PDCA CONTRACTS AND RISK COMMITTEE
Centrally located in St. Louis, MO, the
complete line of MKT Pile driving and
Drilling equipment has been providing
quality, U.S. made products to contractors
throughout the Nation since 1986.
EQUIPMENT
• Excavator Mount – Side Clamp Vibratory
Drivers / Extractors • Excavator Lead Systems
• Crane Hung Hydraulic Vibratory Drivers /
Extractors • Hydraulic Auger Systems
• Hydraulic Impact Hammers • Diesel
Hammers • Air Hammers • CZM Drill Rigs
SERVICES
• Knowledgeable equipment applications
support • 24/7 parts and service support
• Custom design and fabrication
(314) 869-8600 www.MVE-STL.com (800)325-8001 www.MKTpileman.com
1198 Pershall Road, St. Louis, MO 63137
3. Do not agree to one-sided indemnification
provisions: There are two
primary items to keep in mind here.
Initially, you must limit your indemnity
obligation to matters covered by
insurance, especially as concerns any
unilateral obligation to pay for the contractor’s
counsel and consultant fees.
Secondly, there is never a reason to
indemnify another party for their negligence.
Instead, any duty to indemnify
must be limited to the extent of the
subcontractor’s negligence.
4. Do not agree to no damages for delay
clauses: A PDCA contractor’s daily
expenses are simply too great to allow
for the inclusion of a no damages for
delay clause in a subcontract which
requires that extra time on the project
be provided at no additional cost.
Instead, provide a list of hourly rates
for standby time and obstruction drilling
time that the contractor agrees to in
the subcontract.
5. Do not agree to pay if paid clauses:
Courts have commented that “getting
paid is half the battle on construction
projects” since the 1800s. Therefore,
being paid must be its first priority
on any project. The consideration of
potentially forfeiting this right prior to
beginning work by agreeing to a pay if
paid clause should be subject to senior
management analysis and approval.
6. Risk acceptance rule: If a risk’s costs
cannot be claimed back to the owner
(the source of money on the project) it
has to be specifically avoided or mitigated
with the general contractor in the
subcontract, otherwise the probability
to be reimbursed for the cost of that
risk by the general contractor is close
to null.
The incorporation of these first six
steps in your company’s uniform subcontract
negotiation procedures will allow
you to begin to become an expert subcontract
negotiator. t
Alex Filotti, M.B.A., P.E. and
Richard D. Kalson, Esq. are the cochairs
of the PDCA’s Contracts and Risk
Committee. You can reach Alex at
718-340-1021 or at alex.filotti@skanska.com.
You can reach Rick at 614-223-9380 or at
rkalson@beneschlaw.com.
There is never a reason
to indemnify another party
for their negligence.
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96 | ISSUE 2 2018
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