Originally published by the Daily Journal of Commerce on December 6, 2022.
With more and more corporate tenants and institutional owners looking to reduce their carbon footprints, clean energy improvements in initial project development as well as upgrades to existing projects have become more appealing. However, with interest rates and material costs on the rise
A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed by the parties, and might just result in a final agreement in one side’s sole discretion. In some cases, an LOI can be an enforceable agreement to negotiate in good faith toward a final agreement based, at least in part, on its stated terms. Even those LOIs that specifically say they are non-binding may, in fact, be binding. For instance, an LOI could be enforceable in its own right if all material terms of a final agreement are set out in the LOI and the parties’ conduct suggests they treated the LOI as a final agreement. Rather than being a “safe haven” that can be terminated at will without liability, an LOI can present great risk and unintended consequences to the parties if not recognized and handled with care. Missteps in documentation and/or subsequent conduct of the parties along the way could result in blown deals and damages. Even an otherwise carefully and clearly drafted LOI may not be free from risk or unintended consequences.
As the new State Route 520 floating bridge nears completion in Seattle, the 31 original bridge pontoons are ready for removal. Rather than breaking them up, the Washington Department of Transportation (WSDOT) will tow them through the Seattle ship canal and Ballard Locks to Puget Sound. In an epic display of recycling, they will be
In my latest Daily Journal of Commerce Construction column, I discuss some the potential risks for project teams to consider when drafting construction agreements under the current version of the LEED building rating program (3.0). Version 3.0 provides for Minimum Program Requirements ("MPRs") which a project must comply with to be certified under the LEED
Residential and non-residential contractors in California have been waiting for the new California energy-related regulations to be issued for the January 1, 2014 compliance deadline. Although many became effective on January 1, delays in the software performance compliance programs by the California Energy Commission required that additional time be provided for contractors to obtain and
In my latest Daily Journal of Commerce Construction column, I discuss generally the grounds for, and the potential consequences of, certification challenges on LEED-rated projects. As LEED-certified projects grow in popularity and abundance in the Pacific Northwest and elsewhere, all project participants need to know the basis for challenging LEED certification and the impacts arising from
While many in the Pacific Northwest claim to have seen Sasquatch or Bigfoot, few have any evidence to substantiate the existence of this fabled creature. Regardless, hope rings eternal for some that one day this beast will be catalogued as a genuine, albeit elusive, example of the “missing link” between man and ape.
Applying this
There’s big news in the battle between consultants in the green building industry and the U.S. Green Building Council (“USGBC”). Following almost a year of litigation, it appears that the USGBC may have defeated a $100 million class action lawsuit brought by engineers and designers, according to a court order issued last week. The plaintiffs&rsquo
In November 2009 the Washington State Building Code Council (“WSBCC”) approved amendments to the Washington State Residential Energy Code imposing additional energy efficiency requirements for newly permitted homes. The controversial changes, found in Chapter 9 of the new Code, are scheduled to take effect on July 1, 2010.
The new regulation at issue requires that
Performance bonds—insurance-like arrangements in which a surety (the bonding company) contractually agrees to pay for the performance of a principal (the contractor) to an obligee (the owner) in case the principal fails to perform the obligations of its contract—should be used more often in construction agreements to provide owners with a source of funds to cover defective work in a project.
Currently, owners typically require contractors to obtain insurance policies with the hope that such policies cover defects in the work they perform for the owner. Though owners are willing to spend a lot of money, time, and effort in obtaining these policies, insurers continue to make revisions to their policies to limit, and sometimes prevent, coverage for these defects.
Performance bonds may provide better protection to an owner. Typically, the bond provides funds to pay for repair of defective work that may not be covered by insurance as part of the bond’s guarantee of the faithful performance of the contract by the contractor.
Unlike insurance policies, performance bonds provide coverage only for the owner’s project—if an owner discovers a defect in the contractor’s work, the owner will not have to worry whether another owner’s claim against the contractor for another defective project will reduce the coverage available under the contractor’s bond. The performance bond’s recovery pool belongs to the owner for the specific project it is drafted to cover.