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Business Insight from the Ground Up
No Damage for Delay - New Spin on Standard Clause?
Mike Cortez -- As we’ve all heard, “time is money,” and in the construction contracts, more importantly – “time is of the essence.”  Time and money are vitally important to all parties on any construction project, so the ability of one party to force upon another a contract clause that removes the ability to recover money for lost time sets the stage for a constant and usually expensive fight; a fight in which the imposed-upon party may suffer significant financial losses.  Owners generally benefit most from a no damage with delay clause, but contractors who negotiate flow-down provisions, or independent no damages for delay clauses, with subcontractors and other lower-tier parties can also use the clause to their benefit.  This article is not to debate which party is the best or “right” party to bear that loss, however an interesting case from outside of Texas has shed some possible light on recovery options in the event of a no damages for delay clause fight – whether it be in the negotiation process or the litigation stage.  Read more...
You Agreed to a "Pay-If-Paid" Provision, You are on the Job and You Aren't Getting Paid...
Kenton Andrews --  A subcontractor in that situation might be kicking itself for agreeing to that type of risk shifting provision. However, the Texas Business and Commerce Code offers subcontractors a “post-contractual” ability to object to the contract term it regretfully agreed to. This potentially powerful and underutilized tool may potentially impair the general contractor’s ability to rely on the pay-if-paid clause if the subcontractor gives the general contractor a timely and effective notice objecting to the enforcement of the clause, and if the contractor fails to timely advise the subcontractor (in writing) that its notice of objection is ineffective due to the subcontractor’s default.  Read more...
Welcome Jack P. Turano, III
We are pleased to announce that Jack P. Turano, III, joined the Houston office of Andrews Myers as a Senior Associate in the Corporate and Commercial Real Estate practice groups.
Prior to joining the firm, Jack served as in-house counsel for a global renewable energy company and market leader in the utilities sector, where he led internal and external counsel on all matters related to their portfolio, including mergers and acquisitions, site acquisition, construction contract review, licenses, purchase agreements and other development agreements throughout The Americas.  

His practice within the firm will be devoted to commercial real estate, energy, corporate and commercial transactions. His real estate practice covers all aspects of the process of buying, owning, developing, financing, leasing and selling commercial real estate.

An Honors College graduate from the University of Houston, Jack received his J.D. from South Texas College of Law in 2011. 
A Letter from the IRS is Never Good News
Julia Bennett-Jean -- The Affordable Care Act (ACA) still requires employers with more than 50 full-time employees (or full-time equivalent) to offer health insurance that meets the statute’s requirements for affordability and minimum value to all full-time employees.  While the Internal Revenue Service’s (IRS) enforcement of this “employer mandated” shared responsibility provision has not been a priority, the IRS has announced that it has begun enforcing this provision.  Read more...
Leave Might not be a Reasonable Accommodation Under the ADA
Tony Stergio -- It has long been held that the employee may be able to request leave as an accommodation under the ADA, if the employee’s condition qualifies as a disability.  For example, a request for additional leave, above and beyond the 12 weeks of unpaid leave as provided under the Family & Medical Leave Act, has been held to be a potential reasonable accommodation if an employee provides a medical certification indicating that he or she will be able to perform the essential functions of the job if given the additional unpaid leave.

A recent opinion issued by the Seventh Circuit, however, held that an employer did not violate the ADA by denying an employee an additional three months of unpaid medical leave after the employee’s FMLA leave had expired.  Read more...
Bankruptcy Issues for Landlords and Tenants
Josh Judd -- Over the past couple of years, some of the country’s largest retailers have filed bankruptcy as brick and mortar stores go through a transformation to compete with on-line retailers.  Some of the largest bankruptcy filers include Toys-R-Us, Payless, Radio Shack, Gander Mountain, The Limited, Gymboree, among many others. The trend is likely to continue and bankruptcy may be the only option if some retailers intend to survive.  One of the primary reasons retailers file bankruptcy is because it allows a company to close and terminate leases on unprofitable stores and slash other debt.  Read more...
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