Real Estate & Construction News Round-Up (08/17/22) – Glass Ceilings, Floating Homes and the Inflation Reduction Act
September 12, 2022 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogThis week’s round-up features the construction industry’s latest happenings: the Inflation Reduction Act, women shattering the glass ceiling, eco-friendly floating homes, and more.
- The Inflation Reduction Act contains approximately $5 billion for programs to accelerate the construction industry’s shift toward green building materials. (Julie Strupp, Construction Dive)
- According to a new analysis from consultancy Rider Levett Bucknall, the speed of growth for construction costs has only gotten faster. (Erik Sherman, Globe St.)
- Record vacancies in the construction industry has created the opportunity for women to step into what’s previously been an all-male business. (Craig Torres & Maria Paula Mijares Torres, Bloomberg)
- A midlife crisis hits office buildings, with the late-30s/early-40s stable of office product accounting for about a third of the national market today. (Commercial Observer)
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Pillsbury's Construction & Real Estate Law Team
Muir named Brown and Caldwell Eastern leader
January 09, 2023 —
Brown and CaldwellHARTFORD, Conn., Jan. 04, 2023 — Leading environmental engineering and construction services firm Brown and Caldwell today announces Senior Vice President Eric Muir has been promoted to leader of its growing Eastern business.
The largest of the company's regions with over 40 offices east of the Mississippi River, the Eastern business consists of clients in the water, wastewater, stormwater, environmental services, and water resources sectors.
Muir has a 20-year background in delivering highly technical civil and environmental engineering projects. He has held leadership and technical roles on some of the most complex projects encompassing water and wastewater treatment, distribution and collection, pumping, and conveyance systems. His experience includes master planning, detailed design, permitting, and construction services.
Since joining Brown and Caldwell in 2018, Muir's business development expertise and client-centric focus have played a key role in setting the company's regional strategic direction to achieve strong financial results.
"Eric is a highly strategic and inclusive leader, passionate about mentoring employees to reach their full potential," said Brown and Caldwell Chief Operating Officer Euan Finlay. "His deep knowledge of clients' environmental obstacles will enhance the positive impacts our teams have on the communities we serve."
Based in Connecticut, Muir will manage overall operations and lead the implementation of the firm's strategy in the East. He will continue the region's growth and lead efforts to make Brown and Caldwell the company of choice for clients, employees, and partners. He will work alongside regional leadership to align the firm's talent pool with clients to provide innovative, cost-effective solutions to challenges related to water quality, biosolids management, and aging infrastructure.
About Brown and Caldwell
Headquartered in Walnut Creek, California, Brown and Caldwell is a full-service environmental engineering and construction services firm with 52 offices and 1,800 professionals across North America and the Pacific. For 75 years, our creative solutions have helped municipalities, private industry, and government agencies successfully overcome their most challenging water and environmental obstacles. As an employee-owned company, Brown and Caldwell is passionate about exceeding our clients' expectations and making a difference for our employees, our communities, and our environment. For more information, visit www.brownandcaldwell.com
More on the VCPA and Construction
February 01, 2023 —
Christopher G. Hill - Construction Law MusingsI have posted before regarding the intersection between the Virginia Consumer Protection Act (VCPA) and construction contracting in regard to residential construction projects. A case out of the Eastern District of Virginia District Court further discusses this intersection as it relates to design contracts that also include the procurement and installation of certain design elements post-design. The basic facts of Marcus v Dennis are as follows:
In October of 2018, Defendant Marlene Dennis, the owner of Marlene Dennis Design, LLC (“MDD”), operating out of Virginia, entered into a contract to provide design services and the procurement and installation of certain design elements for the Plaintiffs, Gregory and Jamie Marcus, at their Maryland home. The Marcuses agreed to $175 per hour to Dennis with a cap of a total of $100,000.00 for design consultation and furniture selection and procurement. The Marcuses also agreed that they would pay no more than $250,000.00 for furnishings, rugs, artwork, decorative lighting, and accessories. In November 2020, Dennis sent an invoice for $68,000.00 and informed the Plaintiffs that the total contract fees would be more than the $100,000.00 cap. After paying $124,722.41 in design fees, the Plaintiffs received an invoice for $255,5560.72 in January of 2021. Despite the cap of $250,000.00, the Plaintiffs wired $255,000.00 to Dennis while requesting the backup invoices for the material charges. After much effort and a threat of litigation, the Plaintiffs received documents from Dennis showing that Dennis inflated the costs of the materials prior to passing the costs along to the Marcuses. The Plaintiffs’ home was unfurnished and empty as of April 10, 2021, and the Marcuses had to hire and pay another design team over $85,000.00 to finish Dennis’ work. Needless to say, the Marcuses sued both Dennis and her firm for breach of contract, breach of fiduciary duty, and for violation of the VCPA. Dennis moved to dismiss the Complaint.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Recovering For Inflation On Federal Contracts: Recent DOD Guidance On Economic Price Adjustment Clauses
October 24, 2022 —
Amanda L. Marutzky - ConsensusDocsSince October 2020, inflation in the United States has seen its fastest increase in more than 30 years. In the last year alone, inflation has remained as high as 8.6%. This hike has impacted everything from diesel to steel. In the construction industry, the higher prices of goods and services directly affect how contractors draft their construction contracts.
The Department of Defense (DoD) has taken note of this dramatic price increase and recently issued guidance to its commanding officers and the procurement community. On May 5, 2022, DoD issued a memorandum titled “Guidance on Inflation and Economic Price Adjustments.” The stated purpose of the memo is “to assist COs to understand whether it is appropriate to recognize cost increases due to inflation under existing contracts as well as offer considerations for the proper use of EPA when entering into new contracts.” DoD’s memo responds to contractor and contracting officer concerns about the sudden and unexpected cost increases in labor and materials.
Economic Price Adjustments, or EPAs, are adjustments to a stated contract price upon the occurrence of certain contingencies. FAR 16.203-1. They are of three general types – (1) adjustments based on established prices, (2) adjustments based on actual costs of labor or material, or (3) adjustments based on cost indexes of labor or material. Id. Because EPAs allow for adjustments in a contract price, EPA clauses allow a contractor to recover unanticipated increases in its project costs. For example, FAR 52.216-4, Economic Price Adjustment-Labor and Material, authorizes a contractor to recover for increases in the cost of material or labor. Such recovery is available when costs increase more than 3%, with a maximum recovery of 10% of the original contract price. See also FAR 52.216-2 through FAR 52.216-4. These EPA clauses provide contractors with relief and protection from issues such as dramatic inflation. EPA clauses, however, are not included in all contracts.
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Amanda L. Marutzky, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs)Ms. Marutzky may be contacted at
amarutzky@watttieder.com
Don’t Put Yourself In The Position Of Defending Against An Accord And Satisfaction Defense
October 10, 2022 —
David Adelstein - Florida Construction Legal UpdatesThe doctrine of accord and satisfaction lives and breathes in disputes including construction disputes. Unfortunately, a contractor, in the case discussed below, found out the hard way after it cashed checks that were accompanied with a letter that clearly indicated the checks were final payment. Once those payments were cashed, there was no “buyer’s remorse” that would allow it to still pursue disputed amounts. Remember this the next time you accept and cash a payment that says on the check it is full and final payment OR is accompanied by a letter that makes clear the payment is full and final payment. If you cash it, there is no second bite out of the apple, so to speak. If you are not interested in the payment being full and final payment, return the check. If you are not sure, either return the check or inquire and get that response in writing. Don’t put yourself in the position of defending against an
accord and satisfaction defense.
Even without the doctrine of accord and satisfaction, the contract between the contractor and owner discussed below made clear that contractor’s acceptance of final payment meant that contractor was unconditionally waiving other claims against the owner, further reinforcing that there would be no second bite out of the apple.
The morale:
(1) read the letter that accompanies a check and do NOT cash a check that indicates it is for final payment unless you are prepared to accept that amount; and
(2) read your contract to understand any contractual obligation that kicks-in with the acceptance of final payment.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Construction Contracts and The Uniform Commercial Code: When Does it Apply and Understanding the Pre-Dominant Factor Test
November 01, 2022 —
Keith Sparks - Ahlers Cressman & Sleight PLLCThe Uniform Commercial Code (“UCC”) replaces the common law in many commercial transactions, providing provisions and a framework governing the conduct of business. The UCC attempts to develop uniformity among state laws on commercial matters as many of these contracts involve parties from different states. The UCC has been adopted in almost all states, including Washington, and substantially mirror each other throughout the country.
The question that is most commonly presented, in the Construction law context, is when does the UCC apply and control?
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Keith Sparks, Ahlers Cressman & Sleight PLLCMr. Sparks may be contacted at
keith.sparks@acslawyers.com
Lewis Brisbois Ranked Tier 1 Nationally for Insurance Law, Mass Tort/Class Actions Defense by U.S. News/Best Lawyers
November 21, 2022 —
Lewis Brisbois(November 3, 2022) - Lewis Brisbois has once again been ranked Tier 1 nationally by U.S. News & World Report/Best Lawyers for ‘Insurance Law’ and ‘Mass Tort Litigation / Class Actions – Defendants,’ as well as ranking Tier 1 in 14 different practice areas across 15 metro regions.
In addition to Lewis Brisbois' national ranking, the firm also ranked Tier 1 for ‘Insurance Law’ in the Philadelphia, Reno, and Tampa metro areas, and Tier 1 for ‘Mass Tort Litigation / Class Actions – Defendants’ in the Los Angeles area. The firm was also ranked Tier 1 in the following regional categories:
- ‘Commercial Litigation’ in Akron;
- ‘Corporate Governance Law’ in San Francisco;
- ‘Corporate Law’ in Akron;
- ‘Environmental Law’ in Washington, D.C.;
- ‘Litigation - Health Care’ in Portland, Ore. and Roanoke;
- ‘Litigation – Municipal’ in Wichita;
- ‘Medical Malpractice Law – Defendants’ in Chicago and Roanoke;
- ‘Mergers & Acquisitions Law’ in Akron;
- ‘Personal Injury Litigation – Defendants’ in Chicago, Inland Empire, New York City, Orange County, Roanoke, and Seattle;
- ‘Product Liability Litigation – Defendants’ in Philadelphia;
- ‘Tax Law’ in Akron; and
- ‘Trusts & Estates Law’ in Akron.
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Lewis Brisbois
Chesapeake Bay Water Quality Is Still in Trouble, Two Major Reviews Say
November 07, 2022 —
Pam McFarland - Engineering News-RecordTwo separate assessments of the health of the Chesapeake Bay indicate that most jurisdictions within its watershed are not on track to meet target goals to cut nitrogen and phosphorus discharge levels by 2025. But new plans and programs put in place in 2022 could improve the restoration trajectory, according to the U.S. Environmental Protection Agency.
Reprinted courtesy of
Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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