Instructions: A441™–2014, Standard Form of Agreement Between Contractor and Subcontractor for a Design-Build Project

Synopsis. 

AIA Document A441–2014 establishes the contractual relationship between the contractor and subcontractor in a design-build project. AIA Document A441–2014 incorporates by reference the terms and conditions of AIA Document A142™–2014, Standard Form of Agreement Between Design-Builder and Contractor, and was written to ensure consistency with the AIA 2014 Design-Build family of documents. Because subcontractors are often required to provide professional services on a design-build project, A441–2014 provides for that possibility. For all document details and a record of changes, see the summary » 

 

Using A441–2014.

Cover Page

Date. The date represents the date the Agreement becomes effective. It may be the date that an oral agreement was reached, the date the Agreement was originally submitted to the other party, the date authorizing action was taken or the date of actual execution. It will be the date from which the Subcontract Time is measured unless a different date is inserted under Section 9.1.

Parties. Parties to this Agreement should be identified using the full legal name under which the Agreement is to be executed, including a designation of the legal status of both parties (sole proprietorship, partnership, joint venture, unincorporated association, limited partnership or corporation [general, limited liability, closed or professional], etc.). Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached. Other information may be added, such as telephone numbers and electronic addresses.

Prime Contract. The date of the Agreement between the Design-Builder and Contractor should be entered.

Design-Builder. The name and address of the Design-Builder should be the same as used in the Prime Contract.

Project. The proposed Project should be described in sufficient detail to identify (1) the official name or title of the facility, (2) the location of the site; and (3) a brief description of the Project, including the proposed building usage, the size, and capacity or scope of the Project.

Article 6 – Claims and Disputes

§ 6.2 Select from three choices of binding dispute resolution: (1) arbitration, (2) litigation or (3) another method that the parties must identify. Other types of dispute resolution include a dispute resolution board or a mini-trial. For additional information about other methods of dispute resolution, refer to The Construction Industry’s Guide to Dispute Avoidance and Resolution or visit adr.org for more information.

Article 9 – Date of Commencement and Substantial Completion

§ 9.1 The date of commencement of the Work should be inserted if it is different from the date of the Agreement. It should not be earlier than the date of execution of the Agreement. Enter either the specific date of commencement of the Work, or if a notice to proceed is to be used, enter the sentence, “The date of commencement shall be stipulated by the notice to proceed.”

§ 9.3 The time within which the Subcontractor shall substantially complete the Work may be expressed as a number of calendar days or as a specified date.

Also insert any provisions for liquidated damages relating to the Subcontractor’s failure to complete on time or for bonus payments for early completion. Liquidated damages are not a penalty to be inflicted on the Subcontractor, but must bear an actual and reasonably estimable relationship to the Contractor’s loss if construction is not completed on time. If liquidated damages are to be assessed because delayed construction will result in actual loss to the Contractor, the amount of damages due for each day lost should be entered in the Agreement. If a provision for liquidated damages is included, it should be carefully drafted by an attorney. Such a provision may be based on the following sample language:

The Subcontractor and the Subcontractor’s surety, if any, shall be liable for and shall pay the Contractor the sums hereinafter stipulated as liquidated damages for each calendar day of delay until the Work is substantially complete: ________ ($__).

For further information on liquidated damages, penalties and bonus provisions, see AIA Document A503™, Guide for Supplementary Conditions.

Article 10 – Subcontract Sum

§ 10.1 Enter the Subcontract Sum payable to the Subcontractor.

§ 10.2 Identify any alternates described in the Subcontract Documents and accepted by the Design-Builder and the Contractor. If decisions on alternates are to be made subsequent to execution of A441–2014, attach a schedule showing the amount of each alternate and the date it expires.

§ 10.3 Identify unit prices and state quantity limitations, if any, to which the unit price will be applicable.

If unit prices are not covered in greater detail elsewhere in the Subcontract Documents, the following provision for unit prices is suggested:

The unit prices listed below shall determine the value of extra Work or changes in the Work, as applicable. They shall be considered complete and shall include all material and equipment, labor, installation costs, overhead, and profit. Unit prices shall be used uniformly for additions or deductions.

§ 10.4 Identify and state the amount of any allowances.

Article 11 – Progress Payments

§ 11.2 Insert the time period covered by each application for payment if it differs from the one given.

§ 11.3 Insert the time schedule for presenting applications for payment. Due dates for payment should be acceptable to both the Contractor and Subcontractor. They should allow sufficient time for the Contractor to prepare an Application for Payment, for the Design-Builder to issue a written acknowledgement of receipt of the Contractor’s Application for Payment, and for the Owner and Design-Builder to make payment. They should also be in accordance with the time limits established by this Article and the Prime Contract.

Article 14 – Insurance and Bonds

§ 14.1 Insert types of coverage and limits of liability to be maintained by the Subcontractor which may arise out of or result from the Subcontractor’s operations and completed operations under the Subcontract.

§ 14.7 If the Subcontractor is to furnish a surety bond, insert specific requirements such as amounts, the date the bonds are required to be delivered and the forms on which the bonds are to be written. See AIA Document A312™–1984, Performance Bond and Payment Bond, which may be modified for a contractor-subcontractor relationship.

Article 15 – Temporary Facilities and Working Conditions

§ 15.1 List temporary facilities, equipment, and services the Contractor will not furnish to the Subcontractor.

Article 16 – Miscellaneous Provisions

§ 16.4 Indicate the percent of retainage, if any, to be withheld when computing the amount of each progress payment to the Subcontractor.

Article 17 – Enumeration of Subcontract Documents

A detailed enumeration of all Subcontract Documents must be made in this Article.

 

Executing the agreement.

The persons executing AIA Document A441–2014 should indicate the capacity in which they are acting (i.e., president, secretary, partner, etc.) and the authority under which they are executing the Agreement. Where appropriate, a copy of the resolution authorizing the individual to act on behalf of the firm or entity should be attached.

 

Important.

Modifications. Particularly with respect to professional or contractor licensing laws, building codes, taxes, monetary and interest charges, arbitration, indemnification, format and font size, AIA Contract Documents may require modification to comply with state or local laws. Users are encouraged to consult an attorney before completing or modifying a document.

Reproductions. This document is a copyrighted work and may not be reproduced or excerpted from without the express written permission of the AIA. There is no implied permission to reproduce this document, nor does membership in The American Institute of Architects confer any further rights to reproduce this document. For more information, see the document footer and the AIA Contract Documents® Terms of Service.

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