The winter storm that brought snow, freezing temperatures, power outages, frozen water lines and bursting pipes to Texas, shutting down most construction projects in the process, forced many contractors and owners to take a look that their contracts to determine who is responsible for the ensuing delays and the costs to repair any damage.
Co-author: Trevor Lawhorn As evidenced by the unprecedented arctic weather last week and the resulting fallout, emergency construction services are essential. Freezing temperatures, hurricanes, tornadoes and other natural disasters lead to a high demand for remediation and reconstruction services. Contractors are often best positioned to provide the necessary emergency construction services to rebuild businesses, residences… Continue Reading
The general prohibition against waiving lien rights under Chapter 53 of the Texas Property Code has been written about extensively, and is well known through the industry. However, the Construction Trust Fund Act (Ch. 162 of the Texas Property Code) does not contain any such prohibition. From the Act itself, it is not clear whether… Continue Reading
Co-author: Trevor Lawhorn Published in Build Houston Magazine When non-payment occurs, suppliers and service providers often first seek relief by suing for breach of contract. Unfortunately, many companies are undercapitalized or otherwise “judgment proof.” A personal guaranty might mitigate this risk by providing an additional target, but guarantees are often difficult to obtain. Even if… Continue Reading
Co-authors: Russell Jumper and Tim Fandrey Published in Cleaning & Restoration Magazine Just as the Texas coast assessed the magnitude of Hurricane Harvey’s damage, Hurricane Irma was taking shape in the Atlantic. Fewer than two weeks later, Irma would crash into the Florida Keys. Estimates put Harvey and Irma’s combined impact in excess of $275… Continue Reading
Construction lawyers routinely deal with delay claims. I have presented or defended more of them than I can remember. That is why I was curious when, earlier this year, I received a series of email invitations to presentations on the use of “concurrent delay” as a defense to contractor or owner claims for delay damages… Continue Reading
Co-authors: Russell Jumper and Tim Fandrey Hurricane Harvey caused severe destruction in Texas with its significant winds and historic rainfall. But Harvey may also prove to be a costly lesson for many project owners and contractors. As Texas begins to focus on recovery in the coming weeks, Harvey will further serve as a reminder… Continue Reading
I was reviewing various articles I have written over the years and came across a prior version of this one about differing site conditions, written nearly twenty years ago. I was curious – does this cup still hold water?
Most commercial construction contracts contain a “No Damage For Delay” Clause and most contractors mistakenly believe they are Kings X for any potential claims related to delay caused by an owner or original contractor. While nearly every commercial construction contract contains the same or similar provisions, it is important to keep in mind they all… Continue Reading
Texas law imposes certain implied warranties on the sale of goods, regardless of whether the warranties are mentioned in the contract. In particular, Texas law creates the warranty of “merchantability” and the warranty that the goods are “fit for a particular purpose.”
Indemnifying someone for their own negligence is a tough pill to swallow. Yet, such clauses, often referred to as “broad form indemnities”, have been common for many years in Texas construction contracts.
Because of time constraints and the desire to get the business, subcontractors and suppliers routinely sign lengthy subcontracts and master service agreements without closely reading the terms and conditions. Below are some clauses that every subcontractor and supplier should review in a contract.
Arbitration clauses are very common in contracts in the construction and energy industries. Many industry players reflexively insist on arbitration despite its pitfalls. While arbitration has its place, a bench trial is a viable alternative to arbitration. Bench trials are simply trials to a judge rather than a jury. Parties may agree to a bench… Continue Reading
Subcontracts typically contain either a pay-when-paid clause or a pay-if-paid (i.e., contingent payment) clause. A pay-when-paid clause only deals with the timing of the obligation to pay the subcontractor. In other words, the general contractor’s obligation to pay the subcontractor (or the supplier) is due at some point in time after the the general contractor… Continue Reading
If you supply construction materials and/or equipment then you likely have encountered a joint check agreement. For those that have not yet encountered this arrangement, a joint check agreement is a credit facility frequently used to help subcontractors with unestablished credit obtain supplies and services on credit from a supply house. For example, if you… Continue Reading