A typical prevailing party contract provision allows the prevailing party in litigation or arbitration to recover their attorney’s fees from the other party. It is an attractive provision when negotiating a construction contract and its existence often weighs on the decision to pursue litigation or arbitration. However, which party “prevails” is not always easy to
USDOT Expands Financing for Certain Transit Projects
The U.S. Department of Transportation (USDOT) recently announced that it will offer more low-cost flexible financing for both transit and Transit Oriented Development projects under the Transportation Infrastructure Finance and Innovation Act (TIFIA). The TIFIA program is intended to help project sponsors reduce costs and speed up the delivery of transit projects. More applicants will
Connecticut Adopts New Codes
Effective October 1, 2022, Connecticut adopted new State Building, Fire Safety, and Fire Prevention codes. The new codes include 12 international and national model codes. The State Building Code applies to most buildings and other structures newly-constructed, altered, added to, or undergoing a change in use. The new codes apply to projects for which a
The AAA Revises its Commercial Arbitration Rules and Mediation Procedures
The American Arbitration Association (AAA) has revised its Commercial Arbitration Rules and Mediation Procedures, effective September 1, 2022. The goal of these revisions is to standardize longstanding AAA practices concerning confidentiality, consideration of consolidation/joinder motions, and civility. The amendments also further promote efficiency, reflect advances in technology, and include discussion on cybersecurity concerns. The
Don’t Pay for Your Performance Bond More than Once
An often-overlooked part of contract negotiations is the language included in the performance bond. While the owner or contractor (bond obligee) requires a performance bond and pays for it, negotiating efforts are typically spent on the main contract language itself rather than the bond. A common go-to performance bond form used in the construction industry
Subcontract Payment Provisions Mean Exactly What They Say in Connecticut
The recent Connecticut Appellate Court decision in Electrical Contractors, Inc. v. 50 Morgan Hospitality Group, LLC, 211 Conn. App. 724 (2022), eliminated any remaining doubt regarding a subcontractor’s right to payment for work performed when the subcontract includes a “pay-if-paid” provision. A pay-if- paid provision that makes an owner’s payment to the general contractor
A Liquidated Damages Provision Might Not Liquidate All Potential Damages
The purpose of a liquidated damages provision in a construction contract is to establish in advance a fair amount of compensation to the injured party for a breach of contract to avoid spending time and money fighting over uncertain actual damages after they occur. Generally, to be enforceable, a liquidated damages provision must satisfy three
Terminator Beware
Terminating a contract is a serious and sometimes risky decision. Whenever a client seeks advice regarding termination, a lawyer should stress the importance of strict compliance with the contractually specified termination provisions. One misstep by a terminating party who otherwise did nothing wrong could be a material breach of contract exposing the terminator to potentially