Changes to Contractor/Subcontractor Agreement Can Have Profound Effect on Roofers

Whether they like them or not, most subcontractors and contractors have used American Institute of Architects (AIA) standard form contract documents at some point in their careers. Several options exist for those wanting to utilize standard form documents, like ConsensusDocs, Design-Build Institute of America, and the Engineers Joint Contract Documents Committee forms. However, the AIA, being founded in 1857 and having published standard form construction contracts for more than 100 years, is the most established of these organizations, and its form contracts are still the most prevalent and most commonly used forms for commercial construction projects in the United States.

The AIA updates its forms every 10 years and completed its most recent revision in late April 2017. The updates included revisions to several forms in its A-Series (Owner/Contractor Agreements), including its widely used General Conditions (AIA Form A201) and its standard Contractor/Subcontractor Agreement, AIA A401. While these are only a few of the AIA’s updates, these changes may be particularly pertinent to subcontractors and those working in the roofing construction industry. Some highlights of the 2017 updates to A401 follow here.

Designated Representatives and Notices

Both the Contractor and Subcontractor are now required to designate (in the space provided in Section 14.2) an individual who will serve as each party’s “representative” for the project. This requirement is set forth in Section 3 for the Contractor and Section 4 for the Subcontractor. Parties are permitted to change their designated representative only if they provide 10 days’ notice. This is significant for both parties because the updated form requires that notices — for example, notices of a party’s potential claim arising from the subcontract — must be made in writing and are valid only if served upon the designated representative. The new form allows notices to be made via e-email or other electronic means only if an electronic method is set forth in Section 14.4.3. Parties should remember not only to designate a point person who is prepared to serve as a project representative and an email address for notices, but they should also ensure that the other party has done the same. Failure to do so could result in notices not being made by the proper means and to the proper individual — which in turn could result in parties waiving potential claims.

New Contractor Responsibilities — With Limitations

Although it has long been a standard practice (both on AIA projects and elsewhere) for the Contractor to include the prime contract as an exhibit to the subcontract, the updated form takes this a step further and requires the prime contract to be attached to the subcontract as “Exhibit A.” If Subcontractors hold Contractors to this requirement, Subcontractors will be able to review all of the contract documents with greater ease before signing.

Furthermore, Section 3 requires Contractors to “render decisions in a timely manner and in accordance with the Contractor’s construction schedule” and to “promptly notify the Subcontractor of any fault or defect in the Work under this Subcontract or nonconformity with the Subcontract documents.” However, in Sections 3.4.4 and 3.4.5, the phrase “written notice” has been changed simply to “notice” with respect to the Contractor’s requirement to notify the Subcontractor of defective work as a prerequisite of finding the Subcontractor to be in default. Section 14 still clearly states that all “notices” must be made in writing to the designated representative. This change could result in debate over what Contractors must do in order to notify Subcontractors of defective work before they avail themselves of remedies for breach, such as withholding subcontract payments.

Contractors also now have additional duties to provide Subcontractors information they may need in order to preserve their lien rights. Section 3.3.6 previously required Contractors to provide Subcontractors “a correct statement of the record legal title to the property … and the Owner’s interest therein.” The revised A401 now requires the Contractor to request this information from the Owner if the Contractor does not have it and give the Subcontractor the information upon receipt; a corresponding section in AIA A201 requires the Owner to provide it to the Contractor.

New Subcontractor Duties and Concerns

The above requirement to submit lien information is perhaps balanced by revised Section 11.1.10, which provides Contractors additional rights to indemnification from certain lien claims. “If Contractor has paid Subcontractor in accordance with the Agreement, Subcontractor must defend and indemnify the Contractor and Owner from liens and claims from lower tier subcontractors and suppliers, including being required to bond off liens,” the new form states.

Another noteworthy change concerns alternates — alternatives to a base bid that provide for a change in the level of quality, or scope of the work specified in the base bid. Alternates provide the owner with the option to modify the project by accepting or rejecting the alternate. The newly revised A401 contains a new section, 10.2.2, which allows the parties to list alternates that the Contractor can accept after execution of the agreement. Subcontractors should consider carefully whether it is wise to include alternates under this section.

Payment and Retainage

Finally, subcontractors and contractors alike should familiarize themselves with the newly revised Section 11, which concerns progress payments. Sections 11.1.7.1 and 11.1.7.2 break down the calculation of progress payments into separate subsections for additions, deletions, and retainage. This includes additions for construction change directives and deletions to allow for defective work remaining uncorrected (assuming that Contractor has duly notified the Subcontractor of the issue). Other portions of A401 allow for additions and deletions in these scenarios, but they are often conditioned on the owner’s approval and other factors. It remains to be seen whether this section could change normal progress billing procedures.

Section 11.7.2 opens the door to retainage options other than the typical arrangement (where the Contractor simply withholds the amount the Owner is withholding). Newly added subsections allow the parties to designate items that are not subject to retainage, as well as set forth an arrangement for reduced or limited retainage. This new section (11.1.8.2) could be a helpful avenue for early finishing trades to propose release of retainage upon 50 percent completion of the project as opposed to substantial completion — or even a way for parties to negotiate the retainage percentage down.

The above are just a few highlights of changes to AIA Form A401. For additional information or questions, visit www.aiacontracts.org or email Caroline Trautman at ctrautman@andersonandjones.com.

 

This article is not intended to give, and should not be relied upon for, legal advice. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

Maximize Risk Transfer to Your Commercial General Liability Insurance

Roofing contractors face potential liability from numerous aspects of their businesses, including employee-operated company vehicles and equipment; work-related injuries; property and equipment damage; “disappearing” materials; defective work and materials; and a multitude of employment issues, such as wrongful termination claims. All reputable contractors protect themselves and others by purchasing Commercial General Liability (CGL) Insurance. The scope of available coverage runs from basic policies to wide-ranging “multi-peril” policies, which bundle multiple coverages to address a number of potential risks. A multi-peril policy for roofing contractors may include coverage for damage arising from defective work, operation of vehicles or equipment, worker’s compensation, employment practices and even employee theft.

Insurance simply represents the transfer of risk from the insured to the insurance company. Taking a proactive approach to understanding the insurance you purchase allows you to maximize that risk transfer or at least know where you bear the majority of risk.

The Basics

A CGL insurance policy generally consists of three primary sections:

  • The insuring agreement.
  • The exclusions.
  • The endorsements.

The insuring agreement defines what the policy covers and is generally written quite broadly. Virtually all CGL insurance policies require that such property damage or personal injury result from an “occurrence,” typically defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions”. Many of the terms within the insuring agreement are specifically defined for purposes of the policy and require analysis, depending on the claim asserted and the particular coverage implicated.

The exclusions are simply that— claims and/or damages the insurance company will not cover. For example, CGL insurance policies commonly contain exclusions for “Contractual Liability”, defined as “bodily injury or property damage the insured is obligated to pay by reason of the assumption of liability in a contract or agreement”. Since many subcontracts include express indemnification clauses, this can be a major area of concern for the contractor.

Endorsements are documents attached to a policy that amend the terms in some way and can expand or restrict coverage or even modify the definitions. One common misperception is the belief that endorsements are synonymous with exclusions. To the contrary, it is not uncommon for an endorsement to narrow the scope of an exclusion or eliminate an exclusion entirely. Endorsements can be used to tailor a policy to a particular industry or trade, and insurance companies use them to modify standard Insurance Services Office (ISO) policies to comport to their particular philosophy, such as cancellation and non-renewal provisions or requiring binding arbitration to settle coverage disputes. Endorsements are usually identified by description and form number as part of the Declarations Page.

There are common Endorsements that result in additional exclusions. One of particular concern to any contractor is the “Independent Contractors and Subcontractors Limitation”, which provides that claims for bodily injury or property damage caused by independent contractors/subcontractors used by the insured are not covered unless that independent contractor/subcontractor maintains its own insurance coverage with limits equal to the insureds and names the insured as an Additional Insured on its policy.

To limit your personal exposure, it is imperative you do not ignore the Endorsements! It is an important part of your policy and you need to understand the terms.

Duty to Defend Versus Duty to Indemnify

An insurance policy creates two separate and distinct obligations for the insurance company: the duty to defend and the duty to indemnify.

The duty to defend consists of the insurance company’s obligation to hire counsel to defend the insured in response to a claim. That obligation is not
dependent upon the insured’s liability but whether the allegations made by the plaintiff states a claim potentially triggering coverage. The duty to defend
exists even if the claim is groundless, false or fraudulent.

The duty to indemnify is the insurance company’s obligation to pay the successful plaintiff when that claim falls within the scope of the insurance policy.
In the insuring agreement, the insurer promises to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.”

It’s often said that the duty to defend is broader than the duty to indemnify. The carrier’s duty to defend exists when the claim potentially triggers overage, while the duty to pay exists only when the insured is obligated to pay damages and the claim falls within the coverage provided by the policy.

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Reduce Cost of Managing Subcontractor Reports While Increasing Transparency

NoteVault's program, One Team. One Report., enables construction companies to invite subcontractors to contribute project documentation to any project within their account at no cost to either the contractor or the subcontractor.

NoteVault’s program, One Team. One Report., enables construction companies to invite subcontractors to contribute project documentation to any project within their account at no cost to either the contractor or the subcontractor.

NoteVault, a provider of mobile reporting solutions, launched a program designed to increase transparency, while reducing administration costs of managing subcontractor reports on large, complicated building or engineering projects. The program One Team. One Report. enables construction companies to invite subcontractors to contribute project documentation to any project within their account at no cost to either the contractor or the subcontractor.

The One Team. One Report. program enables subcontractors to post notes, photos and labor to any project at no cost, no matter how many subcontractor companies are working on the project. Each subcontractor is allocated an individual NoteVault account. NoteVault links the subcontractor project to the construction company project report. This results in a professional daily report, including all subcontractor notes collated for easy reference, delivered every day or on demand. Plus, subcontractors receive their own reports for their work.

A NoteVault Account includes:

  • NoteVault Daily Reporting Platform.
  • Notes! app for Android or iOS.
  • Activities Labor, Materials and Equipment app for Android or iOS.
  • Immediate notification of incidents/accidents through keyword notification.
  • Collaboration with colleagues using the comment feature.
  • Professional­­ human transcription (available for an additional charge).

Contractual Risk Shifting, Workers’ Compensation and You

During the process of negotiating construction contracts, contractors often use certain clauses to shift the risk of loss onto subcontractors who may have less bargaining power. How do they do this? Most commonly through the use of indemnity and waiver of subrogation clauses. While these clauses apply in a variety of situations, they are particularly concerning with regard to workers’ compensation insurance.

All states have mandatory workers’ compensation statutes. These statutes make employers strictly liable for employee injuries on the job. Strict liability means liability without fault. Therefore, an injured employee of a subcontractor can recover damages from the subcontractor’s workers’ compensation carrier even if a third party is 100 percent at fault for the injury.

What Is Subrogation?

Subrogation arises when an innocent party incurs damages attributable to the fault of another. This most commonly applies when an insurance carrier pays an insured loss and subrogates to the rights—or “stands in the shoes”—of the injured party in recovering against the responsible party. This doctrine is based on equitable principles, primarily to prevent the at-fault party from escaping liability. Makes sense, right? Then how does a subcontractor waive subrogation?

Here’s a sample waiver of subrogation provision:
Subcontractor hereby waives all right of recovery against the Contractor, the Owner and their respective officers, directors, employees, agents and representatives with respect to claims covered by insurance obtained pursuant to insurance requirements under this Subcontract. The Subcontractor agrees to cause its Workers’ Compensation, General Liability and Automobile Insurance carrier to waive their rights of subrogation against the Contractor, Owner and their respective officers, directors, employees, agents and representatives.

Here’s an example:
A subcontractor’s employee is injured by the sole negligence of the contractor. The subcontractor’s workers’ compensation carrier pays out statutory damages to the injured employee. Pursuant to the waiver of subrogation clause, the subcontractor and its carrier have no right to recover the losses from the contractor.

What is the practical effect? The subcontractor suffers the consequences of the contractor’s sole negligence. How? The subcontractor’s experience modification rate (EMR) goes up. What else goes up with the EMR? Premiums!

What Is Indemnification?

Indemnification requires one party to pay damages to another, sometimes without regard to who was actually at fault. These types of clauses often include language requiring the subcontractor to “defend and hold harmless” the contractor, which puts the additional burden on the subcontractor of incurring fees and expenses for the contractor’s legal defense. There are generally three types of indemnity clauses: broad, intermediate and limited.

A broad indemnity clause requires the subcontractor to pay loss or damage regardless of who is at fault, even if the damage is caused by the sole negligence of the contractor. This is the most onerous type of indemnity clause because it shifts the entire risk to the subcontractor.

Here’s a sample broad indemnity provision:
Subcontractor shall indemnify, defend and hold harmless the Contractor, Architect and Owner against all liability claims, judgment or demands for damages and expenses, including, but not limited to, reasonable attorneys’ fees, arising from accidents to persons or property arising out of or resulting from the performance of the work.

An intermediate indemnity clause requires the subcontractor to pay loss or damage for its own sole or partial negligence. Some intermediate indemnity provisions require the subcontractor to pay the entire loss or damage while others only require the subcontractor to pay its pro rata share of the loss or damage.

Finally, a limited indemnity clause only requires the subcontractor to pay loss or damage that is the sole responsibility of the subcontractor.

How do indemnity and subrogation interplay? When the subcontract has abroad indemnity clause and a waiver of subrogation clause.

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