CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Common Construction Contract Provisions: Indemnity Provisions

January 19, 2017 — David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLP Blog
Upcoming blog posts will focus on common contract provisions found in construction contracts. Such provisions are not solely limited to construction contracts and can be found in many other types of business contracts as well. This post will highlight indemnity clauses. An indemnity clause is a common contract provision used to allocate risk between parties to a contract. The clause obligates one party (the Indemnitor) to protect the other party (the Indemnitee) from certain losses, typically arising from claims of third parties. It may require the Indemnitor to reimburse the Indemnitee for losses or expenses, or satisfy judgments, or even defend the Indemnitee in a lawsuit. Read the court decision
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Reprinted courtesy of David R. Cook Jr., Autry, Hanrahan, Hall & Cook, LLP
Mr. Cook may be contacted at cook@ahclaw.com

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Peru’s Former President and His Wife to Stay in Jail After Losing Appeal

August 10, 2017 — John Quigley - Bloomberg
Former President Ollanta Humala and his wife Nadine Heredia will remain in jail while they are investigated for campaign donations involving Brazilian construction companies and the Venezuelan government, a Peruvian court said Friday. The couple, who were given pre-trial detention three weeks ago, had asked the appeal court judges to change the order for one requiring them not to leave the country and to appear regularly before the authorities. The couple turned themselves in on July 13 after Judge Richard Concepcion ordered 18 months of preventive detention for suspected money laundering. Concepcion had said there was sufficient evidence of wrongdoing and grounds to believe Humala and his wife would seek to obstruct the ongoing investigation by the Attorney General’s office. Read the court decision
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Reprinted courtesy of John Quigley, Bloomberg

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Hong Kong Property Tycoon Makes $533 Million Bet on Solar

April 02, 2014 — Ehren Goossens and Benjamin Haas - Bloomberg News
A Hong Kong real-estate tycoon has spent the past year accumulating stakes in failing solar companies, piecing together what may become the biggest collection of photovoltaic factories in the world. Zheng Jianming, also known in Cantonese as Cheng Kin Ming, has spent or pledged about $533 million to buy assets that at their peak were worth almost $20 billion, according to regulatory filings in the U.S. and Hong Kong, where he has a home and office. The transactions, if completed, would transform Zheng, a newcomer to the solar industry, into one of its most powerful leaders. Another Zheng solar investment in 2012, a 30 percent stake in Shunfeng Photovoltaic International Ltd. (1165), has surged more than 2,900 percent and is now worth more than $745 million. Mr. Goossens may be contacted at egoossens1@bloomberg.net; Mr. Haas may be contacted at bhaas7@bloomberg.net Read the court decision
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Reprinted courtesy of Ehren Goossens and Benjamin Haas, Bloomberg News

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The Right to Repair Act (Civ.C §895 et seq.) Applies and is the Exclusive Remedy for a Homeowner Alleging Construction Defects

February 07, 2018 — Craig Wallace – Smith Currie
McMillin Albany LLC v. Superior Court (01.18.18) ____ Cal.4th _____ (2018 WL 456728) The California Supreme Court confirmed that the Right to Repair Act (CA Civil Code § 895, et seq. and often referred to by its legislative nomenclature as “SB800”) applies broadly to any action by a residential owner seeking recovery of damages for construction defects, regardless of whether such defects caused property damages or only economic losses. This includes the right in the Act of the builder to attempt repairs prior to the owner filing a lawsuit. Background Homeowners sued builder for construction defects. Included in their causes of action was a cause of action for violation of the Right To Repair Act. The Act requires that before filing litigation, a homeowner must give the builder notice and engage in a nonadversarial prelitigation process which gives the builder a right to repair the defects. The builder asked the court to stay the homeowners’ action so the prelitigaiton process could be undertaken. Rather than give the builder the repair right, the homeowners dismissed the particular cause of action from their case, leaving only other so-called common law and warranty causes of action. The common law claims sought recovery for property damage caused by the defects. The builder nonetheless asked to the Court to stay the action so it could exercise its right to repair. The trial court, relying on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, denied builder’s request to stay the action. The Liberty Mutual Court concluded that certain common law construction defect claims fell outside the purview of the Act. Builder appealed. The Court of Appeal disagreed with Liberty Mutual, so did not follow it, granted the builder’s request for a stay, and directed that the homeowners afford the builder the right to repair the claimed defects as provided under the Act. The California Supreme Court affirmed, disapproving Liberty Mutual and the subsequent cases relying on it. Read the court decision
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Reprinted courtesy of Craig Wallace, Smith Currie
Mr. Wallace may be contacted at swwallace@smithcurrie.com

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Floating Crane on Job in NYC's East River Has a Storied Past of Cold War Intrigue

March 22, 2017 — Nadine M. Post – Engineering News-Record
The complex maneuver of lifting heavy prefabricated modules out of New York City's East River to build a university laboratory took careful planning and the work of one particular floating crane with a complicated past. Read the court decision
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Reprinted courtesy of Nadine M. Post, Engineering News-Record
Ms. Post may be contacted at postn@enr.com

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“Made in America Week” Highlights Requirements, Opportunities for Contractors and Suppliers

August 14, 2023 — Sarah Barney & Amy Hoang - The Construction Seyt
On July 21, 2023, President Biden designated July 23-29, 2023, as “Made in America Week.” This proclamation builds on the Biden Administration’s efforts to bolster domestic manufacturing through evolving policies attached to government funds that require contractors and suppliers to feature varying amounts of U.S.-made content in their products and services. To commemorate this week, here is a refresher on “Made in America” and what it means for government contractors and suppliers. What does “Made in America” mean? Under Executive Order 14005, the Administration defined “Made in America” laws as “all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to “Buy America” or “Buy American,” that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States.” Generally speaking, “Made in America” or “Buy American” requirements refer to:

1. The Buy American Act (BAA) of 1933, establishing domestic sourcing preferences for unmanufactured and manufactured articles, materials, and supplies procured by the federal government for public use, including those used on federal construction contracts;

Reprinted courtesy of Sarah Barney, Seyfarth and Amy Hoang, Seyfarth Ms. Barney may be contacted at sbarney@seyfarth.com Ms. Hoang may be contacted at ahoang@seyfarth.com Read the court decision
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Late Progress Payments on Local Public Works Projects Are Not a Statutory Breach of Contract

May 10, 2022 — Ted Senet & Christopher Trembley - Gibbs Giden
California local public agencies and their contractors should take note of a recent appellate decision pertaining to late progress payments on public works projects. In Clark Bros., Inc. v. North Edwards Water Dist., 2022 Cal. App. LEXIS 331, filed on April 22, 2022, the Court of Appeal for the Fourth Appellate District held that a local agency’s late progress payments to a general contractor did not constitute breach of contract under the prompt payment penalty statute, Public Contract Code § 20104.50. Notwithstanding this holding, the contractor recovered damages, interest, fees, and costs in excess of its contract amount. In 2013, the North Edwards Water District awarded a $6.2 million contract to Clark Bros., Inc. to construct a water treatment facility. The District’s water contained excessive levels of arsenic, and the project was sponsored by the State of California with funds earmarked to provide safe drinking water. The State agreed to disburse funds to the District during construction upon the State’s review and approval of the contractor’s progress payment applications. The contract required completion of the work within one year following the District’s issuance of a notice to proceed to the contractor. As a result of factors arguably outside the control of the contractor, including unforeseen site conditions and the failure of the District’s equipment supplier to meet delivery deadlines, the project was significantly delayed beyond the deadline for completion. The District nonetheless terminated the contractor, which in turn filed suit against the District and the State. The contractor asserted claims for breach of contract, including breach of contract for the District’s failure to pay the contractor’s progress payment applications within the time specified under Public Contract Code § 20104.50. Subsection (b) of the statute provides:

Any local agency which fails to make any progress payment within 30 days after receipt of an undisputed and properly submitted payment request from a contractor on a construction contract shall pay interest to the contractor equivalent to the legal rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure.

Reprinted courtesy of Ted Senet, Gibbs Giden and Christopher Trembley, Gibbs Giden Mr. Senet may be contacted at tsenet@gibbsgiden.com Mr. Trembley may be contacted at Ctrembley@gibbsgiden.com Read the court decision
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Hartford Stadium Controversy Still Unresolved

September 22, 2016 — Scott Van Voorhis - Engineering News-Record
The Hartford Yard Goats and the city of Hartford, Conn., say Arch Insurance—the surety for the dual developer/prime contractor of the minor-league baseball team’s new, unfinished stadium—has committed to helping complete the project now that the team and its developer have acrimoniously split. Read the court decision
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Reprinted courtesy of Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr.com@bnpmedia.com

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