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This article discusses 3 often-overlooked provisions which should also be carefully reviewed to ensure the project runs smoothly and to avoid unintended consequences or even disputes (and litigation) during construction.

Sweat the Small Stuff – Don’t Overlook These Three (3) Clauses When Negotiating Your Construction Contract

Monday, April 8, 2024 — Bill Shaughnessy - ConsensusDocs

Reviewing and understanding the terms of your construction contract before signing on the dotted line (ideally with counsel involved) is an obvious best practice – whether you are owner, general contractor, design-professional or down-tier subcontractor or supplier. Typically, during this review process, parties pay closest attention to terms relating to price, scope, schedule, insurance, indemnification, and damages. And rightfully so, as these are just some of the most fundamental and important clauses of any construction contract.

But during this review and understanding process, parties often overlook and fail to fully review and understand several notably important contract provisions (other than the examples above) which can have just as significant an impact on the project and even unintended consequences once construction starts. This article discusses three (3) of these often-overlooked provisions which should also be carefully reviewed to ensure the project runs smoothly and to avoid unintended consequences or even disputes (and litigation) during construction:

  1. Incorporation by reference clause;
  2. Order of precedence or higher standard clause; and
  3. Choice of law clause.
Reprinted courtesy of Bill Shaughnessy, Jones Walker LLP (ConsensusDocs)

Mr. Shaughnessy may be contacted at bshaughnessy@joneswalker.com

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Businessman and clock

There are a number of important steps to follow and timelines to be met in order to pursue this remedy.

Project Completion Determines Mechanics Lien Recording Deadline

Monday, April 8, 2024 — William L. Porter - Porter Law Group

The California mechanics lien is one of the most powerful collection remedies available to contractors, subcontractors and suppliers who are unpaid for work performed and materials supplied in relation to a California private works construction project. The mechanics lien allows the claimant to actually sell the property where the work was carried out in order to obtain payment, entirely of course, against the wishes of the property owner. There are a number of important steps to follow and timelines to be met in order to pursue this remedy.

First, Understand Your Preliminary Notice Deadline
Working within deadlines is absolutely crucial to preserving mechanics lien rights under California law. The deadlines differ, depending on whether you are a “direct” contractor, also known as “original” or “prime” contractor (one who contracts directly with the property owner) or a subcontractor or material supplier. The process begins with the serving of a “preliminary notice” no later than 20 days after the party serving the preliminary notice begins supplying labor or materials to the project. Direct contractors are only required to serve the preliminary notice on the construction lender (Civil Code section 8200-8216), whereas subcontractors and material suppliers must serve not only the construction lender, but also the owner and direct contractor (see Civil Code section 8200(e)).

Reprinted courtesy of William L. Porter, Porter Law Group

Mr. Porter may be contacted at bporter@porterlaw.com

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Businessman signing document

Your process for reviewing and negotiating construction contracts is an important topic.

Your Construction Contract

Monday, April 8, 2024 — David Adelstein - Florida Construction Legal Updates

Your construction contract is an important topic. What’s even more important is YOUR process for reviewing and negotiating construction contracts.

Are you simply acting as a riverboat gambler willing to assume undue risk because you don’t value the investment in understanding what you are signing? If so, it becomes hard to complain about what you agreed to and signed when you chose NOT to invest in the process. Investing in the process means you are working with a construction attorney, you have an insurance broker that understands your industry, you have resources in place to ensure risk is negotiated and allocated, and you understand what risk you are assuming to make sure you are properly protecting and perfecting your rights, and transferring risk downstream.

When it comes to construction contracts, there are really three approaches:

1. Riverboat Gambler. This is the “I’ll sign whatever you give me because I don’t want to lose the contract / revenue.” Under this approach, you are not worried about undue risk because you don’t value the investment in the next two approaches. Your thought process is that you’ll care about the risk when an issue pops up, i.e., the riverboat gambler. This is not an approach I’d recommend because it is contrary to the adage, “an ounce of prevention is worth a pound of cure.” This is simply a reactive approach to issues and risks. The other two approaches are more proactive and better suited to understand and manage risk.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Safety is in your hands. Every dig. Every time.

April 8, 2024 — Pennsylvania One Call System, Inc.

WEST MIFFLIN, Pa., April 2, 2024 /PRNewswire/ -- April is a busy time of the year, notifying 811 for every digging project, every time helps ensure worker safety and prevents costly utility damage.

Pennsylvania One Call System, Inc. dba Pennsylvania 811 is proud to join a nationwide effort to raise awareness and promote safety. Safe Digging Month emphasizes the importance of contacting 811 at least three business days, no more than 10 business days, in Pennsylvania before any excavation work. It is never worth risking safety and financial consequences by not following proper procedures.

Help Pennsylvania 811 keep everyone safe during all excavation projects. No matter how large or small your project is, always contact 811 at least three business days before you dig! Safety is in your hands. Every dig. Every time. www.pa1call.org/notify

About Pennsylvania 811
Pennsylvania 811's mission is to prevent damage to underground facilities. To promote safety, Pennsylvania 811 provides an efficient and effective communications network among project owners, designers, excavators, and facility owners. Since its inception in 1972, membership has increased from 6 utilities to over 3,700 underground facility owners and operators in 67 counties. Membership has been mandatory for facility owners that serve customers or consumers since 1987. The service is available 24 hours a day, every day of the year. Pennsylvania 811 serves all 67 counties and employs over 80 people.

Year in Review: Top Insurance Cases of 2023

April 8, 2024 — Michael S. Levine, Latosha M. Ellis & Olivia G. Bushman - Hunton Insurance Recovery Blog

Directors and Officers (“D&O”) and cyber-related incidents continued to make headlines while ramped up regulatory enforcement and new legislation significantly altered the insurance landscape for both policyholders and insurers. Other noteworthy decisions reinforced the importance of foundational insurance coverage principals. Now that 2023 has wrapped, we highlight and review some of the most significant decisions and insurance developments that will continue to impact the world of insurance in 2024 and beyond.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth, Latosha M. Ellis, Hunton Andrews Kurth and Olivia G. Bushman, Hunton Andrews Kurth

Mr. Levine may be contacted at mlevine@HuntonAK.com
Ms. Ellis may be contacted at lellis@HuntonAK.com
Ms. Bushman may be contacted at obushman@HuntonAK.com

Homebuilder Toll Brothers Hits Record With Strong Demand Outlook

April 8, 2024 — Prashant Gopal - Bloomberg

Luxury homebuilder Toll Brothers Inc. rose to a record Wednesday as the company said it’s optimistic about its prospects for a key selling season.

Since mid-January, “we have seen a meaningful uptick in demand that has continued through this past weekend,” Chief Executive Officer Doug Yearley said in an earnings call Wednesday.

The builder lifted its outlook for home deliveries in its fiscal year. Shares climbed 6.1% to $109.61 at 10:09 a.m. Wednesday, the biggest intraday jump since the middle of December.

2024 ABC Users Summit

April 8, 2024 — Beverley BevenFlorez – CDJ Staff

This year’s ABC Users Summit is a “business-building event that brings owners and contractors together.” The three-day event “gives construction owners and contractor members the opportunity to share ideas and learn from one another—with a focus on delivering value to all parties.” The annual conference will cover “AI in construction, workforce development solutions, delivery models and contracts, cybersecurity, ESG impacts, the latest economic outlook and more.” Attendees “can refine [their] skills and engage in open discussions with [their] peers and partners across multiple industries, including health care, industrial, banking, hotel, restaurant, agriculture, retail, institutional and more.”

May 20th-22nd, 2024
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Some state courts – including Louisiana – are fact pleading courts.

Construction Litigation Roundup: “This Is Sufficient for Your Purposes …”

Monday, April 8, 2024 — Daniel Lund III - Lexology

… but just barely.

Federal courts are “notice” pleading courts. One source writes: “Notice pleading refers to pleading standards that merely notify the opposing party and court of the general issues in the case. In contrast to fact pleading standards, notice pleading standards do not require pleadings to include hyper-detailed facts in support of each claim.”

Some state courts – including Louisiana – are fact pleading courts. Ordinarily, no one practicing in Louisiana state courts would describe the fact pleading requirements for initiating a lawsuit as mandating “hyper-detailing” of the facts, but … why risk it?

In a construction mechanics lien case – the jurisprudence for which requires that courts strictly construe the related law because liens empower lien holders with rights which are “in derogation” of common property ownership rights – the defendant was successful in having the trial court dismiss a lien suit for failing to affirmatively set forth in the complaint (a “petition” in Louisiana) the date of substantial completion. The lien claimant appealed.

Reprinted courtesy of Daniel Lund III, Phelps

Mr. Lund may be contacted at daniel.lund@phelps.com

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Businessman holding red umbrella

The Florida Supreme Court found that a trial court could compel an appraisal of the insured's loss prior to resolving coverage issues.

Appraisal Can Go Forward Prior to Resolution of Coverage Dispute

Monday, April 8, 2024 — Tred R. Eyerly - Insurance Law Hawaii

The Florida Supreme Court found that a trial court could compel an appraisal of the insured's loss prior to resolving coverage issues. Am. Coastal Ins. Co. v. San Marco Villas Condo. Ass'n, Inc., 2024 Fla. LEXIS 185 (Fla. Feb. 1, 2024).

Hurricane Irma damaged San Marco Condominium Association's buildings. American Coastal paid $192,629.75 for the loss. San Marco estimated the damage to be in excess of eight million dollars. San Marco demanded an appraisal under the policy. American Coastal refused to submit to appraisal because it was premature as its investigation was still ongoing.

San Marco sued American Coastal and asked the court to compel appraisal. American Coastal argued that San Marco had committed fraud or had made material misrepresentations regarding its claim. The trial court heard San Marco's appraisal motion and entered an order compelling appraisal. American Coastal appealed, bu the Second District Court affirmed.

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Green rules key on keyboard

The AAA has unveiled a significant update to its Construction Industry Rules and Mediation procedures.

American Arbitration Association Revises Construction Industry Rules and Mediation Procedures

Monday, April 8, 2024 — Dennis Cavanaugh & Larry Grijalva - Construction Law Zone

The American Arbitration Association (AAA), one of the longest-standing and experienced alternative dispute resolution (ADR) administrators, has unveiled a significant update to its Construction Industry Rules and Mediation procedures. This update, last revised in 2015, became effective March 1, 2024. Changes to the AAA Construction Industry Rules are significant as these rules are incorporated by default in American Institute of Architects standard construction forms, which are widely used in the industry.

Advancements in remote access technology drive a substantial number of new changes. Others are designed to streamline the arbitrator appointment process and certain prehearing procedures and to make arbitration more cost-efficient by enhancing the arbitrator’s case management authority. Some of the more notable changes are:

Fast Track
F-1: The limit for cases eligible for AAA’s Fast Track Procedures has been increased from $100,000 to $150,000 so long as no claim or counterclaim exceeds that amount.

Reprinted courtesy of Dennis Cavanaugh, Robinson & Cole and Larry Grijalva, Robinson & Cole

Mr. Cavanaugh may be contacted at dcavanaugh@rc.com
Mr. Grijalva may be contacted at lgrijalva@rc.com


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Pillsbury's Real Estate and Construction team discusses major league sports franchises turn to real estate to increase their value, ABC releases a guide on AI, New York City helps landlords convert empty office space into housing and more.

Real Estate & Construction News Roundup (3/6/24) – Steep Drop in Commercial Real Estate Investment, Autonomous Robots Being Developed for Construction Projects, and Treasury Department Proposes Regulation for Real Estate Professionals

Monday, April 8, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, major league sports franchises turn to real estate to increase their value, the Associated Builders and Contractors releases a guide on artificial intelligence, New York City helps landlords convert empty office space into housing, and more!

  • The Treasury Department proposed a regulation that would require real estate professionals to report information to the agency about all-cash sales of residential real estate to legal entities, trusts and shell companies. (Fatima Hussein, AP)
  • For decades, major league teams depended on ticket sales, concessions and TV deals to generate revenue, but team owners in recent years have turned to real estate development to bring in extra cash and drive up the values of their franchises. (Nathaniel Meyersohn, CNN)
  • The U.S. commercial real estate market saw a steep drop in investment last year, with the market plummeting by more than 50% to the lowest level since 2012 and CBRE noting a 91% year-over-year drop in direct real estate company investments. (Yuheng Zhan, Business Insider)
Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team
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Word success ladder

White and Williams created the Virginia Barton Wallace Award, to be presented to a professional woman who embodies the same remarkable qualities that Ginny possessed: leadership, drive, exemplary work ethic, overall excellence in her field, and an ability to inspire other women to succeed.

White and Williams Recognizes Women’s History Month: Remembering Virginia Barton Wallace

Monday, April 8, 2024 — White and Williams LLP

March is Women’s History Month – a month dedicated to the accomplishments and history of women in the United States. The theme for International Women’s Day, which is this Thursday March 7, is “Inspire Inclusion.” White and Williams LLP is dedicated to understanding, valuing and inspiring inclusion in the field of law

White and Williams is proud of the women who have become leaders in the firm’s history, starting with Virginia “Ginny” Barton Wallace, an extraordinarily accomplished pioneer among female attorneys. She joined the firm immediately after graduating from University of Pennsylvania School of Law in 1950, and in 1961, Ginny became the first woman to become the first female partner not only at White and Williams but also at any law firm in Philadelphia.

Reprinted courtesy of White and Williams LLP
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Congratulations

CEO/Founding Partner Nicole Whyte and OCBA leaders are featured in the "Who’s Who In The OCBA."

Meet Orange County Bar Associations 2024 Leaders

Monday, April 8, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Bremer Whyte Brown & O’Meara, LLP is proud to share that CEO/Founding Partner Nicole Whyte and Orange County Bar Association’s (“OCBA”) leaders are featured in the Orange County Lawyer (“OCL”) publication, Who’s Who In The OCBA, that was released earlier this month. To see this year’s 2024 board of directors, section leaders, committee chairs, task forces, and charitable fund board, please click here.

Nicole Whyte provides individualized counseling and representation in all areas of Family Law. She has served on various OCBA legal committees and boards for over two decades and was elected to OCBA’s Board of Directors in 2024. She is committed to supporting the needs of the OCBA and its thriving and diverse OC legal community.

Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP
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Only 8% of respondents are getting tested for asbestos exposure regularly; findings underscore the need for Asbestos Cancer Risk Awareness and annual testing.

New Survey Reveals Present-Day Risks of Asbestos Exposure in America - 38% in High-Risk Jobs, 47% Vulnerable through Second-Hand Exposure

Monday, April 8, 2024 — The Law Offices of Justinian C. Lane, Esq. - PLLC

AUSTIN, April 04, 2024 (GLOBE NEWSWIRE) -- A recent nationwide survey conducted on the risks of asbestos in America revealed that 38% of respondents have worked in high-risk industries where asbestos was present, while 47% have experienced indirect exposure through family members employed in these high-risk environments. The survey results reflect the fact that, despite the EPA's recent ban on ongoing uses of chrysotile asbestos, the threat of exposure still looms large in the US, underscoring the urgent need for continued vigilance and action to safeguard public health.

Compounding the concern is the revelation that only 8% of Americans undergo regular testing. These findings, released today, underscore the urgent necessity for Asbestos Cancer Risk Awareness and routine testing. They emphasize the crucial importance of proactive measures to mitigate the pervasive risks associated with asbestos exposure in the United States.

The study was conducted by Researchscape on behalf of The Law Offices of Justinian C. Lane, Esq. - PLLC, a leading firm advocating for testing and compensation for individuals exposed to asbestos on the job and their families who are at risk due to second-hand exposure.

According to the survey, 86% of respondents have never undergone any testing for asbestos exposure, while a mere 8% are tested regularly. The lack of testing is particularly concerning among the Gen X demographic who could be at risk due to secondhand exposure from a family member who worked with asbestos when it was still prevalent, with 92% reporting no testing, highlighting the potential risks associated with secondhand exposure.





3d concept of building

In the latest AEC Business Podcast, they discuss construction tech, AI, and ALICE Core, the company’s latest product launch.

AI-Powered Construction Optioneering Today

Monday, April 8, 2024 — Aarni Heiskanen - AEC Business

In this episode of the AEC Business Podcast, Aarni Heiskanen interviews René Morkos, the founder and CEO of ALICE Technologies. They discuss construction tech, AI, and ALICE Core, the company’s latest product launch.

How the Construction Technology Landscape has Changed
The construction tech industry has evolved significantly since 2015, as discussed with René.

In 2015, there was a lack of understanding and reluctance toward construction tech, with some investors even hesitant to invest in the sector. However, by 2017-2018, there was a noticeable shift as construction tech became a sought-after investment opportunity.

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Construction worker repairing power lines

The US power grid is struggling to maintain an even flow of electricity — and putting homes at risk.

Unpredictable Power Surges Threaten US Grid — And Your Home

Monday, April 8, 2024 — Naureen S Malik - Bloomberg

Paul LeBlanc was barefoot when he stepped outside that morning.

He was taking the trash out when he saw the red glow of flames engulfing a nearby home. A former firefighter, LeBlanc grabbed his shoes before racing across the street. He smashed a window, then rushed inside. The only person believed to be home was a teenage boy who had already escaped, luckily with just minor burns. Alarms blared “fire” loudly, again and again, blasting from homes through the area.

“I’ve been in buildings without protection before — I just wanted to make sure no one was stuck in there,” said LeBlanc, who spent more than three decades as a firefighter before retiring.

The damage to the Alonge family’s four-bedroom home built in the early 1800s was so bad they haven’t been able to return since the blaze in June. The source of the conflagration in Waltham, Massachusetts, came from a facility about 2 miles west of the home. An electric substation, which had been dealing with a rodent infestation, had a sudden, unstable surge in voltage.

Reprinted courtesy of Naureen S Malik, Bloomberg
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Water flowing down dam

Reporters in that era worked under different conditions.

The Johnstown Dam Failure, as Seen in the Pages of ENR in 1889

Monday, April 8, 2024 — Scott Lewis - Engineering News-Record

The small headline of the Engineering News article shown here belies the gravity of the disaster: the deadliest dam failure in U.S. history. The South Fork Dam in Pennsylvania was a 72-ft-tall, 931-ft long earth and rockfill structure. After a stop-and-start construction process over a dozen years, it was completed in 1853. The dam went through several changes of ownership and was repaired inadequately. Fish screens were installed that obstructed the spillway and caused water to overtop and erode the structure. This mass of water uprooted trees, rocks, houses, rail cars and animals as it thundered down the valley before smashing into a stone railway embankment. Fires ignited by wrecked locomotives burned for three days. The death toll was 2,208.

Reprinted courtesy of Scott Lewis, Engineering News-Record

Mr. Lewis may be contacted at lewisw@enr.com

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

714.701.9180
714.701.9180