Construction Law: Advanced Issues and Answers

Agenda / Content Covered

All times are shown in Mountain time

1. Construction Contracts: Advanced Negotiation Techniques for the Top Sticking Points
   9:00 - 9:45, Jean C. Arnold
   1. Payment Clauses
   2. Pass-Through Clauses
   3. No Damage for Delay Clauses
   4. Performance and Timing Clauses
   5. Project Termination Clauses
   6. Liquidated Damages Clauses
2. Change Orders and Extra Work - Payment Issues Disentangled
   9:45 - 10:25, Steven T. Mulligan
   1. Real vs. Perceived Changes
   2. Undocumented Oral Change Orders
   3. Changes Due to Defective Plans and Specifications
   4. Previously Unknown Site Conditions
   5. Additional, Unauthorized or Non-Conforming Work
   6. Change by Outside Forces: Market Shifts, Zoning Issues, etc.
   7. Change Order Impact Costs
3. Determining Responsibility and Remedy for Delays
   10:40 - 11:25, J. David Arkell
   1. Excusable vs. Inexcusable Delays
   2. Compensable vs. Non-Compensable Delays
   3. Untangling Concurrent Delays
   4. Necessary Documentation
   5. Drafting a Recovery Schedule
   6. Applying a Waiver or "No Damage for Delay" Clause
4. Indemnification Disputes - What is the Scope and Meaning of the Contractual Clause?
   11:25 - 12:10, Jean C. Arnold
   1. Types of Indemnity Clauses
   2. Detecting Illegal and Unenforceable Language
   3. How Courts Construe Indemnity Clauses
   4. Factoring in State Anti-Indemnification Statutes
   5. Determining Duty to Defend
5. Determining Who is Insured Under Commercial General Liability Policies
   1:10 - 1:50, Steven T. Mulligan
   1. The Certificate of Insurance
   2. The General Contractor as a Subcontractor's Additional Insured
   3. The General Contractor as an Additional Insured on the Duty to Defend
   4. The Most Common Additional Insured Endorsements
6. Coverage for Construction Defects Under CGL Policies
   1:50 - 2:30, Steven T. Mulligan
   1. Treating Defective Construction as an Occurrence
   2. Business Risk Exclusions and Subcontractor Exception Removal
   3. Avoiding the Known Risk Provision
   4. Voluntary Remediation and the "Legally Obligated" Requirement
   5. The Total Pollution Exclusion - How Total is it?
7. Negotiating Damages in Construction Disputes
   2:45 - 3:30, J. David Arkell
   1. Distinguishing Direct and Consequential Damages
   2. Calculating Acceleration Damages
   3. Reducing Damages by Claiming Betterment
   4. Non-Monetary Remedies to a Construction Dispute
   5. Preserving Business Relationships While Negotiating Damages
8. Ethics for Construction Attorneys
   3:30 - 4:30, J. David Arkell, Jean C. Arnold and Steven T. Mulligan
   1. Client Authority
   2. Contractual Claims for Attorneys' Fees/Expenses
   3. Dealing With Unrepresented Persons
   4. Ethical Concerns as "Attorney for the Project"

Accreditation Details:

J. DAVID ARKELL is a partner in the trial section at Moye White LLP. Mr. Arkell's areas of practice are alternative dispute resolution and construction law. He arbitrates and mediates construction disputes as a trained and experienced neutral decision maker or facilitator. Mr. Arkell advises owners, general contractors, subcontractors, suppliers and sureties on planning and dispute avoidance, as well as dispute resolution through negotiation, mediation, arbitration, and litigation. He drafts and negotiates construction contracts and other documents for both private and public construction projects. Mr. Arkell is a member of the American Arbitration Association (AAA) National Construction Industry Arbitration Panels for Regular and Large and Complex Cases and the AAA Construction Industry Mediation Panel. Currently, he serves on the Associated General Contractors (AGC) of Colorado Legislative Committee. Additionally, Mr. Arkell is a member of the American Bar Association Forum on the Construction Industry and a past chair of the Colorado Bar Association Construction Law Section. Because of his extensive expertise in construction contracts and disputes, Mr. Arkell is from time to time called on to serve in unique roles related to construction litigation. He has presented numerous seminars on construction law topics for clients, construction trade groups, and related construction organizations during his career.

JEAN C. ARNOLD is a partner in the law firm of Arnold & Arnold, LLP in Littleton. Ms. Arnold practices in the areas of construction litigation and claims, mechanic's liens, civil and commercial litigation, business law and planning, arbitration and mediation, real estate, creditor representation in bankruptcy court, and administrative law. She is a frequent presenter, teacher, and corporate trainer for trade and bar associations and continuing education organizations. Ms. Arnold is a graduate of the University of Denver, where she earned her B.S.B.A., summa cum laude, J.D. and M.B.A. degrees. Ms. Arnold taught the legal topics curriculum in the construction management certificate program at Red Rocks Community College. She is a member of the Denver Bar Association, the 1st Judicial District Bar Association, the Colorado Bar Association, the Alfred Arraj Inn of Court and the American Bar Association (Construction Law Section).

STEVEN T. MULLIGAN is an attorney in the Denver office of Coan Payton & Payne, LLC. His practice focuses on business and commercial law, construction law, and bankruptcy and reorganization. Mr. Mulligan represents debtors, creditors, construction contractors, businesses, business owners and sole proprietors. He is well-versed in helping clients review and negotiate contracts, buy or sell companies and assets including through Bankruptcy Code Section 363 sales, obtain financing, form and govern business entities, plan for business succession, enforce creditors' rights, and work through all aspects of Chapter 11 proceedings. Mr. Mulligan also assists clients in receiverships, foreclosures, insolvency, and commercial litigation. He received his B.A. degree from the University of Colorado in Boulder, Colorado, and his J.D. degree from the University of Denver Sturm College of Law. Mr. Mulligan is a member of the American Bankruptcy Institute; the Colorado Bar Association, Business Law Section; Legislative Policy Committee Liaison; the Denver Bar Association; the Standing Local Bankruptcy Rules Revision Committee; and the International Association of Privacy Professionals.