Submitted by hastihejazi on Fri, 08/05/2022 - 14:28
{"version":"0.3.0","atoms":[],"cards":[],"markups":[["strong"],["a",["href","file:\/\/wrbts.ads.wrberkley.com\/BDP\/BDPSHARED\/Berkley%20DP\/Loss%20Prevention-Risk%20Management\/Communication\/BDP%20Articles%20Approved%20for%20External%20Use\/AIA%20publications\/Local%20Law%2097%20of%202019:%20Understanding%20the%20NYC%20Building%20Emission%20Limits"]],["a",["name","OLE_LINK12"]],["em"],["a",["href","https:\/\/www.berkleydp.com","target","_new"]],["i"],["a",["href","https:\/\/www.berkleydp.com\/risk-management\/risk-resources\/","target","_new"]],["a",["href","mailto:amendelson@berkleydp.com"]]],"sections":[[1,"p",[[0,[],0,"August 5, 2022"]]],[1,"p",[[0,[],0,"\n\nCertification is an important task of the design\nprofessional, but should be limited in scope. Design professionals need to be\naware of the limits of their contractual responsibility for certifying work and\ntheir obligations need to be well defined and limited. Certifications should be\nprovided based on professional opinion only for aspects of the project subject\nto the scope of services of the design services agreement utilizing terms such\nas \u201cto the best of our knowledge and belief.\u201d Be certain to avoid absolute\nwords that elevate your standard of care and responsibility, such as\n\u201cguarantee\u201d or \u201cwarranty.\u201d \n\nDesign professionals typically provide certifications\nin three instances:\n"]]],[1,"p",[[0,[],0,"\n"],[0,[0],1,"1. Payment\nCertifications"],[0,[],0,"\n"]]],[1,"p",[[0,[],0,"\nThe design professional\u2019s basic services (usually the\narchitect with the support of the engineering consultants) normally include the\nreview and approval of the general contractor\u2019s monthly pay request. It is\nimportant for the design professional to be well aware of construction progress\non the project and to only certify payment for those portions of the project\nthat are sufficiently completed. The payment request needs to align the\nrequested value with the percentage of completion of each portion of the work.\nDo not provide certification for amounts that exceed the project progress or\nfor any portion of the work that is observed or known to be non-compliant with\nthe project\u2019s plans and specs. If the client insists on certification of a pay\nrequest despite your identification of non-compliant work, issue a letter to\nthe client documenting your objections. \n"]]],[1,"p",[[0,[],0,"\n\n"],[0,[0],1,"2. Certificate\nof Substantial Completion"],[0,[],0,"\n"]]],[1,"p",[[0,[],0,"\nThe Certificate of Substantial Completion is provided\nat the point where construction work is sufficiently complete to allow the\nowner to occupy and utilize the project in the manner for which it is intended.\nThe Certificate of Substantial Completion is accompanied by a list of items\nthat still need to be completed or corrected, commonly known as a punch list.\nWhile most industry standard contracts require the contractor to prepare and\nissue an initial punch list, the design professionals provide a more thorough review\nof the project and preparation of a comprehensive punch list. Through the\npayment certification process, sufficient funds must be withheld to recognize\nthe work necessary to complete the project and to motivate the contractor\ntoward prompt completion. The design professionals should thoroughly document\nany aspect of the project that is incomplete or non-compliant. Again, the\nowner\u2019s acceptance of non-compliant work, which is their right under most\ncontracts, must be documented by the design professional to protect the design\nprofessional in case of failure of that component of the project in the future.\nThe design professional, of course, should discourage the owner from accepting\nnon-compliant work in any situation.\n"]]],[1,"p",[[0,[],0,"\n"],[0,[0],1,"3. Lender\nCertifications"],[0,[],0,"\n"]]],[1,"p",[[0,[],0,"\nFor projects that involve outside financing by a bank\nor other lending institution, the design professional is normally requested to\ncertify the level of completion and provide a statement that the project was\nconstructed in accordance with the plans and specifications. Lenders often\ninclude language in certification statements requesting the design professional\nto certify work that is beyond the scope of the design professional\u2019s agreement\n(examples include the sufficiency of off-site utilities, traffic considerations).\nLanguage enhancing the scope of your contract should be stricken from the\ncertification. The design professional\u2019s certification should only address the\nscope of its contractually obligated design services as evidenced by the\ncontract documents that it prepared and the construction administration\nservices that it provided. Request the certification document in an editable\nformat, modify the language so that it accurately reflects your scope of\nservices and knowledge, and preface the certification with the statement \u201cTo\nthe best of our knowledge and belief\u2026\u201d "]]],[1,"p",[[0,[],0,"\n\n \n\n"],[0,[0],1,"4. Certification\nof Energy Use and Building Emissions Measurement and Reporting"],[0,[],0,"\n"]]],[1,"p",[[0,[],0,"\nAs part of awareness of global factors impacting\nclimate change and to promote reduction of the impact of the built environment\non the health of our planet, several municipalities and other governmental\nagencies are considering the establishment of targets for reducing building\nemissions and creating a means to enforce this goal through legislation and\nregulation. New York City, in fact, enacted legislation in 2019 known as the\nClimate Mobilization Act (link) including Local Law 97 mandating ambitious\nreduction of greenhouse gas (CO2) emissions in 2030 (40% reduction) and 2050\n(80% reduction). Attainment of these goals will likely require significant\nupgrades to existing building systems and envelopes after analysis of current\nenergy utilization including energy audits and understanding and potential\ninspection of maintenance and operations factors. In NYC, published greenhouse\ngas coefficients of sources of energy through electrical and power grids and\nalternative energy sources are additional considerations. See "],[0,[1],1,"Local\nLaw 97 of 2019: Understanding the NYC Building Emission Limits "],[0,[],0,"from New\nYork Engineer for further information.\n"]]],[1,"p",[[0,[],0,"\nThis NYC legislation, and similar regulation expected\nto be enacted in other cities across the U.S. and perhaps overseas, offers\nopportunities for architects, engineers, and other professionals with expertise\nin energy utilization, measurement and pertinent related environmental matters\nto provide professional services to contribute to the success of these intended\nand aspirational goals of greenhouse gas reduction. However, similar to other\nlimited design services involving certification of reports, disproportionate\nrisk to the design professional should be managed. First, you need to have the\nexpertise and experience to provide the services within the professional\nstandard of care. Second, you should only certify that which you know to be\ntrue \u2013 if you are provided information by others, such as utility bills and\nother energy utilization documents, can you trust or verify the accuracy of\nthat information? Third, you should manage your risk in contract through clear\nand unambiguous scope of services definition including excluded services,\nlimitation of liability equal to fees earned, and waiver of consequential\ndamages.\n\n \n\n"]]],[1,"p",[[0,[2,3],2,"Andrew D. Mendelson,\nFAIA, is Senior Vice President and Chief Risk Management Officer of "],[0,[4,5],2,"Berkley Design\nProfessional,"],[0,[3],1," a division of Berkley Alliance Managers which is a member\ncompany of W. R. Berkley Corporation that provides professional liability\ninsurance to design and construction professionals. "]]],[1,"p",[[0,[3],1,"Risk\nmanagement resources for design professionals can be found "],[0,[6,5],2,"here."],[0,[3],1," Andrew may be\ncontacted at "],[0,[7],1,"amendelson@berkleydp.com"],[0,[3],1,". "]]],[1,"p",[[0,[3],1,"Information\nprovided by Berkley Design Professional is for general interest and risk management\npurposes only and should not be construed as legal advice nor confirmation of\ninsurance coverage. As laws regarding the use and enforceability of the\ninformation contained herein will vary depending upon jurisdiction, the user of\nthe information should consult with an attorney experienced in the laws and\nregulations of the appropriate jurisdiction for the full legal implications of\nthe information.\u202f"]]],[1,"p",[[0,[5],1,"Practice\nmanagement recommendations should be carefully reviewed and adapted for the\nparticular project requirements, firm standards and protocols established by\nthe design professional."]]],[1,"p",[[0,[3],1,"Products\nand services are provided by one or more insurance company subsidiaries of W.\nR. Berkley Corporation. Not all products and services are available in every jurisdiction,\nand the precise coverage afforded by any insurer is subject to the actual terms\nand conditions of the policies as issued."]]]]}
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