R. Thomas Dunn

Construction Projects Suspended in Cambridge MA Until Further Notice

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On March 18, 2020, the City of Cambridge announced a Temporary Emergency Construction Moratorium “Moratorium”) “on all construction activity on both public and private property until further notice”  The City explained that it was done to mitigate the impact of COVID-19 and protect the health of the construction workers and members of the public.

All construction activities are prohibited after Saturday March 21, 2020.  By March 26, 2020, all make-safe measures must be in place and sites must be safe and secure.

“Essential Construction Work” may continue as determined exclusively by the Commissioner of Inspectional Services or the Commissioner of Public Works.  Exceptions will be granted only if they are essential for public safety and comply with the following guidelines on a case-by-case basis:

 

There is a carve-out to permit the public authorities to deem certain work as essential even if not listed above.  In addition, construction of 1-3 family residential structures already permitted by March

Signing a Construction Contract in the Middle of the Coronavirus Pandemic . . . Two Contract Clauses to Consider

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There is rightfully a lot of buzz in the construction industry about force majeure clauses.  Authors are writing about how far and how much they protect contracting parties from unforeseen and uncontrollable events that cause delay.

While the standard AIA, ConsensusDocs, or other industry form contract time extension and/or force majeure clauses will likely provide some relief as to time extensions in appropriate situations, contracting parties may be best served to acknowledge the uncertainties our industry is confronting by crafting specific language for delays and increased costs resulting from the COVID-19 pandemic.

Sample language for consideration:

Notwithstanding the requirements and obligations set forth in the Contract Documents and this Agreement, Contractor shall be entitled to an extension of the Contract Time and an equitable adjustment of the Contract Price, due to labor shortages, material escalation, or otherwise, for the performance of Subcontractor’s Work due to events and conditions beyond Contractor’s control, including the present

Steps to Take if You Receive a Subcontractor’s COVID-19 Work Suspension Notice

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There are increasing reports that some subcontractors have decided to suspend operations during the COVID-19 outbreak.  The subcontractors made this difficult decision even though the construction projects for which the general contractor has a continuing performance obligation remain ongoing with CDC health and safety measures in place.

What should a general contractor do if it receives such a notice (assuming the project is still moving forward)?  My thoughts are below recognizing that our present environment changes from day to day based upon news reports and governmental orders.

1. Reply to the subcontractor.  Confirm receipt of the notice and inquire about the subcontractor’s reasons for suspension and corporate policies regarding COVID-19 if not clear from the notice letter.  If not already established, provide a contact person for the subcontractor to provide updates as to the subcontractor’s policies and work plan schedule. Include a reservation of rights so that it is clear that you are preserving claims arising from the suspension and state that

Contractors: Its Time to Send Your COVID-19 Notice

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The day-to-day professional and personal impact of the COVID-19 pandemic is substantial.  The global event will have dozens of common legal implications that we will address in this blog over the coming days, but for now I wanted to start with the basic starting point for any event of delay and/or additional cost on a construction project — THE NOTICE! 

The time is now to send your notice.  

This is not an adversarial notice.  Your contracting party will understand the impacts experienced and should appreciate the proactive approach in communicating the COVID-19 impacts.  If discussions have occurred between with your contracting party, I would still send a formal notice as to avoid further legal defenses down the line.  Also, providing the formal notice creates a structure that is helpful in creating a productive communication pathway regarding the delays/costs incurred and ways to mitigate them.

No matter what the legal theory, the COVID-19

City of Boston’s Press Release on Suspending Construction in Boston Effective March 17th

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Below is the City of Boston’s Press Release suspending all regular activity at construction sites in Boston as of today – March 17, 2020.  Sites need to be made safe by March 23, 2020.  Policy will be revisited in two weeks.

CONSTRUCTION SITES

Effective tomorrow, Tuesday, March 17, 2020, the City is suspending all regular activity at construction sites in Boston. Employers should maintain the necessary crews to keep their sites safe and secure, keep any materials from blowing away, and prevent trespassing. This work needs to be completed in the next week, by Monday, March 23, 2020. After sites have been secured, skeleton crews will be permitted for the remainder of this suspension to ensure safety. The only work that will be permitted moving forward will be emergency work, which will need to be approved by the City of Boston’s Inspectional Services Department.

That essential work includes:

  • emergency utility, road or building work, such as

Pierce Atwood Attorneys Attend Construction Industry Dispute Resolution Meeting in Washington, DC

Last week, John Bulman and I attended the National Construction Dispute Resolution Committee’s (NCDRC) Annual Meeting in Washington, DC. The NCDRC is an advisory committee formed by the American Arbitration Association (AAA) to engage in discussion with a wide variety of construction industry associations about the AAA Rules and dispute resolution processes generally. The American Institute of Architects (AIA) graciously hosted the meeting at its offices.

Representatives from the following organizations were present:

Condominium Mechanic’s Liens

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Mechanic’s lien claims are complex in that each state’s statutes differ dramatically.  There are certain unique issues when a contractor seeks to commence a mechanic’s lien proceeding for improvements made to a condominium.

What did you improve?

When assessing your rights under the applicable mechanic’s lien statute, focus on the property that you improved.  You are only entitled to lien the property interests for which you made an improvement.

For condominiums, there are common areas and units.  The common areas are owned by the condominium trust/association and the units are owned by the individual owners.  This year, I commenced a mechanic’s lien action on behalf of a subcontractor against a new, 10-unit condominium in Rhode Island.  My client performed improvements to the entire building — both common areas and in the units.  The general contractor was hired by the developer of the condominium. By the time final payments were not released some of the units were transferred to

The Intersection of Workers’ Compensation Immunity and Contractual Indemnity

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The workers’ compensation statute in many states provides that the workers’ compensation benefits received by an injured employee is the employee’s exclusive remedy.  The benefits are paid based on a no-fault basis and the injured employee is barred from bringing a lawsuit against his or her employer.  The degree in which the exclusive remedy provision applies varies in different jurisdictions.  An ABA 50-State Survey on the exclusive remedy provisions can be found by clicking HERE.

In many construction contracts, a contractor indemnifies an owner for personal injury and property damage caused by the contractor’s negligence.

Here is the fact scenario:  A contractor’s employee gets injured on a jobsite.  The employee receives workers’ compensation benefits but has incurred additional damages beyond those benefits.  The contractor employee cannot bring a lawsuit against the his employer based on the workers’ compensation exclusive remedy provision, but the employee may bring a lawsuit against the owner for the personal injury damages.  Owner

50-State Surveys on Architectural and Engineering Issues

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Each jurisdiction has unique requirements for design professionals.  Whereas many architects and engineers practice in multiple states, keeping track of these requirements is important.

Along with other Pierce Atwood attorneys, I contributed to two very helpful 50-State surveys published by the Division 3 (Design) of the ABA Forum on Construction Law.  Links to these surveys is below:

50-State Survey of Firm Licensure Requirements for Architectural and Engineering Firms. 

We contributed to the Maine, Massachusetts and Rhode Island sections of this survey.  In Maine, a license may only be issued to an individual — a firm may not be licensed.  There is no requirement for A/E firms in Massachusetts to register the entity, but such entities will be required to present specific information regarding persons performing professional services with the Secretary of State.  Yet, in Rhode Island, a certificate of authorization must be obtained by A/E firms to practice architecture or engineering.   There are also detailed corporate ownership composition and control

Pierce Atwood Attorneys Attending Summit on Diversity and Inclusion in the Construction Industry

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Pierce Atwood Attorneys, Tom Dunn and Katie Kohm, plan to attend a first-ever summit focused on understanding the business implications of inclusion, diversity, and professionalism across the construction industry.  The meeting is a perfect opportunity for in-house counsel, risk managers, compliance managers, diversity officers, and other leaders of companies involved in the construction industry to engage in this important discussion.  The American Bar Association Forum on Construction Law is putting on the meeting in Philadelphia later this month on October 23-25th.  As can be seen in the program brochure, the topics discussed are relevant to legal and business professionals involved in the construction community.  In addition to an assessment of diversity and inclusion, topics include how those issues relate to risk management, pay equity, immigration, DBE programs, negotiations/ADR, leadership, and rules of ethics.  The program will benefit any lawyer advising companies, any labor/employment lawyer, and any in-house counsel for construction, design, insurance.

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