Risk Allocation in Joint Venture Agreement in Georgia is a significant component of the construction contract drafting process. Thus, part four of our series on Joint Construction Ventures in Georgia, focuses on this important area. If you missed our earlier installments of this five-part series, then please click the links below:
- Part I–Advantages and Disadvantages of Joint Venture Agreements in Georgia
- Part II–Key Operational Aspects of a good Joint Venture
- Part III–Internal Management of the Joint Venture
- Part V – Default and Remedies for Breach of JV Agreements
Risk Allocation on construction projects is one of the most important aspects of every joint venture agreement; basically, risk allocation divides the responsibilities of the joint venturers in the event that any problems occur or defects are claimed. In typical construction contracts, for example, a party who fails to perform the contract’s requirements is liable to the non-breaching party for the non-breaching party’s damages. In a joint venture situation, however, there are at least two parties who have come together to perform one contract; thus, if one of the two ventures breaches the terms of the contract, then both of the joint parties are usually jointly and severally liable to the owner of the project. Needless to say, participants in a joint venture need to address their ability to shift liability through the use of a properly negotiated joint venture agreement.
In Georgia, there are three vehicles which are commonly used to allocate risk on a construction project:
- Performance and Payment Bonds
Using Indemnities to Shift the Allocation of Risk: As mentioned above, the general rule is that parties in a joint venture share liability; so if one party breaches the contract–either due to mistake or negligence–both parties share the liability. Furthermore, this “default” risk allocation may be equal liability (both joint venturers share equally) or it may be limited to their pro rata share of interest in the joint venture. Using a properly negotiated contract, however, it is possible to (i) utilize line-item exceptions to this general rule, (ii) limit the liability to one party for the other party’s wrongful actions such as fraud, bad faith, willful misconduct (e.g., stealing).
Thus far in this article, we have implied that our discussion has referenced the JV’s liability to the project owner, but there are other types of liability which must be addressed. For example, employees of one of the joint venture participants may have claims against the JV; thus, it is wise for the parties to require mutual indemnifications to protect the joint venture and its participants from employee claims.
Using Insurance to Shift the Allocation of Risk: Owners, builders, and subcontractors generally understand and appreciate insurance as a means of limiting their exposure to risk. In joint venture agreements, when your company has joined with another company to complete a project which your company alone would have difficulty obtaining or performing by itself, insurance plays an even greater role. You may be wiling to assume a risk of which you, as owner, know about; however, are you willing to assume unknown risks deemed acceptable by your c0-joint venturer? Typical insurance needed by the JV or its participants include workers’ comp insurance, expanded CGL insurance to cover the Joint Venture and the joint venturers, Builder’s Risk Insurance, E&O , employer liability coverage, automobile liability insurance, as well as other pertinent coverages as may be determined by each unique construction project.
In addition to having the joint venture contract spell out the specific insurance, the parties need to make sure that all of the proper endorsements have been made. For example, each joint venturer should probably be named as an additional insured, and you may need waivers of subrogation against the joint venture and each participant to the JV.
Using Bonds to Shift the Allocation of Risk: Typically, joint venturers share their responsibility for bonding (in an amount equal to their percentage interests in the venture); sometimes, however, only one party has the credit to obtain the necessary bonding. If this is the case, it should be covered in the contract as, typically, each joint venturer is jointly and severally liable to the surety without limits to its percentage interests.
Utilizing a well-drafted joint venture agreement is vital to a company’s success in the current construction market. Failure to address key issues such as liability and risk allocation can irreparably harm the participants due to foreseeable and unforeseeable risks. If you are considering joining with another entity to participate in any construction project in Georgia, please contact an experienced construction lawyer to help you navigate these difficult waters and draft a contract that will help your business goals to be met.
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