CONSTRUCTION LAW
may be made a part of the written contract, whether by exhibit
or incorporation into the actual contract. If blueprints or other
plans exist, those should be incorporated into the contract
or referred to as an exhibit. Most projects involve changes in
scope during the course of a project – if/when that happens, the
changes should be documented.
• Change orders: Nearly every project will encounter a time
where changes, additions or deletions are made to the previously
agreed upon work. Having a system in place within the contract
to account for change is imperative and, in many states, required
by law. If additional work is requested, or original work plans are
altered or revised, the changes should be documented by specific,
written change orders. It can be both cumbersome and time-consuming
to document each and every change over the course of a
project but having a specific change order system in place to keep
an accurate record is the best method to avoid problems later. It
should be noted that “written” change order can potentially mean
being done in different forms – traditional paper form, via email,
through customer electronic portal or platform and potentially
even via text message, though that option is less preferable.
• Arbitration vs. litigation: Many contractors choose to include
provisions in their contracts requiring that any dispute be
handled through arbitration. Others do not specify such a
requirement. The pros and cons of specifying a specific alternative
dispute resolution procedure such as arbitration should be
discussed and contemplated with counsel. Choosing such a provision
in a contract can be a legal strategy or just a matter of personal
preference – but the implications are important, and this
decision should not be made without consulting an attorney.
PILE & SHORING INC.
BRIDGES - DRIVEN PILES - SHEET PILING - CAISSONS
COFFERDAMS - MARINE & DOCK FACILITIES
SOLDIER PILE & LAGGING - SLURRY & BARRIER WALLS
HELICAL PILES - MICROPILES - TIEBACKS
FERRARO PILE & SHORING INC. HAS STEADILY GROWN
INTO ONE OF NEW YORK STATE’S LARGEST PILING
AND GEOTECHNICAL CONTRACTORS SINCE ITS INCEPTION
IN 1990. WITH OVER 700 SUCCESSFULLY COMPLETED
PROJECTS, FERRARO HAS BUILT A REPUTATION
OF DELIVERING PROJECTS SAFELY, TO THE HIGHEST
QUALITY S STANDARDS, AND ON SCHEDULE.
Each “forum” has unique characteristics and formalities that
can be open to interpretation and should be weighed out.
• Attorneys’ fees: Any contract should include a provision that
enables a contractor to recover any attorneys’ fees spent in pursuing
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ALDEN, NY 14004
GENERAL@FERRAROPS.COM
TEL: 716-937-4800
FAX: 716-937-0355
collection of an unpaid account or enforcing the contract.
This type of provision provides significant protection to the contractor
and can often be a deterrent to a potentially nonpaying
customer. If it is necessary to undergo the collection process, the
contractor can know that there is also the potential to recover
the costs spent to collect those unpaid amounts, which otherwise
may not be recoverable.
These basic items form some of the most common provisions
of any contract, but there are many other provisions that may be
included in a contract, as there are many different situations (projects)
that require different contract terms. Changes in applicable
law also necessitate a review of existing contracts to ensure they
comply with current law, and every contractor should make a habit
of conducting an annual review of contracts for this purpose. t
Christopher R. Jones, Esq., a partner
with Hellmuth & Johnson law firm in
Edina, Minn. has significant experience
in drafting everything from simple residential
contracts to complex commercial
contracts. Contractors of all sizes
can benefit from establishing a standard
form contract that can be adapted to
specific situations as needed.
104 | ISSUE 1 2021 www.piledrivers.org
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