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Contract

Posted by DoubleOhHoya (My Page) on
Fri, Apr 13, 12 at 14:42

Does anyone have a template of a cost plus contract that is more down the middle? ie, not too builder friendly?


Follow-Up Postings:

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RE: Contract

Any published "template" contract form that is competently written and kept up to date with state laws and court interpretations will be copyrighted. However, they are usually offered for sale for about $12.

Any contract should be reviewed by your lawyer but one not written by a nationally recognized organization would be risky and far more expensive since it would need considerably more attention from your lawyer.

As for protection of owners the only forms that try to do that are the ones from the AIA.

The AIA publishes form A107 (2007) that is appropriate for single-family houses called "Standard Form of Agreement Between Owner and Contractor for Projects of Limited Scope" It can be used for a Lump Sum or Cost of the Work with a Fee compensation by attaching AIA 107 Exhibit A.

You can usually buy these forms for $12 from a state AIA chapter ( http://www.aia.org/aiaucmp/groups/aia/documents/pdf/aias076340.pdf )

If you don't want to spend $12 or you want to rewrite A 107 you can use the link below to see samples of the forms but the documents would not carry the same weight as an AIA document in court:
AIA 107 - 2007

AIA 107 - 2007 Exhibit A (needed for Cost of the Work).

Here is a link that might be useful: Sample AIA forms


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RE: Contract

Agree with Renovator about much of what he says above but must disagree on a couple of points.

As for protection of owners the only forms that try to do that are the ones from the AIA. The AIA forms are written primarily to protect the architect and only secondarily to protect the owner. That said, with regard to the relationship between owner and builder, the AIA form contract language is certainly fairer to the owner than any form contract promulgated by any builder's group. The problem is, if you don't have an architect overseeing your project, the AIA form contracts will need extensive revisions in order to make sense.

the documents [non AIA contracts] would not carry the same weight as an AIA document in court: A signed contract carries the same "weight" in court whether it is an AIA contract, some other form contract, or one that your attorney wrote himself after hammering out the details with your builder and his attorney. Because disagreements between parties working under AIA contracts have been previously litigated, it is possible that there is already case-law interpreting the language of those contracts. Whether or not this would work to your advantage or against you is a good question. Many lawyers tend to like to stick with formulaic language because they THINK they know how it will be interpreted by the courts. (This is why you still see legal documents being written today using archaic language from 200 years ago instead of plain modern English.) However, even tho a particular phrase may have been parsed a dozen times in prior court cases, there can STILL be disagreements about what the phrase means in this particular instance. Furthermore, sometimes formulaic language gets short-shrift in court because judges realize that oftentimes the parties themselves give no thought whatsoever to what all that boiler-plate language really means. Thus, you might actually get a fairer hearing if the judge recognizes that every word of your agreement was carefully considered and selected to apply to your specific situation.

Whatever contract you use - and I would personally recommend having an experienced construction law attorney prepare one for you - make sure that your attorney explains each and every clause in the document to you with examples of exactly when it would apply and how it would operate. Don't let him tell you that something is "just boilerplate so it doesn't really mean anything." If he says a clause doesn't mean anything, then tell him to take it out of the contract because you don't want ANY language in the contract that "doesn't mean anything."


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RE: Contract

Bevangel, since you chose to quote my comments and challenge them item by item I will respond in the interest of helping the OP but if you want to sidetrack the discussion with a contest regarding construction law knowledge I am not interested in the least.

An architect is not a party to the Owner-Contractor contract nor does an architect have a contract with the Contractor. Such a contract doesn't protect the architect, it just makes it clear that no contractural relationship is created between the Contractor and the Architect which you should understand. An architect is the agent of the Owner and his/her responsibilities are appropriately set forth in the Owner-Architect Agreement like B141, etc. If an architect has a duty to a Contractor it would be because of his/duty to the Owner as set forth in that contract.

To use an AIA Owner-Contractor agreement form without an architect it is only necessary to cross out the references to the architect or substitute the name of another party. I have done it many times when an Owner did not want me to provide full construction phase services.

The OP asked for a "contract template". That approach does not preclude the use of a lawyer.

One of the benefits of buying an AIA agreement form is that it comes in a pale green 4 sided paper folder with detailed instructions for using the form and the important provisions explained by a team of experienced construction law attorneys all for only $12. There is nothing wrong with filling one of these forms out and asking a lawyer to review it. The lawyer will be quite familiar with the form and will already know what he/she thinks should be added or modified. If the lawyer thinks you need a custom prepared contract you have only spent $12 and an hour filling it out and you would have had an excellent tutorial regarding the relevant issues.


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