Doctrine of Merger Not a Good Blend for Seller of Sonoma Winery Property
April 15, 2015 —
Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLPIn Ram’s Gate Winery, LLC v. Joseph G. Roche, et al. (No. A139189 & A141090, filed 4/9/15) (Ram’s Gate), the California Court of Appeal for the First Appellate District held the doctrine of merger did not extinguish a seller’s contractual duty to disclose potentially hazardous seismic conditions on a Sonoma winery property.
In Ram’s Gate, the buyer of the property filed a lawsuit alleging the seller failed to disclose information relating to earthquake issues prior to the close of escrow. In the parties’ “Purchase and Sales Agreement” (Purchase Agreement) the seller agreed to disclose any information known to it regarding “known geological hazards . . . soil reports . . . geotechnical reports” and other facts “having effect on the value of the ownership or use of the property.” The seller, however, argued this disclosure warranty did not survive the escrow period because it did not expressly provide for survival while other provisions in the Purchase Agreement did.
Reprinted courtesy of
Kristen Lee Price, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Ms. Price may be contacted at kprice@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
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Homebuilders Call for Housing Tax Incentives
May 10, 2013 —
CDJ STAFFThe National Association of Home Builders has asked Congress to support tax incentives for home buyers and renters, including the Low Income Housing Tax Credit and the mortgage interest deduction. Robert Dietz, an economist at the NAHB, noted that in 2009, 35 million home owners were able to claim the mortgage deduction. Dietz responded to arguments that the deduction simply lead to people buying bigger homes by saying that “the need for a larger home created the higher loan deduction, not the other way around.”
The NAHB notes that one hundred new single-family homes creates more than 300 jobs and generates substantial tax revenues. “Housing provides the momentum behind an economic recovery because home building and associated businesses employ such a wide range of workers” said Dietz.
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ASCE Statement on House Passage of Infrastructure Investment and Jobs Act
November 15, 2021 —
American Society of Civil EngineersThe following is a statement by Dennis D. Truax, P.E., President, American Society of Civil Engineers (ASCE):
WASHINGTON, DC. – It is a great day for the nation as the U.S. House of Representatives passed the Infrastructure Investment and Jobs Act (IIJA), fulfilling President Biden's vision with a historic piece of legislation that will have monumental impacts on the economy, public safety, global competitiveness, and each American's well-being. Passage of this five-year, $1.2 trillion bill proves once again that the country can lead with infrastructure.
With this legislation, the federal government will restore their critical partnership with cities and states to modernize our nation's roads, bridges, transit systems, drinking water pipes, school facilities, broadband, ports, airports and more. Without a strong federal partner, local projects that are community lifelines have hung in the balance, oftentimes being paused or outright cancelled due to funding uncertainties. When this happens, American households and businesses are the ones who pay the price.
The IIJA is the culmination of decades of advocacy by American Society of Civil Engineers (ASCE) members who worked tirelessly to educate Congress about the role infrastructure plays in supporting the economy and our quality of life. ASCE's Infrastructure Report Cards have sounded the alarm on our nation's infrastructure conditions since 1998, with new reports being released every four years. While all categories of infrastructure have been the cause of some concerns, the common denominator behind each category's struggles has been a backlog of projects, overdue maintenance, and a need for resilience. This bill includes investments to repair and modernize these critical assets for almost all of the 17 categories in the 2021 Report Card for America's Infrastructure, which assigned our nation's infrastructure a cumulative grade of 'C-'.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Force Majeure Under the Coronavirus (COVID-19) Pandemic
March 08, 2021 —
Lindsay T. Watkins - Ahlers Cressman & Sleight PLLCAs COVID-19 disrupts work and life as we know it, the question many contractors have is what protections are available against the inevitable project impacts and delays? Generally, construction contracts require a contractor to timely perform work until project completion or potentially face damages (liquidated or actual) and possible termination. When events occur, however, that are beyond our control (such as a national pandemic), it is important to review and understand what contract provisions or avenues are available for potential relief.
1.
Review Your Contract For A Force Majeure Provision.
A
“force majeure” contract provision is commonly included in construction contracts, service agreements, purchase orders, etc. It typically covers events or conditions that can be neither anticipated nor controlled. These provisions, however, will vary greatly from contract to contract and may not include the language “force majeure” but rather may be included in general delay or impact clauses. For example, some common provisions include:
- Washington State Department of Transportation Clause (2018 Standard Specifications for Road, Bridge and Municipal Construction): The Contractor shall rebuild, repair, restore, and make good all damages to any portion of the permanent or temporary Work occurring before the Physical Completion Date and shall bear all the expense to do so, except damage to the permanent Work caused by: (a) acts of God, such as earthquake, floods, or other cataclysmic phenomenon of nature, or (b) acts of the public enemy or of governmental authorities; or (c) slides in cases where Section 2-03.3(11) is applicable; Provided, however, that these exceptions shall not apply should damages result from the Contractor’s failure to take reasonable precautions or to exercise sound engineering and construction practices in conducting the Work.
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Lindsay T. Watkins, Ahlers Cressman & Sleight PLLCMs. Watkins may be contacted at
Lindsay.Watkins@acslawyers.com
New York Court Enforces Construction Management Exclusion
March 14, 2018 —
Traub Lieberman Straus & Shrewsberry LLPIn its recent decision in
Houston Cas. Co. v. Cavan Corp. of NY, Inc., 2018 N.Y. App. Div. LEXIS 1138 (N.Y. 1st Dep’t Feb. 20, 2018), a New York appellate court had occasion to consider the application of a construction management exclusion in a general liability policy.
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Traub Lieberman Straus & Shrewsberry LLP
Remodel Leads to Construction Defect Lawsuit
October 16, 2013 —
CDJ STAFFThe Sacramento, California law firm Anderson Shoech has announced that it will be filing a construction defect lawsuit concerning a single-family home in Sonora, California. The remodel is alleged to have lead to roof leaks and mold growth. Anderson Schoech will have the home inspected by a general contractor who will be retained as an expert witness.
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Is the Issuance of a City Use Permit Referable? Not When It Is an Administrative Act
January 10, 2018 —
Adam E. Lang - Real Estate Litigation BlogArizona’s Constitution gives electors in cities, towns, and counties the ability to refer legislation that was enacted by their local elected officials to the ballot for popular vote. Ariz. Const. art. IV, Pt. 1 § 1(8). But only legislative acts are referable; administrative acts are not. In general, a legislative act makes new law and creates policy, is permanent in nature, and is generally applied. On the other hand, an administrative act is one that executes and implements a law already in place. Wennerstrom v. City of Mesa, 169 Ariz. 485, 489-90, 821 P.2d 146, 150-51 (1991).
For more than fifty years, Arizona courts have been clear: zoning and rezoning ordinances are legislative acts and therefore referable to popular vote. City of Phoenix v. Fehlner, 90 Ariz. 13, 17, 363 P.2d 607, 609 (1961) (holding that “what constitutes an appropriate zone is primarily for the legislature”); Fritz v. City of Kingman, 191 Ariz 432, 432, 957 P.2d 337, 337 (1998) (noting “we reaffirm our view that zoning decisions are legislative matters subject to referendum”); Pioneer Trust Co. of Arizona v. Pima Cty., 168 Ariz. 61, 64–65, 811 P.2d 22, 25–26 (1991) (holding “that, in Arizona, zoning decisions are legislative acts subject to referendum” and that even a “conditional approval of . . . rezoning was a legislative act”); Cottonwood Dev. v. Foothills Area Coal. of Tucson, Inc., 134 Ariz. 46, 653 P.2d 694 (1982) (analyzing whether zoning referendum complied with statutory requirements); Wait v. City of Scottsdale, 127 Ariz. 107, 108, 618 P.2d 601, 602 (1980) (noting “that the enactment and amendment of zoning ordinances constitute legislative action”); City of Phoenix v. Oglesby, 112 Ariz. 64, 65, 537 P.2d 934, 935 (1975) (“The matter of zoning is appropriately one for the legislative branch of government.”); Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Sup’rs, 108 Ariz. 449, 452, 501 P.2d 391, 394 (1972) (denying an attempt to enjoin referendum on county’s zoning decision).
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Adam E. Lang, Snell & WilmerMr. Lang may be contacted at
alang@swlaw.com
How to Mitigate Lien Release Bond Premiums with Disappearing Lien Claimants
May 20, 2019 —
Scott MacDonald - Ahlers Cressman & Sleight PLLCIt is one of those dreaded business situations that plagues the construction industry, especially in times of economic downturn—what to do when a lower-tier entity files a lien against a property then disappears. It has happened to countless owners, general contractors, subcontractors, and even some particularly unlucky sub-tier subcontractors and suppliers. Here is how it arises: a project is moving along, then performance or payment issues arise, and a company that is over extended or unwilling to continue work stops performance, walks off the job, and files a lien against the property for whatever amounts were allegedly unpaid. Often, the allegedly unpaid sums were legitimately withheld due to a good faith dispute over payment/performance, and it is not unusual for the defaulting entity to not be entitled to any of the sums claimed in the lien. Regardless, the lien stays on the property, and pressure is applied from the “upstream” entities to the party who contracted with the defaulting entity to “deal” with the lien.
Oftentimes, a contract will require the parties to “deal” with a lien by obtaining a lien release bond (“release bond”). For those lucky enough to not have encountered this issue, a release bond is a nifty statutory device whereby a surety agrees to record a release bond for the full claimed amount of the lien, with the release bond substituting in for the liened property, effectively discharging the property from liability under the lien. In other words, the lien is released from the property and attaches to the release bond. If the lien claimant recovers on its lien, it is technically satisfied by the surety providing the release bond (or the party who agrees to indemnify and defend the release bond). In exchange for delivering the release bond, the surety demands yearly premiums be paid on the release bond amount
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Scott MacDonald, Ahlers Cressman & Sleight PLLCMr. MacDonald may be contacted at
scott.macdonald@acslawyers.com
