Fairfield Connecticut Building Expert Directory

Retainage: What Contractors Need to Know and Helpful Strategies

June 04, 2024 — Gerard J. Onorata - ConsensusDocs
Introduction Most, if not all, construction contracts contain a provision for “retainage.” The origin and concept of retainage dates back to the railroad boom that embraced Great Britain in the 1840s. In its simplest terms, retainage is a mechanism by which an owner or general contractor withholds disbursement of funds from the payment of a requisition in order to secure future performance of a contract and/or to pay for repair of defectively performed work. Retainage typically ranges from five to ten percent, with the amount being reduced as the project progresses to substantial and final completion. One of the reasons for withholding retainage is to incentivize a contractor to complete its work in accordance with the contract terms and conditions. While this may be well-intentioned in concept, it all too often leads to abuse that impacts project cash flow and raises tension between the parties. This typically happens on projects that have delay issues, deficient drawings, and/or claims of defective work. When a project has “gone bad,” the withholding of retainage is one of the first things that an owner will latch onto in order to leverage its position against a contractor. In order for a contractor to put itself in the best position possible, the following negotiation techniques and protective measures should be kept in mind. Know Your Applicable Statute Every state except West Virginia has statutes in place that govern the payment of retainage on public projects. On federal projects, the amount of retainage withheld shall not exceed ten percent as set forth in the Federal Acquisition Regulations (“FAR”). The common thread running through these statutes is the payment of interest as a remedy when the retainage is not timely paid. Historically, most retainage statutes were applicable only to publicly funded projects. This has recently changed with a substantial number of state legislatures recognizing that the payment of retainage on private projects was a serious enough problem to warrant regulation. These include Alabama, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, and Vermont. New York’s retainage laws relating to private projects were enacted only this past November. Read the court decision
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Reprinted courtesy of Gerard J. Onorata, Peckar & Abramson
Mr. Onorata may be contacted at gonorata@pecklaw.com

Environmental Justice Legislation Update

May 17, 2021 — Anthony B. Cavender - Gravel2Gavel
Environmental Justice, as an urgent priority of the Federal Government, dates back to 1994, and President Clinton’s issuance of Executive Order 12898. This order directed federal agencies to identify and address, as appropriate, the disproportionately high and adverse human health and environment effects of its many programs, policies and procedures on minority populations and low-income populations. The primary legal basis for this order was Title VI of the Civil Rights Act of 1964, in particular, Sections 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance. Over the years, the Supreme Court has reviewed the scope and importance of Title VI. In Alexander v. Sandoval, decided in 2001, the Court concluded that while private parties could sue to enforce Section 601 or its implementing regulations, as written, Section 601 only prohibits intentional discrimination. Noting that disproportionate impact is not the sole touchstone of invidious racial discrimination. Moreover, the Court also ruled in Sandoval that private parties cannot sue to enforce regulations implementing Section 602. Perhaps as an acknowledgement of these shortcomings, the Environmental Protection Agency (EPA) has established an administrative system to process environmental justice complaints at 40 CFR Part 7. Without strengthening the statutory base of environmental justice, the program may continue to be the subject of countless symposiums and seminars. However, this may change soon. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Arizona Court Determines Statute of Limitations Applicable to a Claim for Reformation of a Deed of Trust (and a Related Claim for Declaratory Judgment)

October 16, 2018 — Kevin J. Parker - Snell & Wilmer Real Estate Litigation Blog
In a recent Arizona Court of Appeals case, Deutsche Bank National Trust Co. v. Pheasant Grove LLC, 798 Ariz. Adv. Rep. 15 (August 23, 2018), the Court of Appeals addressed the question of what statute of limitations was applicable to a declaratory judgment claim. In that case, a bank’s deed of trust inadvertently omitted one of the lots that was supposed to secure that bank’s loan. The deed of trust should have covered lots 8 and 9, but by its terms covered only lot 8. A different bank subsequently recorded a deed of trust that encumbered lot 9. In connection with the second bank’s foreclosure of its deed of trust, the first bank sought reformation and a declaratory judgment with regard to its deed of trust, seeking to have that deed of trust cover both lots 8 and 9, as intended. The trial court determined that the first bank’s reformation claim was filed too late, and also determined that the declaratory judgment claim was filed too late, beyond the applicable statute of limitations. Read the court decision
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Reprinted courtesy of Kevin J. Parker, Snell & Wilmer
Mr. Parker may be contacted at kparker@swlaw.com

Contractor Disputes Report Amid Amazon Warehouse Collapse Lawsuit

May 02, 2022 — James Leggate - Engineering News-Record
A contractor facing a lawsuit related to the December partial collapse of an Amazon.com Inc. warehouse that was hit by a tornado is pushing back on claims in a fire marshal’s report that highlighted possible “significant structural issues” with the building. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Travelers v. Larimer County and the Concept of Covered Cause of Loss

May 10, 2013 — Brady Iandiorio
Travelers Indemnity Company (“Travelers”) recently won a decision against Larimer County regarding a claim for damage caused to the roofs of several buildings at the County Fairgrounds. Travelers Indemnity Company v. Board of County Commissioners for Larimer County, Slip Copy, 2013 WL 238865, p. 1 (10th Cir. 2013). Larimer County alleged, in district court, that snowstorms and the weight of the snow build-up caused damage to the roof structures. Id. After the district court found for Travelers on a motion for summary judgment, Larimer County appealed the ruling, claiming that Traveler’s was obligated under the insurance policy to pay for repair costs to portions of the roofing structure. Id. The underlying claim for repairs originates with several snowstorms that caused damage to several buildings on the County Fairgrounds. The damage claimed was widespread to the roof structures, evidenced by rolling and buckling purlins (horizontal beams running along the length of the roof, resting upon the principal rafters at right angles and supporting the ordinary rafters). Travelers denied the claim based on its own investigation which concluded the damage was caused by design and construction defects, and therefore excluded from coverage under the insurance policy. Read the court decision
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Reprinted courtesy of Brady Iandiorio
Mr. Iandiorio can be contacted at iandiorio@hhmrlaw.com

Restoring the USS Alabama: Surety Lessons From an 80-Year-Old Battleship

November 13, 2023 — Richard Sghiatti - Construction Executive
It’s not every day that a construction company gets to renovate an 80-year-old battleship. Yet that’s exactly where Youngblood-Barrett Construction & Engineering workers found themselves when they began restoring the main deck of the USS Alabama, a storied World War II battleship. The USS Alabama has a remarkable past. One of four South Dakota–class battleships, the “Mighty A” was commissioned in 1942. It deployed first to the Atlantic and then to the Pacific, where it earned nine battle stars for meritorious service. At 680 feet long and 108 feet wide, the “Heroine of the Pacific” had a wartime crew of 2,500 men. By 1962, though, the Navy was ready to scrap it. That’s when the state of Alabama decided to acquire the ship and preserve it as a museum. The USS Alabama was moved to Mobile and opened to the public in January 1965. Reprinted courtesy of Richard Sghiatti, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Preserving Your Construction Claim

February 18, 2015 — Craig Martin – Construction Contractor Advisor
A recent article in the Construction Executive discussed the importance of preserving your claim, both in terms of timeliness of submitting your claim and making sure that you aren’t waiving portions of your claim when executing releases. These are all excellent points and bear some follow-up. Timing Your Claim I often review construction contracts that contain deadlines by which claims must be submitted. It may seem counter intuitive to think that you need to submit a claim when you are discussing the basis for the claim with an upstream contractor or the owner. But, there are more cases than I care to count where a contractor’s claim has been denied because the claim was not timely submitted. 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

Drill Rig Accident Kills Engineering Manager, Injures Operator in Philadelphia

August 10, 2021 — Stephanie Loder - Engineering News-Record
Philadelphia officials and engineering firm Langan have confirmed that a company project manager and geotechnical engineer died July 6 in a nighttime drill rig accident while he was on site to inspect foundation work for a pedestrian bridge project. Reprinted courtesy of Stephanie Loder, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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FAIRFIELD CONNECTICUT BUILDING EXPERT DIRECTORY AND CAPABILITIES