CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Google’s Floating Mystery Boxes Solved?

March 12, 2014 — Beverley BevenFlorez-CDJ STAFF
Garret Murai, on his California Construction Law blog, reported how “a four story structure made up of shipping containers” had been mysteriously erected on a barge in the middle of San Francisco Bay. Later, it was determined that Google was behind the strange structure, though they were keeping silent as to what the building-on-the-barge would be used for. Construction stopped after the San Francisco Bay Conservation and Development Commission determined that the mysterious barge required a permit—which would require Google to file “publicly available documents.” Google chose to move the barge to Stockton, California rather than obtain a permit. Google finally released a comment stating that they are “exploring using the barge as an interactive space where people can learn about new technology.” However, Murai believes that this statement may be a “distraction device” and the true use of the barge has yet to be revealed. Read the court decision
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Reprinted courtesy of

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Sacramento Army Corps District Projects Get $2.1 Billion in Supplemental Appropriation

September 04, 2018 — Greg Aragon - Engineering News-Record
The U.S. Army Corps of Engineers Sacramento District has received supplemental funding for five District projects, totaling an investment of more than $2.1 billion in flood risk management efforts. Read the court decision
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Reprinted courtesy of Greg Aragon, ENR
ENR may be contacted at ENR.com@bnpmedia.com

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Ruling Dealing with Constructive Changes, Constructive Suspension, and the Implied Covenant of Good Faith and Fair Dealing

January 22, 2024 — David Adelstein - Florida Construction Legal Updates
A dispute pending in the Armed Services Board of Contract Appeals (ASBCA) dealt with interesting legal issues on a motion to dismiss. See Appeals of McCarthy Hitt-Next NGA West JV, ASBCA No. 63571, 2023 WL 9179193 (ASBCA 2023). The dispute involves a contractor passing through subcontractor claims due to impacts caused by the COVID-19 pandemic and the government’s response to the pandemic. More particularly, the claim centers on the premise that the government “failed to work with [the contractor] in good faith to develop a collaborative and cooperative approach to manage and mitigate the impacts and delays arising from the COVID-19 pandemic.” See Appeals of McCarthy Hitt. The contractor (again, submitting pass through claims from subcontractors) claimed: (a) constructive changes to the contract entitling it to an equitable adjustment under the Changes clause of Federal Acquisition Regulation (F.A.R.) 52.243-4; (b) construction suspensions of the contractor’s work entitling it to an equitable adjustment under the Suspensions of Work clause of F.A.R. 52-242-14; and (c) the government breached the implied covenant of good faith and fair dealing. Each of these legal issues and theories will be discussed below because they are need-to-know legal issues. Keep these legal issues in mind, and the ASBCA’s ruling on the motion to dismiss as its analysis may demonstrate fruitful in other applications. 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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Contractor Gets Benched After Failing to Pay Jury Fees

April 11, 2022 — Garret Murai - California Construction Law Blog
Trial by jury is a fundamental right under the U.S. and California Constitutions. However, to avail yourself of this right, you not only have to declare that in advance that you intend to try your case to a jury but post jury fees as well. In TriCoast Builders, Inc. v. Fonnegra, a contractor who failed to timely post jury fees, discovered on the day of trial that it waived the right to insist on a jury trial when the defendant pulled an “I gotcha” and waived his right to a jury trial. The TriCoast Case In May 2014, Nathaniel Fonnegra house was damaged by fire. The following month, Fonnegra entered into a construction contract with TriCoast Builders, Inc. to repair the property. Dissatisfied with the work, Fonnegra terminated the contract, and TriCoast in turn filed a complaint against Fonnegra for unpaid work. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Is The Enforceability Of A No-Damage-For-Delay Provision Inappropriate For Summary Judgment

February 24, 2020 — David Adelstein - Florida Construction Legal Updates
Is the enforceability of a no-damage-for-delay provision inappropriate for resolution on a summary judgment? The recent decision in U.S. f/u/b/o Kingston Environmental Services, Inc. v. David Boland, Inc., 2019 WL 6178676 (D. Hawaii 2019), dealing with Florida law, suggests that it is inappropriate for a summary judgment resolution, particularly when there is a right to a jury trial. In this case, a prime contractor was hired on a federal construction project in Hawaii. The prime contractor hired a subcontractor and the subcontractor sued the prime contractor and its surety under the Miller Act. Of interest, the subcontractor was seeking to recover for the costs it incurred due to construction delays. The prime contractor moved for summary judgment as to the no-damage-for-delay provision in the subcontract. The no-damages-for-delay provision read as follows (and it is a well-written no-damage-for-delay provision): The Subcontractor expressly agrees that the Contractor shall not be liable to the Subcontractor for any damages or additional costs, whether foreseeable or unforeseeable, resulting in whole or in part from a delay, hindrance, suspension, or acceleration of the commencement or execution of the Work, caused in whole or in part by the acts or omissions, whether negligent or not, of the Contractor including other subcontractors or material suppliers to the Project, its agents, employees, or third parties acting on behalf of the Contractor. The Subcontractor’s sole remedy for any such delay, hindrance, suspension, or acceleration shall be a noncompensable time extension. 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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Starting July 1, 2020 General Contractors are “Employers” for All Workers on Their Jobsite

June 08, 2020 — Christopher G. Hill - Construction Law Musings
I have discussed the impactful legislation to the Virginia construction industry in prior posts here at Construction Law Musings. One of those statutes that will take effect on July 1, 2020 will fundamentally change the relationships between general contractors and their subcontractors and suppliers. Senate Bill 838 does the following on construction projects with a value of $500,000 or greater that are not single family residential construction projects:

• Makes the general contractor, and all tiers of subcontractors on a particular project contractually liable to pay their subcontractors’ (at any tier) employees wages.
• Requires that the payments are equal or exceed those required by other statutes.
• Deems contractors to be the employers of their subcontractors’ employees for purposes of Va. Code Section 40.1-29 that imposes criminal and civil penalties for failure to pay wages when due, and
• Grants employees a private right of action for any violations, including the right to a class or joint action, award of liquidated damages, reasonable attorney fees and possible treble damages for “knowing” violations by the contractor.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

May 30, 2022 — William Doerler - The Subrogation Strategist
Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. As stated in W. Bay Plaza, in late 2013 and early 2014, West Bay Plaza Condominium Association (W.B. Plaza Condo. Ass’n) contracted with Built Right Installers International Corporation, R.J. Miranda Consultants, Inc. and UCI Engineering Inc. (collectively, the Construction Defendants) to have repairs done to the exterior of the property. In 2016, Sika Corporation (Sika), a New Jersey corporation, gave a five-year warranty to W.B. Plaza Condo. Ass’n for three sealant products used to repair the garage at the property. In 2019, W.B. Plaza Condo. Ass’n sued the Construction Defendants for breach of contract and professional negligence. Subsequently, W.B. Plaza Condo. Ass’n amended its complaint and filed a claim against Sika, alleging that Sika breached its warranty because its products failed to provide a watertight barrier. Sika filed a motion to dismiss the action, alleging that Florida was an improper venue because its’ warranty contained a mandatory forum selection clause. W.B. Plaza Condo. Ass’n argued that it was not bound by the forum selection clause because it was a non-signatory to the warranty and, even if it was bound by the clause, there were compelling reasons not to enforce it. Read the court decision
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Reprinted courtesy of William Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

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Court Clarifies Sequence in California’s SB800

December 20, 2012 — CDJ STAFF
As California’s Right-To-Repair law, SB800, nears its ninth birthday, it has remained “largely untested in the legal system” as noted by Megan MacNee of Wood, Smith, Henning & Berman LLP on the site RealEstateRama. She writes that some homeowners have requested documents prior to filing a claim, which she describes as an attempt to “game the system,” and “analogous to requiring a party to litigation to comply with discovery before a complaint is filed.” The court determined that homeowners may not request documents from the builder until they have actually filed a claim. The court noted that SB800 lacks any clear indication that homeowners may request documents before filing a claim (and also does not indicate that a builder would have to provide documents in these circumstances). The court concluded that the section that sets up the prelitigation procedures occurs before they section on documents discovery. “Because the document request is part of the prelitigation procedure, and the prelitigation procedure does not begin until the homeowner has served notice of a claim, it follows that there can be no prelitigation obligation to produce documents under section 912, subdivision (a) unless the homeowner has commenced the prelitigation procedure by serving notice of a claim.” Read the court decision
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