Construction Contract Negotiation & Drafting: A Practical Checklist (and Where State-Specific Issues Can Surprise You)
April 20, 2026 —
Michelle Cooper - Sheppard Construction and Infrastructure Law BlogConstruction contract negotiation is often treated as a “forms exercise,” especially when the parties start from familiar templates (e.g., AIA forms). In practice, though, the biggest problems tend to arise not from the existence of a form, but from (i) misalignment among the project’s governing documents and participants, (ii) ambiguity in pricing and payment mechanics, and (iii) state-specific statutory requirements that override negotiated terms.
This article includes a practical checklist intended to help owners, developers, and contractors streamline contract negotiations, reduce downstream disputes, and avoid unpleasant surprises during payment administration.
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Michelle Cooper, SheppardMs. Cooper may be contacted at
mcooper@sheppard.com
When Your Scheduler Hallucinates: Managing AI Risk on the Job Site
March 03, 2026 —
Jason Loring - ConsensusDocsArtificial intelligence has moved from the conference room to the construction site. Contractors are using AI-powered tools to predict schedule delays, monitor safety through drone footage, optimize equipment maintenance and flag potential hazards in real time. These tools deliver genuine efficiency gains, but they also introduce risks that most construction contracts do not anticipate and many project teams aren’t yet equipped to manage.
The problem is that AI tools are probabilistic and not determinative, meaning that they can “hallucinate”: generating confident, but completely wrong, information. Your AI scheduling software might therefore predict a delay that never materializes, causing unnecessary resource mobilization. Your drone monitoring might flag a nonexistent safety hazard, stopping work and costing productivity. Or worse, it might miss a real hazard entirely.
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Jason Loring, Jones Walker LLPMr. Loring may be contacted at
jloring@joneswalker.com
Contract Interpretation – Determining What the Contract Requires
March 24, 2026 —
David Adelstein - Florida Construction Legal UpdatesA good ole dispute on contract interpretation in government contracting. Contract interpretation disputes happen all the time in every jurisdiction under the sun. Think about that. Now, what’s the best way to avoid a contract interpretation dispute? Naturally, invest in the contract language and fully understand the scope of work. Make all of this clear. But, of course, this isn’t foolproof meaning you could still be doing this and you could still find yourself in a contract interpretation dispute. Although, if you are doing this, and being proactive, the contract interpretation disputes should be minimal and more streamlined.
In Liberty Technical Services, LLC v. Department of Veterans Affairs, CBCA 8385, 2026 WL 407656 (CBCA 2026), the dispute centered on whether the government owed the contractor for certain, necessary equipment (largely controllers, but also tanks and pumps) not specified in the contract. The government countered that this should be a non-issue because the contractor always acknowledged it was responsible for furnishing the unspecified, necessary equipment, and the contractor did actually provide the equipment without direction from the government. Each party claimed the contract was unambiguous when construed in context.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Turnover Traps for Community Associations: Investigate First, Release Claims Later
April 14, 2026 —
Nicholas B. Vargo - Ball Janik LLPTurnover of a community association from developer control to owner control is a uniquely vulnerable moment. Developers are increasingly presenting Florida condominium and homeowners’ associations with “standard” settlement or release agreements at turnover, often being framed as routine steps to finalize the transition of control. In reality, these agreements can have sweeping consequences, including the release of construction-defect claims before the association has conducted any meaningful independent evaluation.
The developer has years of project knowledge and access to plans, subcontractors, and internal records. The newly elected board is just beginning to organize, obtain documents, and understand the property’s condition. Many defects, especially those involving roofing, waterproofing, windows, or structural components, are latent and not yet visible. Signing a release at this stage means the association is making a binding decision under conditions of uncertainty, without full information, to release all future potential claims.
Over the last few years, there has been a rise in reports of developers offering a packaged deal: they agree to complete certain repairs, often minor punch-list or cosmetic items, and to “forgive” an alleged financial deficit (often around $50,000) supposedly owed by the association from the developer-control period. In exchange, the association is asked to sign a broad release covering all claims, including known and unknown construction defects. To a new HOA board that received their community with limited operating and reserve funds, they are left with a difficult decision to either accept the developer’s offer or assess their owners to pay this alleged debt.
These agreements are occasionally presented through community management companies, which may describe them as “standard” or "routine.” Whether due to misunderstanding or influence from the developer, management companies can unintentionally reinforce the idea that signing is expected. Any recommendation provided to HOAs about whether to sign these releases could open community management to liability down the road. The best practice for both associations and community managers is to refer any agreements to be reviewed by general counsel for the association.
The following two case studies illustrate the real-world consequences:
Case Study One: A newly transitioned board relies on its management company to negotiate with the developer-builder to resolve irrigation issues, pond concerns, and signage deficiencies, along with forgiving an asserted financial shortfall. In exchange, the board signs a broad release covering all claims, including latent defects.
Within a year, several punch-list items remain incomplete, and more serious issues arise. When the association demands completion, the developer delays, prompting the association to seek advice on how to enforce the settlement agreement. The association hires counsel to hold the developer responsible for both the previously agreed-upon items and newly identified construction defects. However, when the association brings claims against the developer, the developer points to the release of all potential construction defects in the community. Thus, the only remaining remedy is limited to enforcement of the specific punch-list terms. The community, still relatively new, has no viable claims against the developer-builder for the construction defects. With warranties expired and the release, the association must fund repairs through special assessments, despite defects that would otherwise have been actionable.
Case Study Two: A community is presented with a similar agreement as above. The management company encourages execution, suggesting it is standard and even telling the board to “name your price.” The developer also pressures the newly elected board to sign.
Instead of signing, the board consults with their attorney. Counsel advises the board not to sign the release and recommends further investigation. Engineers are retained and identify early indicators of broader issues, including stucco cracking, water intrusion, and irrigation deficiencies. Based on this information, the association declines to sign the release. Subsequent evaluation reveals potentially significant construction-defect claims, allowing the community to pursue recovery that would have been lost under the proposed agreement.
These scenarios underscore a fundamental point: signing a release at turnover is not an administrative formality—it is a major legal decision. Board members act in a fiduciary capacity on behalf of their community, and their decisions can bind all current and future owners. At turnover, an association’s right is to investigate and pursue claims. Preserving that right until a full and independent evaluation is completed is not adversarial—it is responsible governance.
Accordingly, associations should retain independent evaluations of the property and consult qualified legal counsel before signing any “standard” agreements, especially ones involving a release of future claims.
Nicholas B. Vargo is a partner in Ball Janik LLP’s Construction Practice Group. He may be reached at nvargo@balljanik.com.
Four Payne & Fears Attorneys Named 2026 Southern California Super Lawyers Rising Stars
March 17, 2026 —
Payne & FearsWe congratulate our four Payne & Fears attorneys who have been named 2026 Southern California Super Lawyers Rising Stars. This recognition highlights the next generation of legal talent, honoring attorneys who have made a strong impact in their practice areas early in their careers.
Employment & Labor
Taylor Brown
Bree Oswald
Employment Litigation: Defense
Tyler Runge
Business Litigation
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Payne & Fears
Payne & Fears Recognized by Best Lawyers in 2026 Best Law Firms®
December 02, 2025 —
Payne & Fears LLPPayne & Fears LLP has been recognized in the 2026 edition of Best Lawyers® “Best Law Firms.” This distinction reflects the firm’s commitment to professional excellence and its strong reputation among clients and peers in the legal community.
Payne & Fears has been ranked in the following practice areas:
Metropolitan Tier 1
Orange County
- Commercial Litigation
- Employment Law - Management
- Insurance Law
- Labor Law - Management
- Litigation - Labor and Employment
- Litigation - Real Estate
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Payne & Fears LLP
How to Properly Fill Out and Use the Unconditional Waiver and Release on Progress Payment Form Used in California Construction
December 22, 2025 —
William L. Porter - Porter Law GroupThis is the Second article in a series of four articles discussing how to properly fill out the four California construction releases described in California Civil Code 8132 – 8138.
Let me start by noting that in addition to practicing construction law for more than 35 years, I chaired the committee of California construction attorneys who revised those sections of the California Civil Code dealing with this release form and many other construction forms as part of Senate Bill 189 in 2010. I also wrote the first version of this release form and made it free to the public well before the new law took effect in 2012. With this background, let me note a few things about the Unconditional Waiver and Release on Progress Payment form to help you avoid mistakes that might prevent you from achieving the intended effect of the form or releasing claim rights to a greater extent than you intend.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Environmental Due Diligence - What's The Hold Up?
November 18, 2025 —
W. Tyler Lloyd - The Dispute ResolverConstruction projects do not occur overnight. Regardless of project size, projects take anywhere from months to years to design, build, and complete. Perhaps one portion of the construction project that is always subject to criticism, particularly on large infrastructure projects, is environmental review and the applicability of environmental laws, requiring specific environmental thresholds, and the National Environmental Policy Act (“NEPA”). Contractors are well aware of the timeline and potential impacts that NEPA review might have on a project, and many contractors and national groups have expressed a desire to ensure that NEPA does not interfere with or altogether block the deployment of large infrastructure projects.
On federal funded or assisted projects, contractors must comply with strict environmental oversight because the project is tied to federal funding or federal agency accountability. Contractors must also comply with environmental and sustainability mandates under the Federal Acquisition Regulation (“FAR”). The FAR requires federal construction project contracts to include clauses concerning hazardous materials, emergency planning, waste reduction, environmental management systems, and greenhouse gas disclosures.
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W. Tyler Lloyd, Stites and Harbison, PLLCMr. Lloyd may be contacted at
tlloyd@stites.com
