Contract Review: Practices and Pitfalls Cynthia A. Haines, Esquire Post & Schell, PC LeadingAge PA Annual Conference June 16, 2016

Contract Documents Do you have?  Clear understanding of scope and expectations?  All attachments, addenda, riders, exhibits that are referred to in the contract, including reference to any proposal?  Any special insurance requirements?  The accurate pricing?

Contract Documents Have you?  Read what you are signing?  Included any negotiated changes on an addendum?  Checked for supplemental conditions?

Contract Documents Are there boilerplate provisions for?  Indemnity  Force Majeure  Governing Law  Modification

Contract Documents Are there boilerplate provisions for?  Notice  Severability  Dispute Resolution

Changes, Claims and Delays Do you have?  An agreed form for change orders?  A definite time allowed to do the work?  Agreement for time extension when additional quantities or additional work is ordered?

Changes, Claims and Delays Do you have?  A plan to deal with problem issues typical to the type of work?  A pre-job inspection or assurance to record conditions before you start?

Changes, Claims and Delays Do you know?  Whether you can get damages for your delay?  What date triggers any Liquidated Damages?

Changes, Claims and Delays Is/Are there?  Exclusivity provisions?  Non-compete provisions?  Assignment clauses?

Changes, Claims and Delays Is/Are there?  Non-solicitation provisions?  Termination provisions that state the events that could trigger the end of the contract?  Any easy outs?  A “hell or high water” provision?

Insurance and Indemnification Do you know?  What your indemnification obligation is?  If there are additional insurance requirements?  If there are any other special insurance requirements for this job?

Warranties Have you?  Checked the contract and specifications for warranty requirements?  Confirmed the availability of any manufacturer’s warranties?  Checked terms and conditions for company warranties?  Checked for hidden tie-ins to manufacturer warranty?  Implied warranties vs. express warranties

Warranties Are there?  Performance warranties?  Quality warranties?  Warranties of fitness?

Disclaimers Are there?  Disclaimers related to purpose  Disclaimers of liability for damages  Disclaimers related to third parties

Liability Are there?  Carve outs to liability?  Limitation of liability?  Caps?

Payment and Closeout Do you have?  Specified order/payment request form?  All backup documents required by the contract?

Payment and Closeout Do you know?  If special labor requirements apply to this job?  Whether this is a prevailing wage job, and what the rates are?

Payment and Closeout Are there?  Payment terms with a defined payment schedule?  Terms with penalty language for failure to pay, characterization of the payment, and travel and other related expenses?

Subcontracting Do you have?  A signed copy of a subcontract for each subcontractor?  An insurance certificate from each subcontractor?  Payment and performance bonds from your sub, if required?  A copy of any warranty that the Sub will be responsible to deliver at the end of the job?

Questions? Cynthia A. Haines, Esquire Post & Schell, PC 17 North 2 nd Street, 12 th Floor Harrisburg, PA