Category: Construction Contracts

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Reminder of January 1, 2019 Mandatory New Notice Requirement by CA Residential Solar Contractors

In 2017, the California Legislature passed a bill that resulted in Business and Professions Code (BPC) section 7169, which ultimately would require Home Improvement Contractors, which include contractors that install solar systems on residences, to issue specific disclosures to any residential consumers who may want to purchase, finance or lease, and install a solar system on … Continue Reading

“Is Mike M. Johnson Here to Stay?”—Recent Washington Supreme Court Case Upholds Contractual Waiver of Claims Provision

In Nova Contracting, Inc. v. City of Olympia, No. 94711-2 (Wash. Sept. 29, 2018), the Washington Supreme Court, sitting en banc, ruled in favor of a municipality on the issue of whether the general contractor complied with a contract’s notice of claim provision.  Relying on Mike M. Johnson, Inc. v. Spokane County, 150 Wn.2d 375, … Continue Reading

Developers and Builders Gain Time from Permit Expiration in California with AB 2913

After decades of dealing with a hodgepodge of local adoption (or not) of administrative codes relating to building permit extensions, California Governor Brown’s September 21, 2018 signature on AB 2913 is a welcome addition of at least six months to the existing statutory commencement of work period. AB 2913 allows a uniform 12-month period across … Continue Reading

The Owner’s Guide to Negotiating Construction Contracts During Volatile Trade Negotiations

President Trump’s new tariffs and ongoing trade negotiations concerning building commodities like steel, aluminum, and lumber have resulted in uncertain market conditions for those in the construction industry, making it nearly impossible for owners, developers, contractors, and suppliers to accurately analyze and allocate risks during construction contract negotiations. In my latest article for the Daily … Continue Reading

Legislative Update: House Bill 4154

In February 2018, the Oregon Legislature attempted to push through House Bill 4154, which would have made a general contractor liable for unpaid wages, including benefit payments and contributions, of an employee of a subcontractor at any tier, after that employee files a wage claim and the Commissioner of the Bureau of Labor and Industries … Continue Reading

California Contractors State License Board (CSLB) Issues FAST FACTS for Contractor Referral Businesses

There is no doubt that our national economy relies heavily on e-commerce.  This is true with regard to contractors in California as well. As individuals and businesses look for quality builders, trades and services in the construction field, they look for sources of on-line information to evaluate whom to hire.  Would you think that an … Continue Reading

Can a Contingent Payment Provision Affect a Construction Lien Claim in Washington?

During Seattle’s current construction boom, general contractors and subcontractors may be concentrating more on finalizing work on their projects than on worrying about the niceties of their construction contract documents. It is no less prudent now, however, for the parties to remain aware of their contractual rights and responsibilities—especially those tied to payment.  One payment … Continue Reading

When Three’s Company, and Not a Crowd

Negotiating construction contract language in 2017 can have important consequences years into the future. The obligations and rights arising from one often overlooked clause, that addressing contractual “third-party beneficiaries,” i.e. “a person or entity who, though not a party to the contract, stands to benefit from the contract’s performance,”  can vary considerably from state to … Continue Reading

Contracts Are King, But Don’t Forget Tort Law

The construction industry is driven by its memorialization of business terms and legal obligations in written contracts.  However, “tort” law also imposes many implied rights and obligations independent of what parties may have formally agreed to, the foremost of which is to use reasonable care so as to avoid damage to others. In my recent Daily … Continue Reading

Think the ADA preempts contractual risk shifting? Not so fast, says the Ninth Circuit.

Rejecting an argument that the ADA preempts all contractual claims for indemnity and contribution, the Ninth Circuit recently upheld a public owner’s right to seek contribution for damages arising out of ADA violations caused by the designer and contractor of a transportation facility. See City of Los Angeles v. AECOM Services, Inc. (here). This decision … Continue Reading

The Devil is in the Details: Contractual Additional Insured Requirements

Owners frequently require their contractors to name them as additional insureds. Owners and contractors often include requirements seeking to have the obligation to name them as additional insureds “flow down” to parties with whom they lack a direct contractual relationship (e.g., subconsultants, subcontractors, and suppliers).  Despite the simplicity and appeal of this arrangement, contractual additional … Continue Reading

“Blurred Lines”: Important Caveats to Consider with Integrated Project Delivery

The shared risk/reward concept of an integrated project delivery (IPD) arrangement is an increasingly attractive collaborative approach to construction projects.  But IPD is still a relatively new concept with unique risks and challenges.  In my recent article for the Daily Journal of Commerce, I discuss some key points that should be considered before undertaking any … Continue Reading

Teaming Agreements Set Out Construction Team Members’ Relationship and Responsibilities in Pursuing Award of a Contract

A written teaming agreement is useful in defining the roles and responsibilities of a team of designers and contractors seeking to win a contract for a construction project. In my recent article for the Daily Journal of Commerce, I detail several key aspects of a well-drafted teaming agreement. Read the full article here. “Teaming Agreements: … Continue Reading

Design-Build Certification

One should never stop learning, so next week I will attend a three-day seminar presented by the Design-Build Institute of America. If I complete the seminar and pass a test, I will become a Designated Design-Build Professional.  The DBIA has an informative page about certification on its website. In preparation for the seminar, I completed … Continue Reading

When “Non-Binding” LOIs Become Binding

A letter of intent (“LOI”) is often the first document in a proposed deal – a summary of a range of key terms or concepts for negotiation toward entering into a final, formal agreement. But what seems like a simple document can be much more than a mere list of possible terms to be discussed … Continue Reading

Choice of Law Provisions Cannot Bypass California’s Prohibition on Jury Waivers

Last week, the California Court of Appeal ruled that a property owner was entitled to a jury trial in a dispute with a lender despite the fact that the loan agreement contained a jury waiver provision and a New York choice-of-law provision. The case involved the San Francisco apartment complex known as the Rincon Towers. … Continue Reading

Joint Venturers Must Venture Carefully

There are good reasons to partner with other designers or contractors–even competitors–on construction and design projects.  Perhaps such a collaboration gives you access to new geographical or industry markets, or enables you to take on a project of broader scope.   A joint venture arrangement is a straight-forward way to collaborate in such instances.  However, there … Continue Reading

Idaho Reads Force Majeure Clause Broadly as Written

In a ruling supporting common sense, the Idaho Supreme Court ruled that a county could not avoid the application of a broad force majeure clause in its development agreement with a developer based on the county’s denial of the rezoning required for the very development. The key facts in Burns Concrete, Inc. v. Teton County, … Continue Reading

Joint Washington/Oregon Construction Law Seminar – November 4, 2016

On November 4, 2016, my colleague, Andrew Gibson (from the Portland office of Stoel Rives), and I will co-chair a joint OSBA/WSBA construction law CLE, entitled Two States of Construction Law: Working in Both Washington and Oregon, located at the Heathman Lodge in Vancouver, Washington. This seminar will include a panel of knowledgeable lawyers with … Continue Reading

Self-Imposed ADA Audits: The Developer’s Best Option

Recent rulings indicate that courts across the country view project owners’ and developers’ liability for ADA claims differently than they do other compliance violations.  Owners’ attempts to raise questions of contractor negligence, breach of contract or breach of warranty are being rejected.  So what can a project owner do? In my recent article for the … Continue Reading

Negotiating by a Thousand Texts: LOL? Think Again.

The law may be slow to evolve, but courts are beginning to embrace 21st century communication methods.  The prospect of negotiating a deal by text message may seem like a laughing matter, but a Massachusetts court recently relied on parties’ email and text communications to determine the essential elements of an agreement for the sale … Continue Reading

Subcontractor Costs May Become Public Record in Federal Aid Contracts

Contractors who bid on public projects that utilize federal money  can be surprised by additional administrative requirements they do not usually find in their contracts.  In my recent article for the Daily Journal of Commerce, I discuss one of those requirements that may require you to disclose  subcontractor agreements, and what you can do to … Continue Reading

“Without Performance Specifications, Green Building Can LEED to Disputes

It’s been more than 20 years since the LEED standard was introduced, and green building has now become a significant percentage of new U.S. commercial real estate construction.  The benefits of green building techniques and products have made LEED certification a hot commodity and changed the construction industry.  But there are also risks involved if … Continue Reading
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