Congratulations 2016 DE, MA, NJ, NY and PA Super Lawyers and Rising Stars
October 27, 2016 —
White and Williams LLPThirty-two White and Williams lawyers have been named by Super Lawyers as a Delaware, Massachusetts, New Jersey, New York or Pennsylvania "Super Lawyer" while fourteen received "Rising Star" designations. Each lawyer who received the distinction competed in a rigorous selection process which took into consideration peer recognition and professional achievement. The lawyers named to this year's Super Lawyer list represent a multitude of practices throughout the firm.
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White and Williams LLP
Prevent Costly Curb Box Damage Due on New Construction Projects
May 11, 2020 —
Bob Welker - Construction ExecutiveFor new construction projects in areas with acidic soils, keeping curb boxes in good working order is critical to avoid compromised water service, angry customers, and costly repair and replacement.
Traditionally, a curb box is composed of a metal tube that connects the cast iron base to a cast iron lid/cap. It is necessary for water line repairs and shut off in case of flooding. Typically, they are buried six to eight feet below ground, beneath the frost line. Curb boxes are found on every water line that connects a building to a city water main.
One major challenge is that many areas across the United States—including the East Coast, South, upper Midwest and Pacific Northwest—have acidic soil that rapidly corrodes cast iron infrastructure, including curb boxes. Soil with a pH of six or less is considered acidic.
Reprinted courtesy of
Bob Welker, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Technology and the Environment Lead Construction Trends That Will Continue Through 2019
June 03, 2019 —
Ryan Gould - Construction ExecutiveThere are common factors that have always defined trends in the construction industry. Elements such as labor (be it shortages or surpluses), the economy and technology determine what gets built where, when and how.
These elements have led to the rise of entire philosophies to boost profits and maximize value, such as the lean construction movement. Often these trends appear in the form of answers that help construction companies eliminate waste, curb overproduction, use talent properly, manage inventory more effectively, boost process workflow, reduce defects, and help to plan and schedule projects more efficiently.
In 2019, two factors are driving trends that are overtaking the industry: technology and the environment. They’re not only informing construction industry trends today, but they’re going to last and evolve into the foreseeable future.
Offsite construction becomes standard
Obviously, this isn’t a new trend. The earliest origins of this method, at least in North America, date to colonists importing pre-packaged construction materials from Europe to the New World in the 17th century. Then there were the kit homes sold by Sears, Roebuck, and Co. at the turn of the 20th century. And of course, the trend reached its zenith in the World War II construction boom with pre-fab companies selling ready-to-go homebuilding components to builders.
Reprinted courtesy of
Ryan Gould, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mutual Or Concurrent Delay Caused By Subcontractors
March 23, 2020 —
David Adelstein - Florida Construction Legal UpdatesHow are delay damages treated when two subcontractors cause a mutual or concurrent delay to the project?
Assume multiple subcontractors concurrently contributed to an impact to the critical path resulting in a delay to the project. The delay caused the prime contractor to: (1) be assessed liquidated damages from the owner and (2) incur extended general conditions. The prime contractor will be looking to the subcontractors for reimbursement for any liquidated damages it is assessed along with its extended general conditions costs.
There is really no great case that addresses this point when two (or more) subcontractors mutually or concurrently delay the project. It is also not uncommon, and frankly expected, that a subcontractor will point the finger at another subcontractor for the cause of the delay or that another subcontractor was concurrently delaying the project.
The prime contractor should absolutely, without any exception, undertake efforts with a scheduling consultant to allocate the delay caused by subcontractors. Taking an approach that joint and several liability applies between multiple subcontractors and/or not trying to apportion delay because the subcontractors concurrently delayed the critical path at the same time is probably not the best approach. The prime contractor should have an expert render an opinion as to the allocation of the delay period amongst responsible subcontractors that delayed the critical path. Not doing so, in my opinion, is a mistake.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
How U.S. Design and Architecture Firms Can Profit from the Chinese Market and Avoid Pitfalls
December 23, 2024 —
Chengdong ("C.D.") Xing - The Dispute ResolverDespite recent challenges, including obvious political tensions, economic cooling in the PRC, and increased local competition, the Chinese market remains an attractive destination for U.S. design and architecture firms. For instance, PEI Architects has maintained its success in China through long-standing relationships with key clients and is currently involved in two major projects for the Bank of China: a 1.9 million-square-foot complex in Shanghai and a financial center in Haikou.[i] Similarly, NBBJ is playing a critical role in the development of Tencent’s Net City in Shenzhen, a 2-million-square-meter smart city project that aligns with China's goals of sustainable and tech-driven urbanization.[ii] These examples show that while the Chinese market presents challenges, it continues to offer significant opportunities, particularly in sectors where innovative and cutting-edge architectural solutions are in high demand. At the same time, U.S. firms should exercise care: proper advance planning and strategic alliances are crucial for profitable forays into the Chinese market.
JR Design Project: A Cautionary Tale
When operating in China, U.S. design firms often encounter regulatory challenges, particularly with respect to China’s strict qualification requirements for architectural design services. Failure to meet these requirements can result in serious legal issues, including the potential invalidation of design contracts, as demonstrated in a leading case decided by the Supreme People’s Court of PRC (the nation’s highest court).
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Chengdong ("C.D.") Xing, Rajah & Tann Singapore LLPMr. Xing may be contacted at
chengdong.xing@rajahtann.com
DoD Will Require New Cybersecurity Standards in 2020: Could Other Agencies Be Next?
September 09, 2019 —
Alexander Gorelik - Smith CurrieThe Department of Defense (DoD) has announced a new five-tier standard for cybersecurity certification, which it calls the Cybersecurity Maturity Model Certification, or “CMMC”. Taking an unusual approach to informing the industry, the DoD has provided only limited information about the new standard through its website and a “road tour” led by the newly-appointed head of the DoD’s Chief Information Security Office (CISO), Ms. Katie Arrington.
During her recent presentation at the National Institute of Standards and Technology’s (NIST’s) Information Security and Privacy Advisory Board (ISPAB) meeting, on August 8, 2019, Ms. Arrington revealed several new details about the requirements. Outlined below are the most significant facts from that presentation and the DoD’s website:
All companies doing business with DoD (and all tiers of subcontractors) will need to obtain CMMC certifications.
DoD will require the new certifications from all contractors (including suppliers and subcontractors) that are performing under a DoD contract. Even contractors that do not process or handle Controlled Unclassified Information (CUI) must obtain CMMCs.
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Alexander Gorelik, Smith CurrieMr. Gorelik may be contacted at
agorelik@smithcurrie.com
Will a Notice of Non-Responsibility Prevent Enforcement of a California Mechanics Lien?
March 05, 2015 —
William L. Porter – Porter Law Group, Inc.The “Notice of Non-Responsibility” is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is “No”, the posting and recording of a Notice of Completion will not prevent enforcement of a California Mechanics Lien.
The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.
The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner “that did not contract for the work of improvement”, within 10 days after the owner first “has knowledge of the work of improvement”, may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.
What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien.
The usual error is two-fold. First, the statute states that the Notice is available when the owner “did not contract for the work of improvement”. The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner’s contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first “has knowledge” of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge.
The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective.
The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham “tenants” who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility.
For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner).
William L. Porter of
Porter Law Group, Inc. located in Sacramento, California may be contacted at (916) 381-7868 or bporter@porterlaw.com
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Construction Contract Basics: Attorney Fee Provisions
November 13, 2023 —
Christopher G. Hill - Construction Law MusingsI have discussed the need for
attorney fee provisions in your construction contracts in prior posts here at Construction Law Musings, but thought it merited a restatement of the reasons for the inclusion of such fee provisions (and changing of such provisions when presented) here with the second of my
construction contract basics posts.
Why would you want such a provision? The answer is that without it, or a statute specifically allowing for such fees, a Virginia court will not award your attorney fees without such a provision. Virginia, and a lot of other states, follow the so-called “American Rule” when it comes to attorney fees and costs. In short, that rule states that the parties to litigation pay their own way unless they agree otherwise. While it may seem unfair to make a successful litigant pay for the privilege of being right, that is the rule in Virginia. Throw in the fact that Virginia courts
strictly construe construction contracts and voila we have a situation where without a provision in the contract stating that one party or both will be able to collect attorney fees should that contractor or subcontractor prevail, a construction professional that gets sued (whether rightly or wrongly) will be left with a hefty attorney fees bill and no way to recoup those fees through the courts or any other method.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
