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).
Prime Contractor Had No Duty to Help Surety Investigate Sub’s Default
We all know what happens when we “ASS-U-ME” something. So, we should all carefully avoid assuming things unnecessarily.
It’s Good to Be the King
Mel Brooks in the movie History of the World: Part I (1981) said it best – “It’s good to be the King.” It’s also true when asserting claims against the State or an arm or agent of the State.
Smoke Without Fire: Damage from Concrete Dust Covered by Insurance
You’ve heard, “where there’s smoke, there’s fire.” In this instance, the smoke was concrete dust that damaged a warehouse full of aircraft […]
Changes Made After Substantial Completion Did Not Extend Overall Project Time
Contractors take heed – a time extension may be issued after substantial completion for specific work and the Government can still assess […]
One-Sided Construction Arbitration Clause Valid in Virginia
When it’s time to butt heads, know how the local turf (court) will interpret the clause.
Manage the Risk of Construction Changes
Almost any problem on a construction project can be traced to one of two things: changes or delays (even delays are really just changes). As in life, embrace and manage the change don’t run from it.
Want Your Profit? Prove a Constructive Change, Not a Suspension of Work.
What’s the Difference Between a Suspension of Work and a Constructive Change? For federal contractors, there are two main differences: . . .
No Special Defenses to Arbitration Agreements
Arbitration agreements, whether they are separate or part of a larger agreement, are contracts – an enforceable set of promises between parties. […]
How to Find (and Confirm) the Plain Meaning in a Contract
Contract formation confirms the parties understand and agree to all the essential terms. When that understanding and agreement fades, how do you […]
