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Drafting and Enforcing Complex Indemnification Provisions
Drafting And Enforcing Complex Indemnification Provisions D. Hull D. Hull Youngblood, Jr. and Peter N. Flocos Youngblood, Jr. is a partner in the Forget about copy and paste. The best indem Austin, Texas office nification provisions start with the details of of K&L Gates LLP. Mr. Youngblood the transaction. focuses his practice on government contracting, the security industry and com plex THE PURPOSE of this article is to assist transactional financial transactions, and regularly represents and litigation attorneys in the negotiation and drafting clients in a wide array of local, state, and federal of customized, and therefore more effective, indemnifi- contracting transactions and disputes. He can be cation provisions in a wide range of situations, and also reached at [email protected]. to spot certain litigation issues that may arise out of in- demnification provisions. This article will identify issues Peter N. and strategies and suggested language that can act as a Flocos starting point to protect the client’s interests in the area is a partner in the of indemnification in complex transactions and litigation. New York City Readers should note that this article is for informational office of K&L Gates purposes, does not contain or convey legal advice, and LLP. Mr. Flocos, may or may not reflect the views of the authors’ firm or who began his any particular client or affiliate of that firm. The infor- legal career as mation herein should not be used or relied upon in regard a transactional lawyer and then to any particular facts or circumstances without first con- became a litigator, sulting a lawyer. -
50 State Survey(Longdoc)
AGREEMENTS TO INDEMNIFY & GENERAL LIABILITY INSURANCE: A Fifty State Survey WEINBERG WHEELER H U D G I N S G U N N & D I A L TABLE OF CONTENTS Introduction 1 Alabama 4 Alaska 7 Arizona 12 Arkansas 15 California 19 Damages arising out of bodily injury or death to persons. 22 Damage to property. 22 Any other damage or expense arising under either (a) or (b). 22 Colorado 23 Connecticut 26 Delaware 29 Florida 32 Georgia 36 Hawaii 42 Idaho 45 Illinois 47 Indiana 52 Iowa 59 Kansas 65 Kentucky 68 Louisiana 69 Maine 72 Maryland 77 Massachusetts 81 Michigan 89 Minnesota 91 Mississippi 94 Missouri 97 Montana 100 Nebraska 104 Nevada 107 New Hampshire 109 New Jersey 111 New Mexico 115 New York 118 North Carolina 122 North Dakota 124 Ohio 126 Oklahoma 130 Oregon 132 Pennsylvania 139 Rhode Island 143 South Carolina 146 South Dakota 150 Tennessee 153 Texas 157 Utah 161 Vermont 165 Virginia 168 Washington 171 West Virginia 175 Wisconsin 177 Wyoming 180 INTRODUCTION Indemnity is compensation given to make another whole from a loss already sustained. It generally contemplates reimbursement by one person or entity of the entire amount of the loss or damage sustained by another. Indemnity takes two forms – common law and contractual. While this survey is limited to contractual indemnity, it is important to note that many states have looked to the law relating to common law indemnity in developing that state’s jurisprudence respecting contractual indemnity. Common law indemnity is the shifting of responsibility for damage or injury from one tortfeasor to another -
Force Majeure Weather Modeling by Dr
Force Majeure Weather Modeling By Dr. Gui Ponce de Leon, PE, PMP, LEED AP, PMA Consultants LLC Darrell D. Field, PE, LEED AP, PMA Consultants LLC John M. Zann, PE, LEED AP, PMA Consultants LLC Abstract Although adverse weather has impacted construction since before the pyramids, and when unusually severe is typically only deserving of a time extension without compensation, weather issues continue to generate their fair share of disputes. Even if not disputed, all significant grass root construction projects face weather impact issues that the parties may wish to recognize on an ongoing basis. Existing weather modeling methods can be cumbersome, overly technical and resource intense. In searching for practical approaches, the authors have developed new methodologies for modeling force majeure weather that provide objective evaluation of adverse weather impacts, for forensic as well as contemporaneous applications. Guidance for calculating normal adverse weather and force majeure weather day losses is provided, with examples to illustrate the new concepts. The focus of this paper is on the technical aspects of normal adverse weather and force majeure weather as opposed to the legal aspects. I. Adverse Weather Construction is impacted by adverse weather, with the actual impact varying from project to project, the site location and the region. The greatest impacts of adverse weather are upon construction exposed to the elements, whether directly as in the case of earthwork, concrete, etc., or when working inside interior, non-conditioned spaces. Precipitation, high winds, cold and hot temperatures, high rates of snowfall, not to mention exceptional weather events (acts of God), can all adversely affect progress, the production rate of the workforce and worker productivity. -
DWSRF Class Deviation for Water Rights
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF WATER NOV 2 6 201 9 MF:MORANDUM SUBJECT: Approval ofClass Deviation from the Regulatory Prohibition on the Use ofthe Drinking Water State Revolving Fund to Purchase Water Rights FROM: Anita Maria Thompkins. Directorr ~vf._ j //~ Drinking Water Protection Divisio~ /i( tVZ,,1//4~ TO: Water Division Directors Regions I-X The Office ofGrants and Debarment has approved a class deviation from the Drinking Water State Revolving Fund (DWSRF) regulatory prohibition at 40 CFR 35.3520(e)(2) (see attached memo). The clnss deviation al lows fo r the use of DWSRF funds for the purchase of water rights. which supports mt:eting the public health protection objectives ofthe Safe Drinking Water Act. For this class deviation, the purchase of 'water rights' is defined as the monetary value ofthe right to use \Valer from a given source (e.g., a river, lake, aquifer) to supply drinking water to an existing population. The purchase of water rights could include, but is not limited to, the following: the payment for the transfer of water rights from one entity to another, the purchase ofgroundwater credits, the purchase of storage capacity in an existing raw water reservoir, or the purchase ofnewly created/newly available \\,1 ter rights. A DWSRF project must meet the criteria outlined in the attached document. --Policy and Technical r·mluationfor a DWSRF Class Deviation.for Purchase ofWater Rights'· to be covered under this class deviation. States choosing to use this class deviation for assistance agreements involving water rights should notify the ir EPA Regional Project Officer of their intent. -
Back to Basics Professional Indemnity Construction and Engineering
Back to Basics Professional Indemnity Construction and Engineering womblebonddickinson.com Version 2 1 Contents Introduction Part A Understanding construction contracts and claims Construction contracts 5 Completion of construction works 7 Claims in construction projects 8 Part B Key legal principles behind professional indemnity claims in construction projects Contract vs. common law 11 Contractual “standard of care” ... and what it actually means 14 Transferring obligations in construction projects 15 What you need to establish to bring a claim 16 Summary of main dispute resolution forums 17 Insurance 19 Experts 20 Reduce the risk 21 Introduction Welcome to the Back to “‘One of the best firms out Basics booklet on there’... ‘a real pleasure to construction and work with’ according to engineering professional clients, who praise its ‘first-rate services’ and its indemnity issues. ‘perfect combination of The aim of the booklet is to assist intelligence, tactical those who are relatively new to prowess and personality’.” construction and engineering professional indemnity, or for those Legal 500 2018 who would benefit from a quick reminder of some key points. “Incredible. In terms of I hope you will find the material reporting, they’re well Hannah Cane useful. Of course, please do not Partner hesitate to contact me, or the rest of aware of what the market the team, should you have any requires. They’re questions. commercial, straightforward and can see the bigger picture. They know what direction to steer the claimant in.” Chambers and Partners UK Guide 2018 womblebonddickinson.com Version 2 3 Part A Understanding construction contracts and claims womblebonddickinson.com Version 2 4 Construction contracts The most common procurement methods are Traditional Parties and Design & Build. -
Force Majeure and Climate Change: What Is the New Normal?
Force majeure and Climate Change: What is the new normal? Jocelyn L. Knoll and Shannon L. Bjorklund1 INTRODUCTION ...........................................................................................................................2 I. THE SCIENCE OF CLIMATE CHANGE ..................................................................................4 II. FORCE MAJEURE: HISTORY AND DEVELOPMENT .........................................................8 III. FORCE MAJEURE IN CONTRACTS ...................................................................................11 A. Defining the Force Majeure Event. ..............................................................................12 B. Additional Contractual Requirements: External Causation, Unavoidability and Notice 15 C. Judicially-Imposed Requirements. ...............................................................................18 1. Foreseeability. .................................................................................................18 2. Ultimate (or external) causation.....................................................................21 D. The Effect of Successfully Invoking a Contractual Force Majeure Provision ............25 E. Force Majeure in the Absence of a Specific Contractual Provision. ...........................25 IV. FORCE MAJEURE PROVISIONS IN STANDARD FORM CONTRACTS AND MANDATORY PROVISIONS FOR GOVERNMENT CONTRACTS ......................................28 A. Standard Form Contracts .............................................................................................28 -
Navigating Supply Relationships in the Turbulent World of Coronavirus Disruption
Navigating Supply Relationships In The Turbulent World Of Coronavirus Disruption by John T. Shapiro A FREEBORN & PETERS LLP WHITE PAPER ABOUT THIS WHITE PAPER Businesses throughout the globe that rely on or service supply chains are experiencing COVID-19’s disruptive impact. The altered marketplace should prompt your company to take proactive steps to manage the disruption to its supply relationships. This White Paper highlights key issues and strategies you can use to protect your company The ongoing COVID-19 (“coronavirus”) How should your company assess and and its supply relationships. pandemic is having an unprecedented manage supply relationships and navigate adverse impact on trade and commerce. existing and future disruption caused Businesses throughout the globe by the coronavirus? No one-size-fits- supply chain dynamics and experienced that rely on or service supply chains, all solution exists. But, a mix of three at helping to resolve disputes between whether simple or complex, domestic primary considerations will allow your supply partners. or international, are experiencing the company to better control its fortune pandemic’s disruptive effect. even where current-day realities render This White Paper highlights key issues for supply relationships uncertain and more use by your company’s team in protecting Purchasers and suppliers of goods and difficult to maintain and manage: the company and its supply relationships services are assessing their rights and 1. Understand your company’s existing in the turbulent global marketplace the obligations toward one another. In supply agreement rights and coronavirus pandemic has created. determining its strategy for addressing obligations disruptions, it is important for your 2. -
Indemnity: "Pass-Through" Provisions
Indemnity: "Pass-Through" Provisions January 2005 by: James Donohue, Esq. and Edward M. Koch, Esq. Overlooking the subtle nuances of indemnity provisions in a proposed contract is a common—and often costly—mistake. Parties eager to win a bid often look past contract language which can require them to pay not only for their own mistakes, but for those of another party, too. (For more background on indemnity, see, “Who Pays For Your Mistakes”, Executive Newsletter, Fall 2004, located in the Publications Section of www.whiteandwilliams.com). For matters being decided under Pennsylvania law, a recent Supreme Court decision illuminates a previously dim region of the indemnity landscape. In Bernotas v. Super Fresh Food Markets, Inc., the Court substantially abrogates the use of so-called “pass-through,” “conduit,” or “flow-through” indemnification provisions that are common in construction subcontracts. Under the Supreme Court’s decision, “passthrough” indemnification provisions will only be valid if the indemnification obligation is stated in clear and unequivocal terms. Form book or cut-and-paste boilerplate won’t do. INDEMNIFICATION, GENERALLY Indemnification refers to one party’s obligation to pay for the liability of another for certain specified events. The source of this obligation can be either through the common law or, as addressed by the Supreme Court in Bernotas, through contract. Historically, Pennsylvania courts have closely scrutinized contractual indemnification provisions. For example, one could seek indemnity from another for one’s own negligence, but general indemnity language was insufficient to affect this end. Instead, a clear and unequivocal statement of indemnification for one’s own negligence had to be clearly spelled-out in the contract provision in order for it to be effective under Pennsylvania law. -
COVID-19 Q&A: a Handbook for Government Contractors During The
ESPONSE COVID-19 R COVID-19 Q&A: A Handbook for Government Contractors During the Coronavirus Pandemic Updated: April 21, 2020 UPDATE: This Handbook has been updated to add discussion and links for new guidance and memoranda issued by federal agencies. Updated Sections are shown with BLUE highlight. The COVID-19 pandemic has presented unique challenges for companies performing federal government contracts. The operating landscape is constantly shifting and the communication and directives from federal agencies and state and local governments are often vague and contradictory. In response to a flood of information, advisories, memoranda, and alerts, we put together the following topics in a question-and-answer format to provide simple answers addressing some of the pressing issues and questions we are seeing from industry. TOPICS DISCUSSED 1. RECENT GUIDANCE BY FEDERAL AGENCIES 2. THE DEFENSE PRODUCTION ACT AND DPAS RATED ORDERS 3. CONTRACTOR IMMUNITY AND GOVERNMENT INDEMNITY 4. WORK SITE ACCESS ISSUES 5. FORCE MAJEURE, EXCUSABLE DELAYS, AND CHANGES 6. SUPPLIER MANAGEMENT 7. SUSPENSION OF WORK, STOP WORK ORDERS, TERMINATION 8. EMPLOYEE NOTIFICATION UNDER THE WARN ACT 9. COMMUNICATION WITH THE CUSTOMER 10. MAINTAINING DOCUMENTATION 1 1. Recent Guidance by Federal Agencies Q What guidance have federal agencies issued relating to COVID-19 and its impact on government contracts? Multiple federal agencies have issued memoranda regarding contract performance in the wake of COVID-19. The memoranda address agency expectations, and the Department of Defense (DoD) and civilian agency guidance differ slightly. Contractors should consider guidance specific to their customers, which include: Department of Defense, Implementation Guidance for Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act, April 9, 2020 On April 8, 2020, DoD Defense Pricing and Contracting released guidance implementing Section 3610 of the CARES Act, Pub. -
BIMCO COVID-19 Crew Change Clause for Time Charter Parties 2020
BIMCO COVID-19 Crew Change Clause for Time Charter Parties 2020 (a) In addition to any other right to deviate under this contract, the Vessel shall have liberty to deviate for crew changes if COVID-19-related restrictions prevent crew changes from being conducted at the ports or places to which the Vessel has been ordered or within the scheduled period of call. Any deviation under this clause shall not be deemed to be an infringement or breach of this contract, and Owners shall not be liable for any loss or damage resulting therefrom. (b) Owners shall exercise the right under subclause (a) above with due regard to Charterers’ interests and shall notify Charterers in writing as soon as reasonably possible of any intended deviation for crew changes purposes. (c) Charterers shall procure that subclause (a) shall be incorporated into any and all sub-charter parties, bills of lading, waybills or other documents evidencing contracts of carriage issued pursuant to this Charter Party. (d) During the period of such deviation the Vessel shall: (i)* remain on hire, but at a reduced rate of hire of USD ……….. per day. In the absence of an agreed amount, fifty per cent (50%) of the hire rate shall apply. The cost of bunkers consumed shall be shared equally between Owners and Charterers. (ii)* be off-hire and the cost of bunkers consumed shall be for Owners’ account. (e) While the Vessel is at the port of deviation all port charges, pilotage and other expenses arising out of such crew changes shall be for the Owners’ account. -
An Overview of Indemnification and the Duty to Defend
AN OVERVIEW OF INDEMNIFICATION AND THE DUTY TO DEFEND Indemnification & Duty to Defend Subcommittee, ACEC Risk Management Committee Subcommittee Chair Theodore D. Levin, P.E., Attorney Morris Polich & Purdy LLP Subcommittee Members Karen Erger, Vice President, Director of Practice Risk Management Lockton Companies, Inc. Albert Rabasca, Director of Industry Relations XL Specialty Insurance Company Homer Sandridge, Underwriting Director, Professional Liability Travelers Insurance Creighton Sebra, Attorney Morris Polich & Purdy, LLP Principles and History One of the most basic principles of tort law is that every person should be responsible for damage that they have caused. Many states have reduced this concept to statute, each stating almost word for word that “Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.”1 In many lawsuits, a plaintiff’s damages are caused by the convergence of several contributing factors originating from several different sources. To give one common example, a plaintiff homeowner alleging property damages resulting from construction defects may assert claims in one lawsuit against any of the diverse parties that contributed various scopes of work to the project, including the general contractor, subcontractors and trades that contributed to the defective work, as well as design professionals such as civil engineers, architects, and structural engineers. To put it even more bluntly, the owner files one suit against everyone in sight. In practice, however, the plaintiff more often merely sues the party or parties with whom he or she contracted, and lets the named defendant(s) do the legwork to identify and sue other parties that may also be responsible. -
Characterization and Identification of Super-Effective Thermal Fire
NIST Technical Note 1440 Characteristics and Identification of Super- Effective Thermal Fire-Extinguishing Agents: Final Report, NGP Project 4C/1/890 William M. Pitts Jiann C. Yang Rodney A. Bryant Linda G. Blevins Marcia L. Huber NIST Technical Note 1440 Characteristics and Identification of Super- Effective Thermal Fire-Extinguishing Agents: Final Report, NGP Project 4C/1/890 William M. Pitts Jiann C. Yang Rodney A. Bryant Linda G. Blevins Building and Fire Research Laboratory Marcia L. Huber Chemical Science and Technology Laboratory June 2001 Issued July 2006 U.S. Department of Commerce Donald L. Evans, Secretary National Institute of Standards and Technology Dr. Karen H. Brown, Acting Director Certain commercial entities, equipment, or materials may be identified in this document in order to describe an experimental procedure or concept adequately. Such identification is not intended to imply recommendation or endorsement by the National Institute of Standards and Technology, nor is it intended to imply that the entities, materials, or equipment are necessarily the best available for the purpose. National Institute of Standards and Technology Technical Note 1440 Natl. Inst. Stand. Technol. Tech. Note 1440, 138 pages (July 2006) CODEN: NSPUE2 TABLE OF CONTENTS LIST OF TABLES............................................................................................................................................ iii LISTS OF FIGURES ........................................................................................................................................