Builder and County Tussle over Unfinished Homes
November 13, 2013 —
CDJ STAFFRivard, Florida has been trying to get rid of a group of unfinished homes destroyed. Now Hernando County officials have decreed that the partially-built homes are unsafe and must be demolished. However, after the building permits were withdrawn, Costa Homes filed a lawsuit asking that they be reinstated. The county had given the builder a deadline to file new permits, but were met with a lawsuit.
Costa Homes seeks to be relived of the county’s requirement that each of the six homes be provided with $10,000 bond and also finds the county’s completion schedule to be “so short it constitutes a prescription for failure.” Building officials had declared the structures unsafe in August and had stipulated that they had to be made safe.
Read the court decisionRead the full story...Reprinted courtesy of
The Creation of San Fransokyo
June 17, 2015 —
Garret Murai – California Construction Law BlogSome of the most awe inspiring buildings and urban environments started off on paper and, these days, on computer screens. Think Babylon or even Pierre Charles L’Enfant’s Washington, D.C..
Most of those structures and cityscapes were designed for human habitation, but not all. Some were designed purely for our imaginations, like Minecraft, which those of you with young ones might be familiar with.
Another more recent example though is Big Hero 6, about a science-whiz named Hiro (pronounced “hero,” get it) who journeys from boyhood to manhood and saves the world along the way with his robot pal Baymax. The movie is set in foreign-yet-familiar “San Fransokyo.”
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Is Safety Compliance Putting Your Project in Jeopardy? Examining the Essentials of DOE’s Worker Safety and Health Program
July 02, 2024 —
Lucas T. Daniels & Benjamin J. Hochberg - ConsensusDocsMost contractors are familiar with the myriad of labor and safety regulations intended to safeguard the health and safety of workers. Many contractors will be equally familiar with the maze of forms and reports, the maintenance of safety personnel, safety walks and talks, and the many other measures intended to prevent and prepare for accidents. Less known among contractors and construction industry leaders is the regulatory framework establishing safety requirements and the ramifications of ignoring safety-related rules. Knowing and understanding the jurisdiction and authority of the agencies monitoring safety compliance on your project is critical to avoiding administrative ordeals and audits that could add days or weeks to your schedule and frustrate your staff.
The Department of Energy’s Worker Safety and Health Program
Under the Occupational Safety and Health Act of 1970, as amended (OSH), the Department of Labor’s Occupational Safety and Health Administration (OSHA) issues and enforces occupational health and safety regulations. OSHA, or a state with approval from OSHA, regulates the occupational health and safety of private sector employees unless another federal agency has and exercises its statutory authority to regulate. Several federal agencies have developed their own safety programs and conduct their own enforcement of those regulations independent of OSHA. For example, projects receiving funding from the Department of Energy (DOE) are subject to additional oversight of their safety programs by this agency. DOE directly manages its own Worker Safety and Health Program (WSHP), codified at 10 C.F.R. § 851, et seq., and will enforce compliance with its WSHP at all DOE sites. A “DOE site” is defined as a DOE-owned or -leased area or location or other area or location that DOE controls, where a contractor performs activities and operations in furtherance of a DOE mission. This broad definition encompasses a wide range of facilities and operations, including those not directly managed by the DOE but still under its control. The contractor at such a site must be aware of the specific requirements and procedures of the DOE under the WSHP and the ramifications of violating these regulations.
Reprinted courtesy of
Lucas T. Daniels, Peckar & Abramson, P.C and
Benjamin J. Hochberg, Peckar & Abramson, P.C
Mr. Daniels may be contacted at ldaniels@pecklaw.com
Mr. Hochberg may be contacted at bhochberg@pecklaw.com
Read the court decisionRead the full story...Reprinted courtesy of
Novation Agreements Under Federal Contracts
November 29, 2021 —
Hal Perloff - Construction ExecutiveA unique aspect of doing business with the federal government is the built-in limits on a contractor’s right to assign the contract or the right to payment under the contract to third parties. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. An assignment of a contract in violation of this law voids the contract except for the government’s right to pursue a breach of contract remedies.
What’s a contractor to do when it is acquired/merged with another firm, is restructured or goes through a variety of other types of corporate transaction? The Federal Acquisition Regulations recognize that firms involved in government contracts get bought and sold from time to time and includes procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.
What Is a Novation?
A novation is a three-party agreement between the United States, the original contractor and the new contractor offering to assume the government contract. The purpose the novation is to allow the government to recognize a new contractor as the successor-in-interest to a government contract and avoid a violation of the Anti-Assignment Act.
Reprinted courtesy of
Hal Perloff, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Read the court decisionRead the full story...Reprinted courtesy of
Mr. Perloff may be contacted at
hal.perloff@huschblackwell.com
Beyond the Flow-Down Clause: Subcontract Provisions That Can Expose General Contractors to Increased Liability and Inconsistent Outcomes
December 10, 2024 —
Phillip L. Parham III - ConsensusDocsFlow-down clauses in construction subcontracts—blanket clauses providing that some or all of the terms and conditions in the prime contract between the general contractor and the property owner apply equally between the subcontractor and general contractor—are an important component to managing risk for a general contractor and reducing the likelihood of disputes with either/both the owner and subcontractor. Put simply, flow-down provisions can provide continuity between the general contractor’s obligations to the owner and the subcontractor’s obligations to the general contractor. Properly drafted, flow-down clauses reduce the general contractor’s risk by ensuring that the subcontractor is legally bound to meet the owner’s objectives for the project in the same way as the general contractor. But relying on blanket flow-down clauses, alone, to protect the general contractor is like a soldier going into battle with nothing but a helmet, leaving significant other areas exposed and unprotected. In other words, a general contractor should look beyond just a singular, blanket flow down of terms to ensure its bases are properly covered.
Accordingly, this article goes beyond the blanket flow-down clause and highlights several key subcontract provisions where inconsistent obligations among the subcontractor, general contractor, and owner expose the general contractor to increased liability and inconsistent outcomes. Specifically, this article will examine disputes resolution clauses, liquidating provisions, notice provisions, and termination provisions. However, this article will not provide a deep examination of these clauses, nor does it highlight every potentially relevant clause. Rather, it focuses on these select clauses to highlight important issues associated with flow-down provisions.
Read the court decisionRead the full story...Reprinted courtesy of
Phillip L. Parham III, Jones Walker LLPMr. Parham may be contacted at
pparham@joneswalker.com
Retaining Wall Contractor Not Responsible for Building Damage
July 20, 2011 —
CDJ STAFFThe Court of Appeals of Indiana ruled on July 8 in the case of Rollander Enterprises, Inc. v. H.C. Nutting Co. Judge Baily wrote the opinion affirming the decision of the trial court.
The case involved an unfinished condominium complex, the Slopes of Greendale, in Greendale, Indiana. Rollander is a real estate development company incorporated in Ohio. One of the issues in the case was whether the case should be settled in the Indiana courts or be tried in Ohio. The project was owned by a special purpose entity limited liability corporation incorporated in Indiana.
Rollander hired Nutting to determine the geological composition of the site. Nutting’s report described the site as “a medium plastic clay containing pieces of shale and limestone.” The court summarized this as corresponding with “slope instability and landslides.” Rollander then hired Nutting to design the retaining walls, which were constructed by Scherziner Drilling.
After cracking was discovered on State Route 1, the walls were discovered to be inadequate. More dirt was brought in and a system of tie-backs was designed to anchor the walls. Not only were the tie-backs unsightly, local officials would not approve the complex for occupancy. Further, the failure of the wall below one building lead to damage of that building.
The court concluded that since almost all events occurred in Indiana, they rejected Rollander’s contention that the case should be tried in Ohio. Further, the court notes “the last event making Nutting potentially liable on both claims was an injury that occurred in Indiana and consequently, under the lex loci delicti analysis, Indiana law applies.”
Nor did the court find that Nutting was responsible for the damage to the rest of the project, citing an Indiana Supreme Court ruling, that “there is no liability in tort to the owner of a major construction project for pure economic loss caused unintentionally by contractors, subcontractors, engineers, design professionals, or others engaged in the project with whom the project owner, whether or not technically in privity of contract, is connected through a network or chain of contracts.”
The court concluded:
Because Rollander was in contractual privity with Nutting, and Indy was connected to Nutting through a chain of contracts and no exception applies, the economic loss rule precludes their recovery in tort. Damage to Building B was not damage to "other property," and the negligent misrepresentation exception to the economic loss rule is inapplicable on these facts. The trial court therefore did not abuse its discretion by entering judgment on the evidence in favor of Nutting on the Appellants' negligence and negligent misrepresentation claims.
Read the court’s decision…
Read the court decisionRead the full story...Reprinted courtesy of
More Broad-Based Expansion for Construction Industry Expected in 2015
January 07, 2015 —
Garret Murai - California Construction Law BlogIt’s a short week for most of us this week.
Christmas is over and New Year’s is approaching.
So, what will 2015 bring us?
According Dodge Data & Analytics’s 2015 Dodge Construction Outlook: Continuing expansion of the construction sector, but one that is more broad-based than in recent years.
“The economic environment going forward carries several positives that will help to further lift total construction starts,” said Robert Murray, Chief Economist and Vice President at Dodge Data & Analytics. “Financing for construction projects is becoming more available, reflecting some easing of bank lending standards, a greater focus on real estate development by the investment community, and more construction bond measures getting passed. While federal funding for construction programs is still constrained, states are now picking up some of the slack. Interest rates for the near term should stay low, and market fundamentals (occupancies and rents) for commercial building and multifamily housing continue to strengthen.”
Read the court decisionRead the full story...Reprinted courtesy of
Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
Temecula Office Secures Approval for Development of 972-Acre Community on Behalf of Pulte Homes
December 27, 2021 —
Lewis BrisboisTemecula, Calif. (December 7, 2021) – Temecula Partners Kelly Black and Samuel Alhadeff, along with Associate Mark Mercer, recently represented Pulte Homes in securing unanimous approval from the Murrieta City Council and the Murrieta Planning Commission for a large-scale 972-acre development known as the Murrieta Hills development.
As described by local media including
The Press-Enterprise,
Menifee 24/7, and the
Murrieta Patch, the Murrieta Hills development will be located just south of Menifee and east of Wildomar. It will include 750 homes – 522 single-family units and 228 multi-family dwellings. The project will also include an 18-acre commercial center with plans for shopping, dining, lodging, and office space.
In addition, 619 of the 972 acres will be dedicated as natural open space and will be overseen by the Western Riverside County Regional Conservation Authority. The project will be built in three phases, with the first phase scheduled to be completed by 2023 and the final phase to be completed in 2031.
Read the court decisionRead the full story...Reprinted courtesy of
Lewis Brisbois
