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Does AIA agreement conflict with Security or Fire All in One

June 15, 2022
Does AIA agreement conflict with Security or Fire All in One
              Recently, we quoted a job and the contractor sent us the attached AIA A142 agreement to sign. Are you aware of any areas within this agreement that conflict with the Kirschenbaum Commercial All-In-One?
          Additionally, this job would involve installing a Fire Alarm system, as seen on page 60. We believe that this installation would require your Fire All in One as well. Would there be any areas within the Fire All in One that would conflict with the attached AIA A142?
name withheld
          Does the AIA agreement conflict with the Security or Fire All in One agreements?  Does a bear shit in the woods? 
          Same answer.  Yes.  But now what?  You want the job; how do you reconcile the AIA agreement with your Standard Form Agreements?  The simple answer is you can’t, though you should try to negotiate some changes.
          The best you can do is get the GC to agree that your All in One is attached and to the extent inconsistent with the AIA form, your agreement governs.  Another way to phrase it, the AIA is subject to the Alarm Contract.  If you can’t get this change you need to move to plan B.
          The most significant conflict in the AIA compared to your standard form is that you are required to carry specific insurance and name the GC, owner and architect as additional insureds.  You are also required to indemnify these same entities and your indemnity is not limited to your insurance coverage, so that’s the first change you need to fight for.
          You need to read the AIA agreement very carefully because it has many legal and non-legal issues in it, many more than can be reviewed and commented on.  Not only do you have to look at the AIA agreement, which you mention in your case is 60 pages, but all of the other documents it refers to and incorporates in the AIA agreement; this could be literally hundreds of pages of fine print.  If you sign it you are legally deemed to have read it and agreed to it.  Of course there may be provisions that are not legally enforceable, such as a “paid if paid clause” [in some jurisdictions] but that only leaves you with a legal battle down the line.
          You need to read the indemnity to make sure you aren’t going to be responsible for any damage or clean-up required of all subcontractors, not just you.  You need to review carefully the hoops and hurtles you will need to go through to get paid; not just the progress payments but final payment.  Check who is required to approve your requisition [and check that form too]; check to see the turn-around time on payment.  Check the retainage on the job and when it’s paid; is it after your job is complete or is it when the entire project is completed?  You want to be paid in full when the Fire Marshal approves the fire alarm installation and when the security system is tested and communicating with the central station or fully operational. 
          It’s acceptable practice [and only because it’s the only reality of the situation] for you to agree to the AIA or other GC [or owner] contract but only for the installation of the system, whether its fire, security or other [ie environmental].  But it is not acceptable to agree to perform any after-install services using anything other than your Standard Form Agreements.  The exposure for you and for those you rely on, and whom you indemnify [central station and third party vendors and manufacturers] is too risky.  Just think about the fire alarm in a large building that burns down. Do you think your one million dollar insurance policy is going to be enough coverage?  It’s not, and your insurance policy is not the limit of your indemnity to those you agree to indemnify in the AIA agreement. 
          Get the owner to sign your All in One for the after-install services before you sign the AIA for the installation phase, unless the install alone is worthwhile and profitable. 
          Contract review and negotiation is part of the services offered in the K&K Concierge Program; you get a free half hour each month for contract review and negotiation.  It’s a great deal for two reasons:  First, it’s a $250 value, free, and more importantly, second, joining the Concierge Program will encourage you to get the legal services you need when addressing the myriad of contract legal issues.
          Join the Concierge Program today.  Call K&K’s Concierge Program Coordinator Stacy Spector,Esq for more information 516 747 6700 x 312 or sign up on K&K’s website here:

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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301