Drafting or Negotiating A Subcontract–Questions To Consider
June 21, 2021 —
David Adelstein - Florida Construction Legal UpdatesWhen it comes to drafting and negotiating a subcontract, there are provisions that should be important to you from a risk assessment standpoint. From the subcontractor’s standpoint, below are questions you should ask, or issues you should consider, as you go through the subcontract. These are the same questions and issues that are also important to a contractor as the contractor will want to ensure these issues are included in the subcontract. By asking yourself these questions, you can check to see how the subcontract addresses these issues, and how the risk should be negotiated. Hopefully, you are working with counsel to make sure you understand what risk you are assuming and those provisions you want to try to push back on. Asking yourself these questions, or considering these questions, will help you go through the subcontract with a purpose based on the risk profile of the project and certain risk you don’t want to assume.
- Prime Contract –> Does the subcontract incorporate the prime contract? Make sure to request the prime contract since the subcontract will identify the prime contract as part of the Subcontract Documents and will require you to assume towards the contractor the same obligations the contractor is required to assume towards the owner.
- Scope of Work –> What is the scope of work? Is it clear. Make sure the scope is clear and you understand the scope.
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
ASCE Statement on Passing of Senator Dianne Feinstein
October 02, 2023 —
Maria Lehman, President – American Society of Civil EngineersRESTON, Va. – ASCE joins Capitol Hill and the infrastructure community in mourning the loss of Senator Dianne Feinstein (D-CA). At 90 years old, Sen. Feinstein was the longest-tenured female senator in U.S. politics and an immensely influential voice in the U.S. Senate and her home state of California. A true pioneer in U.S. politics, Sen. Feinstein was the first female mayor of San Francisco and one of the first women elected to the U.S. Senate from California.
During her three decades in the Senate, Sen. Feinstein was a staunch advocate for issues impacting the engineering profession and strongly supported the recent passage of the bipartisan Infrastructure Investment and Jobs Act (IIJA). Sen. Feinstein was a champion for legislation to mitigate the impacts of climate change, a strong supporter of bills to improve drinking water for disadvantaged communities, and, in recent years, served as ASCE's key champion for both the reauthorization of the National Dam Safety Program and the 21st Century Dams Act.
Sen. Feinstein consistently sought middle ground on issues that were pertinent to all Americans, a rare and admirable trait in our increasingly divisive political climate. ASCE will remember Sen. Feinstein for all that she accomplished on behalf of our nation's infrastructure, and we look forward to continuing her fight to ensure our infrastructure systems can withstand the impacts of increasingly severe weather events. Our deepest sympathies go out to her family.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Oregon Bridge Closed to Inspect for Defects
February 25, 2014 —
Beverley BevenFlorez-CDJ STAFFAccording to The Oregonian, the Morrison Bridge in Multnomah county, Oregon will be closed Sunday, February 23rd “so county crews can inspect the decking that has caused problems since it was installed” in 2012. The “southernmost eastbound lane has been closed for weeks while crews conducted inspections.”
The defects appeared “almost immediately after the project” was completed, reported The Oregonian. Drivers have “dealt with a bumpy, noisy ride as the loose decking panels flopped beneath them.”
Multnomah county has sued “Conway Construction, the company the installed the decking, as well as Strongwell Corp., the company that supplied Conway with the decking materials, and Zellcomp, the company that made the decking materials, to determine who should foot the bill for extensive repairs or outright replacement of the decking.”
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Rulemaking to Modernize, Expand DOI’s “Type A” Natural Resource Damage Assessment Rules Expected Fall 2023
December 23, 2023 —
Amanda G. Halter, Jillian Marullo & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law BlogThe U.S. Department of the Interior (DOI) anticipates proposing a new rule that would revise its “Type A” Natural Resource Damage Assessment (NRDA) regulations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in Fall 2023. The proposed rule would modernize DOI’s rarely used simplified Type A procedures for assessing damages for natural resource injuries tailored at sites involving minor releases of hazardous substances, with a smaller scale and scope of natural resource injury occurring in either coastal and marine areas or Great Lakes environments (the “Type A Rule”). (See 88 Fed. Reg. 3373; see 43 C.F.R. Pt. 11 Subpt. D.) The Type A Rule was last updated in 1997.
DOI previewed the proposal in January 2023 in its Office of Restoration and Damage Assessment’s (ORDA)
Advanced Notice of Proposed Rulemaking (ANPR). In the ANPR, the ORDA surmised that the Type A Rule was rarely used in part because of its restricted scope, but also because “the model equation for each Type A environment is the functional part of the rule itself—with no provisions to reflect evolving toxicology, ecology, technology, or other scientific understanding without a formal amendment to the Type A Rule each time a parameter is modified.” Calling the existing rule “inefficient and inflexible,” the ORDA stated that its proposal to reformulate the rule “as a procedural structure” would “modernize the Type A process and develop a more flexible and enduring rule than what is provided by the two existing static models” (88 Fed. Reg. 3373).
Reprinted courtesy of
Amanda G. Halter, Pillsbury,
Jillian Marullo, Pillsbury and
Ashleigh Myers, Pillsbury
Ms. Halter may be contacted at amanda.halter@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
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Navigating the New Landscape: How AB 12 and SB 567 Impact Landlords and Tenants in California
March 11, 2024 —
Sharon Oh-Kubisch - Kahana FeldThere are various changes in the Landlord-Tenant laws in CA that became effective in 2024.
For the purposes of this article, I wanted to focus on Assembly Bill (AB) 12 and Senate Bill (SB) 567 only.
Governor Gavin Newsom recently signed AB 12 into law, a legislation that limits the amount landlords can charge for security deposits to just one month’s rent for unfurnished apartments. While the law aims to make housing more accessible, it raises several concerns for landlords and tenants alike. AB 12, was authored by Assemblyman Matt Haney, D-San Francisco; it passed both the Senate and the Assembly houses in September. The legislation introduces a notable shift from existing law, under which landlords can charge up to two months’ rent for an unfurnished unit and three months’ rent for a furnished one. This exception does not apply when the prospective tenant is a military service member, however.
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Sharon Oh-Kubisch, Kahana FeldMs. Oh-Kubisch may be contacted at
sokubisch@kahanafeld.com
Brown and Caldwell Team with AECOM for Landmark Pure Water Southern California Program
May 15, 2023 —
Brown and CaldwellLOS ANGELES, May 09, 2023 — A joint venture of AECOM and Brown and Caldwell (AECOM-BC Team) has been chosen to provide program and project management support and engineering design services for the
Pure Water Southern California program, one of the largest water reuse programs in the world.
The innovative program, being developed by the Metropolitan Water District of Southern California (Metropolitan) in partnership with the Los Angeles County Sanitation Districts (Sanitation Districts), will produce up to 150 million gallons of high-quality, purified water per day for up to 15 million people.
Anticipated for water delivery by 2032 and potentially earlier, the program will reuse the largest untapped wastewater source in the region that currently flows to the ocean to increase water resiliency, enhance water quality, and fuel economic growth. It will lower Southern California’s reliance on imported water supplies from the Colorado River and Sierra Nevada and replenish groundwater basins while leveraging cutting-edge research and development to increase regional water reuse.
About Brown and Caldwell
Headquartered in Walnut Creek, California, Brown and Caldwell is a full-service environmental engineering and construction services firm with 52 offices and over 1,900 professionals across North America and the Pacific. For more than 75 years, our creative solutions have helped municipalities, private industry, and government agencies successfully overcome their most challenging water and environmental obstacles. As an employee-owned company, Brown and Caldwell is passionate about exceeding our clients’ expectations and making a difference for our employees, our communities, and our environment. For more information, visit www.brownandcaldwell.com
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Who Says You Can’t Choose between Liquidated Damages or Actual Damages?
October 11, 2017 —
Kevin Walton - Snell & Wilmer Real Estate Litigation BlogIn Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages that would result from a breach. But what happens when a contract gives a party a right to choose between liquidated damages or actual damages? This seems troublesome because it allows a party to set the floor for their damages without limitation if actual damages exceed the contractual amount. As a matter of first impression, the Colorado Supreme Court addressed this issue in Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552 (Colo. 2017).
In Ravenstar, plaintiffs contracted to buy condominiums from a developer. As part of their contracts, plaintiffs deposited earnest money and construction deposits equal to 15% of each unit’s purchase price. Plaintiffs breached their contract by failing to obtain financing and failing to close by the closing date. Each contract’s damages provision provided that if a purchaser defaulted, the developer had the option to retain all or some of the deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits to that award. After plaintiffs defaulted, the developer chose to keep plaintiffs’ deposits as liquidated damages. Plaintiffs sued for return of their deposits.
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Kevin Walton, Snell & WilmerMr. Walton may be contacted at
kwalton@swlaw.com
You Need to be a Contractor for Workers’ Compensation Immunity to Apply
November 16, 2020 —
David Adelstein - Florida Construction Legal UpdatesIf you are a contractor, you are aware of workers’ compensation immunity when it comes to injuries on the site; and, if not, you should be. It is this workers’ compensation immunity (where workers compensation is the exclusive form of liability for an injured employee) which is why a contractor should generally always want to ensure its subcontractors have workers’ compensation insurance. Workers’ compensation immunity would protect a contractor that is being sued by a subcontractor’s employees that are injured on the job. For more information on workers’ compensation immunity, please check out this
article and this
article.
In this regard, Florida Statute s. 440.10(1)(b) provides:
In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.
(If the subcontractor does not have workers’ compensation insurance, the contractor is deemed the statutory employer and its workers’ compensation insurance would apply. Otherwise, the subcontractor’s workers compensation insurance would apply.)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
