Category: Construction Contracts

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“Without Performance Specifications, Green Building Can LEED to Disputes

It’s been more than 20 years since the LEED standard was introduced, and green building has now become a significant percentage of new U.S. commercial real estate construction.  The benefits of green building techniques and products have made LEED certification a hot commodity and changed the construction industry.  But there are also risks involved if … 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

Termination Clauses a Must for Owners

The recent termination of the joint venture of Skanska-Hunt from the Washington State Convention Center project (article here) is a good reminder of the importance of well-written termination clauses in your owner-contractor contracts.  The reasons for termination (or “severance,” a slightly kinder word) can be many, including failure to agree on pricing (the reason given … Continue Reading

Recent Survey Lauds Integrated Project Delivery (IPD), But Are There Risks with IPD?

According to an October 15, 2015 report published in the Engineering News-Record, covering the broadest survey performed to date on IPD, the industry is moving toward more collaborative contracting schemes, with what appears to be an overwhelmingly positive response strongly supporting risk and reward sharing multi-party agreements.  Conducted by the University of Minnesota and sponsored … 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

Yes, Contractor Licensing May Be Required Under California Law Even if the Contractor Does Not Physically Build Anything Itself

It seems that almost weekly, and certainly monthly, I receive a call or inquiry from colleagues and/or prospective clients as to whether a license is really required if the prospective “contractor” is not actually building anything but is merely facilitating a “deal” or is hiring otherwise qualified and licensed contractors and trades. Virtually every time … 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

Protections Against Subcontractor Defaults

Subcontractor default is a construction project nightmare that can result in significant additional costs and delay completion of the project. But there are two chief options to protect against such risks — performance bonds and subcontractor default insurance.  In my recent article for the Daily Journal of Commerce, I outline the unique characteristics of each … Continue Reading

Public Contracting Code Reminders

Developing public projects in Oregon requires an understanding of the Oregon Public Contracting Code and the complexities of procurement requirements. In my recent article for the Daily Journal of Commerce, I discuss four facets of public contracting that can help you successfully navigate the procurement terrain.  Read the full article here. “Public Contracting Code Reminders” was … 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

Put In Writing When the Clock Starts Ticking

In my recent article “Put in Writing When the Clock Starts Ticking,” I discuss how varying intrepretations statue of limitations can affect your business. Setting your own time limits on claims in your construction contracts can help you manage risk. Read the full article here. “Put in Writing When the Clock Starts Ticking” was originally … Continue Reading

Owners of Development Projects: Remember to Close the Loop

In my latest Daily Journal of Commerce Construction column, I discuss six important issues an owner should keep in mind during a busy development project.  Taking time to manage all the details related to the performance of its contractor or designer can be critical to a project’s success Read the full article at: www.stoel.com/publications "Project … Continue Reading

Do You Understand all that Insurance Jargon in Contract?

In my latest Daily Journal of Commerce Construction column, I discuss insurance jargon in contracts and use Commercial General Liability or “CGL” policies as an example.  The terms “bodily injury,” “personal or advertising injury,” and “property damage” all have specific meanings in CGL policies.  Since this language is not always intuitive, it is best to … Continue Reading

Oregon’s New 5% Retention Rule May Force Unintended Consequences

In my latest Daily Journal of Commerce Construction column, I discuss Oregon’s new 5% retention rule. Parties negotiating construction contracts should stay mindful of how the new retention provisions may force changes to other contract and how such changes may affect all parties throughout construction of the project. Read the full article at the Daily Journal … Continue Reading

Contractors Still Have Time: Certain CA Energy-Related Regulations Delayed to July 1, 2014

Residential and non-residential contractors in California have been waiting for the new California energy-related regulations to be issued for the January 1, 2014 compliance deadline.  Although many became effective on January 1, delays in the software performance compliance programs by the California Energy Commission required that additional time be provided for contractors to obtain and … Continue Reading

Take Time With Four ‘Standard’ Contract Terms

In my latest Daily Journal of Commerce Construction column, I discuss the potentially serious risks associated with overlooking four “standard” terms in construction contracts. With proper advance consideration of the scope of project, insurance terms, indemnity provisions and lien waivers, constructions projects are more likely to be successful.  Read the full article at the Daily Journal … Continue Reading

Multi-Family Sellers Beware: Don’t “Alienate” Your Project from Insurance Coverage for Construction Defects

The apartment business is booming right now. Unfortunately, construction defects persist as well, particularly in garden-style and wood-framed construction. Most developers are savvy enough to maintain a good insurance program, but many do not understand (until too late) that the policies they bought may not cover the risk of construction defects.  As an owner-developer, neither your property … Continue Reading

Limitation of Liability Clauses: Nothing to ‘LOL’ About

In my latest Daily Journal of Commerce Construction column, I discuss one of the hottest issues in private contract negotiations currently  is the question of limitation of liability (LOL) clauses. Owners understandably want recourse for their damages in the event of substandard performance by their contractors and design professionals. Just as understandably, contractors and design professionals want … Continue Reading
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