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24 Jun, 2020

Take-Out Food and the First COVID-19 Force Majeure Opinion

2020-06-20T11:27:32-05:00June 24th, 2020|Construction Contractor Advisor, COVID Bankruptcy, COVID-19, Force Majeure|

An Illinois bankruptcy court was the first court in the country to issue an opinion on how a force majeure clause in a commercial lease would be applied to the COVID-19 pandemic.  Not surprisingly, the language of the underlying force majeure clause and the Illinois’ Governor’s executive order played critical roles in the court’s analysis.  As it turned out, take-out food saved the contract. The case involved a restaurant that [...]

5 Feb, 2020

Surety Hires Terminated Contractor to Finish Project

2020-02-03T09:20:54-06:00February 5th, 2020|Construction Contractor Advisor, Construction Defect, Construction Surety|

Imagine a situation where the property owner finds significant problems with its contractor’s work and decides to fire the contractor.  The property owner promptly informs the surety seeking a replacement contractor to finish the project.  The surety investigates the situation and decides to hire the terminated contractor to finish the project.  Sounds a bit odd, and certainly disappointing to the owner, but this can happen and did happen in a [...]

30 Jan, 2020

Construction Contract Basics—Schedule

2020-01-29T09:32:51-06:00January 30th, 2020|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law|

Last week’s post on the Las Vegas Raiders’ stadium got me thinking about scheduling language in construction contracts.  Scheduling is a critically important piece of the construction contract puzzle, yet not all contracts contain firm schedules or even start dates.  This may be because the general contractor wants some flexibility as to when the work will start. But, for the subcontractor, an elusive start date can wreak havoc on its [...]

22 Jan, 2020

Scheduling on Construction Projects

2020-01-18T12:53:43-06:00January 22nd, 2020|Construction Contractor Advisor, Construction Contracts, Delay Damages|

The schedule on construction projects is often as important as the budget.  So, when I read an article that identifies significant problems with a project, but specifically notes that the general contractor says that the problems will not create any delays, I often wonder if the parties are being realistic.  I also wonder whether the subcontractors will be forced to work extra time to make up the schedule. ENR recently [...]

15 Jan, 2020

Construction Contract Basics—Scope of Work

2020-01-11T10:37:04-06:00January 15th, 2020|Construction Contractor Advisor, Construction Contracts, Nebraska Construction Law, Scope of Work|

This year, every other blog post will address common construction contract clauses. My hope is that my readers will either find the content a good refresher or provide a new understanding of common construction clauses.  Today, I’ll address the Scope of Work provision. Some contractors and construction attorneys would argue that the Scope of Work provision in the contract is the most important section because it defines what a contractor [...]

14 Nov, 2019

What Can You Do to Get Paid on Your Project?

2019-11-13T18:47:44-06:00November 14th, 2019|Construction Contractor Advisor, Construction Contracts, Getting Paid|

Recently, I have had a number of conversations with contractors that are worried about getting paid on a project. Invariably, these contractors want to know what they can do to get what they are owed. Rarely is there an easy button to force these funds out of the owner or upstream contractor’s hands. And, a number of factors will figure into the analysis. A few things I would want to [...]

23 Oct, 2019

Construction Contracts—Considering the Long Game

2019-10-21T13:47:45-05:00October 23rd, 2019|Attorney Fees, Construction Contractor Advisor, Construction Contracts|

 A recent case out of Maryland ruled that a subcontractor must pay a general contractor $2,500,000 for construction defects arising out of a 2004 project.  Now, the case did take three years to wind its way through the courts, but would you be ready to defend even a 12-year-old claim?  Would you have kept the contract and documents related to the project?  Background This project involved the construction of a [...]

13 Sep, 2019

Do You Have Lien Rights under a Pay-if-Paid Contract?

2019-09-11T10:18:30-05:00September 13th, 2019|Construction Contractor Advisor, Construction Contracts, Construction Lien, Pay-if-Paid|

How often do you review the payment terms of a contract with an eye toward whether you are waiving lien rights under that contract? This is something you should consider if your contract contains a pay-if-paid clause. I am often times asked about the difference between a pay-when-paid and pay-if-paid clause. The real difference is that a pay-when-paid clause simply allows a contractor a reasonable amount of time by which [...]

16 Aug, 2019

Will You Get Paid for Delays? No Damage for Delay Clauses Say No. 

2019-08-16T14:47:48-05:00August 16th, 2019|Construction Contractor Advisor, Nebraska Construction Law, No-damage-for-delay|

No-damage-for-delay Clauses are commonplace in construction contracts.  But, have you ever read one and wondered if they are enforceable?  Courts across the country have consistently enforced them and these clauses will severely limit your ability to recover damages caused by delays, even if the delays were not caused by you. What is a No Damage for Delay Clause A no-damage-for-delay clause is just that, a clause that explains that if [...]

19 Jul, 2019

What Is the Work?

2019-07-23T07:45:14-05:00July 19th, 2019|Construction Contractor Advisor, Construction Contracts|

When you review a construction contract, are you also reviewing the description of the Work that you’ll be doing?  I mean, are you really looking at that section to make sure that it accurately describes what you will be doing, and perhaps more importantly, it identifies Work that you will not be doing?  I recommend that you spend a few extra minutes with your contracts to make sure the Work [...]

16 May, 2019

Never Underestimate the Importance of Contract Language

2019-05-11T09:00:03-05:00May 16th, 2019|Construction Contractor Advisor, Construction Contracts|

A recent article in ENR described the setbacks associated with a public rail project.  There are problems with the schedule, concrete quality, including precast girders , panels and rail ties, and allegations of fraud.  In a nutshell--a mess.  But, I wonder if there are contract provisions that address these problems.  Below are some problems on the project and my thoughts on contract provisions. Schedule. The article mentions that the general [...]