In a world of pure cooperation, if the owner of a construction project or a contractor causes a problem, the responsible party would admit fault and make amends—rendering the negotiation of a construction contract unnecessary. In our less than ideal world, owners and contractors have adverse interests, the party at fault is not always clear, … Continue Reading
For anyone building a dream vacation home, renovating an existing commercial structure, or developing a multimillion-dollar, mixed-use project, construction contract terms are of utmost importance. One often overlooked clause covers the contractual “third-party beneficiary” (TBP)—a person or entity who, though not a party to the contract, stands to benefit from the contract’s performance. Interpretations of … Continue Reading
In my latest article for the Daily Journal of Commerce, I provide a few suggestions for contractors, and perhaps project owners as well, to manage risk through a construction contract. Provisions that can be included in a contract to achieve that end might include: The owner limits its potential claims to direct damages and waives … Continue Reading
Among contractual provisions that sometimes go unnoticed or unappreciated is the “liquidated damages” provision, which is often used in construction contracts to identify the amount of damages that a contractor will owe the owner if there is a delay in completing construction. In my latest article for the Daily Journal of Commerce, I provide some … Continue Reading
Construction projects are complex and often experience delays. The party responsible for the delay can find itself subject to potentially severe consequences. There are various ways project owners and contractors can cause project delays, and each party wants to “own” the project float to be able to apply the project’s extra schedule time toward its … Continue Reading
If a contractor cannot meet deadlines on a construction project or a subcontractor pulls out of a new project bid in order to pursue a more attractive opportunity, the project owner and/or prime contractor face potentially significant damages, which can include corrective work, costs of completion or substitute performance, and delay. In my latest column … Continue Reading
The importance of carefully drafting, and following, a construction contract’s termination provisions was made clear for project owners and contractors by a recent Washington Supreme Court decision, Conway Construction Co. v. City of Puyallup. The city contracted with Conway to build a major roadway, but when the city lost confidence in Conway’s work, it issued the … Continue Reading
At the forefront of concerns for those in the construction industry is the escalation in material prices and disruptions to supply chains that were in large part a byproduct of the pandemic. Project owners and contractors want to understand their rights with regard to these risks and also how the risks should be apportioned. In … Continue Reading
Today, the construction industry faces a myriad of challenges – as well as the COVID-19 pandemic, rapidly increasing construction material costs, labor and material shortages, and a hot housing market are potential obstacles for project owners and contractors that, despite their best efforts and intentions, could prevent them from completing their construction projects on time. … Continue Reading
The construction industry has proved adaptable over the course of the pandemic — owners and general and trade contractors have worked closely to ensure that work continued, while keeping workers safe and complying with the various government-ordered and -recommended practices intended to slow the spread of COVID-19. By now, most owners and contractors are well … Continue Reading
Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have … Continue Reading
In my latest column for the Daily Journal of Commerce, I look at the concept of liquidated damages – in my experience one of the top five heavily negotiated (and litigated) clauses in a construction contract. Because a project owner’s potential delay damages are often difficult to determine with certainty at the beginning of a … Continue Reading
In an ideal world, a contractor performs a portion of the work on a project as provided for in a construction contract, the owner pays the contractor an installment payment for that portion of the work, and the parties continue similarly until the work is finished. However, many factors can upset the equation – changes … Continue Reading
Originally published as an Op-Ed in the Oregon Daily Journal of Commerce on June 19, 2020. Whether you are an owner, contractor, or design professional, construction disputes are, unfortunately, inevitable. Below are some tips to avoid potential pitfalls and help resolve disputes as efficiently as possible, whether before or after formal litigation (or arbitration) commences. … Continue Reading
The Construction Section of the Washington State Bar Association, in partnership with Stoel Rives, will present its annual full day seminar (via webinar) on June 12. Co-chaired by Bart Reed (Partner at Stoel Rives), Brett Hill (Partner at Ahlers, Cressman & Sleight), and Ron English (Retired General Counsel of the Seattle Public Schools), the webinar will … Continue Reading
In Conway Construction Company v. City of Puyallup, No. 80649-1-1 (May 4, 2020), the Washington Court of Appeals, Division 1, adopted Oregon’s Shelter Products, Inc. v. Steelwood Construction, Inc., precluding certain claims for defects in termination cases and limiting the justification for termination to those listed in the termination notice. It also held that Washington’s … Continue Reading
For most in the industry, when we think about a standard construction contract, we envision the construction documents being drafted by the architect and other design consultants. We tend to view the project as design-price-build, unless an alternative procurement mechanism has been selected such as design-build. Consistent with this design-price-build model, the contractor’s review of … Continue Reading
In our increasingly electronic age, parties signing a construction contract, invoice, change order or other documents are as likely to do so by clicking on an “I agree” checkbox or inserting a digital signature, or e-signature, as they are to put pen to paper. In my first article for the Daily Journal of Commerce, I … Continue Reading
Parties involved in a construction project can expect to spend much energy and effort to finalize the terms and conditions of a contract. Although those terms usually carry great weight in any contract dispute, of equal or greater importance can be the parties’ actions and course of dealing during construction. A lack of strict adherence … Continue Reading
Some economic indicators point to a recession in the not-too-distant future, and parties involved in construction projects should take steps to avoid (or perfect) liens and protect their rights if there is a downturn. The complexities of Oregon’s lien laws are best negotiated with the assistance of experienced counsel. In my inaugural article for the … Continue Reading
On December 13, 2019, I will be giving a presentation on construction-related topics arising from commercial lease improvements. The presentation is part of a two-day seminar on Advanced Commercial Real Estate Leases, co-chaired by my colleague, John A. Fandel, and hosted by Law Seminars International. Topic will include insurance coverage, mechanic’s liens, scheduling, indemnity, safety, … Continue Reading
My partner Colm Nelson and I are on the panel of a seminar on June 5 sponsored by the Seminar Group. The program is called “Bidding Public Works & Construction Contracts.” There is still time to sign up at the Seminar Group website. Colm is talking about insurance. For my presentation, I took the opportunity … Continue Reading
In the Pacific Northwest, Mother Nature can play a large part in whether or not a construction project will be completed on time and on budget. The importance to both owners and contractors of starting a construction project in order to take advantage of a window of good weather or other factors can make finalizing … Continue Reading
In construction projects, experienced owners, contractors, or designers know that disputes will almost invariably arise — even when the parties have the best of intentions. And they understand that detailed contract provisions to resolve those disputes can have major benefits if they are properly drafted to suit the project, parties, and types of dispute most … Continue Reading
