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Contract Review: Practices and Pitfalls Cynthia A. Haines, Esquire Post & Schell, PC LeadingAge PA Annual Conference June 16, 2016
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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?
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Contract Documents Have you? Read what you are signing? Included any negotiated changes on an addendum? Checked for supplemental conditions?
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Contract Documents Are there boilerplate provisions for? Indemnity Force Majeure Governing Law Modification
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Contract Documents Are there boilerplate provisions for? Notice Severability Dispute Resolution
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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?
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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?
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Changes, Claims and Delays Do you know? Whether you can get damages for your delay? What date triggers any Liquidated Damages?
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Changes, Claims and Delays Is/Are there? Exclusivity provisions? Non-compete provisions? Assignment clauses?
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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?
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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?
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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
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Warranties Are there? Performance warranties? Quality warranties? Warranties of fitness?
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Disclaimers Are there? Disclaimers related to purpose Disclaimers of liability for damages Disclaimers related to third parties
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Liability Are there? Carve outs to liability? Limitation of liability? Caps?
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Payment and Closeout Do you have? Specified order/payment request form? All backup documents required by the contract?
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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?
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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?
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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?
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Questions? Cynthia A. Haines, Esquire Post & Schell, PC 17 North 2 nd Street, 12 th Floor Harrisburg, PA 17101 717-612-6051 chaines@postschell.com
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