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 on construction projects. I’ve written about the subject in the past and wondered what, if anything, had changed.
Continue Reading A Myth About Delay – Revisited
Softening a Hurricane’s Blow: Force Majeure and Builder’s Risk
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 to all construction industry stakeholders that hurricanes, and other “acts of God”, are risks that must be effectively managed during the pre-construction and construction phases of every project. While it is difficult to effectively avoid the risks attendant to a highly-destructive, low probability event that occurs on short notice, owners and contractors have two primary tools at their disposal to mitigate the effects of such an event: (i) contractual force majeure provisions; and (ii) builder’s risk insurance.
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When is an Unforeseen Condition a “Differing Site Condition”?
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?
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How to Circumvent “No Damages for Delay” Clauses
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 have different authors, which means typically no two clauses are ever drafted the same.
This is particularly important when it comes to “No Damage For Delay” Clauses as the actual breadth of the language and scope will set the tone for their enforcement or circumvention. There are several common law exceptions to “No Damage for Delay” clauses recognized in Texas, which may be neutralized or ignored by the particular language of a “No Damage for Delay” Clause.
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Implied Warranties: Part One (Goods)
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.”
Continue Reading Implied Warranties: Part One (Goods)
Broad Form Indemnities in Construction Contracts
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.
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Important Contract Clauses for Subcontractors and Suppliers
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.
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Arbitration vs. Bench Trial
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
Pay-If-Paid Clauses: A Powerful Shield From Payment
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
Joint Check Agreements
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