Cambridge Massachusetts Building Expert Directory

As Recovery Continues, Home Improvement Stores Make Sales

August 27, 2013 — CDJ STAFF
Need another sign of the housing recovery? Lowe’s stock price is up. Bloomberg News reports that the home-improvement retailer rose by 88 cents a share in the last quarter. Analysts had predicted gains of 79 cents a share, and the same quarter last year saw profits of 64 cents a share. The increase in profits come from more purchases and higher spending per purchase. While Lowe’s negotiated some better prices with vendors and dropped some items that weren’t selling, none of the profits came from staff reduction; the retailer actually increased staffing. Home Depot, the largest such chain (Lowe’s is number 2), also saw profits that exceeded analysts’ projections. They, too, have decided to focus on assisting customers. Their increase in profits was attributed to greater spending by contractors and homeowners. Read the court decision
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Teaming Agreements- A Contract to Pursue a Solicitation and Negotiate

November 23, 2020 — David Adelstein - Florida Construction Legal Updates
Teaming agreements are practical and useful agreements on public projects where a prime contractor teams with a subcontractor for purposes of submitting a bid or proposal in response to a solicitation. The prime contractor and subcontractor work together to pursue that solicitation and have the government award the contract to the prime contractor. The teaming agreement allows for information to be confidentially shared (estimating and pricing, construction methodologies, systems, and suggestions, value engineering, etc.) where the subcontractor agrees that it will only pursue the solicitation with the prime contractor. In other words, the subcontractor ideally is not going to submit pricing to another prime contractor proposing or bidding on the same project and is not going to share information the prime contractor has furnished to it. Likewise, the prime contractor is not going to use the subcontractor’s information for purposes of finding another subcontractor at a lower price and is agreeing to use its good faith efforts or best attempts to enter into a subcontract with the subcontractor if it is awarded the project. This is all memorialized in the teaming agreement. The potential problem lies with language that requires the parties to use their good faith efforts or best attempts to enter into a subcontract if the project is awarded to the prime contractor. In essence, this can become a disfavored “agreement to agree” to a future contract that could allow either party to create an argument to back out of the deal under the auspice that they could not come to terms with the subcontract. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Harrisburg Sought Support Before Ruinous Incinerator Retrofit

September 20, 2017 — Jonathan Barnes & Richard Korman - Engineering News-Record
When former Harrisburg, Pa., Mayor Stephen Reed (D) and his aides set out to retrofit the city’s aging incinerator in late 2000, the project spun out of control over the coming years, enlarging the debt the city owed on the facility to $300 million and sinking Harrisburg into financial ruin. Reprinted courtesy of Jonathan Barnes, ENR and Richard Korman, ENR ENR staff may be contacted at ENR.com@bnpmedia.com Read the court decision
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New FAR Rule Mandates the Use of PLAs on Large Construction Projects

October 10, 2022 — Reggie Jones - ConsensusDocs
The Federal Acquisition Regulatory Council recently published a proposed ruled that, once implemented, will require the use of project labor agreements (PLAs) on federal construction projects with a contract value of $35 million or greater. The proposed rule revokes President Obama’s Executive Order 13502 and implements an Executive Order 14063 (E.O. 14063) issued on February 9, 2022. E.O. 14063 addresses the use of PLAs in the government contracts. Under the current Federal Acquisition Regulation (FAR), the use of PLAs on “large-scale construction projects” is discretionary. The new rule proposed by the Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) revises the FAR contract clauses making the use of PLAs mandatory. Under the proposed rule, contractors performing “large-scale construction projects” will be required to “negotiate or become a party to a [PLA] with one or more appropriate labor organizations.” FAR 52.222-33. A PLA is in essence a collective bargaining agreement between a local trade union and contractor that governs employment terms, including wages and benefits, for union and non-union workers. Although the PLA mandate only applies to large-scale construction projects with the contract value of $35 million and more, under the proposed rule, agencies have the option to include the PLA requirement for construction projects that are under the $35 million threshold. The proposed rule also sets out a flow-down requirement, which means that subcontractors working on a large-scale project must likewise be familiar with and comply with terms of the PLA negotiated by a prime contractor. Read the court decision
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Reprinted courtesy of Reggie Jones, Fox Rothschild LLP (ConsensusDocs)
Mr. Jones may be contacted at rjones@foxrothschild.com

Keep Your Construction Claims Alive in Crazy Economic Times

May 25, 2020 — Christopher G. Hill - Construction Law Musings
Coronavirus is dominating the news. Construction in Virginia is facing what is at best an uncertain future and at worst a series of large scale shutdowns due to COVID-19. The number of cases seem to grow almost exponentially on a daily basis while states and the federal government try and patch together a solution. All of this adds up to the possibility that owners and other construction related businesses could shutter and importantly payment streams can slow or dry up. Aside from keeping your contractual terms in mind and meeting the notice deadlines found in your contract, these uncertain economic times require you to be aware of the claims process. Along with whatever claims process is set out in the contract and your run of the mill breach of contract through non-payment type claims, in times like this payment bond and mechanic’s lien claims are a key way to protect your payment interest. The law has differing requirements for each of these unique types of payment claims. Mechanic’s liens are technical and statute based with very picky requirements. The form and content of a memorandum of lien will be strictly read and in most cases form will trump substance. Further, among other requirements best discussed with a Virginia construction lawyer, you must keep in mind two numbers, 90 and 150. The 90 days is the amount of time that you have in which to record a lien. This deadline is generally calculated from the last date of work (or possibly the last day of the last month in which you did work). File after this deadline and your lien will be invalid because the right to record a lien has expired. The 150 days is a look back from the last day of work or the date of lien filing, whichever is sooner in time. The 150 days applies to the work that can be captured in the lien. In other words, it dictates the amount of the lien. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Here's Proof Homebuilders are Betting on a Pickup in the Housing Market

April 15, 2015 — Victoria Stilwell – Bloomberg
Homebuilders have caught spring fever. Confidence among U.S. builders, measured by the National Association of Home Builders/Wells Fargo sentiment gauge, increased in April for the first time in five months. The group's measure of the sales outlook for the next six months climbed to the highest level since December, while a gauge of prospective buyer traffic also rose. With the housing market posting only middling progress in recent months, the fact that construction companies are optimistic is a good sign, especially heading into the crucial spring-selling season. The period usually starts in mid-February, with deals picking up the following months as the weather warms. What's more encouraging, though, is that builders seem to be putting money where their mouths are. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg

New York Appellate Court Applies Broad Duty to Defend to Property Damage Case

January 03, 2022 — Craig Rokuson - Traub Lieberman Insurance Law Blog
In the recent case of New York Marine and Gen. Ins. Co. v. Eastman Cooke & Associates, 153 N.Y.S.3d 840, 841 (N.Y. App. Div. 1st Dept. 2021), New York’s first department affirmed a duty to defend under New York law. In the underlying action, the plaintiff alleged property damages due to prolonged construction work in a different unit of the subject property. The underlying plaintiff sued the owner of the subject property, which in turn sued Eastman Cooke, the general contractor at the premises. New York Marine denied coverage to Eastman Cooke, asserting that the underlying suit did not seek damages occurring during the New York Marine policy period, and commenced a declaratory judgment action. The trial court held—and the First Department affirmed—that New York Marine has a duty to defend Eastman Cooke. Initially, the court found that the underlying suit alleged property damage as required for coverage, because there were allegations regarding loss of use of the property. The court also found that the underlying suit alleged damages occurring during the New York Marine policy period. Although the underlying complaint alleged that the underlying plaintiffs were reimbursed for damages occurring during the New York Marine policy period by another insurer, the court held that the evidence was that the payments only covered a certain part of the damages sought. Accordingly, because there was a reasonable possibility that some unreimbursed damages may fall within the New York Marine policy period. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

Privette: The “Affirmative Contribution” Exception, How Far Does It Go?

August 10, 2020 — Courtney Arbucci, Peter A. Dubrawski & Austin F. Smith - Haight Brown & Bonesteel
In Horne v. Ahern Rentals, Inc. (No. B299605, filed 6/10/2020 ord. publ. 6/10/2020), Plaintiffs filed a wrongful death action against Defendant Ahern Rentals, Inc. (“Ahern”) arising out of the fatal incident involving Ruben Dickerson (“decedent”), while employed by independent contractor 24-Hour Tire Service, Inc. Decedent was ultimately crushed on Ahern Rentals, Inc.’s property when a forklift that was improperly placed on uneven ground collapsed as decedent laid under the raised forklift as he performed tire maintenance. Plaintiffs’ suit would normally be barred by the Privette line of decisions which arise out of the foundational principle that an independent contractor’s hirer presumptively delegates to the contractor its tort law duty to provide a safe workplace for the contractor’s employees. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) The Privette rule is subject to a number of exceptions including the “peculiar risk” exception, the “nondelegable duty” exception and the “affirmative contribution” exception. (See Privette, supra.) Here, Plaintiffs’ claimed that their suit against Ahern arose out of the “affirmative contribution” exception to Privette as defined by Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker). Hooker allows suits otherwise barred by Privette to go forward if the hirer of the independent contractor “exercised control over safety conditions at the worksite in a way that affirmatively contributed to the employee’s injuries.” Reprinted courtesy of Haight Brown & Bonesteel attorneys Courtney Arbucci, Peter A. Dubrawski and Austin F. Smith Ms. Arbucci may be contacted at carbucci@hbblaw.com Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com Mr. Smith may be contacted at asmith@hbblaw.com Read the court decision
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