A Brief Discussion – Liquidating Agreements
June 27, 2022 —
Gerard J. Onorata - Peckar & Abramson, P.C.During a construction project, it is not uncommon for disputes to arise between a general contractor and a subcontractor. Frequently, these disputes involve claims for extra work and delay damages that can be attributed to the owner of the project due to deficient design or unforeseen conditions. When these occasions arise, the parties can often resolve these claims without the need for litigation or arbitration by entering into a “liquidating agreement.”
What is a Liquidating Agreement?
Because there is no direct contractual relationship between a subcontractor and an owner, there does not exist a legal basis for a subcontractor to assert a breach of contract claim against a project owner. In legal parlance, this is known as “lack of contractual privity.” A liquidating agreement bridges this contractual gap and allows a subcontractor to pass its claim against the owner through the general contractor. Essentially, with a liquidating agreement, the general contractor acts as a conduit for passing through the subcontractor’s claim.
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Gerard J. Onorata, Peckar & Abramson, P.C.Mr. Onorata may be contacted at
gonorata@pecklaw.com
4 Ways to Mitigate Construction Disputes
March 20, 2023 —
Bill Shaughnessy - ConsensusDocsResolving construction disputes in litigation (court or arbitration) can be expensive and may drag on for years. Most disputes could have been avoided, or at least mitigated, had the parties (both owners and contractors) identified contract risks during negotiations and been more proactive in communicating the risks during execution of the work. This article highlights four practical risk management approaches that help all parties focus on their mutual interest in close coordination and clear communication at the beginning of the project as well as throughout performance:
- Identifying and allocating risks;
- Accurate scheduling;
- Clear project documentation and communication; and
- Real-time dispute resolution.
The intent of these techniques is not to shift legal obligations or risks. Rather, the intent is to keep project personnel and project management for all the participants focused on communicating and working together, including responsibly confronting real problems to avoid or mitigate their impact. Allocating risks, scheduling, project documentation and communication, and real-time dispute resolution are independently relevant on a bilateral basis between the owner, designer, and the various contractors. These approaches and their diligent execution by the parties during construction contribute far more to a successful project than anything lawyers and claims consultants can contribute in after-the-fact legal proceedings.
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Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)Mr. Shaughnessy may be contacted at
bshaughnessy@joneswalker.com
Anthony Garasi, Jared Christensen and August Hotchkin are Recognized as Nevada Legal Elite
July 06, 2020 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is proud to announce Partners
Anthony Garasi and
Jared Christensen in our Las Vegas office, along with Associate
August Hotchkin in our Reno office are being recognized as Nevada Legal Elites in the Nevada Business Magazine.
The Nevada Legal Elite list includes the top 4 percent of attorneys in the state broken down by location. To qualify, each nominee goes through an extensive verification process resulting in the top attorneys in the state, chosen by their peers. Upon the nomination process closing, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada.
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
BWB&O ranks as a 2025 Best Law Firm by Best Lawyers®
December 10, 2024 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPBremer Whyte Brown & O’Meara, LLP is honored to announce the firm has been recognized for its fifth consecutive year in the 2025 edition of Best Law Firms® and is ranked by Best Lawyers® regionally in three practice areas. To read the publication, please click here.
Metropolitan Tier 1
Las Vegas: Litigation – Construction
Orange County: Litigation – Construction
Metropolitan Tier 2
Orange County: Family Law
San Diego: Litigation – Real Estate
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Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
Construction Contract Clauses Only a Grinch Would Love – Part 4
November 30, 2016 —
Garret Murai – California Construction Law BlogScope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The fourth and final part in a multi-part series, here are some other important construction contract clauses that can put a damper on your holidays.
Provision: Warranty Provisions
- Typical Provision: “Subcontractor warrants to Contractor that all materials and equipment furnished shall be new unless otherwise specified and that all Work performed shall be performed in a good and workmanlike manner, of good quality and free from defects, and in conformance with industry standards, manufacturer’s recommendations and the Contract Documents. All work not conforming to these requirements, including substitutions not properly approved, shall be considered defective. Subcontractor agrees to promptly make good any and all defects due to faulty workmanship, materials and/or equipment which may appear within the Contract Documents, and if no such period is stipulated in the Contract, then for a period of one year from the date of acceptance by the Owner. Nothing herein shall shorten or limit any applicable periods of limitations including, but not limited to, those set forth in Civil Code, Part 2, Title 2, Chapter 3.”
- What it Means: Warranty periods are subject to the agreement of the parties. However, warranties are different than limitations periods, such as California’s 4 year statute of repose for patent defects and 10 year statute of repose for latent defects (note: a statute of repose is different than a statute of limitation. A statute of repose sets a deadline based on an event. So, for example, under the 10 year statute of repose for latent defects a claimant must bring a latent defect claim within 10 years following substantial completion even if the latent defect wasn’t discovered until 10 years and 1 month following substantial completion. A statute of limitation, in contrast, sets a deadline based on the occurrence of an injury or damage. So, for example, California has a 2 year statute of limitation for personal injuries, which sets a deadline of 2 years from the date of injury to bring a personal injury claim). Warranty periods are also different from limitations periods because most warranties require work to be corrected at no cost, and because many contracts include attorney’s fee provisions, breach of a warranty can give rise to claim for attorney’s fees as well.
- What You Can Do: Lower-tiered parties should examine warranty provisions to see if they are reasonable, and if not reasonable, should seek to either eliminate or limit those provisions, such as by reducing the warranty period or providing different warranty periods for different components of work, etc.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
The Construction Lawyer as Counselor
June 10, 2019 —
Christopher G. Hill - Construction Law MusingsIt’s been a while since I discussed the role that I believe a construction lawyer should serve. Back in 2013, I discussed how those of us that practice construction law are seen as “necessary evils.” I was thinking over the weekend about certain clients and matters (as I often do, particularly in the shower) and came to the conclusion that the best role for me as a Virginia construction attorney is that of counselor and sounding board for my clients. Sure I come from a litigation background, enjoy working with other construction lawyers here in the Commonwealth, and often the first contact that I have with clients is when there is a problem, but I enjoy my practice, and I believe clients are more satisfied with their interactions with me when I try and provide a more cost effective and pragmatic solution than that which litigation or arbitration provides.
The six years of solo construction practice since 2013 (yes, I’m close to the 9 year mark with my practice) has only served to cement the fact that construction professionals need and want the “counselor” portion of “attorney and counselor at law.” Working as a sort of “in house counsel” to various construction companies, as opposed to simply dealing with the litigation, allows me to better understand their businesses and assist them in avoiding problems through contract review, discussions of situations that come up short of claims, and general risk management. I also get to know these mostly small business owners on a more personal level (sometimes even resulting in a fishing trip or two).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Home Buyer Disclosures, What’s Required and What Isn’t
February 05, 2015 —
Beverley BevenFlorez-CDJ STAFFAccording to Sandy Gadow of the Washington Post, while all states require a property disclosure statement, “the extent of what must be revealed can vary from state to state, county to county and even city to city.” Gadow stated that while, “Federal law requires certain disclosures, such as the existence of asbestos or lead-based paint in the home or other known health or safety risks. But the enforcement of other disclosures (such as reporting certain environmental conditions pertinent to the area, or the existence of Megan’s Law offenders) will be determined by local ordinance or law.”
Gadow recommends home buyers go to their state’s Department of Real Estate to discover the Seller Disclosure requirements.
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Part II: Key Provisions of School Facility Construction & Design Contracts
July 21, 2018 —
David R. Cook - Autry, Hall & Cook, LLPIn
Part I of this article, published in late April, we discussed the performance risk and time risk involved with construction and design contracts, and in Part II, we will cover cost risk and political risk.
Cost Risk
School budgets are limited for many reasons, and the construction budget is no exception. As a result, contracts should guard against unwarranted cost increases and claims. In the absence of a written change order signed by the appropriate officer, the contract should absolutely prohibit additional compensation for changes in the work. It should forbid claims for all events except those within the school authority’s sole control. Even for permitted claims, the contractor must provide written notice so that the authority might alleviate the problem and control its costs. To encourage the contractor to limit costs and claims, the contract could include a shared-savings clause, which grants an incentive payment for completion within the budget.
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David R. Cook, Autry, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com