Context: Water intrusion during construction is one of the most common and expensive sources of dispute in roofing, envelope, and renovation work, particularly when the contractor must open an existing building before the new system is fully installed. The problem is that many contracts either say very little about temporary dry-in obligations or impose language so broad that it effectively makes the contractor responsible for any leak that occurs during the course of the work, regardless of sequencing, weather, occupancy, preexisting conditions, or the conduct of others. A well-drafted provision should avoid that trap by making clear that the contractor is required to use reasonable temporary protection measures consistent with the stage of the work and the conditions on site, but is not acting as an insurer of the building against all water intrusion under every circumstance. It should also address related issues such as hidden conditions, owner-directed phasing, force majeure weather, adjacent systems outside the contractor’s scope, and the owner’s obligation to mitigate interior damage once a problem is identified.
Sample Provision:
Contractor shall take commercially reasonable measures to provide temporary dry-in and protect only those portions of the Work directly opened or disturbed by Contractor during performance of its scope. Contractor’s obligation is limited to the exercise of reasonable care under the circumstances then existing, taking into account the stage of construction, weather conditions, available access, project sequencing, occupancy constraints, and the condition of the existing structure. Contractor does not guarantee or warrant that the Project, the building envelope, or any portion of the premises will remain watertight or free from water intrusion during the course of construction.
Contractor shall be liable only for direct physical damage to the extent caused solely by Contractor’s proven failure to exercise reasonable care in implementing temporary protection within its scope of Work. Contractor shall have no responsibility for, and expressly disclaims responsibility for, any water intrusion, leaks, moisture migration, mold, mildew, corrosion, deterioration, loss of use, business interruption, damage to contents, or other consequential or indirect damages arising from or related to preexisting conditions, concealed conditions, defective design, defective specifications, owner-directed sequencing, phased construction, occupied conditions, restricted access, unusual or severe weather, force majeure events, failure of adjacent or existing systems, or the acts or omissions of Owner, other contractors, tenants, occupants, or third parties.
Owner acknowledges that temporary dry-in during construction is not equivalent to final watertight performance and accepts the risk of loss for the existing structure, interior finishes, contents, equipment, inventory, and operations except to the limited extent of Contractor’s sole negligence as expressly stated herein. Owner shall be responsible for protecting or relocating furniture, equipment, inventory, and other interior contents in areas affected by the Work. Contractor shall have no responsibility for damage to such items unless caused solely by Contractor’s gross negligence or willful misconduct.
If Contractor encounters conditions requiring emergency protection, temporary repairs, additional covering, after-hours response, or other measures due to weather events, concealed conditions, existing system failure, owner demands, occupancy requirements, or causes beyond Contractor’s control, such work shall be deemed extra work and Contractor shall be entitled to an equitable adjustment in the Contract Sum and Contract Time. No claim relating to water intrusion or temporary dry-in shall be asserted against Contractor unless Owner provides prompt written notice and a reasonable opportunity to inspect and mitigate before permanent corrective work is performed.
