In the world of commercial construction, a well-drafted contract is not just a formality—it’s the foundation for a successful project. Whether you are a property owner, developer, general contractor, or subcontractor, understanding and negotiating the key terms of a construction contract can mean the difference between a project that runs smoothly and one that leads to costly disputes or delays.
Below are the essential terms every commercial construction contract should include.
Scope of Work (SOW)
A clearly defined scope of work sets expectations by outlining what work will be performed, how it will be completed, and the materials or services that will be used. This section should detail:
- Specific tasks and deliverables
- Plans, specifications, and drawings
- Project milestones and benchmarks
Why it matters: Ambiguity in the scope often leads to disputes over what is or is not included in the project.
Project Timeline and Deadlines
Every commercial construction contract should include a realistic timeline with:
- Start and completion dates
- Interim milestones or phases
- Penalties for delays (liquidated damages)
- Allowances for weather or force majeure delays
Why it matters: Defined timelines keep the project on track and help allocate liability when delays occur.
Contract Price and Payment Terms
The contract should clearly outline:
- Total contract price (lump sum, cost-plus, or unit pricing)
- Payment schedule (e.g., monthly draws, milestone payments)
- Change order procedures
- Retainage (typically a percentage withheld until completion)
Why it matters: Well-defined payment terms prevent cash flow issues and reduce the potential for payment disputes.
Change Orders
Changes are inevitable in construction. The contract should specify:
- How changes are proposed and approved
- Who has the authority to approve changes
- Adjustments to price and schedule resulting from changes
Why it matters: Unapproved or undocumented changes can lead to unexpected costs and project delays.
Insurance and Risk Allocation
A comprehensive construction contract must address risk management through:
- Required insurance coverage (e.g., general liability, builder’s risk, workers’ compensation)
- Indemnification provisions
- Waivers of subrogation
- Responsibility for job site safety
Why it matters: These provisions protect all parties against third-party claims, accidents, and unforeseen events.
Warranties and Defect Correction
The contract should outline:
- Warranties on labor and materials (typically one year or more)
- Procedures for identifying and remedying defects
- Contractor obligations to correct defective work
Why it matters: Warranties provide a mechanism to ensure the project meets quality standards after completion.
Dispute Resolution
Disputes can arise even with a solid contract. It’s important to include:
- Preferred method of resolution (mediation, arbitration, or litigation)
- Venue and jurisdiction
- Timeframes for bringing claims
Why it matters: Clear dispute resolution procedures can avoid prolonged and expensive legal battles.
Termination Clauses
Include language that covers:
- Grounds for termination (for cause or convenience)
- Required notice periods
- Rights and responsibilities upon termination
- Compensation due upon termination
Why it matters: These clauses protect both parties in the event the contract needs to be ended prematurely.
Lien Waivers and Release Forms
To ensure smooth payment and protect ownership interests, the contract should require:
- Partial and final lien waivers from subcontractors and suppliers
- Final payment tied to the receipt of all releases
Why it matters: Lien waivers help avoid future claims against the property once payment has been made.
Compliance with Laws and Regulations
The contract should require:
- Compliance with local building codes, environmental laws, and safety regulations
- Permitting responsibilities
- Licensing requirements for all contractors
Why it matters: Legal compliance is essential to avoid fines, work stoppages, or forced remediation.
Conclusion
A well-crafted commercial construction contract protects your investment, clarifies expectations, and lays the foundation for a successful project. Whether you are developing a commercial property, remodeling an office building, or managing a large-scale build-out, working with an experienced construction law attorney is critical to managing risk and ensuring contractual protections are in place.
At Oberman Law Firm, we represent owners, developers, contractors, and design professionals throughout all phases of construction. If you are entering into a construction contract or facing a project-related dispute, contact our office to schedule a consultation.
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