Category: Commercial Construction Contracts

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Is “As-Is” Really “As-Is” in Real Estate Contracts? Tell the Truth, the Whole Truth, or Risk Liability for Nondisclosure

The inclusion of an “as-is” clause in a contract for a real estate transaction has led courts in Oregon to allow parties to a deal to allocate the risk as to the property differently than through the historic concept of “caveat emptor” (let the buyer beware), which permitted a seller to shift the obligation to … Continue Reading

Year-End Insurance Review: Common Coverage Oversights

Carrying adequate insurance on construction projects is a critical aspect of risk management for developers, builders and designers. But it’s a complicated and time-consuming subject, and if you haven’t slogged through the complexity of the details in policies, you may be vulnerable to unintended consequences. In my recent article for the Daily Journal of Commerce, … 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

Expect the Best, Prepare for the Worst – Drafting Construction or Design Contracts

When embarking on a new design or construction contract, all parties hope the road will be smooth and that any bumps can be handled by agreement. However, real disputes do occur.  When they do, a well-crafted contract can provide rules for resolution.  It is best to formulate those rules before disputes arise.  In my recent … 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

The Jury’s Out: AAA Issues New Construction Industry Rules Expanding Powers of Arbitrators

There are inherent risks in proceeding to trial by jury. Juries are often unpredictable, and civil litigation also requires extensive discovery and motions practice, which can delay resolution and increase uncertainty and costs. Arbitration has long been accepted as the answer to these problems. But the changing nature of disputes, increasing costs and inefficiencies have … 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

Keep an Eye on sb 474 in California: Sweeping Edits will Eliminate Traditional Indemnity Rights and Obligations, as well as AIE’s in Commercial Construction Contracts

Indemnity and additional insurance provisions in commercial construction contracts may no longer be an “arm’s-length” negotiation in California. Dramatic changes are proposed in sb 474 (2011). We most recently saw this type of legislative intrusion directing contract language in the residential construction context with the significant modifications of Civil Code section 2728 a few years … Continue Reading
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