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Understanding and Negotiating Construction Contracts A Contractor's and Subcontractor's Guide to Protecting Company Assets

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ISBN-10: 0876298226

ISBN-13: 9780876298220

Edition: 2006

Authors: Kit Werremeyer

List price: $92.95
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Book details

List price: $92.95
Copyright year: 2006
Publisher: R. S. Means Company, Incorporated
Publication date: 9/29/2006
Binding: Paperback
Pages: 320
Size: 8.40" wide x 10.60" long x 0.70" tall
Weight: 2.134
Language: English

About the Author
The Goals of This Book
What Are the Benefits of This Book?
Contractor & Owner Conventions
Private Contracts or Government Contracts?
Key Contracting Concepts
Two Types of Commercial Terms & Conditions
The Most Important Commercial Terms & Conditions
The Contracting Process
Excuses for Not Negotiating Better Commercial Terms & Conditions
The Concept of Risk Transfer
This is a Book Developed Just for Contractors
Three Final Suggestions
Contracts: Basic Training
What Is a Contract?
The Steps to a Contract
Coming to the Party?
"Here's My Proposal"
"Consideration," or Something of Value
The "Happy Test"
"Can That Person Sign This Contract?"
Call in the Enforcer To Close the Breach
A Contract Example
Strange Words & Long Paragraphs
Contracting Myths
Contract Negotiations
Types & Forms of Contracts
Fixed Price & Fixed Schedule Contracts
Reimbursable Type Contracts
Combined Fixed Price & Reimbursable Contracts
Cost Plus Fee Contracts
Guaranteed Maximum Price Contracts
Target Price Contracts
Contracts with Performance Incentives
Form of Contracts
Some Final Contract Housekeeping-Definitions
Scope of Work
The Scope of Work Matrix
Scoping Drawings
Terms of Payment & Cash Flow
Cash Flow
Interest Rates
Periodic Progress & Milestone Payments
The Schedule
Time Is of the Essence
Extra Time, but No Money
Assurances of Performance
Guaranties & Bonds
What Does "Failure to Perform" Mean?
What Is a Bond?
Forms of Assurances of Performance
Surety Companies
Some Language Considerations on Guaranties & Bonds
Types of Performance Assurances
What Is Insurance?
Claims Made vs. Occurrence
Types of Insurance
Important Issues Associated with Insurance
Additional Insured Status
Additional Insurance Basics
A Typical Insurance Clause in a Construction Contract
Insurance & Indemnity
Indemnity Definitions
Transferring the Owner's Risks to Contractors
Fairness Is Not a Consideration
Is an Indemnity Required in a Construction Contract?
Anti-Indemnity Legislation
Examples of Indemnification Clauses
Indemnification, Additional Insured Status, & Contractual Liability Insurance
Owners Love Claims!
Negotiating Indemnity Clauses
Knock-for-Knock Indemnities
Some Ground Rules
Protecting the Project Manager
Owners' Directives
Constructive Changes
Payment for Changes
Sample Change Clauses
Major Contract Changes
Negotiating Change Clauses
Disputes & Their Resolution
What's a Project Manager To Do? A Short Story To Start With
Disputes-The Construction Contract's Bad Actor
An Ounce of Prevention
Dispute Resolution Options
The Folks Who Negotiate, Mediate, Arbitrate, & Litigate
Dispute Resolution Clauses
Breach of Contract/Failure To Perform
Contractors' Financial Exposure
Actual Damages-A Silent Risk?
Liquidated Damages
Consequential Damages
A Workable Definition of Warranty
Warranty Issues
The Uniform Commercial Code
When Is No Warranty Appropriate?
Extended Duration Warranties
Limiting Provisions in Warranties
Pass-Through Warranties
Latent Defects & Warranties
A Sample Warranty
Termination & Suspension
Termination for Cause
Termination for Convenience
Force Majeure
Negotiating Clauses
Sample Contract Language
Other Contract Clauses
Site Conditions
Use of Completed Portions of the Work
Patent Indemnity
Secrecy & Confidentiality Clauses & Agreements
Owner's Right To Inspect
Independent Contractors
Acceptance & the Punch List
Advance & Partial Waiver of Liens
Final Waiver of Liens
Audit Rights
Severability or Validity Clauses
Venue & Applicable Law
Some Interesting Clauses to Close
International Contracting
International Contracts
The U.S. Foreign Corrupt Practices Act
Letters of Credit
Split Contracts: Onshore & Offshore Contracts
Political, Religious, & Economic Risks
Overseas Private Investment Corporation (OPIC)
Legal Systems in Foreign Countries
Local Employees, Partners, & Agents
Offshore Companies
Currency Risks
Applicable Law
Joint Ventures
Joint Operations
Import & Export Considerations
Understanding Incoterms
The Export-Import Bank of the United States
Where to Get Some Help-Ask the U.S. Government
Lastly, Use the Right Paper Size!
Some Final Thoughts on Negotiating Contracts
Why Negotiate?
The Concept of Standard Terms & Conditions
Get Rid of the Indemnity Clause!
Don't Provide Additional Insured Status
Risk Transfer Clauses, Insurance, & Safety
How to Say No Without Aggravating the Owner
The Worst Contracting Word: "Reasonable"
The Best Contracting Word: "Notwithstanding"
Win-Win & Lose-Lose in Contract Negotiations-Fairy Tales?
Is There a Price for Bad Commercial Terms & Conditions?
Terms of Payment
Some Tips on Successful Negotiating
Three First (and Final) Suggestions