Understanding and Negotiating Construction Contracts A Contractor's and Subcontractor's Guide to Protecting Company Assets
, by Werremeyer, KitNote: Supplemental materials are not guaranteed with Rental or Used book purchases.
- ISBN: 9780876298220 | 0876298226
- Cover: Paperback
- Copyright: 9/29/2006
Construction is a complex business. Each project has its own unique physical and commercial considerations. Since there's no such thing as a "standard" or "typical" construction project, construction contracts should not be looked on as standard either. They must be carefully managed in order to have a successful outcome and to protect the company's interests and assets.
Kit Werremeyer is owner and president of Southernstar Consultants LLC, of Valrico, Florida, a provider of training in construction contract negotiations and management and other services for U.S. and international engineering and construction companies. He has more than 30 years' experience in sales, contracting, claims settlement, dispute resolution, and EPC project development, including work for major companies such as Bechtel, Kellogg Brown & Root, Fluor, J.A. Jones, Black & Veatch, DuPont, Shell Oil, Exxon/Mobil, BP/Amoco/ARCO, and many others.
Acknowledgments | p. xiii |
About the Author | p. xv |
Preface | p. xvii |
Disclaimer | p. xix |
Introduction | p. xxi |
The Goals of This Book | p. xxi |
What Are the Benefits of This Book? | p. xxi |
Contractor & Owner Conventions | p. xxii |
Private Contracts or Government Contracts? | p. xxii |
Key Contracting Concepts | p. xxii |
Two Types of Commercial Terms & Conditions | p. xxiii |
The Most Important Commercial Terms & Conditions | p. xxiv |
The Contracting Process | p. xxv |
Excuses for Not Negotiating Better Commercial Terms & Conditions | p. xxv |
The Concept of Risk Transfer | p. xxvi |
This is a Book Developed Just for Contractors | p. xxvi |
Three Final Suggestions | p. xxvii |
Contracts: Basic Training | p. 1 |
What Is a Contract? | p. 1 |
The Steps to a Contract | p. 1 |
Coming to the Party? | p. 2 |
"Here's My Proposal" | p. 3 |
"Consideration," or Something of Value | p. 5 |
The "Happy Test" | p. 5 |
"Can That Person Sign This Contract?" | p. 5 |
Call in the Enforcer To Close the Breach | p. 6 |
A Contract Example | p. 7 |
Strange Words & Long Paragraphs | p. 9 |
Contracting Myths | p. 10 |
Contract Negotiations | p. 11 |
Types & Forms of Contracts | p. 13 |
Fixed Price & Fixed Schedule Contracts | p. 13 |
Reimbursable Type Contracts | p. 14 |
Combined Fixed Price & Reimbursable Contracts | p. 16 |
Cost Plus Fee Contracts | p. 17 |
Guaranteed Maximum Price Contracts | p. 18 |
Target Price Contracts | p. 19 |
Contracts with Performance Incentives | p. 19 |
Form of Contracts | p. 20 |
Some Final Contract Housekeeping-Definitions | p. 25 |
Conclusion | p. 27 |
Scope of Work | p. 29 |
The Scope of Work Matrix | p. 33 |
Scoping Drawings | p. 34 |
Conclusion | p. 35 |
Terms of Payment & Cash Flow | p. 37 |
Cash Flow | p. 37 |
Interest Rates | p. 40 |
Periodic Progress & Milestone Payments | p. 40 |
Conclusion | p. 53 |
The Schedule | p. 55 |
Float | p. 56 |
Time Is of the Essence | p. 57 |
Extra Time, but No Money | p. 59 |
Conclusion | p. 61 |
Assurances of Performance | p. 63 |
Guaranties & Bonds | p. 63 |
What Does "Failure to Perform" Mean? | p. 65 |
What Is a Bond? | p. 66 |
Forms of Assurances of Performance | p. 66 |
Surety Companies | p. 73 |
Some Language Considerations on Guaranties & Bonds | p. 75 |
Types of Performance Assurances | p. 75 |
Conclusion | p. 92 |
Insurance | p. 93 |
What Is Insurance? | p. 94 |
Claims Made vs. Occurrence | p. 95 |
Types of Insurance | p. 95 |
Important Issues Associated with Insurance | p. 101 |
Additional Insured Status | p. 107 |
Additional Insurance Basics | p. 109 |
A Typical Insurance Clause in a Construction Contract | p. 119 |
Safety | p. 124 |
Indemnity | p. 125 |
Insurance & Indemnity | p. 125 |
Indemnity Definitions | p. 126 |
Transferring the Owner's Risks to Contractors | p. 127 |
Fairness Is Not a Consideration | p. 127 |
Is an Indemnity Required in a Construction Contract? | p. 127 |
Anti-Indemnity Legislation | p. 128 |
Examples of Indemnification Clauses | p. 131 |
Indemnification, Additional Insured Status, & Contractual Liability Insurance | p. 137 |
Owners Love Claims! | p. 140 |
Negotiating Indemnity Clauses | p. 141 |
Knock-for-Knock Indemnities | p. 144 |
Conclusion | p. 145 |
Changes | p. 147 |
Some Ground Rules | p. 148 |
Protecting the Project Manager | p. 148 |
Owners' Directives | p. 149 |
Constructive Changes | p. 149 |
Payment for Changes | p. 149 |
Sample Change Clauses | p. 150 |
Major Contract Changes | p. 155 |
Negotiating Change Clauses | p. 156 |
Conclusion | p. 157 |
Disputes & Their Resolution | p. 159 |
What's a Project Manager To Do? A Short Story To Start With | p. 159 |
Disputes-The Construction Contract's Bad Actor | p. 160 |
An Ounce of Prevention | p. 161 |
Dispute Resolution Options | p. 162 |
The Folks Who Negotiate, Mediate, Arbitrate, & Litigate | p. 163 |
Dispute Resolution Clauses | p. 164 |
Conclusion | p. 166 |
Damages | p. 167 |
Breach of Contract/Failure To Perform | p. 167 |
Contractors' Financial Exposure | p. 168 |
Actual Damages-A Silent Risk? | p. 168 |
Liquidated Damages | p. 170 |
Consequential Damages | p. 176 |
Conclusion | p. 179 |
Warranties | p. 181 |
A Workable Definition of Warranty | p. 181 |
Warranty Issues | p. 182 |
The Uniform Commercial Code | p. 187 |
When Is No Warranty Appropriate? | p. 189 |
Extended Duration Warranties | p. 191 |
Limiting Provisions in Warranties | p. 193 |
Pass-Through Warranties | p. 194 |
Latent Defects & Warranties | p. 195 |
A Sample Warranty | p. 195 |
Conclusion | p. 195 |
Termination & Suspension | p. 197 |
Termination for Cause | p. 197 |
Termination for Convenience | p. 199 |
Suspension | p. 202 |
Cancellation | p. 205 |
Conclusion | p. 205 |
Force Majeure | p. 207 |
Negotiating Clauses | p. 207 |
Sample Contract Language | p. 208 |
Conclusion | p. 212 |
Other Contract Clauses | p. 213 |
Site Conditions | p. 214 |
Use of Completed Portions of the Work | p. 219 |
Patent Indemnity | p. 220 |
Secrecy & Confidentiality Clauses & Agreements | p. 220 |
Owner's Right To Inspect | p. 222 |
Independent Contractors | p. 224 |
Assignment | p. 225 |
Acceptance & the Punch List | p. 226 |
Advance & Partial Waiver of Liens | p. 229 |
Final Waiver of Liens | p. 231 |
Audit Rights | p. 233 |
Severability or Validity Clauses | p. 235 |
Venue & Applicable Law | p. 235 |
Some Interesting Clauses to Close | p. 237 |
International Contracting | p. 239 |
International Contracts | p. 240 |
The U.S. Foreign Corrupt Practices Act | p. 241 |
Letters of Credit | p. 242 |
Split Contracts: Onshore & Offshore Contracts | p. 243 |
Political, Religious, & Economic Risks | p. 244 |
Overseas Private Investment Corporation (OPIC) | p. 245 |
Legal Systems in Foreign Countries | p. 245 |
Local Employees, Partners, & Agents | p. 246 |
Offshore Companies | p. 247 |
Currency Risks | p. 248 |
Applicable Law | p. 251 |
Joint Ventures | p. 253 |
Joint Operations | p. 254 |
Import & Export Considerations | p. 254 |
Understanding Incoterms | p. 256 |
The Export-Import Bank of the United States | p. 258 |
Where to Get Some Help-Ask the U.S. Government | p. 259 |
Lastly, Use the Right Paper Size! | p. 260 |
Conclusion | p. 260 |
Some Final Thoughts on Negotiating Contracts | p. 261 |
Why Negotiate? | p. 261 |
The Concept of Standard Terms & Conditions | p. 262 |
Get Rid of the Indemnity Clause! | p. 264 |
Don't Provide Additional Insured Status | p. 264 |
Risk Transfer Clauses, Insurance, & Safety | p. 265 |
How to Say No Without Aggravating the Owner | p. 265 |
The Worst Contracting Word: "Reasonable" | p. 266 |
The Best Contracting Word: "Notwithstanding" | p. 266 |
Win-Win & Lose-Lose in Contract Negotiations-Fairy Tales? | p. 267 |
Is There a Price for Bad Commercial Terms & Conditions? | p. 268 |
Terms of Payment | p. 268 |
Some Tips on Successful Negotiating | p. 269 |
Three First (and Final) Suggestions | p. 269 |
Resources | p. 271 |
Glossary | p. 271 |
Index | p. 287 |
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