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Drafting or Reviewing Enforceable Construction Contracts that Will be Performed

Lanak & Hanna is often asked to draft a contract for our client or review a contract that has been presented to our client by the owner or prime contractor. We have attorneys who are well versed in drafting and reviewing construction contracts, and who are familiar with the various provisions which must be covered in order to make an effective and enforceable contract for our client, with respect to the variations which can, and cannot be created or accepted.

What follows represents a portion of what we consider, and what we look for when drafting or reviewing a construction contract for a client. Generally, we consider or evaluate any provisions that should be incorporated, or which should exist, or that are missing, which would have a legal effect on the performance of the project. Many of those provisions would be found in the following sections:

 

1.     Contract Documents:

Because the work to be  performed under the contract is to be performed pursuant to the “Contract  Documents” it is important to identify all the documents that are included.  Some might not be readily available, or readily identifiable. If they are listed, they will be part of the contract and will bind the contracting parties to the same extent as the contract under review.

An example of an exhaustive definition of “Contract Documents” from a contract we have reviewed, the phrase "Contract Documents" is defined to mean and include this Agreement, the general subcontract provisions, together with any exhibits, or addenda thereto, including, but not limited to, Exhibit  "A" (Subcontract Insurance Requirements); Exhibit "B"  (Procedure Memoranda); Exhibit "C" (Subcontractor Affidavit and Excerpts from California Labor Code Sections 1771, 1775, 1776, 1777.5, 1813 and 1815) (applies only to public works projects); Exhibit "D" (Project Specific Requirements); Affidavit of Subcontractor; the Prime Contract; together with its general, supplementary and other conditions, addenda and modifications, plans and specifications; and all documents or instruments referred to in any of the proceeding documents. The Contract Documents are incorporated in this Agreement by this reference, with the same force and effect as if they were set forth in their entirety herein.”

 

2.     Bond Requirement:

If a bond is required  to guarantee performance and payment, we consider whether the penal sum, or  amount of the bond should increase, or increases with the amount of the  contract and under what conditions. To view this entire article, click  here.

We at Lanak & Hanna regularly draft and review enforceable construction contracts, and we welcome the opportunity to assist you with your construction contract requirements, contact: Frank Lanak, flanak@lanak-hanna.com 714-620-2350 ext. 302.