Anticipating the risks that weather conditions – and not just rain – pose to a project
As discussed in the MMM Construction Group’s previous Client Alert, weather can impact a project in more ways than just increasing the Contract Time and delaying when a project’s owner can put its asset to productive use. Weather impacts are more than days with actual precipitation. Muddy and frozen site conditions can also delay a project’s progress. Similarly, high winds can make it unsafe to operate cranes or install roofing components. Extreme temperatures can make it impossible to pour concrete, install other project components, and make working outside unsafe for a contractor’s workforce. Accordingly, project owners and developers must not only anticipate weather-related conditions that are likely to arise during the construction of the project but, more importantly, address them in the project’s construction agreements and effectively manage them when they occur.
Depending on the language included within the construction contract, weather impacts can entitle a contractor to an extension of the Contract Time or an increase in the Contract Sum. If the project is being constructed in a cold weather climate, contractors should include all costs associated with winter conditions in the agreed-to Contract Sum. Owners should ensure that the contractor has included the costs associated with building dry-in, temporary heat, clearing snow, site protection, and all other foreseeable impacts of cold weather conditions. Even more importantly, the contractor should not be allowed to address these costs as an allowance. If the contractor is allowed to include these costs as allowances, then the owner could be faced with expensive change order requests.
Weather-related incidents can also result in significant costs because of damage to the project. In coastal locations, hurricanes or other severe weather events may damage the structure and force work to be redone. Damages associated with the contractor’s failure to dry-in the project can cripple a project and cause significant damage to the interior of the project, including leading to the proliferation of mold. Should the contractor fail to dry-in the project, the project can be delayed by the efforts to remediate the mold and address the sources of water intrusion.
Weather can cause a variety of headaches for project owners, from construction delays to significant cost impacts. Accordingly, anticipating and planning for these impacts is crucial to ensuring that development projects are successful.
Morris, Manning & Martin’s Construction Law Practice Group is experienced in representing owners and developers of commercial and industrial properties. If you need any assistance in the process of drafting and negotiating design, engineering, or construction contracts please contact Bruce Smith, Chair of MMM’s Construction Law Practice Group, Colby Nelson, or JD Howard.
