Construction Law Musings

Top Five General Tips for All Construction Contracts

Construction Law Musings- Richmond, VA

Thoughts on the construction landscape from Christopher G. Hill, Virginia construction lawyer, LEED AP and member of the Virginia Legal Elite in Construction Law
Top Five General Tips for All Construction Contracts
Written on November 9, 2012 by Christopher G. Hill in Construction, Construction Law, Contracts, Guest Post Friday 1 Comment – Join the Conversation!

 

For this week’s Guest Post Friday here at Musings we welcome Spencer Wiegard. Spencer is a Partner with Gentry Locke Rakes & Moore, LLP. He is a member of the firm’s Construction Law and Commercial Litigation practice groups. Spencer focuses his practice in the areas of construction law and construction litigation. Spencer is a member of the Board of Governors for the Virginia State Bar Construction Law and Public Contracts Section, and a member of the Legislative Committee of the Associated General Contractors of Virginia and the Executive Committee for the Roanoke/SW Virginia District of the Associated General Contractors of Virginia.

I would like to thank Chris for inviting me to author today’s guest post. Over the past few days, I have found myself wading through the terms and conditions of a lengthy and complicated construction contract, while at the same time considering what topic I should write about. As I slogged through the legalese, I was reminded of a presentation that I gave earlier this year to the Roanoke District of the Virginia Associated General Contractors. The district’s executive committee asked me to speak to its members concerning the broad topic of “Construction Contracts 101.” At the beginning of my presentation, I passed along my top five general tips for all construction contracts. Although some of these tips may sound like common sense, I often encounter situations where these basic rules are violated by experienced contractors, subcontractors, suppliers and design professionals. My top five general tips for all construction contracts are:

1. Reduce the terms of the agreement to writing.

a. The written agreement should include all important and relevant information and terms. If it was important enough to discuss prior to signing the contract, it is important enough to include in the written contract;

b. At a minimum, include who, what, when, where, how, and how much;

c. Both parties should sign the written agreement; and

d. Don’t ignore handwritten changes to the contract, as these changes may either mean that you don’t have a deal, or they may become part of the contract when you sign it.

2. Read the contract.

a. Carefully read the whole contract;

b. Read all of the “contract documents,” including all attachments and addenda;

c. Be careful of “flow-down” or “pass-through” provisions in subcontracts;

i. If the subcontract incorporates the prime contract documents, get them all and carefully review them;

ii. A “flow-down” or “pass through” clause provides that the subcontractor assumes toward the general contractor all of the duties and obligations that the general contractor has assumed to the owner in the prime contract;

iii. A “flow-down” or “pass through” clause also provides that the terms and conditions of the prime contract are incorporated by reference into the subcontract and become a part of the subcontract.

3. Use the correct party names.

a. If a party is a corporation, LLC, partnership, etc., use the correct full legal name of the entity;

b. Make sure the endorsements include a statement of in what capacity a person endorses the agreement on behalf of an entity; and

c. If the contracting entity is a sole proprietor, describe him or her as “the person’s name, d/b/a the trade name.”

4. Note any documents or information that you must provide to the other party and note all notice periods and deadlines.

a. Make two separate lists of these requirements, and keep the lists in a conspicuous place where project managers, officers, and/or management can quickly access this information; and

b. Frequently refer to these lists to ensure that you comply with all of these requirements.

5. Don’t assume that you are stuck with the language of the contract form.

a. Even if you have little bargaining power, you may be able to negotiate changes to the most taxing or arduous clauses; and

b. Consider what amount of risk you are comfortable taking on before you agree to an onerous term.

If you have any questions or concerns about the language in a proposed contract, call a knowledgeable construction lawyer. Consider asking your lawyer to review any proposed construction contract, especially those for large, “business killer” projects.

As always, Spencer and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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ABOUT MUSINGS

I am a construction lawyer in Richmond, Virginia, a LEED AP, and have been nominated by my peers to Virginia’s Legal Elite in Construction Law on multiple occasions. I provide advice and assistance with mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

 

Christopher G. Hill

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RULE 1.14 CLIENT WITH DIMINISHED CAPACITY

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_14_client_with_diminished_capacity.html.html

Client-Lawyer Relationship

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

8 AUTO MAINTENANCE MYTHS

http://www.bankrate.com/finance/auto/8-top-auto-maintenance-myths-1.aspx?ec_id=cmcta_01_comm_aut_image_headline

8 top auto maintenance myths
By Terry Jackson • Bankrate.com

Highlights
Maintenance on today’s cars is vastly different than auto maintenance standards on cars of the past.
You don’t need to change your oil every 3,000 miles.
Air filters can often be cleaned instead of replaced.

Want to save hundreds of dollars a year on automobile maintenance?
Then stop over-maintaining your vehicle.

Sales pitches by fast-and-furious oil change shops and service centers touting all sorts of fluid flushes and lube jobs have Americans wasting wads of cash on unnecessary service items — particularly on newer vehicles.

Top auto maintenance myths
3,000-mile oil changes.
Chassis lubrication.
The standard tune-up.
Air filter swaps.
The transmission flush.
Radiator drains.
Fuel injectors need cleaning.
Warranty validity claims.
Often bewildered by the mass of electronics, wires and hoses that adorn a modern engine, many drivers simply put themselves at the mercy of service facilities that may only be interested in running up your bill.

Of course there’s the flip side to all of this: Some drivers never have their cars serviced and then wonder why the engine seizes after the oil has turned to sludge.

But it’s more likely that you’re one of those drivers who follow the maintenance advice your dad gave you 30 years ago when you got your first car.

Thanks to computer-controlled ignitions, improvements in filter technology, upgraded suspension designs and other mechanical improvements developed by the manufacturers, today’s vehicles require far less maintenance than the cars our parents drove.

Doubt that premise?
Check your owner’s manual and see what it says about when to change oil or do other maintenance. The 2005 Honda Civic, for example, calls for oil changes every 10,000 miles. The average recommended oil change interval industry-wide tends to be 7,500 miles.

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General Motors, Mercedes-Benz and other manufacturers have added an oil life indicator on the instrument cluster that tells you when the oil needs changing. The car’s computer keeps track of starts and stops, as well as other factors, and calculates the oil’s useful interval. Depending on how you drive, GM says it’s possible to see 10,000 miles or more between oil changes.

These guidelines are coming from companies that have a vested interest in keeping your car running trouble-free: If you’re happy with the car or truck, you’re more likely to buy another one. And a well-maintained car means the manufacturer has to pay out less in warranty claims.

Even Motor Age magazine — the publication for the automotive service industry (the people who want your service and repair business) — put it succinctly: “Following the factory schedule should keep nearly any car or truck healthy past the warranty period.”

Consider that the average household has two vehicles and drives each 15,000 miles a year. Following the advice of the local change-a-lot fast lube outlet — to change oil and filter every 3,000 miles — the average family would pay for 10 oil and filter changes every year. At, say, $40 a pop, that’s $400.

That same family could cut its oil change bill by $240 by following the manufacturer’s advice to change oil every 7,500 miles.

There are some exceptions that might require more frequent oil changes: Driving in an abnormally dusty climate or taking a lot of short, stop-and-go trips. But the oil change interval for such conditions is again spelled out in the owner’s manual. No need to do it more frequently.

A word of caution about owner’s manuals: Some dealers, in an effort to boost profits, give buyers a “supplemental” owner’s manual or service guide that calls for more frequent servicing. Don’t be fooled into thinking you have to follow these recommendations — it’s just the dealer’s way of competing with the fast-lube places for your money.

Read more: 8 top auto maintenance myths http://www.bankrate.com/finance/auto/8-top-auto-maintenance-myths-1.aspx#ixzz2BZyHnSDU