12/15/2021

Editor's Notes

The Americans with Disabilities Act is a Congressional effort to prevent and remedy discrimination against individuals with disabilities, with the burden of compliance placed on property owners. There is legal precedent that owners cannot contractually maneuver themselves —through the use of indemnification clauses—into a position where they have delegated ultimate responsibility to another party, such as the designer. That is the law in the state of Nevada.

 

The Nevada Supreme Court addressed a situation in which a public project owner did not use an indemnification clause to seek reimbursement from its architect. The owner simply sued the architect for breach of contract, seeking the anticipated cost of retrofitting the facility to correct alleged ADA noncompliance in the design. Was this an impermissible “contractual maneuver” to shift ultimate responsibility to the architect?

 

A decision by the Oklahoma Supreme Court also involved the impact of public policy on construction contracting. Could a prospective waiver of liens be imposed on a subcontractor by the flow down incorporation of a “no lien” clause from the prime contract? The sub had never expressly agreed to waive its lien rights.

 

The third case in this issue was a change order dispute. A “no cost” extension of time for weather-related delay was memorialized in a bilateral contract modification signed by the contractor. Did this bar recovery for subsequent delay to overall project completion allegedly caused by performing work in unfavorable seasonal conditions?

 

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