Fraud and Construction Contracts- Like Oil and Water?
December 31, 2014 —
Christopher G. Hill – Construction Law MusingsWe have discussed the interaction of fraud and breach of contract actions on occasion here at Construction Law Musings. In most cases the two do not mix. Between the economic loss rule and the general desire of Virginia courts to keep contract actions and tort actions separate, most of the time it is impossible to make a fraud action relating to a contract stick in a construction context.
The Virginia Supreme Court recently confirmed this fraud/contract distinction. As discussed in the Virginia Real Estate Land Use & Construction Law blog (Thanks Heidi!), Station No. 2, LLC v. Lynch, et. al. strongly re-states the Virginia courts’ strong reluctance to allow a breach of contract turn into a claim for fraud. Without re-iterating the great discussion of the facts of the case found in the post by Heidi Meizner, suffice it to say that certain contractual promises between and among the parties were not fulfilled much to Station 2, LLC’s detriment.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
California Contractor Tests the Bounds of Job Order Contracting
March 01, 2021 —
Garret Murai - California Construction Law BlogMost contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC.
JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities.
JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
1 De Haro: A Case Study on Successful Cross-Laminated Timber Design and Construction in San Francisco
November 06, 2023 —
Cait Horner, Adam J. Weaver & Allan C. Van Vliet - Gravel2Gavel Construction & Real Estate Law BlogAt the intersection of San Francisco’s SOMA, Potrero Hill and Showplace Square districts, a first-of-its-kind building offers an example of the potential widespread success of mass timber construction in the United States. 1 De Haro, a 134,000-square-foot, 4-story office and light industrial project built by Bay Area developer
SKS Partners is not only the first cross-laminated timber (CLT) building in the San Francisco, it is also the first multistory mass timber building of its type to be fully executed in California and the first CLT project in the United States to be delivered via railways. We recently sat down with Yvonne Fisher and Lee Ishida of SKS to discuss the unique design process, marketing success and overall industry buzz surrounding one of their latest
projects.
Reprinted courtesy of
Cait Horner, Pillsbury,
Adam J. Weaver, Pillsbury and
Allan C. Van Vliet, Pillsbury
Ms. Horner may be contacted at cait.horner@pillsburylaw.com
Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com
Mr. Van Vliet may be contacted at allan.vanvliet@pillsburylaw.com
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CGL Insurer’s Duty to Defend Insured During Pre-Suit 558 Process: Maybe?
December 20, 2017 —
David Adelstein - Florida Construction Legal UpdatesIn earlier postings, I discussed the issue of whether Florida Statutes Chapter 558′s pre-suit construction defects process triggers a CGL insurer’s duty to defend. The issue was whether Florida’s 558 pre-suit notice of a construction defect and repair process met the definition of “suit” within a standard CGL policy.
A standard CGL policy defines the term “suit” as:
“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:
a. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or
b. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.
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David Adelstein, Florida Construction Legal UpdatesMr. Adelstein may be contacted at
dadelstein@gmail.com
Real Estate & Construction News Roundup (5/1/24) – IMF’s Data on Housing, REITs Versus Private Real Estate, and Suburban Versus Urban Office Property Market
May 28, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, apartment sales fall for seventh straight quarter, raising real estate capital proves challenging, aspiring homeowners face strong obstacles, and more!
- Rent increases have softened across the U.S. over the last year, and the combination of high home prices, elevated mortgage rates and low housing inventory creates strong obstacles for aspiring homeowners. (Alex Gailey, Bankrate)
- The housing market is showing innovative efforts to combat the inventory crisis with initiatives including repurposing commercial properties into residential units. (Angel Smith, Yahoo)
- Apartment sales fell for the seventh straight quarter in Q1, dropping 25% year over year to $20.6 billion. (Leslie Shaver, Multifamily Dive)
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Pillsbury's Construction & Real Estate Law Team
Labor Development Impacting Developers, Contractors, and Landowners
June 25, 2019 —
John Bolesta & Keahn Morris - Sheppard Mullin Construction & Infrastructure Law BlogIt is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer. This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA. But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site. In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s attention at an offending employer’s job site or facilities.
A recently released NLRB advice memo, however, signals the likely reversal of those earlier decisions and that contractors and owners may now be able to stop such harassing union job site tactics simply by filing a secondary boycott unfair labor practice change with the NLRB. The 18 page memo, dated December 20, 2018 (and released to the public on May 14, 2019), directs the NLRB’s Region 13 to issue a complaint against the Electrician’s Union in a dispute coming out of Chicago where the union erected a large, inflatable effigy, a cat clutching a construction worker by the neck, and posted a large stationary banner proclaiming its dispute to be with the job’s general contractor over the use of a non-union electrical sub at the job site’s entrance. Though not an official Board decision, the memo suggests the NLRB General Counsel’s (GC) belief that the earlier Obama era decisions may have been wrongly decided and should be reconsidered by the NLRB on the theories that the Union’s nonpicketing conduct was tantamount to unlawful secondary picketing, that it constituted “signal” picketing that unlawfully induced or encouraged the employees of others to cease working with the subs or that it constituted unlawful coercion.
Reprinted courtesy of
John Bolesta, Sheppard Mullin and
Keahn Morris, Sheppard Mullin
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Morris may be contacted at kmorris@sheppardmullin.com
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Be Careful with Mechanic’s Lien Waivers
June 09, 2016 —
Christopher G. Hill – Construction Law MusingsMechanic’s liens are near and dear to my heart here at
Construction Law Musings. These powerful tools can and should be properly used to help you, as a construction professional, get paid for your good work. Of course, the correct steps toward perfecting one of these liens must be followed, including being sure to
meet the stringent lien deadlines. I’ve discussed
the steps for filing such a lien and the various pitfalls relating to the
very picky statutory requirements for recording an enforceable memorandum of lien in Virginia.
One important area that I have not discussed as thoroughly as these basic requirements (and an area of which I have been
reminded by my pals at the Construction Payment Blog) is the area of mechanic’s lien waivers. While the Virginia General Assembly has
ended the days of pre-payment contractual waiver of mechanic’s lien rights for subcontractors and suppliers, mechanic’s lien waivers that waive rights either simultaneous with or after receipt of progress and final payments are still valid and used on a regular basis.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
How Will Today’s Pandemic Impact Tomorrow’s Construction Contracts?
October 26, 2020 —
Levi W. Barrett, Nathan A. Cohen & Mark A. Snyder - Peckar & AbramsonThe emergence of COVID-19 has created a new set of challenges in the already complex world of negotiating construction contracts. In the pre-COVID-19 era, general contractors, construction managers and those negotiating on their behalf, needed to balance a variety of fairly well-established legal risks and exposures and commercial realities with the need to maintain a positive relationship with their counterparty. While many are rightfully concerned with addressing the impacts of COVID-19 to their on-going projects, those negotiating new contracts now are undoubtedly cognizant that they are negotiating in the midst of an unpredictable future that is tipping the historical negotiating balance. The following presents some crucial areas to focus on when negotiating and drafting your contracts in this new era.
Contract Terms Through the COVID-19 Lens
Contractors should examine proposed new contracts carefully to identify rights that afford COVID-19 protections and identify contractual obligations that create COVID-19 commercial risks.
Specific attention should be paid to those sections relating to force majeure/excusable delay, emergencies, changes (including changes in law), contingency, suspension and termination, site investigation as well as all representations and warranties. The paramount concern in examining these provisions is to ensure that they not only entitle the contractor to relief for those unknown events, emergencies and changes, but that they also contain sufficient entitlement for the contractor to obtain both time extensions and financial compensation for unknown impacts of a known event – the COVID-19 pandemic.
Reprinted courtesy of
Levi W. Barrett, Peckar & Abramson, P.C.,
Nathan A. Cohen, Peckar & Abramson, P.C.and
Mark A. Snyder, Peckar & Abramson, P.C.
Mr. Barrett may be contacted at lbarrett@pecklaw.com
Mr. Cohen may be contacted at ncohen@pecklaw.com
Mr. Snyder may be contacted at msnyder@pecklaw.com
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