« ForrigeFortsett »
Mr. Abernethy. I may be nit-picking. We lawyers sometimes do, you know.
Mr. LUNCH. I am a lawyer, too. So I can appreciate that and I agree with you.
Mr. ABERNETHY. You and I see it together, then.
Mr. Lunch. The standard contract forms used by the various professions, such as the American Institute of Architects, National Society of Professional Engineers and others all provide this provision to determine the date of substantial completion. We can provide copies of those clauses, if desired by the subcommittee.
A STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND ENGINEER
Fee is Lump Sum
THIS AGREEMENT made as of the
hereinafter called the OWNER, and
hereinafter called the ENGINEER,
WITNESSETH, That whereas the OWNER intends to
hereinafter called the PROJECT. NOW, THEREFORE, The OWNER and ENGINEER for the considerations hereinafter set forth, agree as follows: 1. THE ENGINEER AGREES to perform the following Engineering services for the Project:
a. General: The Engineer shall serve as the Owner's professional representative in the planning and the supervision of construction of the Project, and shall give consultation and advice to the Oaner during the performance his services.
(1) Copyrighe or Patent Infringement: The Engineer shall defend actions or claims charging in fringement of any copyright or patent by reason of the use or adoption of any designs, drawings or specifica. tions supplied by him, and he shall hold harmless the Owner from loss or damage resulting therefrom, providing however, that the Owner within five (5) days after receipt of any notice of infringement or of summons in any action therefor shall have forwarded the same to the Engineer in writing.
(2) Insurance: The Engineer shall secure and maintain such insurance as will protect him from claims under the Workmen's Compensation Acts and from claims for bodily injury, death, or property damage which may arise from the performance of his services under this Agreement. b. Basic Services of the Engineer:
(1) Diagrammatics: The Engineer shall prepare all required schematic drawings, layouts, flow dia. grams, studies, reports and a construction cost estimate based upon the diagrammatics.
(2) Preliminaries: The Engineer shall supervise the making of all required sub-surface explorations, shall make the necessary topographical surveys for design purposes and shall prepare preliminary drawings, outline specifications and a construction cost estimate based upon the preliminaries.
(3) Contract Documents: From the approved preliminaries the Engineer shall prepare working draw. ings, specifications, and other Contract Documents completely describing the material and workmanship re. quired and procedures to be folloved for the construction of the Project, and he shall adjust the preliminary construclion cost estimate to include changes in the scope of the Project, the Owner's requirements and market conditions. (4) Receipt of Proposals: The Engineer shall furnish
sets of drawings and specifications for the use of Bidders in submitting Proposals. He shall assist the Owner in securing Proposals from Bidders, in analyzing such Proposals, and in preparing the Agrcement for cxecution by the Contractor.
(5) During Construction: The Engineer shall provide general supervision of construction to check the Contractor's work for general compliance with the drawings and specifications and shall endeavor to protect the Owner against defects and deficiencies in the work of the Contractor, but he does not guarantee the Con.
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1. THE ENGINEER AGREES (Continued)
tractor's performance. The Engineer's general supervision shall not incluje fumishing a full-time resident Engineer but shall include the following services:
(a) Additional Instructions: The Engineer shall issue such additional instructions to the Con tractor as may be necessary to interpret the drawings and specifications or to illustrate changes required in the Contractor's work.
(b) Contractor's Submittals: The Engincer shall check shop drawings, samples, equipment, approval data and other data submitted by the Contractor for compliance with the drawings and specifications.
(c) Contractor's Requests for Payment: The Engineer shail act upon the Contractor's requests for payment in accordance with the provisions of the General Condisions of the Contract.
(d) Visits to the Site: The Engineer shall make periodic inspections at the site to check the Contractor's work for general compliance with the Contract Documents and to determine the extent of work completed for checking of Contractor's requests for payınent.
(e) Special Performance Tests: The Engineer shall witness and fully report the results of all special performance tests required for the Project.
(f) Final Acceprance: The Engineer shall prepare completion liscs when 90% completion of the Project is claimed by the Contractor and again when 10050 completion is claimed. When the Contractor shall have completed the work in accordance with the terms of the Contrace Documents, the Engineer shall certify his acceptance to the Owner and his approval of the Contractor's final request for payment.
(8) Instruction to the Owner: The Engineer shall arrange for detailed instruction by the Con tractor and manufacturers' representatives of the Owner or his delegated representative in the proper operation and maintenance of the equipment furnished and installed for the Project.
(h) Record Drawings: The Engineer shall prepare record drawings showing changes in the work authorized during construction and shall submit a set of reproducibles to the Owner. c. Extra Services of the Engineer shall include the following when authorized in writing by the Owner:
(1) Contract Documents: Revisions to drawings and/or specifications previously approved and prep aration of Contract Documents for alternate proposals and change orders.
(2) During Construction Services: Resident supervision of construction of the Project; supervising the replacement of all or such parts of the Project as may be damaged by fire or other cause during construc tion; assisting the Owner in arranging for continuation of the work should the Contractor default for any reason; and providing supervision of construction over an extended period should the construction contract time be exceeded by more than 25% not occasioned by fault of the Engineer.
(3) Inspection Prior to Expiration of the Guaranty Period of the Project and preparation of a wni. ten report listing discrepancies between guaranties and performance,
d. Reimbursable Services of the Engineer shall include the following items when authorized in writing by the Owner : Transportation and subsistence of principals and employees on special trips to the Project or to other locations; long distance telephone and telegraph calls as required to expedite the work of the Contractor; reproduction of drawings and specifications in addition to those specified in Article 1.b.(4) of this Agreement; and work of special consultants when required by the complex nature of the Project. 2. THE OWNER AGREES to provide the Engineer with complete information concerning the requirements of the Project and to perform the following services:
a. Access to the Work: The Owner shall guarantee access to and make all provisions for the Engineer to enter upon public and private lands as required for the Engineer to perform such work as surveys and inspections in the development of the Project,
b. Consideration of the Engineer's Work: The Owner shall give thorough consideration to all reports, sketches, estimates, drawings, specifications, proposals, and other documents presented by the Engineer, and shall inform the Engineer of all decisions within a reasonable time so as not to delay the work of the Engineer.
c. Legal Requirements: The Owner shall hold promptly all required special meetings, serve all required public and private notices, receive and act upon ail protests and fulfill all requirements necessary in the develop ment of the Project, and pay all costs incident thereto.
d. Proposals: The Owner shall advertise for Proposals from Bidders, open the Proposals at the appointed time and place and pay all costs incident thereto.
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2. THE OWNER AGREES (Continued)
e. Protection of Markers: The Owner shall protect to the best of his ability, all stakes and other markers set by the Engineer prior to the assumption of such responsibility by the Contractor. Replacement of markers or stakes which have been damaged, moved or reinoved shall be paid for by the Owner as extra services of the Engineer.
f. Standards: The Owner shall furnish the Engineer with a copy of any design and construction standards he shall require the Engineer to follow in the preparation of Contract Documents for the Project.
& Owner's Representative: The Owner shall designate in writing, by appendix to this Agreement, a single person to ac: as Owner's Representative with respect to the work to be performed under this Agree ment. The person designated as Owner's Representative shall have complete authority to transmit instructions, receive information, interpret and define Owner's policy and decisions, with respect to the materials, equip ment, elements and systems pertinent to the work covered by this Agreement.
3. THE OWNER'S PAYMENTS TO THE ENGINEER:
(1) Payments Withheld from Contractors: No deduction shall be made from the Engineer's com pensation on account of penalty, liquidated damages, or other amounts withheld from payments to Contractors.
(2) Abandoned or Suspended Work: If any work performed by the Engineer is abandoned or suspended in whole or in part, the Engineer shall be paid for services performed on account of it prior to receipt of written notice from the Owner of such abandonment or suspension, together with any terminal ex pense resulting therefrom and including a reasonable profit. (3) Progress Payments: Once each
the Owner shall pay the Engineer for professional services performed under Articles 1.b, 1.c and 1.d of this Agreement in proportion to services performed during the period.
b. Payments for Basic Services of the Engineer: The Owner shall pay the Engineer, for the basic services described in Article 1.b of this Agreement, a basic fee of:
-) with progress payments as herein provided. At the completion of each phase of the work, progress payments shall total the following amounts:
c. Payments for Extra Services of the Engineer: Por Extra Services defined in Article 1.c the Owner shall
pay the Engineer on an hourly basis in accordance with the schedule of charges attached hereto.
d. Payments for Engineer's Reimbursable Services: The Engineer shall be reimbursed at cost for the reimbursable services outlined under Article 1.d.
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4. THE OWNER AND ENGINEER FURTHER AGREE to the following conditions:
a. Termination: This Agreement may be terminated by either party by seven (7) days' written notice in the event of substantial failure to perform in accordance with the terms hereof by the one party through no fault of the other party. If terminated due to the fault of others than the Engineer, the Engineer shall be paid for services performed to the date of termination, including reimbursements then due, plus terminal expense.
b. Arbitration: Arbitration of all questions in dispute under this Agreement shall be at the choice of either party and shall be in accordance with the rules of the American Arbitration Association. This Agreement shall be specifically enforceable under the prevailing arbitration law and judgment upon the award rendered may be entered in the court of the forum, state of federal, having jurisdiction. The decision of the arbitrators shall be a condition precedent to the right of any legal action.
c. Ownership of Documents: The completed tracings and master specification sheets shall remain the property of the Engineer, and reproductions of them in whole or in part shall not be used on additions to the Project or on any other project except upon written agreement with the Engineer. 3. SUCCESSORS AND ASSIGNS: This Agreement and all of the covenants hereof shall inure to the benefit of and be binding upon the Owner and the Engineer respectively and his partners, successors, assigns and legal representatives. Neither the Owner nor the Engineer shall have the right to assign, transfer or subiet his interest or obligations hereunder without written consent of the other party. 6. SPECIAL PROVISIONS: The Owner and the Engineer mutually agree that this Agreement shall be subject to the following Special Provisions which shall supersede other conflicting provisions of this Agreement:
IN WITNESS WHEREOF the parties hereto have made and executed this Agreement the day and year first above written. OWNER:
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accordance with the Drawings. Specifications and other Contract Documents prepared by
NOW, THEREFORE, The OWNER and CONTRACTOR, for the considerations hereinafter set forth, agree as follows:
1.4.02 THB CONTRACTOR AGREES to furnish all the necessary labor, materials, equipment, tools and services necessary to perform and complete in a workmanlike manner all work required for the construction of the Project, in strict compliance with the Contract Documents herein mentioned, which are hereby made a part of the Contract, including the following Addenda:
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