Freeman, Freeman & Smiley LLP

Service Details

Construction and Development

Our Real Estate practice represents owners and tenants in the development, redevelopment and expansion of retail, commercial and industrial properties.  The construction contracts we have prepared or negotiated has varied based upon the size of the project and the scope of the work, including ground-up construction both in free-standing properties as well as within an operating shopping center; demolition, expansion and remodeling of existing shopping centers, office buildings and industrial parks (including issues involving work being done in projects with operating businesses); single tenant build-to-suit transactions and other leasehold improvement projects.

Our construction, development and entitlement expertise includes:

  • Drafting and review of design and construction contracts with architects, contractors and consultants
  • Preparation, negotiation and reviewing lease work letter exhibits
  • Preparing development agreements, covenants, conditions and restrictions, easement agreements, options and other arrangements among master developers, builders, operators and tenants
  • Assisting with zoning approvals, subdivisions and other land use entitlements
  • Negotiating development agreements and municipal financing arrangements with governmental agencies
  • Drafting and review of design and construction contracts with architects, contractors and consultants
  • Negotiating and reviewing land and development loans, preparing construction financing documents, and structuring alternative financing arrangements

The forms of construction contracts include:

  • AIA Form A101-2007 Construction Agreement and AIA Form A201-2007 General Conditions
  • AIA Form A107-2007 (for Projects of Limited Scope)
  • Manuscript construction contracts for mid-sized construction projects
  • Manuscript contracts for smaller sized construction projects

The contracts have been primarily based on a fixed fee price structure, but we have also done cost-plus with a guaranteed maximum.  The AIA forms have been substantially revised from the standard form and include an addendum supplementing the AIA forms.  Because contractors are oftentimes more comfortable using the standardized AIA forms, even though they are significantly revised, we have generally opted to use those forms.  However, on smaller projects, those forms can be unwieldy, and a simpler manuscript form has been desired by some of our clients.  These construction projects invariably require due diligence to determine whether there are restrictions that would affect the project, such as those contained in CC&R’s, Leases, etc. (e.g., dark periods for alterations, listing adjacent owners as additional insureds, location of staging areas, where construction vehicles may be parked, where construction materials and equipment may be stored, etc.).

In addition to the preparation of the construction contract, we also provide advice with respect to the process for paying contractors, subcontractors and materials suppliers, including coordination with lender construction disbursement protocols, lien waivers and releases, joint checks and the like.  When mechanic’s liens are filed, we deal with getting them released of record, whether by dealing directly with the lien claimant or the general contractor, bonding around such claims, negotiating settlement agreements and mechanic’s liens releases, etc. Our involvement in these projects also includes reviewing vendor contracts, revising terms and conditions that limit vendor liability (for example, the typical limitation of liability to the amount the vendor was paid), dealing with insurance coverages (including appropriate completed operations coverages available for owners and other additional insureds), liquidated damages for late completion, and a myriad of other customary protections on behalf of owners.