LE Seminars

Fall 2003 / Winter 2004 CLE Seminars

BBL&A is now scheduling the Fall 2003 and Winter 2004 season for its new CLE seminar, Defending Your Client Owner Against Unwarranted Construction Delay and Cost Overrun Claims, which is pending approval by the New York Continuing Education Legal Department. This seminar, presented by BBL&A partners Barry LePatner and David Pfeffer is being offered free of cost to legal professionals at your or our offices. 1.5 CLE credits will be earned towards the annual CLE requirement. In addition, The Perils and Pitfalls of Today's Construction Projects, will continue to be offered for 1.5 CLE credits.

Perils and Pitfalls has been presented to such distinguished law firms as Shearman & Sterling; Paul, Weiss, Rifkind, Wharton & Garrison; Robinson Brog Leinwand Greene Genovese & Gluck P.C.; and Simpson Thacher & Bartlett. Each of these firms found the program to be a fascinating extension of their legal understanding of how real estate projects are actually designed and constructed.

Developed from experience gleaned over two decades from thousands of projects, these two seminars address strategic planning, oversight and dispute resolution strategies that your corporate, commercial and real estate clients must know to succeed in today's increasingly complex construction environment.

To schedule a seminar at your firm or to answer any questions you may have, please contact Barry LePatner or David Pfeffer by email or call 212-935-4400.

 

Seminar Outlines

Defending Your Client Owner Against Unwarranted Construction Delay and Cost Overrun Claims

1. Why Owners too often lose control of their project even before it begins:
   • Unless you build for a living, the contractor has more experience than you.
   • A downturned economy means low bids, extras, and bankruptcies.
   • A good economy means unqualified bidders, "revolving door" team members, cost premiums, and excessive lead times and schedule extensions.
   • Projects out of control: Recent, high-profile case histories
2. Defining a Preventative Strategy for Retaining and Managing the A/E/C Team Can Make a 7-8 $$ Figure Difference.
   • How is due diligence defined in the context of construction? 10 key questions to ask prospective team members.
   • Integrate consistent contract provisions throughout all owner-A/E/C team member agreements; 5 key provisions to include.
   • Insist in the agreement on using only the A/E/C firms' ‘A' personnel team for your project - otherwise, take a pass on that firm.
   • Implement a strategic risk analysis and insurance program. What is covered and what is not?
   • Employ an independent cost estimator to confirm or negotiate CM/GC pricing.
   • Employ an experienced owner's representative to independently oversee the CM and A/E team, especially during the construction administration phase.
   • Maintain thorough project records, record disputes, answer claims, take photographs, etc.
3. Early Identification of Potential Claims Can Save $$ Millions.
   • Obligation of all parties to fully detail claims within 20 days of occurrence.
   • Typical CM/Contractor Claims:
     • "It's the Architect's fault."
     • General Conditions;
     • Disputed Change Orders and "hostage" situations;
     • Delay Damages.
   • Typical Design Professional Claims:
     • Additional fee claims due to Owner and/or contractor action/inaction.
     • Counterclaiming against the design professional's liability insurance carrier.
     • Indemnity
4. Proven Strategies to Beat Claims:
   • Reliance on contractual protections.
   • Using payment as leverage - the new "golden rule."
   • Create an alliance - either with the design professional team or contractor team;
   • Retain expert consultants;
   • Build a defense with comprehensive presentation materials (counterclaim books, graphs, charts, animations, video, etc.);
   • Making claims to insurance carriers and surety - how to get them to respond.
5. Dispute Resolution: Which is best for which situation - and why?
   • Mediation - why it has its uses (and abuses.)
   • Arbitration - when is the only time arbitration should be used?
   • Litigation - a last resort that should be held out to the other parties as your first resort.

 

The Perils and Pitfalls of Today's Construction Projects by Barry B. LePatner, Esq.

1. The Construction Environment
   • A perilous construction environment
   • Balancing competing interests
   • Major challenges facing owners
2. Design and Construction Issues
   • Due Diligence and Team Selection
   • Structuring Agreements
     • Standard Agreements vs. Customized Agreements
     • Traditional Construction vs. Fast-Track
     • Design-Build Construction
     • Guaranteed Maximum Price vs. Lump Sum
     • The value of separate agreements with the architects and engineers
   • Contractual Protections
     • Project Schedule
     • Payment Terms
     • Change Orders and Additional Services
     • Lien Protections
     • Indemnifications
     • Use and Ownership of Copyrighted Design Documents
     • Termination
     • Close-out requirements
3. Insurance
   • Design Team
     • Professional Liability Insurance
     • CGL with Valuable Papers Coverage
   • Construction Team
     • CGL with Umbrella Coverage
     • Bonds - Performance and Payment
   • Owner
     • Builder's Risk
     • Project Wrap-up Policies
     • Additional Insured protections
     • Environmental protections
4. Water Intrusion and Mold Problems During Construction
5. Dispute Resolution
• Complexity and cost considerations
• Consistent provisions in all project agreements
• Joinder of all parties
6. Post-Completion Pitfalls
   • 1-year Warranty
   • Structural / Facade failures
   • Roofing failures
   • HVAC, Electrical and Plumbing failures
7. Conclusion
   • Identifying the Owner’s business objectives
   • Chemistry of the team members is vital
   • Agreements that reflect services that correlate with Owner’s goals
   • Agreements that seamlessly assure full performance
   • Protections against unwarranted claims with rights of recourse by the Owner
   • Full insurance from all team members