Current through Register 1518, March 29, 2024
(1)
Definitions. As used in 231 CMR 4.04, the following
terms shall have the following meanings unless the context otherwise requires:
Corporation - means any business or
professional corporation established and organized under M.G.L. c. 156, M.G.L.
c. 156A or M.G.L. c. 156B, or any "foreign corporation", as defined in M.G.L.
c. 181, § 1.
Licensee - means a person duly
licensed as an architect by the Board to engage in the practice of
architecture.
Limited Liability Company or LLC -
means any "limited liability company" or "foreign limited liability company",
as defined in M.G.L. c. 156C, § 2, which performs or offers to perform
architectural services in Massachusetts.
Limited Liability Partnership or LLP -
means any "registered limited liability partnership" or "foreign registered
limited liability partnership", as defined in M.G.L. c. 108A, § 2, which
performs or offers to perform architectural services in Massachusetts.
Partnership - means any partnership
organized and/or established under the laws of Massachusetts or any other
jurisdiction, other than a limited liability partnership as defined in 231 CMR
4.04.
Practice of Architecture - means the
"practice of architecture" as defined in M.G.L. c. 112, § 60A.
(2)
Practice of
Architecture by Corporations. A corporation may enter into
agreements to perform, or hold itself out as able to perform, any of the
services involved in the practice of architecture only if that corporation
meets all of the following conditions:
(a) At
least one officer of the corporation, whose status as an officer is established
by the articles of organization or by-laws of that corporation, is duly
registered as an architect in Massachusetts;
(b) All contracts or agreements by that
corporation to perform architectural services in Massachusetts are executed on
behalf of that corporation by the officer of the corporation who is duly
registered as an architect in Massachusetts; and
(c) All architectural services performed by
that corporation are performed either by the officer of the corporation who is
duly registered as an architect in Massachusetts, or by other individuals who
perform such work under the responsible control of the officer of the
corporation who is duly registered as an architect in Massachusetts.
(3)
Practice of
Architecture by Partnerships. A partnership may enter into
agreements to perform, or hold itself out as able to perform, any of the
services involved in the practice of architecture only if that partnership
meets all of the following conditions:
(a) At
least one partner in that partnership is duly registered as an architect in
Massachusetts;
(b) All contracts or
agreements by that partnership to perform architectural services in
Massachusetts are executed on behalf of that partnership by the partner who is
duly registered as an architect in Massachusetts; and
(c) All architectural services performed by
that partnership are performed either by the partner who is duly registered as
an architect in Massachusetts, or by other individuals who perform those
services under the responsible control of the partner who is duly registered as
an architect in Massachusetts.
(4)
Practice of Architecture by
Limited Liability Companies. A limited liability company may enter
into agreements to perform, or hold itself out as able to perform, any of the
services involved in the practice of architecture only if that limited
liability company meets all of the following conditions:
(a) At least one manager of the limited
liability company (or at least one member in the case of a limited liability
company in which management of the business is vested in one or more members)
is duly registered as an architect in Massachusetts;
(b) All contracts or agreements by that
limited liability company to perform architectural services in Massachusetts
are executed on behalf of that limited liability company by a manager or member
who is duly registered as an architect in Massachusetts;
(c) All architectural services performed by
that limited liability company are performed either by a manager or member who
is duly registered as an architect in Massachusetts, or by an individual who
works under the responsible control of a member or manager of that limited
liability company who is duly registered as an architect in Massachusetts;
and
(d) That limited liability
company maintains the level of professional liability insurance required by 231
CMR 4.04(7).
(5)
Practice by Limited Liability Partnerships. A limited
liability partnership, as defined in M.G.L. c. 108A, § 2, may enter into
agreements to perform, or hold itself out as able to perform, any of the
services involved in the practice of architecture only if that limited
liability partnership meets all of the following conditions:
(a) At least one partner in that limited
liability partnership is duly registered as an architect in
Massachusetts;
(b) All contracts or
agreements by that limited liability partnership to perform architectural
services in Massachusetts are executed on behalf of that limited liability
partnership by the partner who is duly registered as an architect in
Massachusetts;
(c) All
architectural services performed by that limited liability partnership are
performed either by the partner who is duly registered as an architect in
Massachusetts, or by other individuals who perform those services under the
responsible control of the partner who is duly registered as an architect in
Massachusetts; and
(d) That limited
liability partnership maintains the level of professional liability insurance
required by 231 CMR 4.04(7).
(6)
Practice by Joint
Ventures. A joint venture may enter into agreements to perform, or
hold itself out as able to perform, any of the services involved in the
practice of architecture, as long as at least one member of the joint venture
is either an individual who is duly registered as an architect in
Massachusetts, or a business organization which meets all of the applicable
requirements of 231 CMR 4.04(2), 231 CMR 4.04(3), 231 CMR 4.04(4) or 231 CMR
4.04(5).
(7)
Required
Insurance and Capital Program for LLCs and LLPs.
(a) A limited liability company or limited
liability partnership which performs or offers to perform architectural
services in Massachusetts shall maintain in good standing professional
liability insurance which meets the following minimum standards:
1. The insurance shall cover negligent acts,
errors and omissions;
2. The
insurance shall insure the limited liability company and its members, as
required by M.G.L. c. 156C, § 65, or the limited liability partnership and
its partners as required by M.G.L. c. 108A, § 45(8)(a);
3. The insurance shall be in an amount of at
least $50,000, plus the product of $25,000 multiplied by the number of members
or partners and the number of other employees of the limited liability company
or limited liability partnership who are registered architects, but not in
excess of $500,000 in the aggregate;
4. The requirements of 231 CMR 4.04(7)(a)3.
shall be considered satisfied if the limited liability company or limited
liability partnership maintains insurance sufficient to provide coverage at a
level of at least $300,000 for each claim with an aggregate top limit of
liability for all claims during any one year of at least $1,000,000;
5. The insurance required by 231 CMR
4.04(7)(a) may provide that it does not apply to:
a. Any dishonest, fraudulent, criminal or
malicious act or omission of the insured limited liability company or limited
liability partnership, or any partner, member or employee thereof; or
b. Bodily injury to, or sickness, disease or
death of, any person; or
c. Injury
to or destruction of any tangible property, including the loss of use thereof;
or
d. Such other exclusions as are
customarily inserted in professional liability insurance contracts for
architects; and
6. Such
insurance policies may contain reasonable provisions with respect to policy
periods, territory, claims, deductibles, conditions and other usual
matters.
(b) A limited
liability company or limited liability partnership which performs or offers to
perform architectural services in Massachusetts is not required to maintain the
insurance required by 231 CMR 4.04(7)(a) if:
1. That limited liability company or limited
liability partnership maintains a designated and segregated capital fund equal
to the amount of insurance required by 231 CMR 4.04(7)(a)3. or 231 CMR
4.04(7)(a)4.; and
2. Such funds are
specifically designated and segregated for the satisfaction of judgments
against the limited liability company or its members, or the limited liability
partnership or its partners, based on negligence, wrongful acts, or errors or
omissions, by means of:
a. Deposit in trust,
or in bank escrow, of such funds in the form of cash, bank certificates of
deposit, or United States Treasury obligations; or
b. A bank letter of credit or insurance
company bond.
(c) Upon any cancellation or other
interruption in the insurance coverage required by 231 CMR 4.04(7)(a), or any
failure to maintain the designated and segregated capital fund required by 231
CMR 4.04(7)(b), a limited liability company or limited liability partnership
shall immediately cease and desist from performing, offering to perform, or
holding itself out as able to perform, architectural services in Massachusetts
until such time as that limited liability company or limited liability
partnership is once again in compliance with 231 CMR 4.04(7). Failure to comply
with 231 CMR 4.04(7)(c) shall constitute grounds for disciplinary action by the
Board against any and all registered architects who are members, partners,
managers or employees of that limited liability company or limited liability
partnership.
