CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Contract Should Have Clear and Definite Terms to Avoid a Patent Ambiguity

December 11, 2023 — David Adelstein - Florida Construction Legal Updates
If you need more of a reason to have contracts with clear and definite terms, this case is it. This case exemplifies what can happen if the contract, not only does not have clear and definite terms, but contains a patent ambiguity. The contract will be deemed unenforceable which will make one of the contracting parties very unhappy! In Bowein v. Sherman, 48 Fla.L.Weekly D2208a (Fla. 6th DCA 2023), the buyer and seller entered into a real estate transaction. The transaction was for $2 Million. The purchase-and-sale agreement included the address and legal description of a parcel to be sold. However, there was a section in the agreement called “Other Terms and Conditions” which identified that the offer was actually for four properties that were being sold by the seller. When it came to closing time, the seller refused to close because the seller disputed that the $2 Million purchase price was for all four of his properties. The buyer sued the seller for specific performance to force the sale which the trial court agreed in favor of the buyer. However, the appellate court did not. First, the appellate court held that “[t]he equitable remedy of specific performance may be granted only where the parties have actually entered into a definite and certain agreement.” Bowein, supra (quotation and citation omitted). 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

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Construction Lien Waiver Provisions Contractors Should Be Using

January 06, 2020 — Jason Lambert - Construction Executive
It is common in construction for a subcontractor or material supplier of any tier to be required to provide a lien waiver when receiving payment. But not all lien waivers are created equal. While at a minimum, a lien waiver, by definition, needs to include a release of liens, it can also include many other terms that can tie up loose ends or resolve potential problems before they begin. Additional Releases A typical lien release is going to release any liens and right to claim liens on the subject property. But a lien waiver can also include releases of any claims against surety bonds, other statutory rights or claims, and at its broadest, claims against the paying party. One example of a provision that could help accomplish this is a release of “any right arising from a payment bond that complies with a state or federal statute, any common law payment bond right, any claim for payment, and any rights under any similar ordinance, rule, or statute related to claim or payment rights.” Broad release language can also be used to effectively preclude any claims arising prior to the date of the release. Payment Representations and Warranties A typical lien release has no representations or warranties about payment to subcontractors or material suppliers of a lower tier. But contractors can include language requiring the company receiving payment to represent and warrant that all subcontractors of a lower tier have been paid or will be paid within a certain timeframe using the funds provided and that these are material representations and inducements into providing payment. On a related note, if the contract requires subcontractors to provide lien releases from lower tier subcontractors in addition to their own release when seeking payment, contractors can require the sub-subcontractor releases to include representations that they have been paid by the subcontractor to try and tie up payment loose ends all around. Reprinted courtesy of Jason Lambert, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Reprinted courtesy of
Mr. Lambert may be contacted at jason.lambert@nelsonmullins.com

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No Coverage for Counterclaim Arising from Insured's Faulty Workmanship

August 03, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The Eighth Circuit found there was no coverage for the insured's faulty workmanship. Am. Family Mut. Ins. Co., S.I. v. Mid-American Grain Distributors, LLC, 958 F.3d 748 (8th Cir. 2020). Mid-American contracted with Lehenbauer to design and construct a grain storage and distribution facility for Lehenbauer. Before the work was competed, Lehenbauer terminated Mid-American's services. Mid-American then sued Lehenbauer for breach of contract. Lehenbauer counterclaimed against Mid-American, alleged breach of "implied duties of workmanlike performance and fitness for a particular purpose" and negligence. Mid-American tendered the counterclaim to American Family. American Family accepted the tender under a reservation of rights, but sued Mid-American for a declaratory judgment. The district court granted American Family's motion for summary judgment, concluding that the counterclaims did not allege an occurrence. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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The Problem with One Year Warranties

June 10, 2015 — Craig Martin – Construction Contractor Advisor
Contractors often ask if they should include a one year warranty in their subcontracts. I tell them that they can, but it may be more effective to include a one-year correction period. If a contractor does include a warranty in the contract, it may actually extend the time in which a contractor may be sued. I recommend instead a Correction Period. Typical Construction Warranties Form construction contracts, like the AIA forms, often times contain warranty language. The AIA A201, General Conditions, contains a warranty section that covers materials, but it does not address how long the work is warranted: “3.5 WARRANTY The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit.” Instead, the AIA A201, section 13.7, limits the time by which claims must be brought to 10 years or the applicable statute of limitations. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Amazon Urged to Review Emergency Plans in Wake of Deadly Tornado

June 20, 2022 — Spencer Soper - Bloomberg
Amazon.com Inc. should better prepare workers for extreme weather events, according to federal regulators who investigated a deadly tornado strike on a company warehouse in Edwardsville, Illinois. The storm ripped through the facility in December, killing six workers and injuring several others, prompting the Occupational Safety and Health Administration to launch a probe. At the time, Amazon said the facility complied with all construction regulations and that proper safety procedures were followed when the tornado struck. But several workers told Bloomberg that training for such events was minimal and mostly entailed pointing out emergency exits and assembly points. An OSHA report released on Tuesday echoed those concerns. The agency said a bullhorn that was supposed to be used to tell workers to take cover was locked up in a cage and inaccessible. In interviews with investigators, some employees couldn’t recall ever participating in emergency drills and said they mistakenly took shelter in a bathroom on the south side of the building rather than in designated restrooms on the north side. Read the court decision
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Reprinted courtesy of Spencer Soper, Bloomberg

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DoD Will Require New Cybersecurity Standards in 2020: Could Other Agencies Be Next?

September 09, 2019 — Alexander Gorelik - Smith Currie
The 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. Read the court decision
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Reprinted courtesy of Alexander Gorelik, Smith Currie
Mr. Gorelik may be contacted at agorelik@smithcurrie.com

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Wake County Justice Center- a LEED Silver Project done right!

October 01, 2014 — Melissa Dewey Brumback – Construction Law in North Carolina
Yesterday evening, I had the privilege of attending the Triangle USGBC’s “Talk & Walk” at the Wake County Justice Center. The 576,996 square foot Justice Center was completed 6 months early and over 30 million under budget. (The final cost, including soft costs, came in at ~$141,000,000). Now that’s what I call a LEED project done right! Interestingly, the County did not endeavor for a LEED Silver rating– the plan was to aim for a Certification. However, as the process unfolded, the Team kept meeting the goals and points for a Silver certification without any appreciable additional costs. The end result? An “iconic but energy efficient building,” according to Tim Ashby, current Wake County Facilities Project Manager. Tim was initially involved in the Project while working at O’Brien Atkins, which served as the architecture firm for the Project under the direction of Architect Andrew Zwiacher. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Use of Dispute Review Boards in the Construction Process

December 27, 2021 — Sarah B. Biser - ConsensusDocs
Dispute Review Boards: Overview Problems, disagreements and claims arise in most large and complex construction projects regardless of the project delivery method. These disputes can and do delay and significantly increase the cost of the project. Dispute Review Boards, also known as Dispute Resolution Board, Dispute Board, Dispute Avoidance Board or DRB, are often found in large construction projects to assist the parties to minimize, resolve or avoid disputes and mitigate adverse impacts to projects. To date, over $270 billion worth of construction projects have used the dispute review board process to avoid numerous disputes and achieve significant savings.[1] Unlike mediation and arbitration, a DRB is convened at the very beginning of the project and conducts regular meetings and visits at the project site throughout, allowing the DRB to discuss, observe and monitor construction, progress and potential disputes. At these meetings, DRB members become familiar with many of the facts and acquaint themselves with the job site personnel. If a dispute is submitted to them, the panelists have a great deal of knowledge about the circumstances of the problem to aid them in reaching their recommendations or conclusions. DRBs also encourage open and honest communications among or between the parties during the project, which in turn, encourages avoidance or resolution of disputes before they become formal claims. In short, the DRP process involves real-time discussion of the dispute with highly qualified people who know the particular project from day one and can provide recommendations on how to resolve disputes. Read the court decision
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Reprinted courtesy of Sarah B. Biser, Fox Rothschild LLP
Ms. Biser may be contacted at sbiser@foxrothschild.com

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