Firm attorneys Polly Jessen, Adam Giuliano, Emily Eads, Brandon Rattiner and Diane Sung explore issues associated with consequential damages provisions in construction contracts and provide guidance to those drafting such contract in a recent edition of the Transportation Research Board’s NCHRP Legal Research Digest.

“Public entities negotiating transportation construction contracts must strike the right balance between protecting the public from risk and according counterparties the flexibility necessary to complete projects. Few contractual provisions exemplify this tension more than those dealing with consequential damages do. The public nature and cost of transportation construction projects creates a risk of large consequential damages awards, which has led to a proliferation of different contractual clauses and strategies to mitigate this risk. In a recent edition of the Transportation Research Board’s NCHRP Legal Research Digest. This legal research digest explores the issues associated

with consequential damages provisions in construction contracts, and it provides guidance to those drafting such contracts. Specifically, this digest discusses:

• How and what kind of consequential damages are and are not awarded in transportation contract disputes;
• Potential risk to the parties to public transportation contracts of large consequential damages awards;
• Use of consequential damages provisions in industry practice and model forms to limit exposure to consequential damages risks;
• Federal, state, and common law rules bearing on consequential damages in the public transportation contracting context;
• Guidance on drafting consequential damages provisions;
• Examples of consequential damages provisions in state department of transportation contracts; and
• Trends in consequential damages provisions.

It also includes a checklist to help contracting officials, attorneys, procurement officers, planners, engineers, agency ­financial officials, administrators, and staff involved in the construction process navigate the risks associated with consequential damages in public transportation contracts.”

This guide to airport revenue was authored by firm lawyers Peter Kirsch and Christian Alexander and provides a legal analysis on the flexibility that airport sponsors have in use of their property and their revenue.  The guide focuses especially on non-aeronautical revenue and property use.  For a copy of the guide (which is available from TRB at no charge), click here or contact Peter Kirsch or Christian Alexander.

The National Academy of Sciences Transportation Research Board’s Airport Cooperative Research Program recently published Conference Proceedings on the Web 26: Public–Private Partnerships: What Are the Lessons Learned? as a summary of the presentations and discussions at an ACRP Insight Event held July 10-11, 2019, in Washington, DC. The event brought nearly 100 thought leaders and airport executives together to discuss opportunities and challenges in implementing public–private partnerships at airports. Kaplan Kirsch & Rockwell partner Peter Kirsch chaired the event.  

For a copy of the proceedings, click here.

Kaplan Kirsch & Rockwell attorney Eric Smith authored a report that explores permissible means and methods of encouraging and accommodating competition at U.S. airports.  It discusses the history of how competition has been addressed by government and airports and provides the context of the concentration of air carriers and fixed-base operators (FBOs), the accommodation of air carriers with differing business models, and avoiding the grant of exclusive rights when aeronautical service providers merge.

Competition among airlines and FBOs at U.S. airports presents a myriad of issues for the airport sponsor, its executives and for local elected officials—all of whom themselves often face multidimensional challenges and needs.  U.S. airports, and especially those which have used federal airport improvement funds, operate within a unique atmosphere.

Congress, through the enactment of airport funding legislation, created a broad and general framework within which airport sponsors must operate.  Much of this general framework has been supplemented by the U.S. Department of Transportation/Federal Aviation Administration and provides airport sponsors with some further guidelines within which airports must operate.  This framework/guidance, however, relies largely upon general standards such as dealing with airlines and FBOs in a “reasonable” and “not unjustly discriminatory” manner.  Given this fact, the resolution of competition issues at any particular airport is necessarily highly dependent upon the locally-derived factual context and, therefore, requires locally-derived solutions.

For a copy of the proceedings, click here.

Kaplan Kirsch & Rockwell attorneys Peter Kirsch and Nicholas Clabbers co-authored a report on the legal and operational issues encountered by airport sponsors that have implemented Safety Management Systems (SMS) in the United States.  The survey and report found that few airports experienced significant legal issues associated with SMS, but that implementation was often delayed because of FAA’s delayed rulemaking process.

For a copy of the proceedings, click here.

Kaplan Kirsch & Rockwell partner Eric Smith has authored an overview for airport management personnel and other interested personnel—such as airport authority board members and elected officials—to explain the issues related to labor-harmony or labor-peace agreements.  These agreements typically require an organization to become signatory to some form of an agreement with a labor organization and may lead to implications and legal entanglements.

For a copy of the proceedings, click here.

Kaplan Kirsch & Rockwell partner Eric Pilsk has co-authored a practical overview of the legal and operational issues airport operators should consider in connection with fuel farms, with a particular emphasis on how to evaluate changing the fuel farm ownership/management model.

On February 6, 2015, the Transportation Research Board published Legal Research Digest 23: A Guide for Compliance with Grant Agreement Obligations to Provide Reasonable Access to an AIP-Funded Public Use General Aviation Airport by Kaplan Kirsch & Rockwell, in cooperation with Aviation Management Consulting Group, Inc.  The obligation to provide reasonable access is a fundamental requirement for federally-obligated airports and is implicated in issues as diverse as leases, noise rules, and parachute landing areas.  To help general aviation airport operators understand their obligations in this complex area, the Digest contains a comprehensive overview of a general aviation airport operator’s legal obligation to provide access and specific discussions of how those general legal obligations apply in specific contexts that airport operators regularly face.

On July 11, 2013, the Transportation Research Board released ACRP Report 85: Developing and Maintaining Support for Your Airport Capacity Project.  The Report describes the lessons learned from previous airport capacity projects and translates that experience into specific recommendations for building a team and process to undertake capacity projects and for communicating effectively with stakeholders.  The Report was prepared by a team of airport professionals, including the Firm’s Peter Kirsch.

On December 26, 2012, the Transportation Research Board published ACRP’s Legal Research Digest 17: State and Federal Regulations that May Affect Initiatives to Reduce Airports’ GHG Emissions, prepared by the Firm. The Digest provides an introduction to legal issues that are relevant to implementing GHG mitigation measures at airports. Specifically, it describes the various sources of GHG emissions that are generated from airport-related activities; it summarizes the federal, state, and local laws that are most likely to be implicated in the implementation of GHG mitigation measures; and it explains how these laws may apply to specific measures.

For a copy of the proceedings, click here.