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Managing Risks from Below: Helpful and Problematic Clauses When Looking Up the Construction Ladder (for contractors, subcontractors and suppliers)

With new and divergent risks emerging constantly, and with contract risk being increasingly pushed down the construction ladder in different ways, taking stock of how you manage risk when looking up the ladder (both in general and on individual projects) is important. This is particularly so given our Court’s inclination to impose contractual terms as written, absent unusual circumstances that may be very difficult to prove.

In this hour and a half webinar followed by Q&A session, lawyers at Kennaley Construction Law highlight and discuss risks that you should be aware of, as well as how the person above you might look to off-load them on to you. Practical strategies and useful contractual terms and conditions will also be discussed.

Topics (or risks) covered in this seminar include:

• notice provisions and delay or unforeseen conditions clauses;

• pay-when-paid, pay-if-paid and unusual payment certifier clauses;

• contract “equivalency” clauses, which go beyond the ‘pay-when-paid’ to provide (in various possible forms) that subcontractors will only be compensated for changes or delay if the compensation is collected from the Owner;

•  material price/labour costs escalation and material/labour shortages;

• COVID-19 and the associated scheduling, cost and health and safety risks;

• Construction Act risks, including those related to prompt payment and adjudication (which are not satisfactorily addressed in standard form contracts);

• over-reaching hold harmless and indemnification provisions;

• over-reaching insurance provisions; and

• dispute resolution clauses