Attn: Contracting Services 450 – 110th Ave NE Bellevue, WA 98009-9012
Proposal Name: Bellevue Youth Th eatre Expansion
Date Issued: May 15, 2007
Contact Person: Ken Kroeger, Project Manager
Email: [email protected] CLEARLY MARK ENVELOPE WITH “RFP #07-123”Proposals Due: May 31, 2007 2:00 PM
General Information: Th e City of Bellevue (City) is located three miles east of Seattle, between Lake Washington and Lake Sammamish, and about ten miles west of the foothills of the Cascade Mountains. Th e City’s resident population of ~117,000 and daily workforce of ~121,000 make it Washington’s fi fth-largest city. Bellevue is a prosperous, increasingly diverse city that has evolved from a “bedroom community” into the economic and cultural hub of the Seattle area’s Eastside. Th e City has developed its downtown core into a major business and retail center while maintaining the safe, comfortable family neighborhoods for which it has long been popular.
Th e Parks & Community Services Department is dedicated to providing a healthy community through an in- tegrated system of exceptional parks, open space, recreation, cultural and human services programs. Bellevue’s nationally-accredited Parks & Community Services Department won the 2005 National Gold Medal Award for Excellence in Park and Recreation Management. NOTICE: Notice is hereby given that proposals will be received by the City of Bellevue, Washington, for RFP #07-123: Bellevue Youth Th eatre Expansion by fi ling with the City at the above location.
PURPOSE: Bellevue Parks & Community Services Department (Parks) is soliciting requests for proposals from qualifi ed fi rms to provide design and engineering services for the renovation and expansion of the Bellevue Youth Th eatre (BYT).
Bellevue Youth Theater Expansion
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BRIEF SCOPE OF SERVICES (Additional Detail listed in Attachment “A”): Th e BYT project will require the consulting team to work closely with City Staff and the BYT Advisory Board in order to complete the program analysis, verify space requirements, and develop potential phasing strategies. Th e project will include schematic, design development, construction documentation, bidding, and construction administration phases. In addition, a public outreach process to solicit and distribute information to the immediate neighborhood and greater community at large will need to be included.
QUALIFICATIONS: Th e proposed Scope of Work to include all work needed to fully address the design, permitting, marketing, and construction of the Bellevue Youth Th eatre renovation and expansion. Team expertise shall include, but not be limited to:
• Knowledge of Th eatre Design and Construction • Public Outreach and Presentation(s) • Marketing/Graphic Illustration • Site and Building documentation/“as-built” (documentation of existing conditions) • Architecture and Site Design • Engineering (Civil, Mechanical, Electrical, Plumbing, Traffi c, and Structural) • Construction and Bid Documentation (including Cost and Construction Estimating) • Knowledge of relevant Building and Site Codes • Knowledge of COB and other associated Permit Requirements • Knowledge of Public Bidding Requirements • Value Engineering • Construction Administration, including, Project Closeout and “As-Built” coordination
SUBMITTAL REQUIREMENTS: Th ree (3) bound-completed proposals, one (1) unbound completed pro- posal, and one (1) .pdf format electronic fi le (on a readable CD) must be received by the date and time listed. No more than 25 pages, double-sided, will be accepted. Th e City, at its discretion, may make additional copies of the proposal for the purpose of evaluation only. Th e original proposal will include original signatures, in ink, by authorized personnel, on all documents that require an authorized signature. Proposals shall be bound (8.5”x11”) such that they lay fl at when opened.
SIGNATURES: Proposals shall be signed by one of the legally authorized offi cers of said corporation. If awarded the contract, the Contract shall also be so executed.
QUESTIONS: Upon release of this RFP, all vendor communications should be directed in writing via e-mail to the Project Manager listed below. Unauthorized contact regarding this RFP with other City employees may result in disqualifi cation. Any oral communications will be considered unoffi cial and non-binding on the City. Questions should be e-mailed no later than 5pm, Th ursday, May 24th. Questions and answers will be sent electronically, and posted on the City’s website no later than Tuesday, May 29th. Th e Project Manager for this RFP will be:
Name: Ken Kroeger—Project Manager Address: City of Bellevue—Parks & Community Services Department 450 – 110th Ave NE Bellevue, WA 98004 E-mail: kkroeger@ bellevuewa.gov
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EVALUATION CRITERIA & PROCESS: Th e objective is to select the vendor most qualifi ed to provide the services outlined in this request. Evaluations will be based on the criteria listed below, which may be weighted as deemed appropriate by the review team/panel. All proposals will be evaluated using the same criteria:
Responsiveness, Quality, and Completeness of Proposal • Are all the forms completed and everything included that was required by the RFP • Th e quality of written material and presentation, relevant experience, answers to questions, and
overall organization • Clarity of responses
Experience/Qualifi cations/Creativity • Experience working within the requested services arena • Experience working with municipalities • Ability to successfully complete the scope of services on time and within budget • Ability to successfully work with City staff • References • Does the selected team have proven capability to deliver strong and innovative solutions
that respond to key issues (Demonstrate capabilities in proposals)
Scope of Services • Does the vendor understand what it will take to successfully achieve the goals and objectives of
the requested services • Did the vendor propose any revisions and/or changes to the Scope of Services that would better
serve the City
Communication • Vendor’s ability to conduct public outreach meetings and solicit input • Vendor’s ability to communicate ideas, reports, and vision(s) in a clear and concise format • Success of the project will rely on input from the community and from potential partners—how
is this feedback incorporated into the process and fi nal product
Qualifi cations of Key Individuals • What personnel will be committed to this project and how are they uniquely suited for this
project
After the proposals are evaluated, the City will determine whether formal presentations and interviews are necessary, and if so, which vendors may be invited to make a formal presentation and/or sit for a panel interview. Th e City may choose not to conduct formal presentations or interviews. Th e City may choose to contact offi cials from other jurisdictions regarding the vendor, their prior work experience and their ability to successfully complete the scope of services. Th e City may request clarifi cation or additional information from a specifi c vendor in order to assist in the City’s evaluation of a proposal. Finally, the City may require changes in the scope of services as deemed necessary by the City, before execution of the contract.
REJECTION OF PROPOSALS: Th e City reserves the right to reject any and all Proposals and to waive irregularities and informalities in the submittal and evaluation process. Th is RFP does not obligate the City to pay any costs incurred by respondents in the preparation and submission of their Proposals. Furthermore, the RFP does not obligate the city to accept or contract for any expressed or implied services.
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CONTRACT AWARD: Th e City reserves the right to make an award without further discussion of the submittals. Th e Vendor selected as the apparently successful Vendor will be expected to enter into a contract with the City. A sample City contract is provided on the City’s website at www.bellevuewa.gov. To view a PDF version of the sample contract document click on “Find”, then click “Bid Information” and select “Professional Services Contract”. Please review this contract prior to submitting a Proposal. Following consultant selection, the successful vendor shall prepare a proposal and scope of work for review by the City. Once the City and vendor have reached an agreement on the scope of services, a fi nal contract will be prepared by the City. Th e foregoing should not be interpreted to prohibit either party from proposing additional contract terms and conditions during the negotiations of the fi nal contract. If the selected vendor fails to sign the contract within ten (10) business days of delivery of the fi nal contract, the City may elect to negotiate a contract with the next-highest ranked vendor. Th e City shall not be bound, or in any way obligated, until both parties have executed a contract. No party may incur any chargeable costs prior to the execution of the fi nal contract.
Th e City reserves the right to award multiple contracts to multiple vendors for this scope of service if it is in the best interest of the City.
CONTRACT NEGOTIATION: Th e City reserves the right to negotiate all elements of the submittals, pro- posals, terms and conditions, and/or scope of services as part of the contract negotiation process prior to any formal authorization of the contract by the City. All parties understand that if any adjustments are made to the original scope as a result of contract negotiations, a resulting change in price/cost may be necessary.
EQUAL OPPORTUNITY EMPLOYMENT: Th e successful vendor or vendors must comply with the City of Bellevue equal opportunity requirements. Th e City of Bellevue is committed to a program of equal employ- ment opportunity regardless of race, color, creed, sex, age, nationality or disability.
TITLE VI: It is the City of Bellevue’s policy to assure that no person shall, on the grounds of race, color, national origin or sex, as provided by Title VI of the Civil Rights Act of 1964, be excluded from participation in, be denied the benefi ts of, or be otherwise discriminated against under any of its federally funded programs and activities.
INSURANCE REQUIREMENTS: Th e selected vendor or vendors shall maintain insurance that is suffi cient to protect the Vendor’s business against all applicable risks, as set forth in the City’s Standard Insurance Requirements (attached to this document): Attachment “B”, plus the “Special Rider” for professional li- ability. Please review insurance requirements prior to submitting your proposal. If selected vendor is unable to meet these standard requirements, please note current or proposed insurance coverages in submittal. Standard requirements may be negotiated if it is in the best interest of the City.
BUSINESS REGISTRATION AND TAXATION: Th e vendor or vendors awarded the contract will be sub- ject to City of Bellevue Business Registration and Business Taxation as presented in the Bellevue City Code. Questions about the city’s Business and Occupation (B&O) tax should be directed to the City’s Tax offi ce at 425-452-6851. Th e vendor awarded the contract will be subject to City of Bellevue business registration and business taxation as provide in Chapters 4.20 and 4.08 of the Bellevue City Code (for details call the City Tax offi ce at 425-452-6851).
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NON-ENDORSEMENT: As a result of the selection of a vendor to supply products and/or services to the City, vendor agrees to make no reference to the City in any literature, promotional material, brochures, sales presentation or the like without the express written consent of the City.
NON-COLLUSION: Submittal and signature of a proposal swears that the document is genuine and not a sham or collusive, and not made in the interest of any person not named, and that the vendor has not induced or solicited others to submit a sham off er, or to refrain from proposing.
COMPLIANCE WITH LAWS AND REGULATIONS: In addition to nondiscrimination and affi rmative action compliance requirements previously listed, the vendor or vendors ultimately awarded a contract shall comply with federal, state and local laws, statutes and ordinances relative to the execution of the work. Th is requirement includes, but is not limited to, protection of public and employee safety and health; environmental protection; waste reduction and recycling; the protection of natural resources; permits; fees; taxes; and similar subjects.
PUBLIC RECORDS: Under Washington state law, the documents (including but not limited to written, printed, graphic, electronic, photographic or voice mail materials and/or transcriptions, recordings or reproduc- tions thereof) submitted in response to this RFP (the “documents”) become a public record upon submission to the city, subject to mandatory disclosure upon request by any person, unless the documents are exempted from public disclosure by a specifi c provision of law. If the city receives a request for inspection or copying of any such documents it will promptly notify the person submitting the documents to the city (by U.S. mail and by fax if the person has provided a fax number) and upon the written request of such person, received by the city within fi ve (5) days of the mailing of such notice, will postpone disclosure of the documents for a reason- able period of time as permitted by law to enable such person to seek a court order prohibiting or conditioning the release of the documents. Th e City assumes no contractual obligation to enforce any exemption.
SUBMITTAL REQUIREMENTS: Th e following shall be addressed as a minimum, with sections tabbed with numbers as follows:
1. Introductory Letter: • Stating your interest in the project • How your fi rm’s expertise is demonstrated by previous experience • A clear and concise response as to why your fi rm should be selected for this scope of work—recent
professional experience, including work with public sector clients and applicable projects 2. Firm information:
• Firm name, address, phone, fax, and contact information • Identify individual(s) your fi rm might assign as lead or project manager and a listing of the team
members who will actually be assigned to perform substantial amounts of the work on this project, with a statement of their qualifi cations (resume and experience record for each person, including years of experience, education, and anticipated amount of time each will actually work on this project)
3. A minimum of three (3) local references with full name, title, address, email, phone, and fax number 4. Subconsultant experience:
• Identify by discipline, any subconsultant fi rm(s)—Firm name, address, phone, fax, and • contact information • Include each proposed subconsultant(s)’s experience and qualifi cations as described • above for fi rm’s personnel.
5. Briefl y answer the following as part of the proposal: • What makes your fi rm uniquely qualifi ed for this project?
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• Include a statement of your design aesthetic or approach • What values or benefi ts do you bring to the process that diff erentiates you from the other candidates? • What experiences (good and bad) on other projects would help you make this project a success for
everyone involved? • Describe the process/system you would implement to produce a team or “partnering” relationship
among those involved with the project, specifi cally with regard to interaction with Parks staff , the BYT Advisory Board, and the public.
• Identify/inform the project deliverables and task list for this project, beyond those listed in Attachment A.
• Include an overall project schedule for completion • If you could have any “super power” what would it be? What would you use your power for? Why?
Submittals will not be returned.
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Bellevue Youth Theater Expansion • 173
ATTACHMENT A
PROJECT INFORMATION & SCOPE: Th e proposed scope of work for the Bellevue Youth Th eatre will require a value-added, budget conscious, transparent, and understandable design process that informs and coordinates programming, construction, maintenance, budget, and implementation timeline decisions.
BACKGROUND: Bellevue Youth Th eatre at Ivanhoe Park Bellevue Youth Th eatre’s mission is to provide opportunities in performing arts for all young people, regardless of income or ability, and allow these young people to perform before a live audience, to provide the community with quality productions which are entertaining and/or socially relevant for the entire family.
Bellevue Youth Th eatre is a non-traditional recreation theatre program, uniquely designed to embrace young people from all backgrounds and abilities. Bellevue Youth Th eatre puts every interested participant on stage. Every child is given an important role to play and no child is turned away—the youth and their experience are more important. Th is results in an environment that promotes self-esteem and is attractive to youth who may not have the fi nancial means or ability to be involved in other theatre programs.
Th e Th eatre attracts youth who want to be part of a quality theatre program while enjoying the company of their peers. Th e Th eatre also provides a supportive environment for parents who want to remain involved in their children’s activities. Many parents help with the technical phase of productions or even act with their children.
Bellevue Youth Th eatre started as an outreach program at Crossroads Community Center in 1990. Th e pro- gram, originally named Crossroads Youth Th eatre, grew with the addition of a multipurpose theatre space in 1992. In 2001, the City renovated the Ivanhoe Elementary School site for the 110 seat black box theatre. Th e renovation to the 6,100 SF facility included the main black box theatre space, restroom upgrade, lobby and staff /ticket offi ce, mechanical spaces, green room, and other storage/miscellaneous spaces. Th e adjacent 3,500 SF ‘annex’ building currently houses Bellevue School District storage and a small BYT costume storage space.
In 2004, a new comprehensive business plan and a new name, Bellevue Youth Th eatre was introduced, and along with the formation of the Bellevue Youth Th eatre Academy, a new phase was begun for the BYT. However, the BYT has now reached its space capacity and the ability for the programs to grow is limited.
Park staff conducted a series of charettes with the BYT Board to identify the needs of the theatre. Th ese charettes evaluated the existing theatre for current program areas, perceived successful and problematic areas, future growth options, and anticipated development costs. Th e initial fi ndings determined that the BYT needs signifi cant upgrades to improve safety and security and match Bellevue service standards, including: expanded restrooms, increased lobby space, additional secured dressing rooms (for various ages and gender), and im- proved parking and lighting. Additionally, the BYT needs to be expanded to meet the increasing demand for programs—more rehearsal and classroom space, secured staff and volunteer offi ces, as well as critical storage is needed (see Attachment D—Concept Plans and Program).
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Th e BYT Foundation supports this project in order to create capacity to continue growth of this successful program, to protect the theatre’s mission of inclusiveness, to bring the theatre up to standards expected of Bellevue Parks’ facilities, to fulfi ll the BYT Business Plan strategy for expansion, and to demonstrate eff ective- ness of City/Community partnership in the long range vision for Bellevue. Th e expansion has been estimated to be $2.5 to $3.5 million and will allow the BYT to continue to serve the community for many years to come.
PUBLIC OUTREACH: A public involvement process will be required as part of the scope of work. Th e City will assist in the organization, however, the overall coordination and documentation will fall within the contracted scope of work.
Th e design team is expected to participate in a minimum of one (1) public meeting to relay general information to the community and solicit input, a minimum of two (2) meetings to inform and seek input from the BYT Board. Additionally, the team may be asked to present to the City’s Park & Community Services Board. Any additional outreach meetings beyond this minimum will be determined by the City.
PROGRAMMING: Th is step will assist to address the opportunities, constraints, and benefi ts of the existing facility and how the newly identifi ed program requirements will aff ect the current use. Th is will assist to verify square footage of the size and arrangement of the spaces: storage, instructional opportunities, recreational com- ponents, and other requirements. Additionally, the team will need to work with the City and BYT members to review and identify how the conceptual components of the BYT expansion will be structured:
• Potential programming confl icts (site and building) to be included for analysis • Potential code issues and recommendations • How the individual Programmatic elements eff ect the current programming and existing structures • Schedule/timeline showing when major milestones for tasks and subtasks will be completed
PLANNING/DESIGN: Th e planning and design phases will include all diagramming and documentation, and will incorporate recommendations received from City staff , the community, and/or the BYT Board, through construction documentation. Initial building strategies have been identifi ed, and will be used as a basis for design (see Attachment D—Concept Plans and Program).
Th is stage will need to identify the critical components of the BAC and address: • How the individual programmatic elements eff ect the existing facility and site • Code requirements and potential permit confl icts and constraints • Cost estimating • Marketing strategies and analysis, including various conceptual illustrations and marketing tools
Conceptual design documents will need to include, at a minimum: written program; site and building diagrams and graphic presentations containing design objectives, space requirements, relationships, site conditions, perspective sketches/renderings, computer modeling, and/or a combination of these media; potential traffi c study and concerns; code requirements and potential confl icts; and preliminary construction and operational estimates. Th ese estimates will be divided into specifi c program components/features which can be added or deleted from the conceptual complex.
Tasks associated with the development of the design include, but are not limited to:
Task 1 – Contract Scope Goal: Defi ne and agree to a Scope of Work.
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Bellevue Youth Theater Expansion • 175
Approach: Draft Scope for review by the Parks Department. Final Scope of Work will incorporate Parks’ comments and direction, and inform the Professional Services Contract.
Assumptions: Parks will review and provide input to complete the Final Scope of Work.
Deliverables: Draft and Final Scope of Work, and executed Professional Services Contract with insur- ance requirements.
Task 2 – Program Review and Development Goal: Assist Parks and BYT Board in determining the appropriate programming, space, and relational qualities for optimum theatre programming and use.
Approach: Conduct on-site walk-through(s)/meeting(s) with Parks Staff to evaluate the site(s), and op- portunities for the design(s).
Assumptions. Prepare site walk-through, meeting agenda and necessary data for review. Conduct and summarize the working session. No current complete as-built documents exist for the theatre or auxiliary building.
Deliverables: Recommendations for fi nal program and site walk-through agenda and minutes. Complete documentation and survey of existing facility and site condition.
Task 3 – Schematic Design Goal: Develop multiple schematic design options refl ecting desired programming and potential budget. Include options for development and expansion to include: the demolition of the annex building; demo of existing theatre and annex; and those options identifi ed from the BYT design charette.
Approach: Create appropriate design(s) for the theatre expansion, addressing prioritized amenities, cost constraints and coordination of existing conditions for an integrated layout. Participate in public outreach meeting(s) with Parks staff to evaluate the design.
Assumptions: Prepare site walk-through, agenda and necessary data, drawings for review. Attend an open house, conduct and summarize the working sessions.
Deliverables: Recommendations for fi nal design, public meeting(s) agenda(s)/minutes, cost estimates to be submitted for review by COB and BYT at 50% and 90% completion of schematic design.
Task 4 – Design Development Goal: Refi ne the preferred schematic design option refl ecting the desired programming, as well as, work- ing with the project budget constraints—develop and expand the schematic design documents relating to form, size, and appearance of the project. It includes specifi c structural, mechanical and electrical systems, and interior design. Provide options for material(s) selection and begin the development of the Project Specifi cations—Outline specifi cation, itemized lists and identifi cation of signifi cant materials, systems, and equipment (CSI format with COB front end coordination). Review and update the previ- ously established schedule. Refi ne previous SD estimate based on adjustments made during the design development phase.
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Approach: Create an appropriate design for the theatre expansion, addressing prioritized amenities, cost constraints and coordination of existing conditions for an integrated layout. Participate in public outreach meeting(s), with Parks staff to evaluate the design. All design development services and documentation is presented to the owner for approval.
Assumptions: Prepare meeting(s) agenda and minutes, create and assemble DD drawings and specifi ca- tions for review at 50% and 90% DD, and focus fi nal design strategy.
Deliverables: Final design strategy documentation, CD and Project Manual template, public meeting(s) agenda(s)/minutes, and cost estimates for review by COB at 50% and 90% DD. Final graphic presentation(s) items are to include multiple renderings and 3D model of theatre for anticipated BYT fundraising campaign.
Task 5 – Construction and Bid Documentation Goal: Create a complete construction and bid documentation package, Construction Drawings and Specifi cations (Summary of Work and Technical Specifi cations), and potential Value Engineering for the Bellevue Youth Th eatre expansion. Coordinate with Parks Department to fully integrate City of Bellevue “Front-End” Specifi cations.
Approach: TBD
Assumptions: Parks to review plans and specifi cations at 50% and 90%. Parks to provide City of Bellevue standard “Front-End” specifi cations for inclusion into the contract documents.
Deliverables: Working meeting agenda(s) / minutes, permit and bid-ready plans and specifi cations provided to the City of Bellevue in hard copy and digital format, and cost estimates for 50 and 90% CDs.
Task 6 – Permit Process Goal: Obtain all required permits and approvals for construction.
Approach: Submit the construction documents for permit review to the appropriate agencies. Work with the reviewing agencies and Parks to coordinate any permit comments and required corrections/ modifi cations.
Assumptions: Parks to assist in permit submittal, but is not the lead permit offi cial, reviewer or coordina- tor. Permit fees to be paid by Parks.
Deliverables: All permit documents and revisions as required.
Task 7 – Bid Process Goal: Assist in managing the bid process for the Bellevue Youth Th eatre Expansion.
Assumptions: Th e City of Bellevue Contracting Services and Parks departments will take the lead for the bid, including reproduction of construction documentation.
Approach: Prepare and conduct site walk-through, including agenda and necessary data, drawings for review. Provide all bid clarifi cation/addenda.
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Bellevue Youth Theater Expansion • 177
Deliverables: Site walk-through agenda/ minutes, and all bid documents and revisions/addenda as re- quired. Bid Evaluation.
Task 8 – Construction Administration Goal: Coordinate, document, and assist Parks Project Manager with the construction of the Bellevue Youth Th eatre expansion
Approach: Problems are to be identifi ed quickly and corrective action pursued with minimal delay, if any, to the overall project. Part of the information to be developed is weekly progress reports, and other correspondence, as appropriate.
Weekly report, addressing progress of the work, shall include (as appropriate): • A summary of work to date • A summary of actual versus scheduled progress • A list and brief summary of any Change Order Proposals • Digital photo documentation of construction • Tracking and review of all Shop Drawing and other construction related • submittals.
Coordinate project documentation, including the following: • Prepare all necessary project correspondence, letters, memos, meeting minutes, etc., for support
to the project work. Maintain a central fi le for all written materials.
Deliverables: Construction Documents, Weekly Progress Reports, change order proposal logs, shop drawing and submittal logs, as-Built drawings, and project correspondence (as required).
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ATTACHMENT “B”
INSURANCE REQUIREMENTS
Th e Contractor shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees or subcontractors. Th e cost of such insurance shall be paid by the Contractor. Insurance shall meet or exceed the following unless otherwise approved by the City.
A. Minimum Insurance 1. Commercial General Liability coverage with limits not less than $1,000,000 per occurrence / $2,000,000
annual aggregate, 2. Stop Gap/Employers Liability coverage with limits not less than $1,000,000 per accident/disease, 3. Business Automobile Liability coverage with limits not less than $1,000,000 per accident for any auto, 4. Workers’ Compensation coverage as required by the Industrial Insurance Laws of the State of Washington.
B. Self-Insured Retentions Self-insured retentions must be declared to and approved by the City.
C. Other Provisions
Commercial General Liability policies shall be endorsed to: 1. Include the City, its offi cials, employees and volunteers as insureds, 2. Provide that such insurance shall be primary as respects any insurance or self-insurance maintained by
the City, 3. Each insurance policy shall provide that coverage shall not be canceled except after thirty (30) days’
written notice has been given to the City.
D. Acceptability of Insurers Insurance shall be placed with insurers with a rating acceptable to the City.
E. Verifi cation of Coverage Contractor shall furnish the City with certifi cates of insurance required by this clause. Th e certifi cates are to be received and approved by the City before work commences. Th e City reserves the right to require complete, certifi ed copies of all required insurance policies at any time.
F. Subcontractors Contractor shall require subcontractors to provide coverage which complies with the requirements stated herein.
J:\General Services\Confi dential\ES\attachmentB.doc 9/30/2004
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Bellevue Youth Theater Expansion • 179
SPECIAL RIDER
TO
ATTACHMENT ”B”
INSURANCE REQUIREMENTS
for
Professional Service Contracts
Add the following to section A. Minimum Insurance:
1. Consultant’s Errors & Omissions or Professional Liability with limits not less than $1,000,000 per claim and as an annual aggregate.
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City of Rancho Palos Verdes Professional Services Agreement • 185
City of Rancho Palos Verdes, California, “City of Rancho Palos Verdes Professional Services Agreement.” Copyright © in the public domain.
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this __ day of ______, by and between the City of Rancho Palos Verdes hereinafter referred to as “CITY”, and______________________________, hereafter referred to as “CONSULTANT”.
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto mutually agree as follows:
ARTICLE 1 SCOPE OF SERVICES
1.1 Project Description 2006 Water Quality and Flood Protection Program Engineering Design Professional Services
1.2 Description of Services CONSULTANT shall perform Services described in CITY’S Request for Proposals (RFP) and the
CONSULTANT’S Proposal, attached here as EXHIBIT “B”.
1.3 Schedule of Work Upon receipt of written Notice to Proceed from the CITY, CONSULTANT shall perform with due
diligence the services requested by the CITY and agreed on by CONSULTANT. CONSULTANT shall not be responsible for delay, nor shall CONSULTANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of CITY to furnish timely information or to approve or disapprove CONSULTANT’S work promptly, or delay or faulty performance by CITY, other contractors, or governmental agencies, or any other delays beyond CONSULTANT’S control or without CONSULTANT’S fault.
City of Rancho Palos Verdes
Professional Services Agreement
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ARTICLE 2 COMPENSATION
2.1 Fee (a) CITY agrees to compensate CONSULTANT for services in accordance with the fee schedule that
is attached here as Exhibit “A.” Th e total fee shall not exceed ___________ dollars, except as provided for in 2.1(b).
(b) CITY may request additional specifi ed work under this agreement. All such work must be autho- rized in writing by the Director of Public Works prior to commencement.
2.2 Payment Address All payments due CONSULTANT shall be paid to: Name of the company Address
2.3 Terms of Compensation CONSULTANT will submit invoices monthly for the percentage of work completed in the previous
month. CITY agrees to pay all undisputed invoice amounts within thirty (30) days of receipt of the invoice. CITY agrees to use its best eff orts to notify CONSULTANT of any disputed invoice amounts or claimed completion percentages within ten (10) days of the receipt of each invoice. However, CITY’s failure to timely notify CONSULTANT of a disputed amount of claimed completion percentage shall not be deemed a waiver of CITY’s right to challenge such amount or percentage.
Additionally, in the event CITY fails to pay any undisputed amounts due CONSULTANT within forty-fi ve (45) days after invoices are received by CITY then CITY agrees that CONSULTANT shall have the right to consider said default a total breach of this Agreement and be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written notice.
2.4 Additional Services CITY may request in writing that CONSULTANT perform additional services not covered by the
specifi c Scope of Work set forth in this Agreement, and CONSULTANT shall perform such services and will be paid for such additional services in accordance with CONSULTANT’S Standard Schedule of Hourly Rates.
ARTICLE 3 INDEMNIFICATION AND INSURANCE
3.1 Indemnifi cation CONSULTANT will defend, indemnify and hold harmless CITY, its Boards and its offi cers, em-
ployees and agents (collectively “CITY”), against any claim, loss or liability that arises because of the sole or primary negligence or willful misconduct of CONSULTANT, its agents, offi cers, directors or employees, in performing any of the services under this Agreement.
3.2 General Liability CONSULTANT shall at all times during the term of the Agreement carry, maintain, and keep in full
force and eff ect, a policy or policies of Commercial General Liability Insurance, with minimum limits of two Million ($2,000,000.00) Dollars for each occurrence and in the aggregate, combined single limit, against any
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City of Rancho Palos Verdes Professional Services Agreement • 187
personal injury, death, loss or damage resulting from the wrongful or negligent acts by CONSULTANT. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best’s Insurance Guide with a rating of A VII or better.
3.3 Professional Liability CONSULTANT shall at all times during the term of this Agreement, carry, maintain, and keep in
full force and eff ect a policy or policies of professional liability insurance with a minimum limit of two million ($2,000,000.00) dollars. Said policy or policies shall be issued by an insurer admitted to do business in the State of California and rated in Best’s Insurance Guide with a rating of A VII or better.
3.4 Worker’s Compensation CONSULTANT agrees to maintain in force at all times during the performance of work under
this Agreement worker’s compensation insurance as required by the law. CONSULTANT shall require any subcontractor similarly to provide such compensation insurance for their respective employees.
3.5 Notice of Cancellation A. All insurance policies shall provide that the insurance coverage shall not be canceled by the insur-
ance carrier without thirty-(30) day’s prior written notice to CITY. CONSULTANT agrees that it will not cancel or reduce said insurance coverage.
B. CONSULTANT agrees that if it does not keep the aforesaid insurance in full force and eff ect, CITY may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, CITY may take out the necessary insurance and pay, at CONSULTANT’s expense, the premium thereon.
3.6 Certifi cate of Insurance At all times during the term of this Agreement, CONSULTANT shall maintain on fi le with the CITY
Clerk certifi cates of insurance showing that the aforesaid policies are in eff ect in the required amounts. Th e commercial general liability and professional liability policy or policies shall contain endorsements naming the CITY, its offi cers, agents and employees as additional insured.
3.7 Primary Coverage Th e insurance provided by CONSULTANT shall be primary to any coverage available to city. Th e
insurance policies (other than workers’ compensation and professional liability) shall include provisions for waiver of subrogation.
ARTICLE 4 TERMINATION
4.1 Termination of Agreement (a) Th is Agreement may be terminated at any time, with or without cause, by either party upon
sixty-(60) day’s prior written notice. Notice shall be deemed served upon deposit in the United States Mail of a certifi ed or registered letter, postage prepaid, return receipt requested, addressed to the other party, or upon personal service of such notice to the other party, at the address set forth in Article 6.12.
(b) In the event of termination or cancellation of this Agreement by CONSULTANT or CITY, due to no fault or failure of performance by CONSULTANT, CONSULTANT shall be paid compensation for all services performed by CONSULTANT, in an amount to be determined as follows: for work done in
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accordance with all of the terms and provisions of this Agreement, CONSULTANT shall be paid an amount equal to the percentage of services performed prior to the eff ective date of termination or cancellation in accordance with the work items; provided, in no event shall the amount of money paid under the foregoing provisions of this paragraph exceed the amount which would have been paid to CONSULTANT for the full performance of the services described in Article 2.1.
ARTICLE 5 OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents and Work Product All plans, specifi cations, reports and other design documents prepared by CONSULTANT pursuant
to this Agreement are instruments of service, which shall be deemed the property of the CITY. CITY acknowl- edges and agrees that all plans, specifi cations, reports and other design documents prepared by CONSULTANT pursuant to this Agreement shall be used exclusively on this Project and shall not be used for any other work without the written consent of CONSULTANT. In the event CITY and CONSULTANT permit the reuse or other use of the plans, specifi cations, reports or other design documents, CITY shall require the party using them to indemnify and hold harmless CITY and CONSULTANT regarding such reuse or other use, and CITY shall require the party using them to eliminate any and all references to CONSULTANT from the plans, specifi cations, reports and other design documents. If a document is prepared by CONSULTANT on a computer, CONSULTANT shall prepare such document in a Microsoft® Word 97 SR-2 or lower format; in addition, CONSULTANT shall provide CITY with said document both in a printed format and on a three and one-half inch (3 1/2”) fl oppy diskette.
ARTICLE 6 GENERAL PROVISIONS
6.1 Representation A CITY representative shall be designated by the City Manager and a CONSULTANT representative
shall be designated by CONSULTANT as the primary contact person for each party regarding performance of this Agreement.
6.2 Fair Employment Practices/Equal Opportunity Acts In the performance of this Agreement, CONSULTANT shall comply with all applicable provisions
of the California Fair Employment Practices Act (California Government Code Sections 12940-48) and the applicable equal employment provisions of the Civil Rights Act of 1964 (42 U.S.C. 200e-217), and the Americans with Disabilities Act of 1992 (42 U.S.C. § 11200, et seq.).
6.3 Personnel CONSULTANT represents that it has, or shall secure at its own expense, all personnel required to
perform CONSULTANT’s services under this Agreement. Any person who performs engineering services pursuant to this Agreement shall be licensed as a Civil Engineer by the State of California and in good standing. CONSULTANT shall make reasonable eff orts to maintain the continuity of CONSULTANT’s staff who are assigned to perform the services hereunder and shall obtain the approval of the Director of Public Works of all proposed staff members who will perform such services. CONSULTANT may associate with or employ
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City of Rancho Palos Verdes Professional Services Agreement • 189
associates or subconsultants in the performance of its services under this Agreement, but at all times shall be responsible for their services.
6.4 Confl icts of Interest CONSULTANT agrees not to accept any employment or representation during the term of this
Agreement or within twelve (12) months after completion of the work under this Agreement which is or may likely make CONSULTANT “fi nancially interested” (as provided in California Government Code Section 1090 and 87100) in any decisions made by CITY on any matter in connection with which CONSULTANT has been retained pursuant to this Agreement.
6.5 Legal Action (a) Should either party to this Agreement bring legal action against the other, the case shall be brought
in a court of competent jurisdiction in Los Angeles County, California, and the party prevailing in such action shall be entitled to recover its costs of litigation, including reasonable attorneys’ fee which shall be fi xed by the judge hearing the case and such fee shall be included in the judgment.
(b) Should any legal action about the Project between CITY and a party other than CONSULTANT require the testimony of CONSULTANT when there is no allegation that CONSULTANT was negligent, CITY shall compensate CONSULTANT for its testimony and preparation to testify at the hourly rates in eff ect at the time of such testimony.
6.6 Assignment Th is Agreement shall not be assignable by either party without the prior written consent of the other
party. Notwithstanding the above, CONSULTANT may use the services of persons and entities not in
CONSULTANT’S direct employ, when it is appropriate and customary to do so. Such persons and enti- ties include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSULTANT’S use of subcontractors for additional services shall not be unreasonably restricted by the CITY provided CONSULTANT notifi es the CITY in advance.
6.7 Independent Contractor CONSULTANT is and shall at all times remain, as to the CITY, a wholly independent CONTRACTOR.
Neither the CITY nor any of its agents shall have control over the conduct of CONSULTANT or any of the CONSULTANT’s employees, except as herein set forth. CONSULTANT expressly warrants not to, at any time or in any manner, represent that it, or any of its agents, servants or employees, are in any manner agents, servants or employees of CITY, it being distinctly understood that CONSULTANT is, and shall at all times remain to CITY, a wholly independent contractor and CONSULTANT’s obligations to CITY are solely such as are prescribed by this Agreement.
6.8 Hazardous Materials Unless otherwise provided in this Agreement, CONSULTANT and its subconsultants and/or con-
tractors shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to hazardous materials in any form at the site of the Project.
6.9 Titles Th e titles used in this Agreement are for general reference only and are not part of the Agreement.
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6.10 Extent of Agreement Th is Agreement represents the entire and integrated Agreement between CITY and CONSULTANT
and supersedes all prior negotiations, representations or agreements, either written or oral. Th is Agreement may be modifi ed or amended only by a subsequent written agreement signed by both parties.
6.11 Notices All notices pertaining to this Agreement shall be in writing and addressed as follows: If to CONSULTANT: Name of the company Address
If to CITY: Mr. Ray Holland, Interim Director of Public Works City of Rancho Palos Verdes 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year fi rst above written.
Dated: ________________________________ ________________________________
BY: ________________________________
Title: ________________________________
Dated: ________________________________ CITY OF RANCHO PALOS VERDES A Municipal Corporation
BY: ________________________________
MAYOR City of Rancho Palos Verdes
ATTEST:
_______________________________________ CITY CLERK
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City of Rancho Palos Verdes Professional Services Agreement • 191
EXHIBIT “B”
CITY OF RANCHO PALOS VERDES
PUBLIC WORKS DEPARTMENT
JANUARY 2006
REQUEST FOR PROPOSAL
FOR
ENGINEERING DESIGN SERVICES
Th e City of Rancho Palos Verdes requests proposals from selected engineering fi rms for services related to the Engineering Design of Storm Drainage Systems along Palos Verdes Drive East in the area of Via Colinita and Roan Road.
2006 CITY OF RANCHO PALOS VERDES WATER QUALITY AND FLOOD PROTECTION PROGRAM DESIGN PROJECT
PROJECT SPECIFIC INFORMATION
Th e fi rm that is selected by the City will be expected to perform the following tasks, termed collectively as “design”, for this project:
1. Communicate regularly with City staff regarding project issues via telephone, electronic mail, fax, and post mail.
2. Attend meetings: Th e Consultant will be required to attend, as a minimum, a design kickoff meeting, 50% and 95% design review meeting, and meetings with City as may be needed in support of any required environmental planning and/or permit application requirements. Th e City may require ad- ditional meetings, as needed, to resolve unforeseen issues or to discuss problematic design obstacles that arise.
3. Perform necessary site reconnaissance and investigations and review existing reports and as-built docu- ments to determine existing conditions and design parameters.
4. Produce and provide to the City a video record of the site conditions at the start of design. Video shall be provided in digital video (*.mpeg or similar approved) format.
5. Perform necessary fi eld surveying to determine existing grades, locations of design control points, and locations of existing features that may aff ect the design.
6. Review existing data, perform engineering analysis, make recommendations, design and provide plans and specifi cations for four projects to include: the complete removal of existing piping and installation
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of new piping in various sizes at three locations in the Via Colinita Road area of the City; and for the removal of approximately 1,250 feet of 48 inch RCP and restoration of a natural channel in the Via Colinita Road and Miraleste Drive area of the City; and for the complete removal of existing piping and installation of new piping of varying sizes in the Roan Road area of the City; and for the complete removal of existing piping and installation of new piping in the Miraleste and Chandeleur Drive are of the City. Consultants designs should include recommendations regarding any needed improvements to inlets and outfalls; each of the plans and specifi cation packages must include all required construction activities including demolition of existing facilities installation of new piping, inlets, catch basins, outlet structures, energy dissipaters, natural channel restoration requirements – improvements to safely (i.e. minimizing future erosion) discharge of the runoff and stabilization and restoration of lands disturbed by this construction.
7. Identify any additional easements that will be required for the construction and future maintenance of the designed facilities. Prepare legal descriptions and surveyor’s sketches for the identifi ed easements.
8. Coordinate with an Environmental Consultant as required in the preparation of California and Federal Environmental documentation. Incorporate requirements to protect and/or restorative eff orts into the project plans and/or specifi cations.
9. Prepare and provide one reproducible bid ready set of all bid documents including construction-draw- ings (plans on mylar), specifi cation package (using the City’s standard format) and engineer’s estimate. Provide City with an electronic copy of all bid documents; drawings in Autocad, specifi cations in Word, Estimates in Excel. NOTE: Th e City can provide standard contract and bidding form templates for consultant’s use.
10. Respond to questions from prospective bidders and issue addenda, as needed.
FORM OF PROPOSAL Th e Proposal shall be prepared in a “two sealed envelope” format.
Th e fi rst sealed envelope shall contain the technical proposal and shall include:
1. Qualifi cations and experience of the key individual assigned to this contract. 2. Qualifi cations and experience of the fi rm. 3. Project Approach using the outline of required work as listed above limited to a maximum of fi ve (5)
pages.
Th e second envelope shall contain the cost proposal and include:
1. Fixed fee proposal for the work, subtotaled by the outline of required work as listed above. 2. Th e names of the Consultant’s personnel who are to be involved, their titles, and hourly rates for their
services. 3. Hourly Fees for all members of the fi rm.
EVALUATION PROCESS
Technical proposals will be evaluated on the following criteria: 1. Experience of key individual assigned to the contract. 2. Experience of fi rm in performing this type of service. 3. Understanding of project as demonstrated by the thoroughness of the proposal, the introduction of
innovative or cost-saving ideas and approach.
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City of Rancho Palos Verdes Professional Services Agreement • 193
4. References from clients for whom similar work in size and scope was performed. 5. Depth of staff available to perform services.
Any questions regarding the Request for Proposal shall be in writing to City of Rancho Palos Verdes Dept of Public Works, 30940 Hawthorne Blvd., Rancho Palos Verdes, CA 90275, Attention: Ron Dragoo, Senior Engineer/Project Manager.
Please note that the responses to this Request for Proposal are subject to the following conditions:
Insurance Th e City of Rancho Palos Verdes requires the selected fi rm to have a minimum of $2,000,000 of professional errors and omissions insurance and $2,000,000 of general liability insurance prior to entering into an agree- ment with the City.
Acceptance of Terms Submission of a proposal shall constitute acknowledgment and acceptance of all terms and conditions herein- after set forth in the RFP unless otherwise expressly stated in the proposal.
Right of Rejection by the City Not withstanding any other provisions of this RFP, the City reserves the right to reject any and all proposals and to waive any informality in a proposal.
Financial Responsibility Th e proposer understands and agrees that the City shall have no fi nancial responsibility for any costs incurred by the proposer in responding to this RFP.
Award of Contract Th e selected fi rm shall be required to enter into a written contract with the City of Rancho Palos Verdes, in a form similar to the attached. Th is RFP and the proposal, or any part thereof, may be incorporated into and made a part of the fi nal contract; however, the City reserves the right to further negotiate the terms and conditions of the contract with the selected proposer.
Exhibit A
Sample Contract
Exhibit B
Tentative Schedule including Submittals
Questions regarding this proposal shall be submitted in writing by 4:30 pm on February 21, 2006.
Proposals must be submitted by 4:30 pm on March 2, 2006.
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Service Order General Conditions to Service Order Contracts • 195
“Service Order General Conditions to Service Order Contracts.” Permission to reprint granted by the publisher.
EXHIBIT A
SERVICE ORDER GENERAL CONDITIONS TO SERVICE ORDER CONTRACTS
Part 1 Th e conditions stated in this Part I apply to all Service Order Contracts:
1.01 TIME OF ESSENCE, CHOICE OF LAW, TRADE MEANINGS, OWNERSHIP OF THE WORK a. All time limits stated in the Contract Documents are of the essence of the Contract. Contractor shall commence Work immediately upon the execution of the Service Order Contract form and shall make every reasonable eff ort to complete its performance within the time or schedule provided for in the Scope or as may be approved by Owner.
b. Th e law of the state where the Job Site is located shall govern the interpretation and enforcement of this Contract.
c. Work described in words which so applied have a well-known technical or trade meaning shall be held to refer to such recognized standards.
d. All results arising from the Work are works made for hire for Owner within the meaning of the United States Copyright Act, and Contractor assigns to Owner the copyright and all other right, title and interest in the United States and elsewhere to all results arising from the Work. Contractor agrees to sign at any time at Owner’s request any document necessary or useful to evidence or acknowledge such results as works made for hire for Owner and the assignment to Owner of all rights to such results.
1.02 INSTRUCTIONS a. Contractor shall examine all Contract Documents and, if there is any ambiguity, shall ask Owner for clari- fi cation. All Work shall be executed in conformity with Owner’s drawings, specifi cations, instructions and to the extent applicable all recommendations of the National Fire Protection Association regarding prevention of accidents, fi res or for the elimination of any unsafe practice. Contractor shall do no Work without proper instructions.
Service Order General Conditions to
Service Order Contracts
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b. Contractor shall comply with all relevant laws and regulations, federal, state and local as they apply to Contractor’s performance of the Work. Without limiting the generality of the foregoing, Owner specifi cally directs Contractor to strictly comply with all laws and regulations relating to protection of the environment and public and employee health and safety. Except as otherwise expressly exempted in the Contract Documents, Contractor is strictly responsible to Owner for compliance with all such laws and regulations not only as they relate to the performance of the Work but also, in the case of worker safety and health rules, as they apply to the fi nished work and its suitability and capability to conform with applicable legal requirements for its intended use or operation by Owner. No provision in the Contract Documents shall be deemed to exempt Contractor from its obligation to comply with any particular law or regulation unless Owner expressly assumes the obligation to satisfy the specifi c compliance responsibility and such provision specifi es the particular law or regulation, for which the compliance responsibility has been assumed by Owner.
c. Owner has adopted environmental requirements and procedures designed to reduce waste and resource utilization and maximize reuse and recycling opportunities. On-site Contractors are required to comply with Owner’s environmental requirements. Each on-site Contractor shall review the environmental requirements for impact on the Work. Th e requirements documents may be secured from Owner’s facility Environmental, Safety and Health (“ESH”) Manager. Each off -site Contractor is encouraged to review the environmental requirements and advise Owner’s respective facility or corporate ESH Manager of it’s plan to conform to the applicable environmental requirements.
d. Contractor shall establish a Contractor Safety Program for the Work. To the extent applicable to the Work, and without limiting the generality of Contractor’s obligations under paragraph 1.02(b) above, Contractor shall comply with the OSHA Process Safety Management Standard and the OSHA Hazard Communication Program Standard as specifi ed in Section 2.16 below. Contractor is responsible for assuring that all of its sub- contractors establish and implement, insofar as applicable to their respective work functions, appropriate safety programs and practices consistent with OSHA requirements. Owner may require Contractor to demonstrate that it has complied with all applicable safety requirements at such reasonable times as Owner may determine appropriate. Contractor shall be responsible for enforcing safety rules and shall maintain at all times, as re- quired by the conditions and progress of the Work, all necessary safeguards for the protection of life, the Work, equipment on the Job Site, Owner’s property and adjacent property and to assure uninterrupted production, and safe working conditions. Contractor shall require it’s employees to comply with owner’s substance abuse policy as well as any other safety practices Owner has established by plant rule or otherwise deems appropriate or necessary in specifi c circumstances. Contractor and/or any Subcontractor failing to follow safety rules shall be subject to eviction from the Job Site, may be refused re-entry, and may be terminated in accord with these General Conditions.
e. Contractor shall at all times enforce strict discipline among its employees, shall cause its employees to conform to all Owner Regulations, and shall not employ any unfi t person or anyone not skilled in the Work as- signed to it. Contractor shall not permit its employees, nor any of its Subcontractors to permit their employees to consume or possess on the Job Site any alcoholic beverage.
f. Owner may enforce badge identifi cation at the Job Site.
1.03 MATERIALS AND PERFORMANCE Unless otherwise stipulated, Contractor shall provide and initially pay for all Work. All goods supplied as part of the Work are guaranteed to be new, and the Work shall be of good quality, free from defects or fault and shall be prepared in a workmanlike manner.
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Service Order General Conditions to Service Order Contracts • 197
1.04 PATENT LIABILITY CLAUSE Contractor agrees to defend any claim, action or suit that may be brought against Owner, or its offi cers, agents or employees for infringement of any Letters Patent of the United States arising out of the performance of this Contract or out of the use or disposal by or for the account of Owner of supplies furnished or Work performed hereunder, and also to indemnify and hold harmless Owner and its offi cers, agents, and employees against all judgments, decrees, damages, costs and expenses recovered against it or them or sustained by it or them on account of any such actual or alleged infringement.
1.05 CHANGES Owner, without invalidating the Contract, may order changes in the Scope which may result in an addition to or deduction from the compensation to be paid to Contractor. Owner may also order minor changes in the Scope, which in no specifi c, concrete or substantial way increase or decrease the Work; and such minor changes shall not involve any adjustment in compensation. All changes shall be evidenced by an executed Modifi cation Order referencing the original Service Order Contract. If adjustments to compensation are re- quired, they shall be stated in the Modifi cation Order. Th e Contract may not be amended or modifi ed except by Modifi cation Order executed by both parties. Except as expressly amended by Modifi cation Order, the Contract shall continue in full force and eff ect.
1.06 ADJUSTMENTS TO COMPENSATION a. In the event of a change in Scope which requires additions to or deductions from Contractor’s compensa- tion, the parties agree to determine the adjustment, at Owner’s option, in one or more of the following ways:
1. By estimate and acceptance of a lump sum amount. 2. By unit prices named in the Contract Documents or subsequently agreed upon, 3. By cost (time and material) plus percentage overhead and fee or 4. If agreed upon, a reimbursable basis subject to a “Not-to-Exceed” or a guaranteed maximum amount.
b. Percentage overhead and fee on such adjustments for Contractor and its Subcontractors if required for pricing methods 3 or 4 above shall be calculated as follows:
1. Overhead on the change in straight time labor cost shall be ten percent (10%) of the amount of such change.
2. Fee on the change in straight time labor cost shall be eight percent (8°%) of the sum of the amount of such change and the amount of the overhead calculated in the foregoing subparagraph.
3. Combined overhead and fee on the change in purchased material or leased equipment cost shall be ten percent (10%) of the amount of such change.
4. Combined overhead and fee on the change in the cost for subcontracted Work shall be fi ve percent (5%) of the amount of such change.
c. In order to arrive at the value for any change, Contractor shall credit Owner with its projected cost(s), over- head and fee for any Work which was previously included, but which has been excluded by any such change.
d. Once the basis for an adjustment in compensation has been directed by Owner or agreed to by the parties a Modifi cation Order memorializing such adjustment shall be signed by the parties. Th e procedures set forth in this Section are designed to encourage timely settlement and avoid litigation of claims concerning whether instructions by the Owner during the Work justify a change in the Contractors compensation, the schedule, or both. Th e procedures in this Section are also intended to attribute a fi nal eff ect to the settlement of any claim between Owner and Contractor. Th is change procedure is mandatory and a condition precedent to any action Contractor shall fi le, if the issues in the action could have been addressed through the procedures set forth in
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this Section. If Contractor commences litigation concerning the value or eff ect of a directive or order of Owner without following the procedures established in this Section, or if Contractor institutes litigation concerning the value of a change previously agreed to by Contractor through a Modifi cation Order signed by Contractor, then Contractor shall be liable to Owner for all attorney’s fees and expenses Owner incurs in such litigation, regardless of the outcome of the litigation.
1.07 PREMIUM LABOR All premium labor costs are to be borne by Contractor unless Owner has, in writing, directed Contractor to incur premium labor. In such event, Owner shall pay Contractor only that portion of the cost of the premium labor which is in excess of the actual rate for weekday Work plus applicable taxes or other charges which are based upon payroll amount. No increase will be allowed for Contractor’s overhead and fee. Such premium time must have prior approval by Owner.
1.08 TAXES, INVOICING, PAYMENT AND AUDIT RIGHTS Except as separately provided in the Terms of Compensation: a. Contractor shall pay any sales or use tax which may be determined to be applicable to the goods, materials and services to be provided by Contractor hereunder. Contractor shall contact the “Buyer” identifi ed on the face of the Service Order form to obtain any required tax exemption registration number.
b. On or about the fi rst day of each month, Contractor, shall submit to Owner at the address indicated on the face of the Service Order form, in duplicate, invoices for the Work completed the previous calendar month, less the amount to be retained by Owner which shall be ten percent (10%) of the value of the Work completed. Upon completion of the Work, Contractor shall submit in duplicate, a fi nal invoice for the unpaid balance, including retainage withheld. Each invoice must show the total amount of Work complete to date, the amounts previously invoiced, and the payment requested. Except as otherwise provided herein, Owner shall make payment within thirty (30) days of invoice receipt.
c. For a period of at least two years after the completion of the Work, Contractor shall maintain such records as are necessary to substantiate that all invoices and applications for payment hereunder were valid and properly chargeable to Owner. Supporting documentation may include but is not necessarily limited to: time sheets, payroll records, receipts, contracts, books of account, banking records, and all such other records as reasonably relate to the Work. Owner or its representatives shall, upon reasonable prior notice to Contractor, be given the opportunity to audit such records in order to verify the accuracy of such invoices and other charges. Contractor shall maintain all such records in accordance with generally accepted accounting practices.
d. Contractor hereby represents and warrants that no payments have been or shall be made, directly or in- directly, by or on behalf of Contractor to or for the benefi t of any employee or agent of Owner who may reasonably be expected to infl uence the decision to requisition, issue or take any action with respect to this Contract. Owner shall have the right to examine, at Owner’s expense, such of Contractor’s books and records as may be necessary, in the auditor’s opinion, to verify Contractor’s compliance with this paragraph. (As used herein, “payments” shall include money, property services and all other forms of consideration.) Owner’s audit rights under this paragraph shall survive two years after the completion of the Work.
1.09 PAYMENTS WITHHELD Owner may withhold or on account of subsequently discovered evidence nullify the whole or a part of any invoice to such extent as may be necessary to protect Owner from loss on account of any failure of Contractor to perform the Work in accordance with the Contract Documents, or satisfy obligations to its Subcontractors.
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1.10 DELAYS AND EXTENSION OF TIME If Contractor be delayed at any time in the progress of the Work by an act or omission of Owner or of any third party employed by Owner or by strikes, lockouts, fi re, unusual delay in transportation, Acts of God or other causes over which Contractor has no control, then the time of completion shall be extended for such reasonable time as the parties shall decide, and no adjustment shall be made in Contractor’s compensation. No such extension shall be made for delay occurring more than seven (7) days before claim therefore is made in writing to Owner. In the case of a continuing cause of delay, only one claim is necessary.
1.11 OWNER’S RIGHT TO TERMINATE CONTRACT a. If Contractor persistently or repeatedly refuses or fails to conform to the provisions of the Contract Documents, then Owner may, without prejudice to any other right or remedy, terminate this Contract, take possession of the Job Site, and all supplies, materials and equipment thereon and fi nish the Work as Owner may deem expedient. In such case, Contractor shall not be entitled to receive any further payment until the Work is fi nished. If the expense of fi nishing the Work, including compensation for additional managerial and administrative services, is less than any compensation then remaining due to Contractor for Work performed prior to the date of termination, then such diff erence shall be paid to Contractor. If such expense exceeds such unpaid compensation, Contractor shall pay the diff erence to Owner. In the event suit is fi led by Owner against Contractor to enforce provisions of the Contract Documents or to recover any loss resulting from Contractor’s failure to perform, and Owner is successful, Contractor shall be liable, in addition to such other damages to which Owner may be entitled, for all attorney fees, court costs, and other expenses incurred by Owner in prosecution of the suit.
b. Owner reserves the right in its sole discretion and without cause or default on the part of Contractor, to terminate the Contract by providing written notice of such termination to Contractor. Upon receipt of such notice from Owner, Contractor shall immediately cease all Work. In the event of any such termination without cause, Owner shall compensate Contractor for all Work performed or obligations incurred through the date of termination at Contractor’s cost, plus a reasonable fee on Work actually performed. In no event shall Contractor have a claim for loss of bargain damages.
1.12 ASSIGNMENT AND SUBCONTRACTS a. Th is Contract shall be binding upon Owner and Contractor, and their respective successors and assigns. Contractor shall not assign this Contract nor subcontract any Work hereunder without the prior written consent of Owner. Contractor is responsible for negotiating its contracts with Subcontractors and shall, to the extent applicable to the Work to be done by each Subcontractor, bind each by the terms of the Contract Documents.
b. Contractor shall not make nor commit to make any advance or prepayment to any Subcontractor without, in each instance, fi rst obtaining Owner’s specifi c prior written consent. Any losses due to defalcations by Subcontractors in connection with any advance or prepayment made in breach of the foregoing provision shall be incurred at Contractor’s sole expense.
1.13 INDEMNITY a. Defi nitions
For purposes of this Section 1.13 1. “THE OWNER” means and includes Owner, all of its subsidiaries and their respective affi liates, servants
and employees;
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2. “THE CONTRACTOR” means and includes Contractor and its Subcontractors and their respective servants, agents and employees; and
3. “LOSS” means any and all loss, damage, liability, or expense, whether incurred as a judgment, settlement, penalty, fi ne or otherwise (including attorney’s fees and the cost of defense), in connection with any ac- tion, proceeding or claim, whether real or spurious, for injury, including death to any person or persons or damage to, loss of the use of, or loss of the property of any person, fi rm or corporation including the parties hereto, arising or resulting out of the performance of services required pursuant to this Contract.
b. Th e Contractor hereby agrees to indemnify and hold harmless THE OWNER from any and all LOSS to the extent caused or incurred as a result of the negligence or other actionable fault of THE CONTRACTOR.
c. Waiver of Certain Defenses With respect to the Owner’s indemnity rights under the Contract Documents, Contractor expressly waives all statutory or common law defenses including but not limited to those under Worker’s Compensation, Contribution, Comparative Fault or similar statutes or legal principles to the extent said defenses are inconsistent with or would defeat the purpose of the indemnifi cations provided under this Section 1.13 and to the extent applicable, Section 2.18.
d. Consideration It is stipulated and agreed that 1% of the Contractor’s compensation is paid as and for specifi c consideration for this indemnity.
1.14 CASUALTY INSURANCE a. Contractor hereby agrees to furnish and maintain at its own cost and expense, insurance policies underwrit- ten by good and solvent insurance companies, protecting:
1. Th e legal liability of Contractor under the Worker’s Compensation Act of any State or other statute or law, to pay claims for personal injuries sustained by its employees, including death resulting there from. Employer’s Liability coverage shall be included with a limit of not less than $1,000,000.00.
2. Th e legal liability of Contractor to pay claims for damage to property, and for injuries to or death of any person or persons (including automobile exposure) and including the contractual liability assumed by Contractor under Section 1.13, and to the extent applicable Section 2.18, said insurance to be written with a limit of liability of not less than $2,000,000.00 for any one occurrence.
b. Owner shall be included under Contractor’s insurance, required under a.2 above, as an additional insured with respect to claims and/or liability arising out of Work performed for Owner by Contractor or acts or omissions of Owner in connection with its general supervision of Contractor’s Work. All insurance provided to Owner by Contractor shall be primary and any insurance maintained by Owner shall be excess and not contributing with Contractor’s insurance.
c. Contractor shall not violate, or permit to be violated, any conditions of any of said policies, and shall at all times satisfy the requirements of the insurance companies writing said policies and shall furnish Owner with insurance certifi cates indicating the coverage referred to in subparagraph a. and b. above. Each such certifi cate shall state that Owner will be given thirty (30) days advance notice of cancellation or of any material restriction of coverage. Contractor shall be responsible for replacing cancelled coverage so that no hiatus in coverage occurs.
d. Contractor shall obtain either occurrence or claims made coverage. If Contractor has obtained claims made coverage to satisfy the foregoing insurance requirements, then Contractor agrees to maintain such claims made coverage for three years beyond the performance of this order.
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1.15 WARRANTIES Contractor represents and warrants that:
a. All information supplied by Contractor under this Contract is or shall be in accordance with Contractor’s best information and belief, true and correct as of the date when given;
b. Except to the extent that Section 2.08 of these conditions applies to the Work, all Work performed under this Contract shall be free from defects for 90 days from the date of fi nal payment by Owner. If within such time any defect is found, at Owner’s request, Contractor shall correct same at Contractor’s expense; and
c. Contractor has full legal right and authority to enter into and perform this Contract.
1.16 ADDITIONAL OBLIGATIONS Owner and Contractor each agree to cooperate with the other in every respect in achieving the Scope. Specifi cally but without limitation, Contractor covenants with Owner to furnish his best-skill, care and judg- ment and at least the prevailing standard of skill, care and judgment expected of any similar Contractor under similar circumstances. Contractor agrees to furnish effi cient business administration and superintendence and to use every eff ort to keep upon the Work at all times an adequate supply of workmen and materials, and to secure execution of the Work in the best, soundest, most expeditious and economical manner consistent with the interests of Owner.
1.17 CONTRACTOR’S STATUS Contractor’s relationship to Owner shall be that of an independent contractor. Neither party shall be deemed to be nor shall either represent itself to be the agent of the other.
1.18 NOTICES Any written notice required or permitted under the terms of the Contract Documents (except as specifi cally provided for in the case of Insurance) shall be given and deemed to have been duly served when posted in prepaid U.S. registered mail, addressed to the respective party as set out on the Service Order Contract form.
1.19 NO WAIVER BY OWNER Th e failure of Owner in any one or more instances to insist upon strict performance of any of the terms of the Contract Documents or to exercise any rights conferred therein, shall not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such terms or rights on any future occasion.
1.20 APPROVALS Wherever in the Contract Documents the consent or approval of either party is required before the other may take any particular action, such consent or approval must be obtained in writing and each party agrees not to unreasonably withhold same.
1.21 RIGHT TO INSPECT PERSONAL PROPERTY No personal property other than clothes, lunch boxes, tool boxes, and similar items of a personal nature may be brought on to or removed from the Job Site without proper authorization. All property and vehicles being removed from the Job Site shall be subject to inspection.
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1.22 CONFIDENTIALITY Contractor hereby covenants that:
a. Contractor (i) shall maintain, as Owner’s confi dential property, (ii) shall not use for Contractor’s own benefi t, and (iii) shall not disclose, in whole or in part, to any third party (other than under subparagraph d below) any information, materials, or experience regarding Owner, its operation, its personnel, or its activities, including, but not limited to general or specifi c aspects of the Work provided hereunder (the “Information”).
b. Th e duty of secrecy in subparagraph a shall not apply to Information: 1. in the public domain through no fault of Contractor; 2. obtained by Contractor in writing from a third party lawfully in possession of it and under no secrecy
obligation as to it; or 3. which was in Contractor’s knowledge and possession prior to commencement of the Work (a) as a matter
of right, (b) without restriction as to use or disclosure, and (c) not acquired by Contractor, either directly or indirectly, from Owner.
For purposes of this subparagraph b, no Information shall be deemed in the “public domain,” or in Contractor’s “knowledge and possession” merely because such Information is embraced by more general information. No right or license under any patent or copyright is being granted under this Agreement.
c. All tangible forms of Information, including, without limitation, all summaries, copies and excerpts of any Information, whether prepared by Contractor or not, shall be the sole property of Owner, and shall be immediately delivered by Contractor to Owner upon completion or termination of the Contract or upon Owner’s request, whichever fi rst occurs.
d. Contractor shall restrict access to the Information to only individuals who have a need-to-know in order to perform the Work, and Contractor shall require such individuals to agree, in writing, in form substantially similar to the provisions of this Section 1.22, to maintain all information so received in confi dence.
e. Contractor’s confi dentiality obligations hereunder also shall extend to Information acquired from Owner in any and all invitations to bid on Work or agreements to provide services whether received or entered into prior to or after the date of this Contract.
f. Contractor’s confi dentiality obligations hereunder shall survive completion or termination of this Contract.
g. Contractor recognizes and acknowledges that any breach of this confi dentiality provision would injure Owner irreparably, the amount of damage being impossible to ascertain. Owner may, therefore, in addition to pursuing any and all remedies provided by law, obtain an injunction against Contractor from any court having jurisdiction, restraining any violation of this provision.
1.23 ENTIRE AGREEMENT Th e Contract Documents constitute the whole of the Contract between the parties hereto and neither has been induced to make or enter into this Contract by reason of any promise, agreement, representation, statement or warranty other than as contained in the Contract Documents.
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1.24 DISPUTES Th e parties agree that before, and as a condition precedent to, the initiation of any legal action or proceeding, all claims, controversies and disputes (“Disputes”) arising out of or in relation to the performance, interpretation, application or enforcement of this Contract, including, without limitation, any breach hereof, the following process must be completed. In the event of a Dispute, the parties agree that their respective counsel and their project representatives familiar with the issue including Contractor’s Chief Operating offi cer will schedule a meeting (by telephone or in person) to discuss the Dispute and to attempt in good faith to resolve it. If the matter is not resolved at such meeting, the parties may with in the next 60 days agree to private mediation of the dispute. If the Dispute is not then submitted to mediation, or not resolved after the completion of such Mediation, the parties may then pursue any available legal remedy, action, or proceeding.
1.25 JURY TRIAL WAIVER Contractor and Owner hereby mutually and expressly waive their rights to a jury trial in connection with any litigation involving a Dispute solely between them arising out of this Contract.
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Excerpts from a Typical Construction Contract • 205
City of Glendale, California, “Article 2 – Performance of the Work.” Copyright © in the public domain.
ARTICLE 2 – PERFORMANCE OF THE WORK
2.01 PERFORMANCE OF WORK - GENERAL
Contractor shall, at its own cost and expense, furnish all necessary materials, labor, transportation, and equip- ment for doing and performing said work and the materials used shall comply with the requirements of the Contract documents. In addition, the Contractor shall perform, with its own organization, Contract work amounting to at least fi fty percent (50%) of the Total Bid Amount. All work shall be performed and completed as required in the Contract documents, and subject to the approval of the Engineer, or his/her designated assistant.
2.02 NO ASSIGNMENT OR DELEGATION
Contractor shall not assign or delegate the duties or obligation under this Contract or his/her interest therein in whole or in part without the prior written consent of the City, which may be withheld at the City’s sole discretion.
2.03 STANDARD OF PERFORMANCE
Contractor agrees that all services performed hereunder shall be provided in a manner commensurate with the highest professional standards and shall be performed by qualifi ed and experienced personnel; that any work performed by Contractor under the Contract will be performed in the best manner; that any material furnished shall be subject to the approval of the Engineer; and that both work and materials will meet fully the requirements of these Plans and Specifi cations.
2.04 DEFECTIVE WORK
Th e Contractor shall remove and rebuild at his/her own expense any part of the work that has been improperly executed, even though it has been included in the monthly estimates. If he/she refuses or neglects to replace such defective work, prior to acceptance of the work, it may be replaced by the City at the expense of the Contractor, plus 15% for overhead expenses, and his/her sureties shall be liable therefore. (See Section 2.14 for curing defects after acceptance of the work.)
Excerpts from a Typical
Construction Contract
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2.05 COMMUNICATIONS REGARDING THE WORK
After award of the Contract, all communications regarding the work covered by these Specifi cations shall be addressed to the City Engineer, City of Glendale, and mailed or hand delivered to:
City of Glendale City Engineer’s Offi ce 633 E. Broadway, Room 205 Glendale, California 91206
2.06 INDEPENDENT CONTRACTOR
Th e Contractor in the performance of the work hereunder will be acting in an independent capacity and not as an agent, employee, partner, or joint venturer of the City.
Editorial Note: Next section(s) deleted from original contract for educational purposes.
2.13 GUARANTEE OF WORK
A. Th e Contractor guarantees all materials and workmanship against defects for a period of one year, unless noted otherwise, from the date of fi nal acceptance of all work performed under the Contract. Th e date of fi nal acceptance will be established and confi rmed in writing by the Engineer.
B. Th e Contractor assumes responsibility for a one-year guarantee, unless noted otherwise, for all work and materials provided or performed by subcontractors, manufacturers, or suppliers.
C. Th e Contractor hereby agrees that if, within a period of one year, unless noted otherwise, after fi nal acceptance of the work done under the Contract, any portion of the work installed, constructed, or performed fails to fulfi ll any of the requirements of the Contract, he/she will, without delay and with the least practicable inconvenience and without further cost to the City, repair or replace defective or otherwise unsatisfactory work or materials. Th is Contract will not delay acceptance of the work or fi nal payment.
D. Should the Contractor fail to act promptly in accordance with this requirement, or should the exigen- cies of the case require repairs or replacements to be made before the Contractor can be notifi ed or can respond to notifi cation, the City may at its option make the necessary repairs or replacements, or perform the necessary work, and the Contractor shall pay to the City the actual cost of such repairs plus 15 percent, or City may charge such costs to the Contractor’s retention.
E. Th e Contractor shall be responsible for the full expense incidental to making good any and all of the above guarantees and Contracts. Th e above guarantees and Contracts are covenants, the performance of which shall be binding upon the Contractor and his/her sureties.
Editorial Note: Next section(s) deleted from original contract for educational purposes.
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ARTICLE 3 – TIME OF COMMENCEMENT AND COMPLETION
COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK
A. NOTICE TO PROCEED Th e Contractor is not authorized to perform any work under these Specifi cations until he/she has received from the City an offi cial notifi cation to commence work. Th e date on which the Contractor receives the notifi cation is herein referred to as the Notice to Proceed. Th e Contractor shall commence work within 14 calendar days after Notice to Proceed. A copy of the Notice to Proceed is included in Exhibit C3.
Th e notifi cation to commence wok will not be issued until the Contract is property executed, bonds are furnished and approved, and insurance has been submitted and approved.
B. PROSECUTION OF THE WORK Work shall be continued at all times with such force and equipment as will be suffi cient to complete it within the specifi ed time. Th e Contractor expressly proposes that he/she has taken into consideration and made allowances for all ordinary delays and hindrances to the work to be performed and that he/ she will complete the work within the specifi ed time.
C. REQUIRED CONTRACT COMPLETION Th e work must be completed in its entirety and made ready for service within Forty (40) working days following issuance of the Notice to Proceed.
3.02 CITY’S DISCRETION TO EXTEND TIME
In the event the work required hereunder is not satisfactorily completed in all parts and in compliance with the Contract Documents, the City shall have the sole right, in its discretion, to increase the number of working days or not, as may seem best to serve the interest of the City. A change order extending the Contract time only will be issued by the City should the City decide to increase the number of working days.
3.03 DELAYS AND EXTENSIONS OF TIME FOR CONTRACTOR
A. Th e Contractor shall take reasonable precautions to foresee and prevent delays to the work. In the event of any delay to the work, the Contractor shall revise his/her sequence of operations, to the extent possible under the terms of the Contract, to off set the delay.
B. If any delay to the work is caused by circumstances within the Contractor’s control, it is not excusable and not compensable, and the Contractor will not be entitled to any extension of time or to any other compensation for damages resulting directly or indirectly therefrom.
C. If any delay having a direct eff ect on the work is caused by circumstances beyond the control of the Contractor except for causes of delay specifi ed in Paragraph 3.03-D., such delay may be excusable and may entitle the Contractor to an equivalent extension of time, but not to any other compensation. Excusable but not compensable causes include but are not limited to labor disputes, weather condi- tions unfavorable for prosecution of the work, and force majeure.
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D. If any delay having a direct eff ect on the work is caused by failure of the City to provide information as specifi ed, or necessary instructions for carrying on the work, or to provide the necessary right of way or site for installation, or failure of a utility to remove or relocate an existing facility such delay may be compensable and may entitle the Contractor to an equivalent extension of time, and to com- pensation for damages resulting directly from any of the causes of delay specifi ed in this paragraph.
Editorial Note: Next section(s) deleted from original contract for educational purposes.
3.07 LIQUIDATED DAMAGES
A. Th e deduction for liquidated damages shall be $500.00 per working day from date of required Contract completion until actual Contract completion date.
B. Th e above liquidated damages are necessary to ensure timely completion and to defray costs of ad- ditional construction and contract administration. Timely completion is required to insure that the owner may occupy the building fully, all facilities operational and all construction activities completed in accordance with these Specifi cations.
C. Should the Contractor fail to complete all or portions of the contract work within the specifi ed completion date, liquidated damages in the amount of mentioned above shall be assessed until such work is complete and accepted by the City. Such assessments shall be deducted from Contractor’s funds being held in the Contractor’s account or provided by the Contractor if the Contractor’s ac- count does not have suffi cient funds.
D. It being impracticable or extremely diffi cult to fi x the actual damage, the amount set forth above is hereby agreed upon as liquidated damages and will be deducted from any money due the Contractor under this Contract. Should the amount of the damages exceed the amount due the Contractor, he/ she and his/her sureties shall be liable for the excess.
10.01 PROTECTION OF PERSONS AND PROPERTY
Contractor’s Responsibility: Notwithstanding any other provision of these Specifi cations, the Contractor shall be solely and completely responsible for conditions of the job site, including safety of all persons and property, during performance of the work. Th is requirement will apply continuously and will not be limited to normal working hours. Safety and sanitary provisions shall conform to all applicable Federal, State, County, and local laws, regulations, ordinances, standards, and codes. Where any of these are in confl ict, the more stringent requirement shall be followed.
10.02 PROTECTION FROM HAZARDS
A. Trench Excavation Excavation for any trench four (4) feet or more in depth shall not begin until the Contractor has received approval from the Engineer of the Con tractor’s detailed plan for worker protection from the hazards of caving ground during the excavation of such trench. Such plan shall show the details of the design of shoring, bracing, sloping or other provisions to be made for worker protection during such excavation. No such plan shall allow the use of shoring, sloping or protective system less eff ective than that required by the Construction Safety Orders of the Division of Occupational Safety and Health,
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Excerpts from a Typical Construction Contract • 209
and if such plan varies from the shoring system standards established by the Construction Safety Orders, the plan shall be prepared and signed by an engineer who is registered as a Civil or Structural Engineer in the State of California.
B. Confi ned Spaces Contractor shall comply with all of the provisions of General Industry Safety Orders of the California Code of Regulations. Entry of a confi ned space shall not be allowed until the Contractor has received approval from the Engineer of the Contractor’s program for confi ned space entry. Confi ned space means a space that (1) is large enough and so confi gured that an employee can bodily enter and perform assigned work; and (2) Has limited or restricted means for entry or exit (for example, tanks, vessels, silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry); and (3) is not designed for continuous employee occupancy. Failure to submit a confi ned space entry program may result in actions as provided in Article 5; “SUSPENSION OR TERMINATION OF CONTRACT”, of these Specifi cations.
C. Material Safety Data Sheet Contractor shall comply with all of the provisions of General Industry Safety Orders of the California Administrative Code. Th e Contractor shall submit to the Engineer a Material Safety Data Sheet (MSDS) for each hazardous substance proposed to be used, ten (10) days prior to the delivery of such materials to the job site or use of such materials at a manufacturing plant where the Engineer is to perform an inspection. For materials which are to be tested in City laboratories, the MSDS shall be submitted with the sample(s). Hazardous substance is defi ned as any substance included in the list (Director’s List) of hazardous substances prepared by the Director, California Department of Industrial Relations, pursuant to Labor Code Section 6382. Failure to submit an MSDS for any hazardous substance may result in actions as provided in Article 5, “SUSPENSION OR TERMINATION OF CONTRACT,” of these Specifi cations.
Editorial Note: Next section(s) deleted from original contract for educational purposes.
ARTICLE 11 – INDEMNITY, INSURANCE AND BONDS
11.01 INDEMNITY
To the fullest extent permitted by law, Contractor hereby agrees, at its sole cost and expense, to defend, protect, indemnify, and hold harmless the City of Glendale (“City”), and its offi cers, employees, elected of- fi cials, attorneys, members of boards and commissions, agents, and volunteers (hereinafter collectively referred to as “Indemnitees”) from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, Iiens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith (hereinafter collectively referred to as “Liabilities”), arising or claimed to arise, directly or indirectly, out of, in connection with, result- ing from, or related to any act, failure to act, error, or omission of Contractor or any of its offi cers, agents, servants, employees, subcontractors, suppliers or their offi cers, agents, servants or employees, arising or claimed to arise, directly or indirectly, out of, in connection with, resulting from, or related to the Contract or the performance or failure to perform any term, provision, covenant, or condition of the Contract, including this indemnity provision. Th is indemnity provision is elective regardless of any prior, concurrent, or subsequent active or passive negligence by Indemnitees, except that, to the limited extent mandated by California Civil
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Code Section 2782, the Contractor shall not be responsible for liabilities which arise from the sole negligence or willful misconduct of Indemnitees or arise from the active negligence of City. Th is indemnity provision shall survive the termination of the Contract or fi nal payment hereunder and is in addition to any other rights or remedies which City may have under the law or under the Contract. Payment is not required as a condition precedent to an indemnitee’s right to recover under this indemnity provision, and an entry of judgment against an Indemnitee shall be conclusive in favor of the Indemnitee’s right to recover under this indemnity provision.
11.02 PUBLIC LIABILITY AND PROPERTY DAMAGE INSURANCE
Contractor shall assume all responsibility for damages to property or injuries to persons, including accidental death, which may arise out of or may be caused by Contractor’s performance of this Contract, by its subcon- tractor, or by anyone it directly or indirectly employed, and whether the damage or injury may accrue, or may be discovered, before or after termination of this Contract.
Contractor shall obtain, pay for, and maintain during the life of this Contract an “occurrence” policy for Commercial General Liability, including Contractual Liability, and an Automobile Liability policy which shall protect it and the City from claims for injuries and damages. Th e insurance company shall be an “admitted” insurer in the State of California; shall be domiciled within, and organized under the laws of, a State of the United States; and shall carry an A.M. Best & Company minimum rating of “A:VII.” Th e policy shall name the City of Glendale, its offi cers, agents, and employees as additional insureds under the policy in the following amounts:
1. COMMERCIAL GENERAL LIABILITY INSURANCE in the amount not less than TWO MILLION DOLLARS ($2,000,000.00) per occurrence for personal injuries, including accidental death, to any one person; property damage insurance in an amount not less than TWO MILLION DOLLARS ($2,000,000.00) and subject to the above limits and combined single limit of insurance in an amount not less than TWO MILLION DOLLARS ($2.000,000.00): and
2. AUTOMOBILE LIABILITY INSURANCE endorsed for all vehicles, whether hired, scheduled, owned or non-owned, with a combined single limit of at least TWO MILLION DOLLARS ($2,000,000.00) per occurrence for personal injuries, including accidental death, to any one person; and for property damage.
All policies shall contain a “Severability of Interest” clause and a “Primary Coverage” clause for any loss arising out of or caused by Contractor’s performance of the Contract. In addition, the policies shall contain a state- ment of obligation on the carrier’s part to notify the City, by registered mail, at least 30 days in advance of any policy cancellation, termination, or reduction in the amount of coverage. Contractor shall furnish the City with a “certifi cate of insurance” and an “additional insured endorsement,” both documents countersigned by the insurance carrier or its authorized representative, on forms satisfactory to the City Attorney, which set forth the above provisions.
Th e countersigned certifi cate, along with the additional insured endorsement … offi cers, agents, and employees are named as additional insureds under this policy.” Th is insurance is primarily to the coverage of the City of Glendale. Neither the city nor any of its insurers shall be required to contribute to any loss. Th is policy contains a severability of interest clause. Th e issuing company shall mail 30 days advance notice to the City of any policy cancellation, termination, or reduction in the amount of coverage.
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Excerpts from a Typical Construction Contract • 211
Th e certifi cate of insurance must also state if any claim has been paid or is currently pending under the policy, and if so, the amount of such claim(s). Any deductibles or self-insured retentions shall be set forth on the certifi cate and shall be subject to the City’s review and approval.
CONTRACTOR SHALL FURNISH THE REQUIRED CERTIFICATE(S) OF INSURANCE AND ENDORSEMENTS(S) BEFORE THE CITY SIGNS THIS CONTRACT.
11,03 CONTRACTOR’S FAILURE TO OBTAIN, PAY FOR, OR MAINTAIN INSURANCE
Contractor’s failure to obtain, pay for, or maintain any required insurance shall constitute a material breach upon which the City may immediately terminate or suspend this Contract. At its discretion, the City may obtain or renew the insurance and pay all or part of the premiums. Upon demand, Contractor shall repay the City all monies the City has paid to obtain or renew the insurance, or the City may off set the cost of the premium against any monies due Contractor from the City.
11.04 WORKER’S COMPENSATION INSURANCE
Contractor understands and agrees that all persons furnishing services to the City under this Contract are, for the purpose of workers’ compensation liability, employees solely of Contractor and not of the City. Contractor shall bear the sole responsibility, liability, and costs of furnishing workers’ compensation benefi ts to its employ- ees, or anyone it directly or indirectly employs, for injuries arising out of or connected with services performed on behalf of Contractor.
Contractor shall obtain, pay for, and maintain for the duration of this Contract, complete workers’ compensa- tion insurance. Th e City of Glendale shall not be responsible for any claims at law or in equity caused by Contractor’s failure to comply with this paragraph. Contractor shall provide proof of workers’ compensation coverage by furnishing the City with an insurance certifi cate or a certifi cate of consent to self-insure.
All workers’ compensation insurance policies shall bear an endorsement, or shall attach a rider, which provides that the carrier will notify the City, by registered mail, at least 30 days in advance of the policy’s expiration, termination, or cancellation.
11.05 BUILDERS RISK/COURSE OF CONSTRUCTION INSURANCE
A. Th e Contractor shall obtain and maintain during the life of the Contract, in the name of the Contractor and the City, “all risk” builders risk/course of construction insurance issued on a completed value form covering the entire work of the Contract for 100% of the replacement value thereof without deductibles. Such insurance shall include items of labor and materials in place or to be used as part of the permanent construction, surplus miscellaneous materials and supplies incident to the work, temporary buildings, debris removal, and false work, staging, towers, forms and equipment, whether or not owned or rented by the Contractor, and demolition required by the enforcement of any Contract, law or regulation. Such insurance shall also include coverage for damage due to earthquake and fl ood.
B. In the event of a loss by the perils insured against, of any or all of the work and/or materials herein provided for, at any time prior to the fi nal completion of the Contract and the fi nal acceptance by
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the City, the Contractor shall promptly reconstruct, repair, replace or restore all work or materials so destroyed.
C. Nothing herein provided for shall in any way excuse the Contractor or his/her surety from the obliga- tion of furnishing all the required materials and completing the work in full compliance with the terms of the Contract.
Th e following endorsements/coverages shall be included in the policy:
1. Th e coverages are primary to any other applicable insurance coverages carried by the City.
2. Th e contractor and the insurance company waive all rights of subrogation and contribution against the City, its offi cers, employees, elected offi cial, attorneys, members of boards and com- missions, agents and volunteers; and
3. Th e policy stall not be canceled nor the above coverages/ endorsements reduced without 60 days written notice to the City.
11.06 ENDORSEMENTS AND CERTIFICATE
A. Contractor shall have its insurance carrier(s) complete and execute the following documents, to- gether with a copy of each insurance policy required under the Contract, including all endorsements thereto, which shall be delivered to the City Engineer within 14 working days following issuance of the Notice of Award:
1. Form entitled: Commercial General Liability/Automobile Liability/Special Endorsement, at- tached hereto as Exhibit “A1,”
2. Proof of Workers’ Compensation Insurance, or if Contractor is self-insured for worker’s compen- sation, a self-insuring certifi cate therefor from the State of California.
3. Form entitled: Certifi cate of Insurance, with 30 days prior notice of cancellation required as to all coverage and policies.
B. Th e Contract will not be executed by the City and the Notice to Proceed issued until the aforesaid insurance documents have been received and approved by the City. City’s decision as to the accept- ability of all insurance documents is fi nal. No substitution of the form of the documents or the endorsements or amendments thereto will be permitted without the prior written consent of City.
11.07 BONDS
A. Contractor shall furnish the following bonds:
1. A Faithful Performance Bond in an amount equal to One Hundred percent (100%) of the Contract price in the form shown in Exhibit “B1” attached hereto. 2. A Payment Bond (Labor and Material) in an amount equal to One Hundred percent (100%) of the total Contract price in the form shown in Exhibit “B2” attached hereto.
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3. A Maintenance Bond in an amount equal to Ten percent (10%) of the total Contract price in the form shown in Exhibit “B3” attached hereto.
B. All such bonds shall be accompanied by a power of attorney from the surety company authorizing the person executing the bond to sign on behalf of the company. If the bonds are executed outside the State of California, a California representative of the surety must countersign all copies of the bonds. Th e signature of the person executing the bond shall be acknowledged by a Notary Public as the signature of the person designated in the power of attorney.
Editorial Note: Next section(s) deleted from original contract for educational purposes.
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 215
Inland Architects, Inc. and Big Corp, Inc., “Master Agreement Between Inland Architects, Inc. and Big Corp, Inc., for Architectural/Consulting Services Alliance. Permission to reprint granted by the publisher.
Table of Contents ARTICLE I. PREAMBLE ARTICLE II. SCOPE OF SERVICES 1. Access to Premises 2. General 3. Basic Services 4. Revisions and Extra Services 5. Permits and Licenses 6. Services Provided by BCI ARTICLE III. COST AND COMPENSATION 1. Basic Services 2. Fixed Percentage 3. Multiple of Payroll 4. Fee Schedule 5. Revisions and Extra Services 6. Reimbursable Expenses 7. Summary of Actual Costs ARTICLE IV. BILLING AND INVOICING ARTICLE V. PERFORMANCE 1. General 2. Acceptance or Rejection 3. Termination, Cancellation and Suspension of Services 4. Time is of Th e Essence 5. Reporting ARTICLE VI. GENERAL PROVISIONS 1. Amendments and Waivers 2. Assignment 3. Compliance with Laws 4. Confl ict of Interest 5. Construction and Interpretation 6. Dispute Resolution 7. Emergency Support
Master Agreement Between
Inland Architects, Inc. and Big Corp, Inc.
for Architectural/Consulting Services Alliance
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8. Entire Agreement 9. Force Majeure 10. Governing Law 11. Indemnity 12. Independent Contractor 13. Information 14. Insurance 15. Liens 16. Limitation of liability 17. Most favored Customer 18. Notices 19. Subcontractors 20. Waivers of Default 21. Warranty 22. Signatures ARTICLE VII. EXHIBITS
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ARTICLE I. PREAMBLE
THIS MASTER AGREEMENT (“Agreement“) is between Inland Architects, Inc., a California Corporation (“Architect”) and Big Corp, Inc., a Delaware Corporation (“BCI”) each of which may be referred to in the sin- gular as “Party” or in the plural as “Parties:” Subject to the terms and conditions of this Agreement, Architect and BCI agree that Architect will provide to BCI, an alliance of architectural services (“Services”) in accordance with the terms and conditions stated herein.
Architect’s Federal Taxpayer Identifi cation Number is 99-1111111 and Architect’s State License Number is C-9898989.
Th e Parties, intending to be legally bound, agree as follows:
1. Term of Agreement
Th is Agreement is eff ective on the date when signed by the last Party (“Eff ective Date”), and shall continue in full force and eff ect for a term of three (3) years unless sooner Terminated or Canceled as provided in this Agreement Th e Parties may extend the term of this Agreement by mutual agreement in writing.
Th e Termination, Cancellation or expiration of this Agreement shall not aff ect the obligations of either Party to the other Party pursuant to any Contract previously executed hereunder, and the terms and conditions of this Agreement shall continue to apply to such Contract as if this Agreement were still in eff ect.
2. Alliance
BCI desires to establish an Alliance relationship with the Architect. Th is relationship will be structured to draw on the strengths of each organization and to identify and achieve common goals for this Alliance. Th e Alliance objectives are:
• To build trust by fostering cooperation and openness through shared knowledge and understanding; • To add value by providing Solutions that will lower total costs for both Parties; • To establish performance measures to ensure continuous improvement; and • To provide an ongoing resource to manage their relationship.
Th e Parties agree that they will use best eff orts to work together to develop Key Performance Measures (“KPMs”) that may measure such aspects of Architect’s performance such as:
• Quality and cost of Services such as Change Orders and construction unit costs; • Adherence to schedule; • Billing errors; • Client/Customer service; • Compliance to contract requirements; and • Cost reduction
A complete set of KPMs is to be developed by the Alliance Council and provided to the Parties.
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ARTICLE II. SCOPE OF SERVICES
1. Access to Premises
A. BCI’s Premises For the purposes of Architect’s performance of the Services hereunder, Architect and Architect’s personnel shall have reasonable access to any BCI site where Services are to be performed, subject to rights of access secured or owned by BCI. Architect shall be responsible for Architect’s personnel observing BCI’s site rules and regulations and those of its property owners and property manag- ers, including but not limited to, safety regulations and security requirements, and for working in harmony with others white present at the site. If BCI, for any reasonable and lawful reason, requests Architect to discontinue furnishing any person provided by Architect for performing Services on BCI’s Premises, Architect shall immediately comply with such request. Such person shall leave BCI’s Premises promptly, and Architect shall not furnish such person again to perform Services on BCI’s Premises without BCI’s consent.
B. Architect’s Premises BCI shall, upon reasonable prior notice to Architect and at no additional charge, have reasonable access to Architect’s premises during normal business hours in order to observe Architect’s work with respect to the Services hereunder.
C. Releases Void Neither Party shall waive or release any personal rights from representatives or customers of the other in connection with visits to its Premises, unless required by a third Party property owner or property manager, and both Parties agree that no such release or waiver shall be presented as evidence by them or third persons in any legal action or proceeding.
2. General
A. Architect’s evaluations of BCI’s Project budget and Architect’s opinions of probable Construction Costs as provided for herein shall be made on the basis of Architect’s experience and qualifi cations, and will represent Architect’s professional judgment as a qualifi ed design professional familiar with the construction industry. Since Architect has no control over the cost of labor, materials, equip- ment, or services furnished by others, or the competitive bidding process, or future market condi- tions, Architect does not guarantee or represent that proposals, bids, negotiated prices,, or actual Construction Costs wilt not vary from Architect’s opinions of probable Construction Costs prepared or agreed upon by the Architect.
B. Architect shall furnish or cause to be furnished, from time to time, design and technical Services, and other necessary Services, including Basic Services, Revisions and Extra Services, and Pass Th rough Projects (all collectively called “Services”) as set forth in this Agreement and/or any Contract, for such construction and alteration Projects as BCI may assign to Architect.
C. Architect shall be responsible for design accuracy of existing visible and readily accessible fi eld condi- tions and will be held accountable for any change resulting from errors in such design (hereinafter referred to as “Design Errors”)
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D. Nothing contained herein shall obligate BCI to assign any Project or Projects to Architect.
3. Basic Services Unless otherwise noted in this Agreement and/or any Contract, Architect shall perform or cause to be per- formed the “Basic Services” listed below which shall consist of the fi ve phases described as appropriate to each Project, and include normal architectural, structural, mechanical, and electrical Services.
A. Schematic Design Phase Architect shall consult with BCI to ascertain Project requirements. If requested by BCI, the Architect shall provide Project programming as an extra service to the contract on a time and material basis. If requested by the Architect, BCI shall provide the services of their maintenance personnel or a contractor, to remove or expose existing construction items or provide existing conditions information, if available. In addition, Architect shall provide the following Services:
1. Prepare a maximum of three (3) initial design studies and schematic Plans illustrating the scale and the relationship of Project components to be approved by BCI in writing.
2. Provide preliminary cost estimate in a format required by BCI. As deemed necessary by BCI, BCI shall make available the services of the Alliance General Contractor to provide assistance with this eff ort.
3. Attend a maximum of four (4) meetings in California during this phase.
4. Provide meeting minutes to all Parties requested by BCI.
5. Develop space plan layout for block plan work stations for the Approved schematic design.
6. Participate with electrical and mechanical Consultants to perform building load calculations and life cycle cost analysis for all design alternatives based on BCI’s growth forecast data (if available), BCI’s UVAC standards, building assessment survey or maintenance data (if available), and using acceptable software e.g., Trace or DOEII for load and life cycle cost analysis.
7. Additionally, Architect shall provide a copy of the new load calculations evaluated by electrical Consultants for standby engines.
8. Evaluate Interior elevations of critical areas as required.
9. Provide input on their relative time frames for Project schedule as well as projections for plan check and permit processing.
10. Verify extent of existing conditions with special attention to evaluation of existing HVAC and electrical systems as much as possible given availability of as-built documents and fi eld exploration.
11. Coordinate/integrate eff orts with other Consultants to ensure the most effi cient and cost eff ective design.
12. For building addition Projects, make a minimum of two (2) visits to the planning department and fi re department to confi rm all special permitting requirements or variances required.
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B. Design Development Phase Architect shall prepare from Approved schematic design studies and Plans, design development docu- ments to fi x and describe the size and character of the entire Project as to structural, mechanical, and electrical systems, materials and such other essentials as may be necessary. Architect shall:
1. Provide BCI with a cost-eff ective design that will result in a cost-eff ective construction which meets BCI’s requirements.
2. Defi ne scope of Services from previous alternatives for 1-IVAC, electrical and other building systems.
3. If requested by BCI, Architect shall advise BCI of the selected interior/color fi nishes, prior to going out to bid for a Project. Architect will provide two (2) color board selections with one revision, which are included in the scope of Basic Services.
4. Make a minimum of one (1) visit to the Project site unless Architect secures written approval from BCI to forego such visit for a particular Project. Such approval shall not release Architect from responsibility to visit all other Project sites under this Agreement.
5. Attend a minimum of two (2) meetings and make a minimum of two (2) revisions to Drawings during the design phase prior to BCI’s written Approval to begin construction documents.
6. Provide meeting minutes during design phase to all Parties as BCI may request.
C. Construction Document Phase 1. After the design development documents are Approved, Architect shall prepare Working Drawings
in the form of: a. AutoCAD created reproducible master, b. AutoCAD diskettes, and c. A hard copy
2. AutoCAD drawings must be in conformance with the BCI Corporate Real Estate CAD Standards. Th e purpose of these CAD standards is to provide Corporate Real Estate (CRE) personnel, Consultants and Contractors standard guidelines for the development of BCI’s CAD drawings.
3. Th ese Working Drawings shall set forth in detail the requirements for the construction of the Project. In addition, the Architect shall be responsible for: a. Distribution of documents as directed by BCI (all copies of Drawings are a reimbursable cost
and are not included in the Basic Services). b. Preparation of all reasonable design changes requested by BCI to Approved design documents
during the construction phase at no additional cost to BCI. c. Completion of all building department reviews and submittals including obtaining govern-
mental plan check approval of all phases of Project design from all governmental agencies typically charged with the responsibility of approving such design. Architect shall make such changes as necessitated by governmental agencies subsequent to BCI’s review and written approval. Architect will make every eff ort to defend BCI’s viewpoint when position of costs need to be contended with the governmental building department. All governmental permit and plan check fees are paid by the Architect and reimbursed at cost by BCI; and
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d. Signage details are part of Basic Services and are provided at no additional cost to BCI.
D. Bidding Phase Upon BCI request, Architect shall interpret Drawings and Specifi cations and issue clarifi cation and ad- denda as may be necessary. Architect shall attend one (1) pre-bid Site meeting.
E. Construction Phase Th is phase shall commence after BCI has issued a construction Contract for the particular Project. Architect shall:
1. Make a minimum of one (1) visit to the construction site in order that Architect and his Consultants shall be familiar with the progress and confi rm that all critical elements of construction are in strict conformance with the Drawings and Specifi cations;
2. Monitor and immediately inform BCI of any critical elements of construction that are not in strict conformance with the Drawings and Specifi cations;
3. Attend periodic meetings at the site, as mutually agreed upon by both BCI and Architect;
4. Review construction schedules and material lists and recommend acceptance, modifi cation, or denial;
5. Review and confi rm that the Shop Drawings, Product Data, and Samples submitted by the Contractor are in strict conformance with the intent of the construction documents;
6. Review, when requested by BCI, Contractor’s applications for payment and recommend accep- tance modifi cation or denial;
7. Interpret the Drawings and Specifi cations, upon request by BCI or Contractor;
8. Prepare price requests, submit them to the Contractor, and evaluate the proposed changes when requested by BCI;
9. Review Contractor’s costs and time extension proposals connected with Changes, and submit written recommendations to BCI;
10. Continually monitor construction to determine and prepare a list for BCI of the defi ciencies that may prevent the planned occupancy of certain areas of the Project;
11. Review all design implementation verifi cation tests (e.g. air balance reports, switch gear testing) and report any defi ciencies to BCI;
12. Make a fi nal site visit to observe and review the Project. Within ten (10) days after the fi nal site visit, Architect must prepare and furnish to Contractor a written list of any defi ciencies (Punch List) that may prevent the acceptance of the Project by BCI. Completion or correction of said defi ciencies shall be done within such time limit as may be established by BCI. Architect shall review the Punch list for completion or correction after such time by making a follow-up site visit to confi rm that the Punch list work has been completed;
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F. Closeout Phase 1. Obtain and review for completeness, submittal brochures, operating instructions, manuals, war-
ranties, permits and the like, required by the Specifi cations or by governmental authority, obtain all record Drawings “as built”, update all original AutoCAD Drawings to refl ect the as-built conditions and submit all such items, including revised AutoCAD fi les on CD-ROM, in addition to any engineering calculations to BCI within 30 days from receipt of same from the Contractor(s) and prior to submitting a fi nal bill for Basic Services and notify BCI in writing that all required documents have been completed and submitted to BCI;
2. Attend one (1) Project audit and client review meeting;
3. Deliver fi nal Project invoice to BCI;
G. Items not expected in Basic Services 1. Color detailed renderings are not expected to be in the Basic Services;
2. Out of the ordinary or special feasibility/planning studies are not expected to be in the Basic Services.
4. Revisions and Extra Services Revisions and Extra Services shall include, but not be limited to, the following:
A. Changes requested by BCI’s Representative either prior to, or subsequent to Approved schematic de- sign documents, design development documents or construction documents that result in substantial work by Architect and such work would not have been required if BCI’s Representative had not made such a request.
B. Development of supplemental Drawings and Specifi cations required by BCI’s Representative for the purpose of obtaining alternate bid amounts, and may include any deductive or additive alternate.
C. Studies and reports requested by BCI or governmental agencies and are not required as part of Basic Services. Th ese may include, but are not limited to: substantial time spent preparing and fi ling ap- plications and reports, including without limitation, Environmental Impact Reports, Environmental Impact Statements, and Energy Commission Standards Studies, including but not limited to Regional Coastal Commissions and Historic Districts.
D. Design work requested by BCI’s Representative during the construction phase necessary to obtain cost proposals from the Contractor for proposed construction Changes, excluding Work required as a result of Architect Design Error.
E. Space Planning shall be considered a Revision and Extra Service when it is a standalone Project. If Space Planning Services are required as part of an overall Project being contracted under Basic Services the contracting Parties shall, prior to the start of work, determine if itis reasonable to include such Space Planning Services within the compensation for Basic Services. If such Space Planning Services are not included within the compensation for Basic Services, then such Space Planning Services shall be included within the compensation for Revision and Extra Services.
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 223
F. All Revisions and Extra Services must be authorized by the appropriate BCI Representative, in writ- ing and in accordance with BCI’s Schedule of Authorizations prior to the start of such Services. BCI will not pay for Revisions or Extra Services that are improperly authorized.
G. Protracted Planning department approvals shall be considered an extra service when the time spent in dealing with this issue exceeds 20% of the combined budget for schematic design and design development.
H. At the direction of the BCI project manager and when a project construction schedule requires the bidding of a Project to be broken into multiple phases, the incremental eff ort associated with this task shall be considered an extra service for which time spent shall be billed on a time and material basis.
5. Permits and Licenses If requested by BCI’s Representative, Architect shall assist BCI in obtaining all permits and licenses required by any properly constituted public authority for the performance of the Services. Coordinating with adjacent property owners for access to adjacent property shall not be considered part of Basic Services.
6. Services Provided by BCI Unless otherwise set forth under this Agreement and/or any Contract, if any, BCI may perform or furnish as necessary to the Architect the following:
A. Necessary information as to Project requirements;
B. Land survey of the site, if available to BCI
C. Soils engineering reports, if available to BCI
D. Laboratory testing and inspection reports; and
E. Sample invitations to bid.
ARTICLE III. COST AND COMPENSATION
1. Basic Services As set forth in any Contract issued hereunder, Architect shall be compensated for Basic Services, by the method described next in Section 2 entitled “Fixed Percentage” For non-Basic Service (e.g., Studies and Space Plan that involves furniture layout) Architect shall be compensated by the method described in Section 3 entitled “Multiple of Payroll”. Th e compensation method for non-Basic Services shall be determined by BCI and will be so identifi ed on the Contract.
2. Fixed Percentage A. Under this method, Architect shall initially be paid a certain percentage of the amount of the esti-
mated Construction Costs for construction of the Project and, Architect’s fi nal fee shall be based on the Final Construction Cost of the Project less any Construction Cost resulting from Architect and/ or Consultant Errors and Omissions. Such percentage shall be as set forth in ARTICLE VII. Exhibit
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B, Matrix A and shall be paid monthly in proportion to Services performed so that the compensation at the completion of each phase shall equal the following percentages of the total compensation for Basic Services: • Schematic Design Phase 10% • Design Development Phase 20% • Construction Document Phase 45% • Bidding Phase 5% • Construction Phase 15% • Closeout Phase 5% • Total Payments 100%
B. Billing through and including the construction document phase shall be based on the estimated Construction Cost stated on the Contract as “Construction Budget” or any subsequent estimated Construction Costs Approved by BCI’s Representative.
C. Pass-through projects are compensated as a fi xed percentage as set forth in ARTICLE VII. Exhibit B, Matrix C.
3. Multiple of Payroll
A. Under this option, Architect shall be reimbursed based on a multiple of employees’ basic payroll costs. Titles, basic hourly rates and payroll multipliers for normal and overtime work by employees are as set forth in ARTICLE VII. Exhibit B. Basic hourly rates shall not include any loading or fringe benefi ts whether mandatory or voluntary. Total hourly reimbursement for employees’ work, after application of the payroll multiplier, shall not exceed the Principal’s hourly rate.
B. Architect shall be reimbursed for Services performed by contract workers based on a multiple of Actual Costs incurred as set forth in ARTICLE VII Exhibit B.
C. Architect shall be reimbursed for the Actual costs of Consultants such as architects, and structural, electrical, and mechanical Consultants retained by the Architect. Such Actual Cost shall be computed on the same basis as Architect’s Actual Costs, as set forth in this Agreement including ARTICLE VII Exhibit B and shall not, without BCI’s Representative’s prior written approval, exceed the limits placed on Architect.
D. Architect shall be compensated for time spent by Principals as set forth in ARTICLE VII Exhibit B.
E. Contracts payable under this option may be subject to a “not to exceed” dollar amount. Such “not to exceed” dollar amount shall be so stated on the Contract.
4. Fee Schedule Payment for Architect’s Services shall be based upon the Schedule of Fees and Labor Rates described in ARTICLE VII Exhibit B.
If Architect determines that there are going to be cost overruns, Architect shall immediately notify BCI so that BCI and Architect may jointly identify the factors that aff ect the cost, and make necessary adjustments to control the cost collectively.
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 225
5. Revisions and Extra Services Th ere will be no additional reimbursement to Architect for any accepted additive alternate supplemental Drawings and Specifi cations for which the Basic Services are compensated. Architect shall be compensated for Revisions and Extra Services, which are not included in Basic Services, requested by BCI on the same basis as described in ARTICLE III Section 2 entitled “Fixed Percentage”, except:
A. Architect’s compensation for any Studies and reports shall be a mutually agreed upon stipulated sum.
B. In the event that Services are rendered for a Project, or a portion of a Project that is not pursued to completion by BCI, Architect shall be compensated on a “Multiple of Payroll” method or on a mutually agreed upon basis.
6. Reimbursable Expenses Architect shall be reimbursed at Actual Cost as set forth in ARTICLE VII. Exhibit B-l.
7. Summary of Actual Costs Architect shall provide BCI with a summary of Architect’s Actual Costs annually and Architect shall make all supporting documentation for the summary available to BCI consistent with Article II, Section 7. Th e summary shall include the following data as a minimum.
A. Job titles, basic hourly rates, and payroll multipliers for normal overtime work by employees as set forth in the ARTICLE VII. Exhibit B. Basic hourly rates shall not include any loading or fringe benefi ts whether mandatory or voluntary. Total hourly rate for employee’s work after application of the payroll multiplier shall not exceed the Principal’s hourly rate.
B. Job titles, basic hourly rates, and payroll multipliers for work performed by Contract Worker as set forth in ARTICLE VII. Exhibit B.
C. Actual Costs incurred by the Architect for Services provided by structural, electrical, and mechanical engineers that were retained by the Architect.
D. Hours spent by the Principals as set forth in ARTICLE VII. Exhibit B.
ARTICLE IV. BILLING AND INVOICING
1. Invoicing Subject to any provisions to the contrary, Architect shall render a summarized invoice for Services rendered under the applicable Contract to BCI, that comply with the following requirements:
A. Except as otherwise provided for in this section, invoices shall be submitted on the 5th and 19th calendar days of each month. If the 5th or 19th falls on a weekend or BCI Holiday, the invoices may be submitted on the next business day.
B. Architect shall submit a fi nal true-up Change Order for a Project to BCI no later than thirty calendar days following receipt of fi nal Project documents from Contractor.
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C. Architect’s fi nal invoice for a Project (hereinafter referred to as “Final Project Invoice”) shall be delivered to BCI no later than thirty calendar days following BCI approval of the Architect’s true-up Change Order.
D. BCI shall have no obligation to pay Architect’s Final Project Invoice not meeting requirements of this section (B and C above) unless failure to perform is due to causes beyond Architect’s control
E. Th e invoicing shall be in a format and detail substantially as described in ARTICLE VII Exhibit D.
F. BCI shall pay Architect within forty-fi ve (45) days of the date of receipt of the invoice in accordance with the prices set forth in this Agreement or in the applicable Contract.
G. Th e Architect shall not be entitled to any other compensation of any kind whatsoever unless such compensation is specifi cally approved in advance and in writing by BCI.
H. BCI may deduct any setoff or recoupment claims that it or its Affi liates may have against Architect from amounts due or to become due to Architect, whether under this Agreement or otherwise. Architect shall pay any amount due to BCI or its Affi liates that is not applied against the invoiced amounts within thirty (30) days after written demand by BCI.
2. Invoice Supporting Documentation
A. General As indicated in ARTICLE II. Section 7 “Records and Audits”, Architect agrees to maintain supporting documentation for all charges billed to BCI hereunder and provide such documentation to BCI upon request. BCI shall not have any obligation to pay any invoice amount(s) that cannot be verifi ed through supporting documentation.
For all invoices, Architect shall itemize all costs as specifi c categories requested by BCI’s Representative. Th is includes reporting costs to:
1. Special Studies 2. Space Planning 3. Basic Services 4. Additional elements as may be requested, including but not limited to division by phase of job,
fl oor, etc., 5. Reimbursable expenses
Invoicing under the provisions of ARTICLE III shall include when practicable, original receipts for mon- ies expended by Architect and original invoices for monies billed to Architect. When impracticable, the duplicate or counterpart, or a reproduced copy endorsed “Original Bill Not Available” shall be accepted.
Supporting documentation shall also list names, categories and hourly rates of persons engaged in provid- ing the Services (including Consultants if performing Services), identify the hours and phases of the Services (e.g., schematic design), total charges, and any applicable California sales or use taxes which shall be separately stated and identifi ed.
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B. Claims Any claims for extension of time or for an increase in the Services’ amount shall be made in writing to BCI not more than fi ve (5) days after the commencement of the delay or the occurrence giving rise to the claim for extra compensation. In the case of a continuing delay, only one claim is necessary. Th e Architect shall provide an estimate of the probable eff ect of such delay on the progress of the Services.
C. Disputes Regarding Invoicing If BCI disputes any invoice rendered or amount paid, BCI will so notify Architect and the Parties will use their best eff orts to resolve such disputes expeditiously. Provided that if BCI so notifi es Architect of a disputed invoice, then the time for paying the invoice in a dispute shall be extended for a period of time equal to the time between Architect’s receipt of such notice from BCI and the resolution of such dispute or, if BCI has already paid the amount in dispute, BCI may notify Architect and withhold the amount in dispute from any subsequent payment until the resolution of such dispute.
ARTICLE V. PERFORMANCE
1. General Architect shall be measured on the following performance categories during the term of this Agreement:
A. Design costs;
B. Errors and Omissions;
C. Construction Unit Costs;
D. Adherence to schedule;
E. Customer/Client Service; and
F. Design/Build Coordination.
Th e specifi c measurements are outlined in the KPMs.
2. Acceptance or Rejection Any Services performed by the Architect pursuant to this Agreement shall be accepted by BCI unless BCI determines in good faith and with reasonable exercise of judgment, that such Services have not been performed in accordance with this Agreement and/or any Contract. BCI shall notify Architect of any instance in which Services are not so performed. Upon receipt of notice, Architect shall take prompt and appropriate corrective action. Architect shall not charge BCI for any actions taken to correct Services not performed in accordance with this Agreement and/or any Contract. If unsatisfactory Services have not been corrected within a reason- able time, not to exceed ten (10) working days after BCI’s notice to Architect, or within a time period agreed to in writing by the Parties, or if Architect’s Services are performed unsatisfactorily two (2) or more times within any sixty (60) day period, BCI may, in addition to all other rights and remedies provided by law or this Agreement, Cancel this Agreement and/or the Contract.
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As stated in ARTICLE I. Section 3 entitled “Alliance”, the Architect’s performance will be evaluated with the use of KPMs. Th e Architect shall demonstrate an ability to meet these KPMs over a stated period of time. Should the Architect fail to meet the minimum requirements of the KPMs, BCI shall have the right to cancel this Agreement upon (30) thirty calendar days prior written notice.
3. Termination, Cancellation and Suspension of Services
A. Termination Either Architect or BCI may terminate for convenience this Agreement upon thirty (30) days prior written notice to the other setting forth the eff ective date of such termination; provided, however, that no such termination shall be eff ective prior to the expiration of the fi rst twelve (12) months of this Agreement. Th e Termination, Cancellation or expiration of this Agreement shall not aff ect the obligations of either Party to the other Party pursuant to any Contract previously executed hereunder, and the terms and conditions of this Agreement shall continue to apply to such Contract as if this Agreement had not been terminated, canceled or expired.
B. Cancellation If Architect is in material default of any of its obligations hereunder, including but not limited to, Architect being adjudged bankrupt, fi ling or having fi led against Architect a petition in reorganization proceeding; or Architect making a general assignment for the benefi t of creditors; or a receiver being appointed for Architect’s business because of Architect’s insolvency or inability to meet current obligations; or if, in the sole opinion of BCI, at any time after execution of this Agreement and/or Contract, Architect refuses or neglects, without fault of BCI, to provide professional services suffi cient to complete the Services within the time specifi ed in this Agreement and/or any Contract; or if, in the sole opinion of BCI, Architect fails in any material respect to conduct the Services with promptness, safety and diligence, or to perform any of the provisions hereof, and such default is not corrected or reasonably commenced to be corrected within three (3) days after written notice thereof; or any default occurs two times within a sixty (60) day period; BCI may, in addition to all other rights and remedies provided by law and this Agreement, 1) cancel this Agreement and/or any Contract, and/or 2) have the Services completed immediately by BCI employees, or by any other third Party at Architect’s sole cost and expense.
C. Cease Work Architect shall immediately cease performing any Services or incurring any costs under this Agreement and/or any Contract as of the eff ective date of such termination, cancellation or suspension of services.
D. Consequences Architect shall be entitled to compensation for Services accepted by BCI and satisfactorily completed prior to the eff ective date of the termination, cancellation or suspension of Services. In no case shall such compensation exceed the amount, if any, agreed upon in this Agreement and/or any Contract for such Services. In the event of suspension of Services, Architect shall not be entitled to receive further payment hereunder until the Services shall be wholly fi nished. Architect agrees to waive and hereby does waive all claims against BCI for lost profi ts, losses, damages or other economic injury arising out of such termination, cancellation or suspension of Services. BCI’s decision to terminate, cancel or suspend under this provision shall not be subject to mediation.
E. Additional Consequences of Termination or Cancellation
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If BCI terminates, cancels or suspends this Agreement and/or any Contract pursuant to the provisions of this Agreement, Architect shall waive all claims against BCI for termination, cancellation or suspension charges, or lost profi ts, losses or damages. Upon termination, cancellation or other expiration of this Agreement:
1. BCI and Architect shall release the other from any further obligation, duty or liability arising out of this Agreement and/or any Contract, as the case may be, except for any liability or obligation, whether of indemnity or otherwise, which may have accrued or which may be accruing at the time of the termination, cancellation, or other expiration, or which is otherwise specifi ed in this Agreement and/or Contract.
2. Architect shall promptly return to BCI, all papers, written materials, properties, other materials and other information furnished to Architect by BCI or developed by Architect in connection with or as a result of performance of the Services under this Agreement and/or any Contract. Each Party shall provide the other such reasonable assistance as may be necessary for the orderly, non-disrupted business continuation of each Party.
F. Representations 1. In addition to any other rights or remedies BCI may have at law or in equity, the architect
perform or cause to be performed the Services under this Agreement in accordance with usual and customary professional care and with generally accepted architectural/engineering practices in eff ect at the time the service are performed. Th e Services provided under this Agreement and/ or any Contract issued hereunder shall be performed by properly qualifi ed personnel in a diligent, workmanlike manner, to BCI’s satisfaction in accordance with this Agreement, in a manner consistent with professional standards, and in compliance with applicable Laws and Regulations. Neither payments to Architect nor total or partial occupancy of the Project location by BCI or persons operating under Agreement with BCI shall relieve Architect of these obligations.
2. Notwithstanding anything to the contrary herein contained, it is understood and agreed that the foregoing representation shall not aff ect, limit, or impair BCI’s right against Architect, or any other Party Architect causes to perform professional services under this Agreement, and their sureties, if any, with regard to latent defects in the Services that are not apparent, and that could not by the exercise of reasonable care and due diligence, be ascertained or discovered by BCI upon visual inspection.
4. Time is of Th e Essence Architect understands that BCI’s business and operations require the performance of Services hereunder be accomplished in the period of time and by dates specifi ed in the applicable Contract. Th erefore, it is agreed that TIME IS OF THE ESSENCE in the performance of Services. In determining a period of time, the date upon which action is taken to start the period shall not be counted and the period shall end with the close of business on the last designated day of the period. If Architect learns of anything that might prevent the timely performance of Services, Architect will immediately notify BCI of all relevant information concerning the potential delay
5. Reporting
A. At BCI’s request. Architect shall deliver written and/or verbal Project status reports to BCI.
B. In the event KPMs requires information to be delivered by the Architect, Architect shall deliver such information to BCI in a timely manner.
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ARTICLE VI. GENERAL PROVISIONS
1. Amendments and Waivers Th is Agreement and any Contracts placed hereunder may be amended or modifi ed only through a subsequent written document signed by the Parties; provided that BCI may, at any time, make changes to the scope of Work, and Architect shall not unreasonably withhold or condition its consent. An equitable adjustment shall be made if such change substantially aff ects the time of performance or the cost of the Work to be performed under this Agreement. Such cost adjustment shall be made on the basis of the actual cost of the Work, unless otherwise agreed in writing. No course of dealing or failure of either Party to strictly enforce any term, right or Condition of this Agreement shall be construed as a general waiver or relinquishment of such term, right or condition. A waiver by either Party of any default shall not be deemed a waiver of any other default.
2. Assignment Neither Party hereto may assign, subcontract or otherwise transfer its rights or obligations under this Agreement except with the prior written consent of the other Party hereto, provided, however that BCI will have the right to assign this Agreement to any present or future Affi liate, subsidiary or parent corporation of BCI, without securing the consent of the Architect and may grant to any such assignee the same rights and privileges BCI enjoys hereunder. Any attempted assignment not assented to in the manner prescribed herein, except an assign- ment confi ned solely to money due or to become due, will be void. It is expressly agreed that any assignment of money will be void if (1) Architect fails to give BCI at least thirty (30) days prior written notice thereof, or (2) such assignment imposes or attempts to impose upon BCI additional costs or obligations in addition to the payment of such money or (3) denies, alters or attempts to alter any of BCI’s rights.
3. Compliance with Laws Architect and all persons furnished by Architect shall comply with all applicable Laws and Regulations of the Fair Labor Standards Act (FLSA), Occupational Safety and Health Act (OSHA), and all other applicable for- eign, federal, state, county and local laws, ordinances, regulations and codes, including but not limited to, the procurement of required permits, certifi cates, approvals, inspections, and licenses when needed in Architect’s performance of Services under this Agreement. Architect further agrees to comply with all applicable Executive and Federal regulations, as set forth in “Executive Orders and Associated Regulations,” a copy of which is attached hereto as Exhibit A, and by reference made a part of this Agreement. Architect further agrees to in- demnify BCI for any charges, penalties, fi nes, losses, damages and other costs, including attorney’s fees, arising out of, or related to Architect’s noncompliance with the law. It will be the responsibility of the Architect and/ or Consultants to design facilities and revisions to facilities in accordance with the laws listed in this section.
4. Confl ict of Interest Architect represents and warrants that no offi cer, director, employee or agent of SRC has been or will be employed, retained or paid a fee, or otherwise has received or will receive, any personal compensation or consideration, by or from Architect or any of Architect’s offi cers, directors, employees or agents in connection with the obtaining, arranging or negotiation of this Agreement or other documents entered into or executed in connection with this Agreement.
5. Construction and Interpretation
A. Th e language of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. Th e Parties agree that this Agreement has been prepared jointly and has been the subject of arm’s length and careful negotiation. Each Party has been given the opportunity to independently review this Agreement with legal counsel and other
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consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language of this Agreement shall not be attributed to either Party.
B. Article, section and paragraph headings contained in this Agreement are for reference purposes only and shall not aff ect the meaning or interpretation of this Agreement. Th e use of the word “include” shall mean “includes, but is not limited to.” Th e singular use of words shall include the plural and vice versa. All obligations and rights of the Parties are subject to modifi cation as the Parties may specifi cally provide in a Contract. “Services” and “Software” shall be treated as “goods” for purposes of applying the provisions of the Uniform Commercial Code (“UCC”). If there is an inconsistency or confl ict between the terms in this Agreement and in a Contract, the terms in the Contract shall take precedence for that Contract only.
6. Dispute Resolution A. Th e Parties will attempt in good faith to promptly resolve any controversy or claim arising out of or
relating to this Agreement through negotiations between authorized representatives of the Parties, before resorting to other remedies available to them.
B. If a controversy or claim should arise which is not settled as specifi ed in Subsection A., representatives of each Party who are authorized to resolve the controversy or claim will meet at a location designated by BCI, at least once, and will attempt to, and are empowered to resolve the matter. Either represen- tative may request this meeting within fourteen (14) days of such request (the “fi rst meeting”).
C. Unless the Parties otherwise agree, if the matter has not been resolved within twenty-one (21) days of the fi rst meeting, the representatives shall refer the matter to more senior representatives, who shall have full authority to settle the dispute. Such senior representatives will meet for negotiations within fourteen (14) days of the end of the twenty-one (21) day period referred to above, at a site designated by BCI. Th ree (3) business days prior to this scheduled meeting, the Parties shall exchange memoranda stating the issue(s) in dispute and their positions, summarizing the negotiations which have taken place, and attaching relevant documents.
D. If more than one (1) meeting is held between the senior representatives, the meeting shall be held in rotation at the offi ces of Architect and BCI.
E. If the matter has not been resolved within thirty (30) days of the fi rst meeting of the senior represen- tatives (which period may be extended by mutual agreement), the Parties will attempt in good faith to resolve the controversy or claim in accordance with the American Arbitration Association’s rules for Mediation of Business Disputes.
7. Emergency Support In the event any natural or other emergency/disaster occurs whereby the Services provided pursuant to this Agreement are rendered inoperative, Architect agrees to coordinate alternative procedures with BCI so as to minimize disruption and restore the Services provided herein.
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8. Entire Agreement Th is Agreement and/or any applicable Contract, together with any exhibits, attachment, schedules, and/or other documents, attached hereto or referenced in this Agreement which are hereby incorporated by reference, constitute the entire Agreement between the Parties with respect to the subject matter contained therein. Notwithstanding the above, Architect’s proposals attached or referenced herein, are hereby incorporated by reference, as part of this Agreement and/or any Contract solely to the extent that the proposal defi nes the scope of the Services, the Specifi cations in excess of those set forth in this Agreement and/or any Contract, and the Fee Schedule if applicable. Any and all other additional or diff erent terms in Architect’s proposal, quotation, acknowledgment, bill, forms, or other communication, whether or not such terms materially alter this Agreement, shall be deemed objected to by BCI without need of further notice of objection, and shall be of no eff ect and in no circumstance binding upon BCI unless such terms and conditions are expressly accepted by BCI in writing as an amendment to this Agreement and/or any Contract in accordance with ARTICLE VI. Section 2 entitled Amendments and Waivers.”
9. Force Majeure Neither Party shall be deemed in default of this Agreement or any Contract to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control, and without its fault or negligence; such as acts of God, acts of civil or military authority, embargoes, epidemics, wars, riots, insurrections, fi res, explosions, earthquakes, fl oods, unusually severe weather conditions or strikes. If any force majeure conditions occur, the Party delayed or unable to perform will give immediate notice thereof to the other Party. Th e Party aff ected by the other’s inability to perform may elect to:
A. Terminate this Agreement and/or any Contract, in whole or in part, as to Services not already performed.
B. Suspend the aff ected Contract or any part thereof for the duration of the force majeure condition, with the option to obtain elsewhere the Services to be furnished under such Contract(s), and deduct from any commitment under such Contract(s) the quantity of Services obtained or for which com- mitments have been made elsewhere.
C. Resume performance hereunder once the force majeure condition ceases with an option in the af- fected Party to extend the period of this Agreement or any aff ected Contract up to the length of time the force majeure condition endured.
Unless written notice to the contrary is given within thirty (30) days after such aff ected Party is notifi ed of the force majeure condition, option B. above will be deemed selected.
10. Governing Law Th is agreement and performance hereunder shall be governed by the laws of the state of California exclusive of its choice of laws provisions.
If a dispute arises and the material facts aff ect contracts submitted by more than one company the governing law shall be California.
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11. Indemnity
A. TO THE FULLEST EXTENT PERMITTED BY LAW, ARCHITECT SHALL DEFEND, INDEMNIFY AND HOLD: HARMLESS BCI AND ITS AFFILLATES (INCLUDING THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND CONTRACTORS) AGAINST ANY LIABILITY ARISING FROM OR INCIDENTAL TO ARCHITECT’S OBLIGATIONS UNDER THIS AGREEMENT OR THE MATERIAL OR SERVICES PROVIDED BY ARCHITECT, INCLUDING (i) INJURIES TO PERSONS, INCLUDING DEATH OR DISEASE, (ii) DAMAGES TO PROPERTY, INCLUDING THEFT, (iii) ARCHITECT’S FAILURE TO COMPLY WITH ALL LAWS, AND (iv) LIENS ON BCI’S PROPERTY.
B. IT IS THE INTENT OF THE PARTIES THAT THIS INDEMNITY APPLY REGARDLESS OF WHETHER OR NOT SUCH LIABILITY WAS CAUSED IN PART BY BCI’S OWN NEGLIGENCE OR THAT OF THE OTHER PARTIES INDEMNIFIED UNDER THIS SECTION, EXCLUDING ONLY ANY LIABILITY ARISING FROM THE SOLE NEGLIGENCE OF BCI. THIS INDEMNITY SHALL SURVIVE THE DELIVERY, INSPECTION AND ACCEPTANCE OF THE MATERIAL OR SERVICES.
C. BCI SHALL NOTIFY ARCHITECT WITHIN A REASONABLE PERIOD OF TIME OF ANY WRITTEN CLAIM, DEMAND, NOTICE OR LEGAL PROCEEDINGS (“CLAIM”) FOR WHICH ARCHITECT MAY BE RESPONSIBLE UNDER THIS INDEMNITY OBLIGATION. A DELAY IN NOTICE SHALL NOT RELIEVE ARCHITECT OF ITS INDEMNITY OBLIGATION, EXCEPT TO THE EXTENT ARCHITECT CAN SHOW IT WAS PREJUDICED BY THE DELAY.
D. ARCHITECT SHALL ASSUME, AT ITS EXPENSE, THE SOLE DEFENSE OF THE CLAIM THROUGH COUNSEL SELECTED BY ARCHITECT AND SHALL KEEP BCI FULLY INFORMED AS TO THE PROGRESS OF SUCH DEFENSE; UPON REASONABLE REQUEST OF ARCHITECT AND AT ARCHITECT’S EXPENSE, BCI SHALL COOPERATE WITH ARCHITECT IN THE DEFENSE OF THE CLAIM. AT ITS OPTION AND EXPENSE, SEC MAY RETAIN OR USE SEPARATE COUNSEL TO REPRESENT IT, INCLUDING IN- HOUSE COUNSEL. ARCHITECT SHALL MAINTAIN CONTROL OF THE DEFENSE, EXCEPT THAT IF THE SETTLEMENT OF A CLAIM WOULD ADVERSELY AFFECT SEC. ARCHITECT MAY SETTLE THE CLAIM AS TO BCI ONLY WITH ITS CONSENT, WHICH CONSENT SHALL NOT BE WITHHELD OR DELAYED UNREASONABLY. ARCHITECT SHALL PAY THE FULL AMOUNT OF ANY JUDGMENT, AWARD OR SETTLEMENT WITH RESPECT TO THE CLAIM AND ALL OTHER EXPENSES RELATED TO THE RESOLUTION OF THE CLAIM, INCLUDING COSTS, INTEREST AND REASONABLE ATTORNEYS’ FEES. IF BCI IS REQUIRED TO TAKE ANY ACTION TO ENFORCE ITS INDEMNITY RIGHTS UNDER THIS AGREEMENT, OR TO ASSUME THE DEFENSE OF ANY CLAIM FOR WHICH IT IS ENTITLED TO RECEIVE AN INDEMNITY UNDER THIS AGREEMENT, BECAUSE OF ARCHITECT’S FAILURE TO PROMPTLY ASSUME SUCH DEFENSE, THEN BCI MAY ALSO RECOVER FROM ARCHITECT ANY REASONABLE ATTORNEYS’ FEES (INCLUDING COST OF IN-HOUSE COUNSEL AT MARKET RATES FOR ATTORNEYS OF SIMILAR EXPERIENCE) AND OTHER COSTS OF ENFORCING ITS INDEMNITY RIGHTS OR ASSUMING SUCH DEFENSE.
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E. ARCHITECT AGREES NOT TO IMPLEAD OR BRING ANY ACTION AGAINST BCI OR BCI’S EMPLOYEES BASED ON ANY CLAIM BY ANY PERSON FOR PERSONAL INJURY OR DEATH THAT OCCURS IN THE COURSE OR SCOPE OF EMPLOYMENT OF SUCH PERSON BY ARCHITECT AND RELATES TO ARCHITECT’S PERFORMANCE UNDER THIS AGREEMENT.
12. Independent Contractor Architect hereby represents and warrants to BCI that:
A. Architect is engaged in an independent business and will perform all obligations under this Agreement as an independent contractor and not as the agent or employee of BCI;
B. Architect’s personnel performing Services shall be considered solely the employees of Architect and not the employees or agents of BCI;
C. Architect will be responsible for Architect’s acts and those of Architect’s personnel during the perfor- mance of Architect’s obligations under this Agreement.
13. Information
A. In the performance of its obligations under this Agreement, Architect and its personnel may receive or have access to Specifi cations, original tracings, engineering calculations, proposals, research, records, reports, recommendations, Drawings, standards, sketches, manuals, fi ndings, evaluations, models, forms, reviews, Samples, tools, computer programs, disks, diskettes, basic detailed manipulatable source information regarding BCI’s buildings and facilities in any form including, without limita- tion, computer-aided design data and diskettes, technical information, data, confi dential business, customer or personnel information or, written, oral or otherwise confi dential information (all here- inafter referred to as “Information”) owned or controlled by BCI.. Such Information, in whole or in part, may be subject to Laws and Regulations regarding secrecy of communications or trade secrets, or may be proprietary and/or confi dential or may be disclosures of patentable inventions with respect to which patents may not have been issued or for which patent applications may not have been fi led.
B. Accordingly, Architect agrees: that no part of the Information shall be reproduced in any form or by any electronic or mechanical means including information storage and retrieval systems without permission obtained in writing from BCI; to prevent reproduction of the Information; and to inform its personnel engaged in handling such Information of the proprietary or confi dential character of such Information and of the existence of applicable Laws and Regulations regarding secrecy of com- munications. Unless such Information was previously known to Architect free of any obligation to keep it confi dential or has been or is subsequently made public by BCI or a third Party, it shall be kept confi dential by Architect, shall be used only in performing Services hereunder, and may be used for other purposes only upon such terms as may be agreed upon in writing.
C. Except with BCI’s prior written consent, information that Architect may disclose hereunder to BCI shall be deemed non-confi dential, non-proprietary, and free from all restrictions on use or disclosure. If Architect provides BCI with any proprietary or confi dential information which is conspicuously marked as such, BCI shall use the same degree of care to prevent its disclosure to others as BCI uses
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with respect to its own proprietary or confi dential information. Architect shall label or otherwise mark all of its confi dential information in the following manner:
PROPRIETARY INFORMATION Th e information contained herein is for use by authorized employees only and is not for general
distribution with Big Corp, Inc.
D. Any Services performed in connection with this Agreement and/or any Contract is proprietary and confi dential. Architect shall not disclose any aspect of the Services to any third person, business, or governmental agency without prior written approval of BCI, except as otherwise required by Laws and Regulations, and then only upon immediate written notifi cation to BCI so that BCI may legally challenge such disclosure.
E. If the Services include the submission of a written report to BCI, such report will be deemed confi - dential. In that report, Architect shall include a description of the Services completed, a compilation of the data generated, results of the data, conclusions that may be derived from the results, recom- mendations for any additional Services that may be necessary including remedial programs, and additional information as requested by BCI. Prior to submittal of any fi nal report, Architect shall prepare draft copies of the report which shall be presented in writing or, at BCI’s request, verbally to:
Big Corp, Inc., 100 E. Smith Ave Interior CA 91000 Attn: Area Manager, Los Angeles Service Area Fax: 626-310-8031
OR:
Big Corp, Inc., 2600 South 5th Street San Pablo, CA 91000 Attn: Contract Manager-Alliance Services Fax: 909-876-9801
Architect shall include two cover pages with each copy of any draft report. Architect shall type the word “Draft” on the fi rst of the two cover pages. Architect shall meet with BCI to explain and review any draft report at BCI’s request.
F. If Architect has been retained by BCI, under direction of the Legal Department of BCI, for the pur- pose of providing technical assistance to the Legal Department, in order that the Legal Department can formulate legal advice in connection with, or in anticipation of litigation, this section shall also apply. Unless BCI requests otherwise, any information and reports so generated by Architect shall be privileged and confi dential. Architect shall include two cover pages with each copy of any draft report. Architect shall type on the fi rst cover page on any correspondence to BCI the following heading:
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DRAFT: PRIVILEGED AND CONFIDENTIAL UNDER ATTORNEY-CLIENT PRIVILEGE AND WORK
PRODUCT DOCTRINE PREPARED UNDER THE DIRECTION OF COUNSEL
DO NOT REPRODUCE OR DISTRIBUTE WITHOUT THE EXPRESS PERMISSION OF DESIGNATED ATTORNEY
At BCI’s direction, Architect shall prepare a fi nal report that may or may not, at BCI’s direction, contain the above privileged and confi dential heading. Architect shall present draft and fi nal copies of any reports prepared under the direction of legal counsel to the designated attorney.
14. Insurance Any and all insurance and/or bonds that may be required under the Laws and Regulations of any governmental authority, including but not limited to, Worker’s Compensation Insurance is, and shall be the sole responsibil- ity of Architect.
A. Architect shall provide to BCI their current policy limits on an annual basis.
B. Without in any way limiting Architect’s indemnifi cation obligations as set forth in this Agreement, and prior to the commencement of any Services under a Contract, Architect shall take out and thereafter maintain in full force and eff ect the following insurance on an occurrence form basis unless otherwise stated:
1. Commercial General Liability Insurance (Bodily Injury and Property Damage), including the following supplementary coverage: a. Contractual Liability to cover liability assumed under this Agreement; b. Personal Injury Liability with the “employee” and “contractual” exclusions deleted; c. Product and Completed Operations Liability Insurance; d. Broad Form Property Damage Liability Insurance; and e. Explosion, collapse, and underground hazard coverage, if requested by BCI.
2. If use of a motor vehicle is required, Business Automobile Bodily Injury and Property Damage Liability Insurance. Such insurance shall extend to owned, if any, non-owned, and hired automo- biles of Architect used in the performance of Services herein.
3. Unless BCI requests higher limits as set forth in this Agreement, the policy limits of liability for the insurance required above in B. 1), or B. 2), shall not be less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
4. Employer’s Liability Insurance with policy limits of not less than $100,000 for bodily injury each accident, $500,000 for bodily injury by disease policy limits, and $100,000 for bodily injury by disease-each employee.
5. Professional Liability Insurance for each Principal of Architect described in ARTICLE VII. Exhibit B. A. 2) with policy limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 237
6. Aviation Liability Insurance if either Architect or its Consultants use a helicopter or other means of aviation in assisting in the performance of the Services, with policy limits of not less than $5,000,000.
C. Any Umbrella or Excess Liability Insurance shall provide that if an underlying aggregate of the above insurance is exhausted, the excess coverage shall drop down as primary insurance.
1. Th e Architect shall provide to BCI annually, evidence of the above insurance in the form accept- able to BCI. Th e document provided annually shall:
2. Name BCI and its Affi liates, and the directors, shareholders and employees of BCI and its Affi liates, as “additional insureds” in matters regarding the Services covered by this Agreement and/or any Contract;
3. Provide that said insurance is primary coverage with respect to all insureds;
4. Contain a Standard Cross Liability Endorsement which provides that the insurance applies sepa- rately to each insured against whom a claim is fi led, and that the policies cover claims or suits by one insured against the other;
5. Contain a waiver of subrogation against BCI and its Affi liates;
6. Th e cancellation clause on the certifi cate of insurance will be amended to read as follows:
“SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELED OR MATERIALLY CHANGED, THE ISSUING COMPANY WILL MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER.”
D. If requested by BCI at any time, Architect shall provide BCI with certifi cation along with an en- dorsement/rider issued by a properly qualifi ed representative of the insurer, specifying that Architect’s insurance policy complies with this section, if requested by BCI, Architect shall provide to BCI a copy of any and all policies of insurance required pursuant to this Agreement and/or any Contract.
E. All insurance policies required shall be issued by companies admitted (licensed) to transact business in the State of California and who hold a current rating of B+ VII or better in the A.M. Best Key Rating Guide for Property and Casualty Insurance Companies.
F. Architect assigns to BCI and, as to BCI, waives all of its right, title, and interest in any and all claims, including but not limited to, claims of equitable, contractual, or statutory subrogation, which could be claimed against BCI arising from or in. connection with this Agreement for any and all losses, damages, or liability that would be covered by the insurance required herein, whether or not Architect maintains such coverage at the time the liability occurs. Architect revokes prior assignments or any of the aforesaid claims and agrees to notify its insurance carriers of the terms of this paragraph.
G. Architect’s obligations to maintain the insurance required herein, and to provide evidence of it, shall survive for a period of ten (10) years beyond the termination, cancellation, or other expiration of this Agreement and/or any Contract; provided that if the Services includes asbestos abatement, such period
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shall be forty (40) years. If Architect’s insurance coverage is made on “claims-made” forms, Architect agrees to maintain such insurance to cover liability arising out of or in connection with this Agreement and/or any Contract (i.e., adjust retroactive date, provide “tail coverage”, etc.), and to provide to BCI evidence thereof for the period stated above in this paragraph.
H. At any time during the term of this Agreement and/or any Contract, BCI may require Architect to obtain and maintain in force, insurance with coverage or limits in addition to the foregoing, with charges as mutually agreed.
I. Th e Architect shall also require all Consultants who may enter upon the Project site to maintain the same insurance requirements listed above.
15. Liens Architect shall not permit liens, encumbrances, or claims to be fi led or asserted by others against BCI or BCI’s property by reason of Architect’s failure or alleged failure to pay for any labor performed or materials furnished pursuant to the terms of this Agreement and/or any Contract and shall protect, hold harmless, and indemnify BCI from and against all claims, liens, encumbrances, or claims of liens or encumbrances fi led, or asserted, because of labor performed (or allegedly performed) or materials furnished (or allegedly furnished) hereunder, and shall be solely responsible for the payment of any such claim, and shall cause any such lien or encumbrance which may be fi led, or asserted, to be immediately released and discharged of record. Upon failure of Architect to observe any of the provisions of this section, BCI at its option, may pay any or all of the claims involved and take such steps as it desires to cause such liens or encumbrances to be released. Architect shall thereupon, reimburse BCI for its reasonable Costs and payments. If Architect fails to reimburse BCI, then BCI may Withhold suffi cient funds otherwise due Architect under this Agreement and/or Contract and may take such other action as is necessary to recover such costs and payments. BCI may recover from Architect all reasonable attorneys’ fees expended by BCI in connection with any violation by Architect of the provisions of this section.
16. Limitation of liability BCI will not be liable for consequential incidental, special or punitive damages, or for loss of revenue or profi t in connection with the performance or failure to perform this Agreement regardless of whether such Liability arises from breach of contract, tort or any other theory of Liability.
17. Most favored Customer Architect represents and warrants that all prices, benefi ts, warranties and other terms and conditions in this Agreement are and will continue to be during the term of this Agreement no less favorable than those currently being off ered or which will be off ered by Architect to any of its similarly situated customers. Architect shall review and have an offi cer of its company certify its compliance with this Section to BCI semi-annually. Th is certifi cation shall be sent to BCI’s representative listed under the Section, Notices.
18. Notices Except as otherwise provided in this Agreement, or applicable Contract, all notices or communications here- under, shall be deemed to have been duly given when made in writing and either 1) delivered in person, 2) delivered by a recognized overnight delivery service, or 3) deposited in the United States Mail, postage prepaid, or 4) facsimile transmission, provided within 24 hours of transmission a copy is sent by any method set forth above in 1), 2) or 3), and addressed as follows:
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 239
Architect Notices: Inland Architects, Inc. 3130 N. Arbor Boulevard West Ontario, CA 91000 Attn: Chief Architect Fax: 909-985-0230
Project Specifi c Notices: Big Corp, Inc. 100 E. Smith Ave Interior CA 91000 Attn: Area Manager, Los Angeles Service Area Fax: 626-300-8001
Agreement Specifi c Notices: Big Corp, Inc. 2600 South 5th Street San Pablo, CA 91000 Attn: Contract Manager-Alliance Services Fax: 909-876-9801
Th e address to which notices or other communications may be given by either Party may be changed by written notice given by such Party to the other pursuant to this section entitled “Notices.”
19. Subcontractors If Architect subcontracts any Services hereunder, all Services performed by a Subcontractor shall be deemed Services performed by Architect. Architect shall adopt and comply with the “Minority and Women Business Enterprise/Disabled Veteran Business Enterprise (M/ WBE-DVBE) Job Specifi c Subcontracting Plan” de- scribed in ARTICLE VII. Exhibit A-2.
If requested by BCI in a Contract or otherwise, the selection of any Subcontractor for performance of the Services required herein shall be subject to the written approval of BCI Representative. Each subcontractor selected for performing the services shall be satisfactorily experienced in their particular fi eld with respect to both nature and magnitude of work as determined by BCI’s Representative.
20. Waivers of Default Unless otherwise expressly provided herein, no waiver by BCI of any provision hereof shall be deemed to have been made unless expressed in writing and signed by BCI. No delay or omission in the exercise of any right or remedy accruing to BCI upon any breach under this Agreement shall impair such right or remedy or be construed as a waiver of any such breach heretofore or thereafter Occurring. Th e waiver by BCI of any breach of any term, covenant or condition herein stated shall not be deemed to be a waiver of any other term, covenant, or condition.
21. Warranty A. Architect warrants to BCI that any Services provided hereunder will be performed in a fi rst-class pro- fessional manner, in strict compliance with the Specifi cations, and with the care, skill and diligence, and in accordance with the applicable standards, currently recognized in Architect’s profession or industry. If Architect fails to meet applicable professional standards, Architect will, without additional compensation, promptly correct or revise any errors or defi ciencies in the Services furnished hereunder.
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240 • Role of the Design Professional in Society
B. Th e warranty period for Services shall be the longer of the warranty period stated in the Contract, the Specifi cations or one (1) year. Th e warranty period shall commence upon Acceptance.
C. Architect represents and warrants that:
1. Th ere are no actions, suits, or proceedings pending or threatened, which will have a material adverse eff ect on Architect’s ability to fulfi ll its obligations under this Agreement;
2. Architect will immediately notify BCI if, during the term of this Agreement, Architect becomes aware of any action, suit, or proceeding, pending or threatened, which may have a material adverse eff ect on Architect’s ability to fulfi ll the obligations under this Agreement or any Contract;
3. Architect has all necessary skills, rights, fi nancial resources, and authority to enter into this Agreement and related Contracts, including the authority to provide or license the Material or Services;
4. Th e Services will not infringe any patent, copyright, or other intellectual property;
5. No consent, approval, or withholding of objection is required from any entity, including any governmental authority with respect to the entering into or the performance of this Agreement or any Contract;
6. Th e Services will be provided free of any lien or encumbrance of any kind;
7. Architect will be fully responsible and liable for all acts, omissions, and Work performed by any of its representatives, including any subcontractor;
8. All representatives including subcontractors, will strictly comply with the provisions specifi ed in this Agreement and any Contract; and,
9. Architect will strictly comply with the terms of this Agreement or Contract, including those specifi ed in any Appendices thereto.
D. All warranties will survive inspection, acceptance, payment and use. Th ese warranties will be in addi- tion to all other warranties, express, implied or statutory. Architect will defend, indemnify and hold BCI harmless from and against all liabilities for a breach of these warranties.
E. If at any time during the warranty period for Services, BCI believes there is a breach of any warranty. BCI will notify Architect setting forth the nature of such claimed breach. Architect shall promptly inves- tigate such claimed breach and shall either (i) provide Information satisfactory to BCI that no breach of warranty in fact occurred, or (ii) at no additional charge to BCI, promptly use its best eff orts to take such action as may be required to correct such breach.
F. If a breach of warranty has not been corrected within a commercially reasonable time, or if two (2) or more breaches of warranty occur in any sixty (60) day period, BCI may Cancel the applicable Contract.
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22. Signatures
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their respective duly authorized representatives
BIG CORP, INC.,
By: ________________________________________________
Printed Name: ________________________________________
Title: _______________________________________________
Date Signed: _________________________________________
INLAND ARCHITECTS, INC.
By: ________________________________________________
Printed Name: ________________________________________
Title: _______________________________________________
Date Signed: _________________________________________
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ARTICLE VII. EXHIBITS
Exhibit A – EXECUTIVE ORDERS AND ASSOCIATED REGULATIONS Deleted
Exhibit B – SCHEDULE OF FEES AND LABOR RATES MATRIX A. FIXED PERCENTAGE FEE
MATRIX A. FIXED PERCENTAGE FEE
Cost of Construction Fee for Work in
Existing Data Centers (% of Construction $)
Fee for Work in Existing Admin
Facilities (% of Construction $)
Fee for New Building Construction/Bldg
Addition (% of Construction $)
$0–$250,000 7.95% 795% 7.95%
$250,001–$l,000,000 6.60% 6.60% 6.60%
$1,000,001–$5,000,000 6.50% 6.50% 6.50%
Over $5,000,000 6.40% 6.40% 6.40%
MATRIX B. OVERHEAD AND PROFIT (included in Fixed Percentage Fee)
Cost of Construction Profi t (% of Const $) Over Head (% Of Const $)
$0–$250,000 7% of Design Fee 0.6% of Construction Cost
56.5% of Design Fee 4.5% of Construction Cost
$250,001–$1,000,000 7% of Design Fee 0.5% of Construction Cost
56.5% of Design Fee 3.7% of Construction Cost
$l,000,001–$5,000,000 7% of Design Fee 0.5% of Construction Cost
56.5% of Design Fee 3.7% of Construction Cost
Over $5,000,000 7% of Design Fee 0.4% of Construction Cost
56.5% of Design Fee 0.6% of Construction Cost
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Master Agreement Between Inland Architects, Inc. and Big Corp, Inc. • 243
MATRIX C. PASS-THROUGH FEE Th ere will be no Pass-Th rough Fees on any Consultant fees, including Consultant fees such as, but not limited to, Acoustical Consultants, Geotechnical, Civil Engineers, etc. as may be required by BCI.
Cost of Work
Pass-thru fee (% of
Consultant Fees)
Mechanical (% of
Construction cost)
Electrical (% of
Construction cost)
Structural (% of
Construction cost)
Architectural (% of
Construction cost)
$0–$250,000 0% Not
Applicable, Included within
Matrix A
7.9%
Not Applicable, Included within Matrix A
$250,001–$l,000,000 0% 6.60%
$1,000,001– $5,000,000
0% 6.50%
Over $5,000,000 0% 6.40%
Note on Matrix C: Pass-Th rough fee should be separate from the mechanical/electrical/structural/architectural fees and includes profi t margin.
MATRIX D. ARCHITECTURAL, MECHANICAL, ELECTRICAL and STRUCTURAL LABOR RATES for Inland Architects, Inc.
Job Title Base Wage Rate ($/hr)
Multiplier Billing Rate
($/hr) Overtime Hrs
Multiplier
Principal 56.50 No Multiplier 155.00 N/A
Project Manager 54.55 2.75 150.00 N/A
Project Architect 34.65 2.75 95.30 N/A
Project Engineer 38.85 2.75 106.85 N/A
CAD Operator 17.75 2.75 48.80 N/A
Clerical 23.09 2.75 63.50 N/A
EXHIBIT B-1: – REIMBURSABLE EXPENSES Architect shall be reimbursed at Actual Cost to Architect, including Consultants, for the following items connected with the Project except as otherwise provided in the Agreement:
1. Reproduction, postage and handling of Drawings and Specifi cation for bidding and Construction. 2. Plan check, permit and fi ling fees required by this Agreement, ordinance, code or law 3. Interstate telephone calls, telegrams or special messages.
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4. Expenses in connection with authorized out-of-town (out-of-town is defi ned as a Project site located outside the city where the employee’s main offi ce is located) travel including mileage reimbursed at the rate allowed by the Internal Revenue Service for the use of a personal vehicle or the cost of commercial transporta- tion only in excess of individual’s daily commute cost, parking cost (excluding parking related to visiting Architect/Consultant place of business), meals at actual cost not to exceed $25. per meal with a daily maximum of $30.00, and long distance telephone calls. Meals shall be reimbursed only if the destination (i.e., Project location) is located over 200 miles (one-way) from the employee’s main offi ce.
Th e following items require prior written authorization by BCI’s Representative: 5. Special Services, such as but not limited to, renderings, models, photographs and mock-ups. 6. Other Services requested by BCI’s Representative not listed above. 7. Th e total of all reimbursable expenses shall not exceed the limit indicated for such reimbursable expenses on the Contract without the prior written approval of BCI’s Representative in writing and in accordance with SBC’s Schedule of Approvals prior to start of Work. A current copy of BCI’s Schedule of Approvals will be provided to Architect by BCI on request BCI will not pay for Reimbursables that are not authorized per this Agreement.
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