Today, the construction industry faces a myriad of challenges – as well as the COVID-19 pandemic, rapidly increasing construction material costs, labor and material shortages, and a hot housing market are potential obstacles for project owners and contractors that, despite their best efforts and intentions, could prevent them from completing their construction projects on time.
When to Have the Hard Talk About Setting Liquidated Damages
In my latest column for the Daily Journal of Commerce, I look at the concept of liquidated damages – in my experience one of the top five heavily negotiated (and litigated) clauses in a construction contract. Because a project owner’s potential delay damages are often difficult to determine with certainty at the beginning of
Plan Ahead for Project Challenges in 2020
In the event of a near-term slowdown in the U.S. economy, analysts forecast that any resulting decline in construction starts will nevertheless leave the level of activity in that industry sector “close to recent highs.” As a result, project owners and general contractors already facing a strong demand for
Jane (or John) Hancock 2.0: Utilizing E-Signatures in the Construction Industry
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,
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
A Lawyer’s Checklist for Starting Strong
In the push to get a construction project started, important management tasks may be overlooked or subordinated by “higher priority” tasks, and the importance of completing many of those tasks may not become apparent unless there is a legal dispute. In my latest article for the Daily Journal of Commerce, I provide a brief
Is “As-Is” Really “As-Is” in Real Estate Contracts? Tell the Truth, the Whole Truth, or Risk Liability for Nondisclosure
The inclusion of an “as-is” clause in a contract for a real estate transaction has led courts in Oregon to allow parties to a deal to allocate the risk as to the property differently than through the historic concept of “caveat emptor” (let the buyer beware), which permitted a seller to shift the obligation to
When Can You Rest Easy? A Primer on Statutes of Repose
A statute of repose provides an outside limit as to when construction claims can be brought and is intended to give contractors and design professionals a degree of certainty as to when the risk associated with claims on a particular project diminishes. In my latest article for the Daily Journal of Commerce, I give
Choice of Law Provisions Cannot Bypass California’s Prohibition on Jury Waivers
Last week, the California Court of Appeal ruled that a property owner was entitled to a jury trial in a dispute with a lender despite the fact that the loan agreement contained a jury waiver provision and a New York choice-of-law provision.
The case involved the San Francisco apartment complex known as the Rincon Towers. In 2007, the plaintiffs borrowed $110 million on a two-year loan to finance the acquisition. In 2009, the plaintiffs failed to repay the loan. The plaintiffs claimed that under the terms of the loan agreement they were entitled to a one-year extension of the maturity date. The lender disagreed and instead completed a nonjudicial foreclosure sale.
Why Does the Proposed Indemnity Provision Look Different?
Have you noticed unusual language in a client’s contract pertaining to broad waivers of subrogation and acceptance of risks that you never thought your client would have? A brief trend in contract negotiations for many industrial projects has been the appearance of the so-called “knock-for-knock” indemnity provision. The term “knock-for-knock” is typically used for a