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Building Better Construction Contracts 2014


Speaker(s): Alison Ashford, Brian Perlberg, David J. Hatem, Josh M. Leavitt, Patrick J. O'Connor, Jr., Robyn L. Miller, Salvatore J. Perrucci, Suzanne Harness
Recorded on: Jun. 25, 2014
PLI Program #: 50451

Current Responsibilities:

Sal Perrucci is Executive Vice President and Managing Director of Aon Construction and Infrastructure Services Group where he leads the Integrated Capital Risk, Enterprise Risk Management and Infrastructure Solutions / Alternative Project Delivery business strategies. Mr. Perrucci has pioneered global, public-private initiatives to provide integrated capital and insurance finance solutions for Owners, Sponsors, Lenders, Developers, Designers, Builders and Operators. He has extensive experience in assisting many of the A-E-C industry’s top companies in managing some of the most challenging risk exposures.

Special Areas of Expertise:

Mr. Perrucci is an internationally recognized specialist in integrated capital risks; professional & environmental risks; enterprise risk management; financial contingency risks; credit enhancement vehicles; captive insurance companies; alternative funding & transfer mechanisms; and complex project insurance & risk management programs. He advises leading clients with advanced risk capital solutions and is a frequent speaker on public & private sector financial risk management strategies. Mr. Perrucci has:

  • Led in the design & placement of risk management solutions for major projects with total construction values in excess of USD$ 167 Billion with a focus on complex infrastructure and P3 transactions (e.g. airports, education, government, healthcare, ports, military housing, rail, roads, stadiums, technology, etc.)
  • Led in the development and implementation of risk management programs of over 35% of the top 100 global designers & contractors.
  • Led as a market innovator in developing new products and solutions including the advent of the combined professional & pollution coverage format, “occurrence” form contractor professional liability and integrated capital & insurance risk financing to address the interrelated exposures of alternative project delivery.
Education/Professional 

Mr. Perrucci received a Bachelor’s degree with a major in Political Science and Economics from the State University of New York at Stony Brook.

Designations/Affiliations:

Published numerous articles on professional, environmental, design-build, alternative funding and integrated financial risk management.

Served as Chairman of the Insurance & Bonding Committee of the Design-Build Institute of America which provides assistance on legal, contractual, insurance, surety and risk management issues relating to “design-build-plus” project delivery.

Served on Board of Directors and Committees of the National Council for Public-Private Partnerships to promote the education, understanding and use of P3 project delivery.

Served regularly as a task force advisor to industry associations (e.g. ABC, ACEC, AGC, CFMA, DBIA, EJCDC, HWAC, NCPPP, etc.) on insurance and risk management strategies.


Areas of Practice

Construction

Public-Private Partnerships

Energy Infrastructure and Project Development

Experience

Alison Ashford is a Partner in the New York office of Seyfarth Shaw LLP and a member of the firm’s national construction practice.

Ms. Ashford has acted for the full spectrum of stakeholders in large scale infrastructure projects across the United States, United Kingdom and Asia Pacific regions. She has solid experience in the representation of clients involved in the delivery of projects via P3 procurement models (including rail, aviation, transportation, waste water and desalination projects) from a private and public perspective. Ms. Ashford has also acted for a number of large contractors within the energy, resources and mining sectors, with a distinct focus on LNG projects. Ms. Ashford’s more general experience includes acting for contractors and developers on road and transportation, civil and earthworks, manufacturing, pipelines and general building and infrastructure projects.

Contract Drafting, Negotiation and Interpretation: Ms. Ashford has extensive experience in acting on behalf of owners, contractors, subcontractors, suppliers and financiers in the preparation and negotiation of a vast range of project related agreements. She regularly advises on the risks and obligations under project agreements, including concession agreements with State entities in the context of P3 projects, and has experience with United States and international standard form contracts, as well as project specific agreements.

Contract Administration and Dispute Avoidance: Ms. Ashford is regularly engaged during the course of construction projects to provide advice in relation to the interpretation of contract terms and conditions. She provides timely and practical advice when contract administration issues arise and puts into place effective strategies for avoiding future disputes in projects.

Dispute Resolution: Ms. Ashford has represented owners, contractors and subcontractors in mediations and arbitrations, including arbitrations through the International Chamber of Commerce.

Education

Bachelor of Laws, University of Melbourne (2000)

Bachelor of Commerce, University of Melbourne (2000)

Admissions

New York

Victoria, Australia

Affiliations

American Bar Association

New York State Bar Association

Women’s Infrastructure Network

American Australian Association


David Hatem is a partner in the Boston-based law firm, Donovan Hatem LLP. Nationally recognized for his expertise in representing engineers, architects and construction management professionals, he leads the firm’s Professional Practices Group which serves design and construction professionals. He is regularly called upon by this country's leading architect-engineering firms to provide risk management strategies and solutions, especially on major subsurface projects.

Throughout his career, David has dominated the representation of consulting engineers and construction managers, providing legal advice to design and construction management professionals on major Boston-area construction projects, including:

  • The Massachusetts Water Resources Authority’s Boston Harbor Cleanup Project, and its Metrowest Tunnel Project;
  • The Massachusetts Highway Department’s Route 3 Design-Build Project;
  • The Massachusetts Bay Transit Authority’s Greenbush Project; and, most prominently,
  • The Central Artery/Tunnel Project.

In addition, David has been retained by professional liability insurers under owner-controlled insurance programs to represent engineering consultants and construction program management professionals on major projects throughout the United States, including: 

  • LaGuardia Airport Central Terminal Building Replacement;
  • Maryland Purple Line;
  • New York City’s East Side Access Project and Second Avenue Subway Project;
  • L.A. Metro’s Red Line and East Side Extension Projects;
  • Seattle’s Sound Transit Project;
  • Milwaukee Metropolitan Sewage District’s Deep Tunnel Project;
  • Dallas’ DART Light Rail Transit Project;
  • Houston’s Rapid Transit Project;
  • Washington’s Brightwater Tunnel System;
  • Virginia’s Midtown Tunnel; and
  • Seattle’s Alaskan Way Viaduct Project. 

For over 20 years, David has taught Legal Aspects of the Engineering Process at Tufts University School of Engineering. He also teaches Legal Aspects of Civil Engineering at Northeastern University Graduate School of Engineering. He frequently lectures on issues of professional liability and risk management for design and construction management professionals, and he has authored numerous related articles. His most recent book, in which he was a contributing author and co-editor, is Public-Private Partnerships and Design-Build: Opportunities and Risks for Consulting Engineers, published in 2016. He is also a chapter contributor and co-editor of both Megaprojects: Challenges and Recommended Practices, which was published in 2010 by the American Council of Engineering Companies, and the second edition of Design-Build Subsurface Projects, published in 2010 by the Society for Mining, Metallurgy, and Exploration.

Admitted To Practice

  • Massachusetts
  • U.S. District Court for the District of Massachusetts
  • U.S. Court of Appeals, First Circuit
  • U.S. Court of Appeals, Seventh Circuit
  • U.S. Claims Court

Education

  • Boston University (B.A., magna cum laude, 1974; J.D., 1977)

Business and Professional Associations

  • American Bar Association
  • Massachusetts Bar Association
  • Professional Practice Committee, Boston Society of Architects, 1984
  • Legal Counsel: American Council of Engineering Companies of Massachusetts, 1988-present
  • General Counsel for Design-Build Institute of New England, Inc., 2000-present
  • American Society of Civil Engineers (Affiliated Member)
  • Boston Society of Architects/AIA (Corporate Affiliate Member)
  • Transportation Research Board (Organizational Affiliate Member)
  • National Council for Public-Private Partnerships (Corporate Member)
  • International Bridge, Tunnel and Turnpike Association (Associate Member)
  • Geoprofessional Business (Individual Consultant Member)
  • New York Building Congress (Member)

Honors & Awards

  • 2016 recipient of the Engineering Center Education Trust (TECET) “Leadership in Professional Service to the Engineering Community” award. TECET presents this award in recognition of a career dedicated to the engineering sector.
  • 2008 American Council of Engineering Companies of Massachusetts Distinguished Service Award. ACEC/MA presents this award only in years in which a candidate distinguishes him or herself through the extraordinary support of the engineering profession.
  • Selected by his peers every year since 1990 for inclusion in The Best Lawyers in America® in the fields of Construction Law and Professional Malpractice. The Best Lawyers in America® lists attorneys who have been selected through an exhaustive nationwide survey in which thousands of leading attorneys evaluate their professional peers.
  • Reaching the height of professional excellence, David has received an AV Peer Review Rating from Martindale-Hubbell

Additional Information

  • Instructor, “Legal Aspects of Civil Engineering,” Northeastern University,2016 – Present
  • Instructor, “Legal Aspects of the Engineering Process”, Tufts University, 1994 – Present
  • Editor, Boston University Law Review, 1976-1977


Josh Leavitt advises his clients on a broad range of construction-law matters, including disputes, contracts, and counseling on industry risk. Co-chair of the construction practice, he has approximately 30 years of construction law experience, and is an elected Fellow of the American College of Construction Lawyers.

Josh has significant knowledge of the construction industry and has handled all manner of construction law matters for both U.S. domestic and overseas clients. He has represented the full spectrum of construction participants, including but not limited to owners, contractors, architects, engineers, suppliers, manufacturers, developers and commercial landlords and tenants. He has handled matters involving dozens of building systems and technologies, on a variety of building types, including but not limited to:   

  • stadiums and recreational facilities
  • process, manufacturing and chemical plants
  • ·oil refineries, alternative energy power plants and utilities
  • hospitals and medical buildings
  • museums and theaters
  • tunnels, rail, airports
  • industrial building and warehouses
  • foundries
  • boilers, furnaces, heat exchangers, hydraulic cylinders, and other large equipment installations
  • high-rises, condominiums, residences, hotels and parking garages
  • government buildings
  • quarries and breakwaters
  • universities and high schools
  • modular installations

On the disputes side, Josh has handled a wide variety of claims. The claims often relate to defective design and construction, scheduling, delay, disruption, interference, efficiency loss, out of sequence work, cost overruns, mechanics lien, wrongful termination, extra work, change orders, fraud, lending, insurance coverage, bonding, green building/sustainability, and commercial lease disputes. While experienced in traditional litigation, Josh is a frequent user of alternative dispute resolution techniques, including creative forms of mediation and arbitration. Josh has presented and cross-examined numerous expert witnesses, including structural, mechanical, soil, instrumentation, control system, process and chemical engineers; material scientists; roofing, HVAC, and other building system consultants; estimating, scheduling and damages experts; and numerous architects and builders.

Josh has substantial experience in litigating general commercial and non-construction industry disputes, including anti-trust, trade secret misappropriations, private equity and shareholder disputes, commercial lease disputes, will contests, lending, government investigation and regulatory matters. Many have been high profile, substantial disputes valued in excess of $100 million. Additionally, he is experienced in electronic discovery issues. 

On the transaction side, Josh counsels clients on delivery system selection, contract negotiation, risk management and licensing matters. Josh has drafted and/or advised clients regarding a wide range of construction and design project agreements and his litigation experience gives him additional insight into particular contract provisions. Josh also advises clients on contractor and A/E licensing matters. 

Josh is often called upon to identify and mitigate risk in connection with construction industry M&A transactions. Josh has led due diligence efforts in industry acquisitions and reorganizations. His deep industry experience enables Josh to help clients identify, assess and address risks of troubled projects for both sell side and buy side engagements. 

IN THE PROFESSION

Josh frequently lectures and publishes on construction and design law topics, including delay and disruption claims, construction damages, liability of design professionals and contractors, electronic discovery, successful mediation and arbitration strategies, wrongful termination, construction defects, claims prevention techniques, negotiating and drafting contracts, changes to industry form contracts, advanced and emerging delivery system choices, construction law issues on global infrastructure and P3 projects, insurance coverage, lending, green building/sustainability development and due diligence in construction industry acquisitions.

Since 2004 he has been a panelist for Practicing Law Institute’s leading annual national construction law symposium in New York, and since 2007 he has also served as a panelist for Practicing Law Institute’s annual Commercial Real Estate Institute. He has also presented to the prestigious Engineering and Construction Risk Institute.

Recognition:

  • American College of Construction Lawyers (elected in 2010)
  • Society of Illinois Construction Attorneys (electedin 2005 and elected to senior leadership positions since 2012)
  • Recognized by Chambers' USA for construction law since 2007
  • Designated an Illinois Super Lawyer in construction litigation (2006 – 2015)
  • Recognized since 2009 by Best Lawyers in America and Leading Lawyers
  • Rated “AV Preeminent” by Martindale-Hubbell for over ten years

In The Community

Among a number of philanthropic causes and volunteer activities, Josh was appointed by his local school board to serve on a committee that is overseeing a large high school design and construction project.

BACKGROUND

New York University School of Law
J.D., 1985

Yale University

B.A., 1982

Josh is admitted to practice in Illinois. He is also admitted to practice before the U.S. District Court for the Northern District of Illinois (including the Trial Bar).


Robyn Miller is Chief Counsel, Americas, for AECOM Technology Corporation, a global architecture, engineering, and program and construction management firm.  She began her legal career with Los Angeles construction firm Monteleone & McCrory, where she litigated cases for contractors and developers.  In 1995, she left private practice to go in-house with Daniel, Mann, Johnson, & Mendenhall (now known as AECOM Services, Inc.), a wholly owned subsidiary of AECOM Technology Corporation.

At AECOM, Ms. Miller has focused on professional liability and risk management for architects and engineers.  She is particularly interested in issues related to standard of care, Building Information Modeling, sustainable architecture, professional licensing, and creative dispute resolution.  She participates in the AGC BIM Forum, and was part of the group that drafted the initial ConsensusDOCs 301 BIM Addendum. She is also part of the AIA Large Firm Roundtable Chief Legal Officer group and has participated in the review and update of various AIA Documents.  Her current duties include overseeing AECOM’s Regional and Business Line counsel across North and Latin America.  She also sits on the company's Americas Leadership Committee.

Ms. Miller is a Fellow in the American College of Construction Lawyers and was elected to the Council for the Yosemite Conservancy (formerly Yosemite Fund), the primary nonprofit fundraising organization for Yosemite National Park.

Ms. Miller received her B.A. from Pomona College, and her J.D. from the University of Los Angeles, School of Law.


Licensed both as an architect and an attorney, Suzanne Harness focuses her legal practice on contract formation.  She provides risk management and other consulting services through Harness Project Solutions, LLC. She is an arbitrator on the American Arbitration Association’s panel of construction neutrals.

From 2002 through 2008 she was responsible for the content of AIA Contract Documents including the 2004 Design-Build Family, the 2007 revisions to the A201 Family, and new agreements for digital data transmission, Building Information Modeling, and Integrated Project Delivery. Prior to joining the American Institute of Architects, she practiced in the construction practice group of the Washington, DC office of Seyfarth Shaw LLP. Earlier in her career as an architect she served as an in-house owner’s representative for public and private owners, including the US General Services Administration, and as a project architect with architecture firms in the Washington, DC area.

An active writer and speaker, she is the author of the article Owner-Generated Agreements, in the 15th Edition of the AIA Handbook of Professional Practice published in 2013 and Public Private Partnerships: Managing the Opportunities and Risks for Zurich North America in 2015. She also authored chapters in books published by the American Bar Association in 2014: Integrated Project Delivery, Tri-Party Agreements, and Other Collaborative Arrangements, published in the book Construction Subcontracting; and Initial Decision Maker, published in Construction ADR. Recent speaking topics have included public-private partnerships, design-build and Engineer-Procure-Construct contracting, modern alternatives to the professional liability practice policy, and enterprise risk management. In September 2013, she presented “Design-Build Then and Now” at the ABA Forum on the Construction Industry’s Fall Meeting. In June 2014 she presented “What’s Hot in Design-Build” at the Practicing Law Institute’s annual construction conference in New York City.       

She received a B.S. in Architecture and M. Arch. from the Catholic University of America, and J.D. from the George Washington University Law School. She is a member of Tau Beta Pi, the national engineering honor society, as well as the American Institute of Architects, the American Bar Association’s Forum on the Construction Industry, and the Dispute Resolution Board Foundation.


Brian Perlberg is the Senior Counsel for Construction Law & Contract Documents at the Associated General Contractors of America (AGC). He serves as AGC’s lead in-house attorney for construction law and contract matters. He also serves as the Executive Director & Counsel for ConsensusDocs, a coalition of 40+ construction organizations dedicated to drafting best practice construction contracts.  Mr. Perlberg serves on the ABA Forum on the Construction Industry Steering Committee for the Contract Documents, the Advisory Board to Construction SuperConference, and WPL Publishing.


PATRICK J. O’CONNOR, JR.  Partner with the international law firm of Faegre Baker Daniels, LLP in its Minneapolis, Minnesota office.  He received his B.A. degree from Hamline University in 1975 and his JD degree from The American University in 1981.  He was law clerk to Miles W. Lord, Chief Judge of the Federal District Court for the District of Minnesota.  Mr. O’Connor’s practice focuses on construction, suretyship and insurance.  He has served as litigation or coverage counsel for contractors, owners, design professionals, and product suppliers in disputes venued in over 25 states and Canada.  He also acts as a mediator, arbitrator and expert witness in construction and insurance disputes.  Mr. O’Connor is co-author of Bruner & O’Connor on Construction Law (West Group 2002), an eleven-volume construction law treatise.  He was an adviser to the American Law Institute’s Restatement of the Law Third, Suretyship and Guaranty.  He works closely with a number of industry organizations on Building Information Modeling and Integrated Project Delivery initiatives.  Mr. O’Connor currently is Co-Chair of the BIMForum’s Legal Subforum.  Since 2007, Mr. O’Connor has counseled the AIA’s Documents Committee in connection with numerous contract forms.  Mr. O’Connor has held LEED AP (New Construction) certification through the U.S. Green Building Council.  He is a Fellow, former member of the Executive Committee, and Past-President of the American College of Construction Lawyers.  Mr. O’Connor is also a former member of the Governing Committee for the ABA Forum on the Construction Industry.  Mr. O’Connor is listed in “The Best Lawyers in America,” “International Who’s Who of Construction Lawyers,” and “Minnesota Super Lawyers.”