Contract Drafting, Negotiation & Review

Design-Build & EPC Agreements

Design-Build (“DB”) is a project delivery method that can be more time efficient than the Design-Bid-Build method and produce a better overall value for the owner, if done correctly. The designer and builder are both contractually obligated to the owner and can be the same company providing both services. In this method, the contractor is hired by the owner, who guides the owner through the design process before estimating the cost, scope, and timeline. The owner and contractor communicate through a single point of contact. The cost is usually a lump sum as discussed with the owner during the design process to match the owner’s needs. This allows for clear communication of what the owner is looking for and what the contractors can do to fit their budget.

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Engineering, Procurement, Construction (“EPC”) project delivery methods are similar to Design-Build projects. DB projects can be executed by one entity; however, there may be more parties involved. It could be a separate engineering firm, separate fabricators, or a separate construction company. EPC contracting combines all of those parties into one. In this method, the contractor is responsible for the materials, building design, and construction, and lumps the costs for all aspects of the build into one sum. The construction manager will keep the client apprised of the progress of the build, but generally will not have any other communications with the owner.

DB and EPC agreements are becoming more popular in the construction industry because they streamline the scope and costs of a project, with little hands-on involvement from the owner. However, the lack of owner involvement can lead to miscommunications about specific design aspects, and they can increase the risk to the builder as it now has additional responsibilities. Like all construction contracts, it is crucial to fully understand the responsibilities and risks being agreed to, especially under DB and EPC agreements where the builder’s scope of work is more extensive and the owner’s control over the final product is limited. We assist builders and owners with drafting, negotiating, and review of DB and EPC agreements.

Construction Mangement Agreements

Construction Managers are becoming a popular fixture on construction projects, serving as the go-to person in control of the numerous moving parts involved in a project. They typically address project/deliverable specifications, labor and material requirements, timelines, and compensation formulas and amounts. Because of the many responsibilities that change from project-to-project, construction management agreements must be customized for each project so that they best meet the needs of all parties under all sorts of different scenarios. We draft, negotiate, and litigate agreements based on your specific needs to accommodate each unique project, including:

• Unit Price Contracts

• Lump Sum or Fixed Price Contracts

• Cost-Plus Contracts

• Time & Materials Contracts

• Guaranteed Maximum Price Contracts

Joint Venture & Partnership Agreements

The concept of joining forces with another party to take on a construction project is not a new one. Construction industry participants often seek to diversify their projects or secure greater insulation from uncertain market conditions by pursuing risk mitigation opportunities. One common way to achieve these goals is to work with another entity pursuant to a joint venture (“JV”) agreement. JV agreements are common in construction contracting because they allow entities with varying specialties, experiences and financial resources to come together as JV partners to meet the specific demands of a construction project. Embarking on a JV agreement for a construction project is a very complex exercise in developing a contractual relationship. At Whelan Construction Law, we have the experience and expertise required to draft various types of JV agreements, navigating their inherent features and legal intricacies.