Copy
Twitter Facebook YouTube LinkedIn Google Plus Instagram
Andrews Myers
We Mean Business in Texas
Construction

Don't Let the Ice Result in Liquid(ated) Damages

by Brittany Cooperrider  Texas experienced freezing cold temperatures and outages of both power and water last week. These conditions and challenges disrupted normal routines, including work on many construction projects throughout the state. Contractors, especially those with a liquidated damages clause penalizing any delay in project completion, should be certain to immediately request any appropriate weather days or submit requests for extension of the project schedule.
 
Depending on the terms of the contract, extensions of time may need to be documented by a change order request or some other agreed upon mechanism. It is important to evaluate the contract procedures for requesting an extension of time. This ensures that it is submitted within the right timeframe and any dispute regarding entitlement to an extension of time is addressed in accordance with the terms of the contract. Delays in submitting an extension of time request may result in waiver of that request and could ultimately result in the assessment of damages, liquidated or otherwise.
 
If you have any questions regarding whether you may be entitled to seek a request for extension of time, or the appropriate procedure for doing so, please contact Andrews Myers.
Can you Pick & Choose Which Disputes Go to Arbitration?
by Adam Robertson  Arbitration agreements are included in almost every contract in the construction industry. Whether it is a contract between an owner and contractor, contractor and subcontractor, or subcontractor and supplier, in each case the controlling contract will contain an arbitration agreement. If you are asking why, the short answer is that arbitration is usually a simpler, quicker, and cheaper way to resolve disputes. Arbitration is a contractual creature that allows parties to resolve their disputes outside of the traditional judicial process to avoid the strict formalities and potentials for serious delays. Another reason is that arbitrators, unlike most judges, have professional experience in the general subject matter of the dispute—i.e. construction or business.

With that said, arbitration may not always be the best option depending on your situation. For example, if you have a dispute worth $5,000, arbitration is probably not the most cost effective method to recover that money. Likewise, Arbitrators are less prone to sympathy verdicts than juries, so in disputes where the contractual technicalities actually favor the other side, might a jury be more sympathetic to your case than a neutral arbitrator who knows your industry best?

Whatever the dispute may be, deciding whether arbitration is to your advantage or not, depends on a variety of factors. Consequently, a lot of owners, contractors, subcontractors, and suppliers try to create arbitration clauses that allow them to pick and choose when they want to resolve a dispute via arbitration or litigation. Can they actually do this, and if so, how? Read more...
Leveling the Playing Field? Fair & Open Competition Act Introduced in 117th Congress
by Patrick Kelly   Aiming to increase competition and opportunities for contractors on government projects, and to lower the cost of government construction, U.S. Congressman Ted Budd and U.S. Senator Todd Young introduced the Fair and Open Competition Act on February 24, 2021. This bill would prevent federal agencies and recipients of federal funding from requiring contractors to sign project labor agreements (PLAs) as a condition of winning federal or federally assisted construction contracts. 

A PLA is a jobsite-specific collective bargaining agreement used in the construction industry. Under a PLA companies are typically required to:
  • agree to recognize unions as the representatives of their employees on that job,
  • use the union hiring hall to obtain most or all construction labor,
  • exclusively hire apprentices from union programs,
  • follow union work rules, and
  • pay into union benefit and multi-employer pension plans that non-union employees will be unlikely to access.
 The bill’s proponents argue that this forces employers to pay “double benefits” into their existing plans and union plans, and places firms opposed to these costly provisions at a significant competitive disadvantage. Read more...
Employment
Yes, Employers Can Require the COVID-19 Vaccine
As a follow up to our December Newsletter Article, we held a webinar to better explain what companies can do when considering whether or not to require employees to get the COVID-19 vaccine. This was the first in a series of firm webinars, we call AM Talks, that you'll see from us this year.

On February 2nd, Tony Stergio, Andrews Myers Shareholder and Board Certified Labor and Employment Attorney, shared information for employers with the big question: Can we require employees to get a COVID-19 vaccination? He guided attendees through policies and procedures that should be put in place, laws to comply with, accommodations for non-vaccinated employees, and the legal liabilities related to all of these new processes.

Click here to watch the webinar in its entirety.
Impact of Executive Orders on Employers
by Elaine Howard Once in office, the Biden administration quickly got to work issuing executive orders and memoranda.  As expected, a number of those orders and memoranda focused on overturning actions of the previous administration that were viewed by Democrats as minimizing the impact of racial and ethnic inequalities in the workforce.

Of the 50 or more executive orders and memoranda that were issued, the following are the most significant that impact employers or employment law.

Advancing Racial Equity and Support for Underserved Communities through the Federal Government, issued January 20, 2021. This Executive Order asks each federal agency to review whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available under those policies and programs. It also tasks other governmental offices to study or coordinate efforts to reduce barriers to full and equal participation by all eligible individuals. This Executive Order also revoked Trump’s Executive Order (Combating Race and Gender Stereotyping), which was widely interpreted as prohibiting or restricting diversity training by federal contractors. Read more...
AM Sponsors HBJ's 2021 Commercial Real Estate Panel Series

For the third year, Andrews Myers is excited to be working with the Houston Business Journal to sponsor three more Commercial Real Estate panels in 2021. The first discussion has been announced for Thursday, April 8. You can Register here.

Real Estate
The Statute of Frauds in Real Property Conveyances
by Ammad Waheed   Many real estate practitioners are familiar with fast-moving transactions and letters of intent that leave out significant details, particularly when developers are acquiring rural acreage.  Diligence is often a rushed process where clients request that attorneys quickly sign off or flag only “major issues.”  It is also commonplace for purchase agreements to be negotiated in tandem with ongoing diligence. Agreements often evolve during the negotiation phase and exhibits – almost an afterthought – are populated just prior to execution. A recent opinion from the Eleventh Court of Appeals, however, offers a cautionary tale and a reminder of the importance of property descriptions.
 
In Dayston, LLC v. Brooke, the prospective buyer (Brooke) of $8 million of farmland sought a declaratory judgment that the underlying purchase contract was void due to an inadequate property description. Brooke’s real estate agent had drafted the purchase contract, a standard TREC Farm and Ranch Contract. Three parcels were to be conveyed; two had street addresses, and the third was described as “+/- 81.50 AC of A0681 Smith Hancock and A0057 DW Babcock or as described on attached exhibit, also known as Exhibit A.” Exhibit A then further described the acreage as “81.50 Acres – Part of A0681 SMITH HANCOCK & A0057 D W BABCOCK (1.91 ACS) Parcel. *Please note the 81.50 acre parcel is being surveyed and renamed. Title company will convey the new legal address once completed.”

The survey in question was not completed and delivered to the buyer until one day after the execution of the contract. There also did not seem to be any question that the parties knew exactly which acreage was to be conveyed and emails showed the parties discussing the exact acreage. However, the court concluded that the purchase agreement was nevertheless void because of a well-established precedent in Texas. Read more...
About Andrews Myers
Where to find Andrews Myers
03/04 - AGC Houston CLC Tailgate Happy Hour
03/05 - SPONSOR HCA Spring Clay Shoot
03/10 - Houston Apartment Association Virtual Business Exchange
03/11 - AGC Houston Women in Construction Town Hall
03/22 - ABC Houston Spring Golf Tournament
03/25 - HCA Forecast Lunch
Andrews Myers, PC
Founded in 1990, with offices in Houston and Austin, Andrews Myers, Attorneys at Law, is a corporate law firm and recognized market leader in Texas construction law.  The firm focuses on the concentrated disciplines of commercial litigation, construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues including bankruptcy and insolvency, energy, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com.
COVID-19 Updates
Andrews Myers attorneys have been tracking and updating the many changes that could effect you and your business throughout the ongoing COVID-19 Pandemic. To see all of the articles and information you may have missed, please visit our dedicated COVID-19 page on the AndrewsMyers.com website. To subscribe to our newsletter, click here
unsubscribe from this list | update subscription preferences