The most common types of “differing and changed conditions” in construction contracts deal with subsurface issues such as inadequate support, unanticipated groundwater, or unanticipated natural or artificial subsurface obstructions. But what happens when an unusual differing and changed condition, such as an endangered species, or even an unexpected burial ground, impacts your project?  For example, a local $11 million project came to a halt when Kestrel falcons began dive-bombing the construction crew in an effort to protect their nest.

In this article for Properties Magazine, Mike Pascoe, Aaron Evenchik and Rob Port provide tips for mitigating the risk associated with encountering these unique situations on a project.

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Photo of Michael B. Pascoe Michael B. Pascoe

Michael B. Pascoe is a trial lawyer with experience in a wide range of commercial litigation representing both individuals and corporations in state and federal court. Mike routinely manages breach of contract claims, construction disputes, facilities management litigation, and business claims. He also…

Michael B. Pascoe is a trial lawyer with experience in a wide range of commercial litigation representing both individuals and corporations in state and federal court. Mike routinely manages breach of contract claims, construction disputes, facilities management litigation, and business claims. He also advises clients on contract negotiation, commercial lease negotiations and construction contracts. Mike frequently represents clients before the Occupational Safety and Health Review Commission.

Photo of Aaron S. Evenchik Aaron S. Evenchik

Aaron S. Evenchik specializes in construction and real estate law, where he represents clients in both transactional and litigation matters. His cross-practice technique allows him to help resolve disputes innovatively and effectively. Aaron’s experience with transactions and handling multiple first chair litigation/arbitration matters…

Aaron S. Evenchik specializes in construction and real estate law, where he represents clients in both transactional and litigation matters. His cross-practice technique allows him to help resolve disputes innovatively and effectively. Aaron’s experience with transactions and handling multiple first chair litigation/arbitration matters enables him to better understand the goal of the deal and draft transactional documents to avoid problems and disputes. He advocates for and assists clients of all sizes to explore and close on properties, obtain zoning and to grow their businesses and meet their objectives.

Photo of Robert B. Port Robert B. Port

Robert B. Port has extensive experience in business tort litigation, representing both plaintiffs and defendants, nationally, including breach of contract, tortious interference with contractual relations, misappropriation of trade secrets, and breach of fiduciary duty. Robert has represented clients nationally in class-action lawsuits. He …

Robert B. Port has extensive experience in business tort litigation, representing both plaintiffs and defendants, nationally, including breach of contract, tortious interference with contractual relations, misappropriation of trade secrets, and breach of fiduciary duty. Robert has represented clients nationally in class-action lawsuits. He has a masters degree in mechanical engineering and worked as a research-and-design engineer for over a decade before switching careers.