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 THE 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: Addendum No. Dated CONSULTING ENGINEERS COUNCIL 1.6 1.4.02 THE CONTRACTOR AGREES (Continued) a. Contract Time: Work under this Agreement shall be commenced upon written notice to proceed, and shall be completed within in the General Conditions of the Contract. calendar days of the commencement of the Contract Time as defined b. Sub-Contractors: The Contractor agrees to bind every sub-contractor by the terms of the Contract Documents. The Contract Documents shall not be construed as creating any contractual relation between any sub-contractor and the Owner. 1.4.03 THE OWNER AGREES to pay, and the Contractor agrees to accept, in full payment for the per formance of this Contract, the Contract amount of: in accordance with the provisions of the Contract Documents. Dollars ($ a. Progress Payments will be made in accordance with the General Conditions of the Contract. 1.4.04 CONTRACT DOCUMENTS: The Contract comprises the Contract Documents listed in Paragraph 2.1.01 of the General Conditions of the Contract. In the event that any provision of one Contract Docu ment conflicts with the provision of another Contract Document, the provision in that Contract Document first listed below shall govern, except as otherwise specifically stated: 1.4.05 AUTHORITY AND RESPONSIBILITY OF THE ENGINEER: All work shall be done under the general supervision of the Engineer. The Engineer shall decide any and all questions which may arise as to the quality and acceptability of materials furnished, work performed, rate of progress of work, interpretation of Drawings and Specifications and all questions as to the acceptable fulfillment of the Contract on the part of the Contractor. 1.4.06. 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 Contractor respectively and his partners, successors, assigns and legal representatives. Neither the Owner nor the Contractor shall have the right to assign, transfer or sublet his interests or obligations hereunder without written consent of the other party. CONSULTING ENGINEERS COUNCIL 1.7 1.4.07 SPECIAL PROVISIONS: The Owner and the Contractor mutually agree that this Agreement shall be subject to the following Special Provisions, which shall supersede other conflicting provisions of this Agreement. 1.4.08 IN WITNESS WHEREOF, the parties have made and executed this Agreement, the day and year first above written. Mr. ABERNETHY. Mr. Faulkner and his associate, when they were at the table, testified to this, but are there other States who in establishing their statute of limitation use the words "substantial completion" in their statutes? Mr. LUNCH. Yes, I am sure there are. It will take me a minute or two, but I can find them. Or I can file it later. I am sure there are those who use that phrase. Mr. ABERNETHY. Maybe those who preceded you at the table could tell us what States they are. Mr. FAULKNER. The State of Nevada uses it, Kentucky, South Dakota. Mr. LUNCH. Florida. I am going through rather quickly the file here of these laws. Florida uses it. Mr. FAULKNER. Also South Carolina. Mr. Chairman, could I say one word in regard to this? Mr. ABERNETHY. Yes. Mr. FAULKNER. This is a term that has come into general use rather recently. The latest document of the general conditions, issued by the American Institute of Architects, recognizes this and has a definition. I am sorry I do not have it with me, but it is coming into general use in the architectural and building professions. Mr. ABERNETHY. All right. You gentlemen may proceed. Mr. KELLER. One thing I would like to say is that in nine out of ten of the buildings that we do, the owner most of the time moves into the buildings before it is complete, they are so anxious to get into the building that they will take them before they are 100 percent finished. Mr. ABERNETHY. All right. Mr. Fraser? Mr. FRASER. What would be the problem, supposing it were just left to the words "substantially completed" and suppose that is all the statute were to say. It did not seek to spell out what it meant but left that for the courts to decide. I am a little bothered by this "first used" clause because it seems to me things get used for a while, maybe, and then they may move out again. Mr. LUNCH. As a matter of fact, in the statement that is filed with the committee on behalf of the National Society of Professional Engineers, there is attached a copy of a so-called model statute developed by several of the societies. In that so-called model there is no definition. The phrase is used but there is no definition. I was at the meetings when that was considered by the various attorneys and the feeling at that time was we would just leave that to the courts to determine under applicable State law as to what that phrase meant. Mr. FRASER. The point is, it seems to me, the test of use is quite uncertain. You might use a part of it that was livable or usable, and this might have no relevance to the time at which the negligent act took place, which might have been even later. Mr. LUNCH. You often do have situations where on a completion project we may be only talking about part of a building. The owner may use part of that building a year or two years or more before the rest of the project would be completed. This is not unusual. Mr. FRASER. Right. I have two more questions. Is it the practice to have liability insurance? Mr. KELLER. Yes, sir, very definitely. Mr. FRASER. You are a builder? Mr. KELLER. No. I am a consulting engineer, a design engineer. Mr. FRASER. You do customarily carry professional insurance; it is available to you? Mr. KELLER. Yes, absolutely. Mr. FRASER. That covers your liability no matter what the statute of limitations may be? Mr. KELLER. This is true. Mr. FRASER. Now, the last question: What is the statute of limitations for personal injury in the District? Is it three years? Mr. LUNCH. Three years. Mr. FRASER. Apparently the Bar Association was concerned with setting a special category for this particular kind of injury. Mr. LUNCH. Apparently they have some concern. I am not familiar with it. Mr. FRASER. Thank you. Mr. ABERNETHY. Mr. Winn. Mr. WINN. I do not have any questions but I am 100 percent sure that practically every contractor you talk about has liability insurance. I happen to be a contractor and I don't know that we will ever get the answer to "substantial completion." I don't know that there is such a thing because every building and every possession, whatever you might want to call it, is different under the different agreed circumstances that this gentleman referred to. Of course, as time grows closer to their agreed contractual date or their possession date, whatever you might want to refer to it as, then the owner gets more anxious to get in, particularly if he has to move out of some other location. He exempts the punch list-this is the first time I have ever heard it referred to as a punch list, but it is a complaint list, a maintenance list, however you want to refer to it. This part of the agreement, that the man accepts the building with the agreement that this list will be completed within a certain period of time. You also have the warranties. What are the warranties in the District for commercial construction, the length of time? Mr. KELLER. The normal would be a year. Mr. LUNCH. They may vary, Mr. Winn, depending on the product or the equipment involved. Roofing may be one thing, but power equipment, motors, generators may be something else. I wouldn't know all of them. Mr. WINN. Of course, it wouldn't pertain to commercial construction as much as it would to housing, but the housing, of course, will sit and it normally has a rule by FHA and VA where they have permanent inspections, of one year. Mr. ABERNETHY. Thank you very much, gentlemen. STATEMENT OF M. J. MENOCAL, CHAIRMAN, LAW AND LEGISLA- Mr. MENOCAL. We have a statement which Mr. Clark has copies of. I am M. J. Menocal. I will leave it to you whether you want me to read this statement or merely insert it in the record. |