Category: Construction Contract Interpretation

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Eight Things to Remember When Reviewing an Access Easement

An access easement is a key link in the legal chain when builders need to cross another’s land to develop property. A poorly drafted easement could hobble an entire development.  Counsel should always be consulted to avoid the crippling impact of a development held hostage.  Here are eight tips to remember in reviewing an access … Continue Reading

“Blurred Lines”: Important Caveats to Consider with Integrated Project Delivery

The shared risk/reward concept of an integrated project delivery (IPD) arrangement is an increasingly attractive collaborative approach to construction projects.  But IPD is still a relatively new concept with unique risks and challenges.  In my recent article for the Daily Journal of Commerce, I discuss some key points that should be considered before undertaking any … Continue Reading

When “Non-Binding” LOIs Become Binding

A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed … Continue Reading

Subcontractor Costs May Become Public Record in Federal Aid Contracts

Contractors who bid on public projects that utilize federal money  can be surprised by additional administrative requirements they do not usually find in their contracts.  In my recent article for the Daily Journal of Commerce, I discuss one of those requirements that may require you to disclose  subcontractor agreements, and what you can do to … Continue Reading

“From, For, and Against”: What’s the Difference?

Indemnity provisions are often among the most negotiated and least understood provisions of commercial contracts, and construction contracts are no exception to this rule. Despite, and perhaps because of, the importance of these clauses, they have evolved into an almost impenetrable jumble of legal terminology. This jumble of words is not, however, without meaning. Although … Continue Reading

Watch Out for Forum-Selection Clauses

When developing construction contracts, parties frequently focus on what they consider to be the “essential terms” and may not be aware of “boilerplate” provisions.  In my recent article for the Daily Journal of Commerce, I address one of these important provisions — the forum-selection clause — and discuss its potential impact as well as things … Continue Reading

Hate Negotiating? Think It is a Waste of Time? Think Again. Seven Habits of Successful Negotiators

If you dislike negotiating, you are not alone. But successful negotiators understand and embrace the opportunities that a negotiation presents.  In my recent article for the Daily Journal of Commerce, I discuss seven habits of successful negotiators that can help you successfully conclude your construction-related negotiations. Read the full article here.   “Hate Negotiating? Think It … Continue Reading

The Trend Towards Liability Waivers in Design and Construction

The increasing presence of liability waivers in construction and design contracts is of concern to owners, general contractors and architects alike.  In my recent article for the Daily Journal of Commerce, I address a variety of clauses that limit liability and offer tips for negotiating more reasonable conditions and limits.  Read the full article here. … Continue Reading

Contract Conflict Bears a Cautionary Tale

In the haste to get design and construction moving on real estate projects, one may lose sight of important lien priority issues when negotiating and executing contracts. In my recent article for the Daily Journal of Commerce, I discuss a notable Washington appellate case that addresses a lien priority issue in the context of multiple … Continue Reading

Finishing Strong vs. Finishing Wrong: Tips & Traps for Project Completion

Complex construction projects carry complex problems as they approach completion. In my recent article for the Daily Journal of Commerce, I address 10 potential pitfalls that owners, contractors and design professionals may encounter, and I offer tips to help you prepare for them. Read the full article here. “Finishing Strong vs. Finishing Wrong: Tips & … Continue Reading

10 Important Termination Considerations

When terminating a contract, you want to have a high degree of confidence that termination is justified and done properly. In my recent Daily Journal of Commerce Construction column, I outline 10 important considerations in navigating this high-risk terrain. Read the full article here. “10 Important Termination Considerations” was originally published on Feburary 20, 2015 by … Continue Reading

The Vexing Date of Substantial Completion: Oregon Supreme Court to Consider Two Cases Addressing When Statutes of Limitation and Ultimate Repose Begin to Run

The Oregon Supreme Court will review two recent Court of Appeals decisions related to statutes of limitation and repose on construction projects. In the first case, Sunset Presbyterian Church v. Brockamp & Jaeger, Inc., the Oregon Supreme Court will address the following questions: (1) When the construction contract includes an accrual provision, is the statute … Continue Reading

Beware the Economic Loss Trap in Construction Disputes

The Oregon Court of Appeals recently applied the so-called “economic loss rule” to a construction dispute (Marton v. Ater Construction Co., 256 Or App 554, __ P3d __ (2013)). Among other issues, the court decided whether the prime contractor’s negligence claim against its subcontractor was barred under the economic loss rule. Under the court-made economic … Continue Reading

Sophisticated Parties? You May Shorten Both the Start and Length of the Statute of Limitations in CA Commercial Construction Contracts

Can parties waive both the commencement and length of the statutory limitation periods for construction defect actions?  Yes, answered the Fourth Appellate District, by allowing the parties to contractually preclude the application of the “delayed discovery” rule that normally triggers the commencement of the limitation time period and affirming case law permitting the shortening of … Continue Reading

Is Your Contractual Arbitration Clause “Unconscionable” and Thus Unenforceable?

The Washington Supreme Court—in Gandee v. LDL Freedom Enterprises, Inc., 176 Wn.2d 598 (2013)—recently examined the validity and enforceability of a contractual arbitration provision and found, under the circumstances, that the clause was “unconscionable” and therefore unenforceable. Although the case did not occur within a construction setting, it nevertheless presents important lessons to consider when drafting, … Continue Reading

A Contract Means What It Says: Construction Manager Awarded Equitable Fee Increase in Idaho

A reminder from the Idaho Supreme Court for parties to a construction contract:  the plain language of the parties’ contract governs the obligations between them in the absence of ambiguity.  In City of Meridian v. Petra, Inc., No. 39006, 2013 WL 1286014 (Idaho Apr. 1, 2013), the Idaho Supreme Court reviewed a construction dispute between … Continue Reading

Statutory Limitation Periods Can Be Reduced Contractually Under Nevada Law

The Nevada Supreme Court has answered a question that developers and contractors have been asking for years:  can the statutory limitation period for a construction defect action be shortened?  The court answered in the affirmative but held that there must be no statute to the contrary and that the reduced limitation period must be reasonable … Continue Reading

Washington Court Holds Statute of Limitations Doesn’t Apply to Arbitration

  Contributor:  Stephen P. Kelly In Broom v. Morgan Stanley DW, Inc., the Washington State Supreme Court held that state statute of limitations did not apply to a contractual arbitration. The arbitrators of an investment-related dispute had dismissed certain claims because plaintiffs failed to bring them before the applicable statutes of limitations lapsed. Analyzing the Washington statute of … Continue Reading

Negligence Claims Take Another Twist in Oregon

Just when you thought it was safe to go back into the water, the Oregon Court of Appeals strikes again with another iteration of the “economic loss doctrine” which defines when parties can sue each other in negligence for construction defects. In Abraham v. Henry (September 2, 2009) the Court held that parties to a … Continue Reading

The Risk of Builders Risk

Contractors and owners obtain builders risk policies to protect themselves from risks associated with construction. But a lack of care in understanding and negotiating the provision of the construction agreement governing the builders-risk policy and the policy itself may lead the parties to expose themselves to needless and significant liability. What owners and general contractors … Continue Reading
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