I’m on a mission and I need your help. Here’s my idea…I want you to send me the worst contract language you’ve seen this past year. Then I’m going to take the top ten sentences or paragraphs and rank them.
Why you ask? I will work with two of the finest construction lawyers in the entire country to tell us why these statements are problematic, to propose alternative language that is acceptable to the owner/general/construction manager while also significantly reducing your risk and exposure.
I know what you’re thinking– we can’t alter the contracts we’ve been asked to sign, they won’t accept any modifications, edits, strike outs, etc… Actually many times you can and they will. Trust me, this is a worthwhile project. If the owner, architect, engineer, consultant, or general contractors really want you on their project, you indeed can.
Here’s what I need; send me what you’ve signed that you wished you wouldn’t have, the verbiage that troubles you, or what your attorney has advised you not to agree to. The more confusing, vague, onerous (or costly) the better and if you have bad contract terminology that seems to be more frequent than in the past, I want that as well. No one will know who sent these to me, I will keep everything confidential.
This contract language can be on anything you see as a high risk to your business. It can be on terms and conditions, project closeout procedures, waiver of subrogation, inclusive spec language, indemnification, payment and retainage, insurance provisions, bonding requirements, disputes, arbitration, delays, severability, liquidated damages, lien procedures and waiver of rights, completion of work, etc.
My contract experts will then help me rank these and provide alternative or work around language, advise on when to have your own attorney look at the contract, methods of negotiating better language, the fair practice laws that may govern the prevision, and remedies of actual case law or arbitration settlements.
Here’s an Example of what I want: This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this agreement, and supersede all prior negotiations, agreements and understandings including written or verbal directives provided by the owner’s representatives with respect thereto. What? So do you typically read something like this, move on and then end up signing the contract, or do you stop to evaluate the ramifications?
The overall goal is to help you spot bad contracts before you sign them. To accomplish this we need to have a greater sense of what you have been burnt on, or have walked away from, so we don’t repeat the same mistakes. It will also require you to look for this type of language and what exposure you currently have with your in-house projects.
So help me help you, the outcome of this project will be incredibly valuable. This will help your company think very differently about which projects to go after. Rather than your estimating department spending hours and hours on the technical requirements of the project before going to the front end of the spec book, they will learn to start there before diving into the part they enjoy. Admit it, your design and estimating staff spend countless hours on the specifications, drawings and take off before coming to you (and the bid is due tomorrow) with the other “details.” Let’s flip that around and train your team to start with the details.
To participate, just copy and paste the sentence or paragraph to Chuck Wilson’s Email Here. Thanks in advance.