After much disagreement, the Owner, Designer, Insurer(s), and Contractor(s) have agreed to resolve their differences through a settlement. Do these things to help avoid future angst:
Written: All settlements should be written. A settlement is a new contract among the parties, so treat it as such. Besides, memories are fading faster than ever as we use more electronic media.
Essential Terms: Warranty, Indemnity, Confidentiality (detail all duties that end vs. those that continue).
Essential Documents: Don’t just reference other essential documents; attach them to the written settlement agreement (e.g., final lien/claim release, final change order, and/or tax forms).
Payment: Timing and Method. (If there will be damages for delay of settlement payment, consider adding a liquidated damages clause. Will payment be by wire transfer, physical check, credit, other?)
Enforcement: Include a liquidated damages provision if damages will come from delayed payment. And, since it’s a new contract, will you have to file another lawsuit to enforce the agreement? If so, consider a consent judgment where all parties pre-agree that if the terms are not met, a Court can efficiently and expeditiously enforce.
Closeout: Detail how, who, and when other issues will be closed (e.g., dismissal of all litigation or completion of outstanding work).
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AWARD UPHELD IN W.VA. CAISSON DISPUTE
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LET THE CONTRACT LEAD
Documents offer guidance needed to manage risk without derailing projects
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All court decisions are opinions. Appellate court decisions are typically made by a panel of three […]
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In June 2021, the South Dakota Department of Transportation contracted for the demolition and construction of a bridge on State […]
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WHEN APPROXIMATE MEANS ASSUMED RISK
A New York Court Shows How Performance Specifications Can Leave Contractors Holding the Bag
Sometimes when we are told […]
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FROM ROMAN ARCHES TO AI
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CAUGHT IN THE MIDDLE
New Mexico bridge case highlights the importance of written agreements for changes and delay compensation
In construction contracting, hope for […]
Roads & Bridges | Wait and It’s Waived
WAIT AND IT’S WAIVED
Roads & Bridges | Supreme Court Ruling on Arbitration Delay
Don’t wait to arbitrate! Progressing too far down the litigation […]
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BIDDING BLUNDER
Roads & Bridges | Court Defines When Contractors Can Withdraw Due to Mistakes
For over 125 years, the vast majority of jurisdictions […]
