In our increasingly electronic age, parties signing a construction contract, invoice, change order or other documents are as likely to do so by clicking on an “I agree” checkbox or inserting a digital signature, or e-signature, as they are to put pen to paper. In my first article for the Daily Journal of Commerce,
Your Contract Might Not Be Ironclad: A Primer on Waiver-by-Conduct
Parties involved in a construction project can expect to spend much energy and effort to finalize the terms and conditions of a contract. Although those terms usually carry great weight in any contract dispute, of equal or greater importance can be the parties’ actions and course of dealing during construction. A lack of strict adherence
Recession Warnings Pile Up: Harbinger of Liens?
Some economic indicators point to a recession in the not-too-distant future, and parties involved in construction projects should take steps to avoid (or perfect) liens and protect their rights if there is a downturn. The complexities of Oregon’s lien laws are best negotiated with the assistance of experienced counsel. In my inaugural article for the
Commercial Lease Improvements
On December 13, 2019, I will be giving a presentation on construction-related topics arising from commercial lease improvements. The presentation is part of a two-day seminar on Advanced Commercial Real Estate Leases, co-chaired by my colleague, John A. Fandel, and hosted by Law Seminars International. Topic will include insurance coverage, mechanic’s liens, scheduling, indemnity, safety,
Upcoming Seminar on Public Works
My partner Colm Nelson and I are on the panel of a seminar on June 5 sponsored by the Seminar Group. The program is called “Bidding Public Works & Construction Contracts.” There is still time to sign up at the Seminar Group website. Colm is talking about insurance. For my presentation, I took the
Five Reasons to Get the Contract Signed Before Construction Starts
In the Pacific Northwest, Mother Nature can play a large part in whether or not a construction project will be completed on time and on budget. The importance to both owners and contractors of starting a construction project in order to take advantage of a window of good weather or other factors can make finalizing
Reimagining the Dispute Resolution Provision in Construction and Design Contracts
In construction projects, experienced owners, contractors, or designers know that disputes will almost invariably arise — even when the parties have the best of intentions. And they understand that detailed contract provisions to resolve those disputes can have major benefits if they are properly drafted to suit the project, parties, and types of dispute most
Reminder of January 1, 2019 Mandatory New Notice Requirement by CA Residential Solar Contractors
In 2017, the California Legislature passed a bill that resulted in Business and Professions Code (BPC) section 7169, which ultimately would require Home Improvement Contractors, which include contractors that install solar systems on residences, to issue specific disclosures to any residential consumers who may want to purchase, finance or lease, and install a solar system on their property. Recently in August, the California Public Utilities Commission “endorse[d] the solar energy systems disclosure document as being compliant with [BPC section 7169]….” The Disclosure terms include:
- The total cost for the solar system, including financing and energy/power costs (if applicable);
- The statutory License Board Disclosure statement for contractors and / or the home improvement salesperson who sold the system information regarding with whom to file if there are complaints; and
- The statutory Three-Day Right to Cancel Disclosure if the contract is not negotiated at the contractor’s place of business.
“Is Mike M. Johnson Here to Stay?”—Recent Washington Supreme Court Case Upholds Contractual Waiver of Claims Provision
In Nova Contracting, Inc. v. City of Olympia, No. 94711-2 (Wash. Sept. 29, 2018), the Washington Supreme Court, sitting en banc, ruled in favor of a municipality on the issue of whether the general contractor complied with a contract’s notice of claim provision. Relying on Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d 375, 78 P.3d 161 (2003), the court in Nova Contracting held that a broad notice of claim provision (waiving “any claims” for noncompliance) (a) mandates written, rather than actual, notice of claims and (b) applies not only to claims for cost of work performed, but also to claims for (i) expectancy and consequential damages and (ii) breach of the covenant of good faith and fair dealing. Slip op. at 2-3, 15.
The case arose from certain disputes between the City of Olympia (the “City”) and a contractor (“NOVA”) in connection with a public works contract in which the contractor agreed to replace an aging cement culvert. The contract contained a “notice of protest” provision from the Washington State Department of Transportation’s standard specifications. This provision required the contractor to “‘give a signed written notice of protest’ ‘[i]mmediately’ if it ‘disagree[d] with anything required in a change order, another written order, or an oral order from the [City] Engineer, including any direction, instruction, interpretation, or determination by the Engineer.’” Id. at 1-2.
Developers and Builders Gain Time from Permit Expiration in California with AB 2913
After decades of dealing with a hodgepodge of local adoption (or not) of administrative codes relating to building permit extensions, California Governor Brown’s September 21, 2018 signature on AB 2913 is a welcome addition of at least six months to the existing statutory commencement of work period. AB 2913 allows a uniform 12-month period across