Construction Contracts: Drafting Tips, Pitfalls, and Case Law

Agenda / Content Covered

1. Types of Contracts and Form Agreements: Making the Right Choice
   10:00 - 10:45, Phil S. Bubb
   1. Lump Sum
   2. Time and Materials
   3. Cost-Plus
   4. Unit Price
   5. Guaranteed Maximum Price
   6. AIA Construction Forms
   7. ConsensusDOCS
   8. Other Form Contracts: DBIA, EJCDC, FHWA
   9. How Contracts Differ for Different Project Delivery Methods
2. Scope of Work Clauses: Clearly Laying Out Performance Obligations
   10:45 - 11:30, K. Bradley Mellor
   1. Top 7 Provisions at the Heart of Construction Litigation
   2. Specifically Defining the Scope of Work
   3. Gaps in the Scope of Work
   4. Provisions That Can Expand the Scope of Work
   5. Scope of Work Provisions Gone Wrong - Case Law Review
3. Carefully Crafting Payment Provisions
   11:45 - 12:15, John A. Adams
   1. Pay-if-Paid vs. Pay-When-Paid
   2. Language to Ensure Prompt Payment
   3. Construction Contract Payment Remedies
4. Changes and Differing Site Conditions: Preventing Disputes
   12:15 - 1:00, Stephen D. Marso
   1. Changes in Work Clauses
   2. Change Orders vs. Construction Change Directives
   3. Differing Site Conditions Clause
   4. Cardinal Change Doctrine
   5. When Contractors Proceed without Securing a Written Change Order
   6. Change or Part of Original Scope of Work? Case Studies
5. Delay and Damage Provisions: Drafting Tips, Pitfalls and Case Law
   1:30 - 2:15, Stephen D. Marso
   1. Inexcusable and Excusable Delays
   2. Compensable Delays
   3. Concurrent Delays
   4. Damages Despite Early Completion
   5. Liquidated Damages Provisions
   6. No Damages for Delays
   7. Mutual Waiver of Consequential Damages
   8. Acceleration Damages
6. Insurance and Indemnity: Protecting Against Claims and Losses
   2:15 - 3:00, John A. Adams
   1. Inherent Risks
   2. Construction Contract Indemnity Clauses
   3. Insurance Provisions in Construction Contracts
   4. Additional Insured Provisions & Endorsements
   5. Subrogation Waivers
   6. Limits on Liability
   7. Warranties and Guarantees
7. Termination and Disputes: Creating a Roadmap
   3:15 - 4:00, K. Bradley Mellor
   1. Contract Termination: "For Convenience," "For Cause"
   2. Alternative Dispute Resolution
   3. Choice of Law and Jurisdiction
8. Legal Ethics for Construction Attorneys
   4:00 - 5:00, John A. Adams
   1. Conflicts of Interest
   2. Disclosure During Negotiations
   3. Communication of Risk Transfers
   4. Attorneys' Fees

Accreditation Details:

John A Adams is the founder of the John Adams Law Firm LLC, where he represents employers, employer associations, and construction contractors in New Jersey and Pennsylvania in construction law, labor law, employment law, collections, corporate law, and litigation before federal and state courts; as well as various federal and state agencies, such as OSHA, MSHA, DOT, EEOC, PHRC, NJDCR, and DOL. Mr. Adams is a member of the bars of the U.S. Court of Appeals for the Third Circuit, the state bars of Pennsylvania and New Jersey, and numerous federal district courts. He was the primary author of the 2006 Pennsylvania mechanics' lien law amendments, which substantially changed and modernized the Pennsylvania mechanics' lien law. Mr. Adams earned his B.S. degree from the U.S. Military Academy ("West Point") and his J.D. degree from the University of Notre Dame Law School.

Phil S Bubb is a litigator and shareholder with the firm of Fredrikson & Byron, PA, in Des Moines, Iowa. He represents general contractors and subcontractors in mediation, arbitration and litigation; and represents construction-product manufacturers against claims of strict liability, warranty, and negligence. Mr. Bubb has served as lead and second-chair counsel in both state and federal courts and has obtained verdicts for clients following bench and jury trials. He is a member of the Polk County Bar Association, the Iowa State Bar Association (Section Council, Construction Law Section), Associated General Contractors of Iowa, Home Builders Association of Greater Des Moines, Home Builders Association of Iowa, and the National Association of Home Builders. Mr. Bubb earned his B.A. degree, cum laude, from Luther College and his J.D. degree from the University of Michigan Law School.

 

 

Stephen D Marso is a member of the law firm of Whitfield and Eddy, P.L.C., in its Des Moines, Iowa office. Mr. Marso’s primary areas of practice are construction law and litigation, and he is licensed to practice in the states of Iowa and Nebraska, as well as several federal courts. Mr. Marso is an arbitrator on the American Arbitration Association’s roster of construction arbitrators and the author of various publications. He is a member of the Polk County, Iowa State, Nebraska State, and American bar associations; and is a member of several construction-industry organizations and associations. Mr. Marso earned his undergraduate degree, magna cum laude, from Hope College; and his J.D. degree, with high distinction, from the University of Iowa College of Law.

K. Bradley Mellor is special counsel to Bowles Rice LLP, and works from the firm's Southpointe, Pennsylvania, office where he focuses his practice on construction law, construction litigation and alternative dispute resolution. He serves as leader of the Bowles Rice construction law team where his wide range of experience in the construction industry includes contract preparation and negotiation, contract enforcement through litigation or arbitration, and dispute avoidance and resolution. Mr. Mellor advises clients through every phase of a construction project, from conceptual design and planning to project closeout and warranty claims. He has worked on numerous projects ranging from major industrial and utility jobs to highway and bridge work, commercial buildings, schools, hospitalsc, and residential construction. Mr. Mellor has also assisted clients in a variety of real estate development issues. He has worked on projects, contracts, and disputes in more than 20 states, Canada, and Puerto Rico. An arbitrator on the American Arbitration Association's Construction Mega Project Panel, Mr. Mellor also handles industry mediations, both privately and through the U.S. District Court for the Western District of Pennsylvania. He earned his B.A. degree from Washington and Jefferson College and his J.D. degree, magna cum laude, from Case Western Reserve University School of Law; and is admitted to practice in Pennsylvania and Ohio. Mr. Mellor is a member of the Allegheny County Bar Association, County Law Section; Pennsylvania Bar Association; American Bar Association, Forum on the Construction Industry and Fidelity and Surety Law Committee; and arbitrator, American Arbitration Associations Construction Mega Project Panel.