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Green Construction Contract Concerns

Many contracts used in green building projects are not always ideal for green building projects.  Often, contractors, design professionals, or owners will use their old standard construction contracts.  But those forms might not take into account some of the nuances or issues that can arise on a sustainable project. For example, green building contracts should strive to be more specific about what the green goal is.  Terms like "green building", "sustainable building" or "high-performing building" lack the specificity of what the goal is.  Further, it is not enough for the owner to say it wants LEED platinum rating, or LEED certified, or Green Globe?  There is a difference.  Or, maybe the goal is to save money on electricity, or to reduce the amount of water consumed.  Those should be specifically identified, so if the goal is not achieved, there will not be confusion as to what the goal was.  Confusion often...

FTC’s Green Guides Help Guide Owners, Contractors and Design Professionals

This post originally appeared in "The Green Building Law Blog" Being green is not always straightforward.  There are many products on the market, related and non-related to building, that make claims about their environmental benefits and impacts.  There are many service providers that make similar claims.  But not all products and services live up to their billing.  Companies marketing themselves or their products as environmentally friendly will have to better qualify those statements, in light of Federal Trade Commission's Green Guides. The Green Guides have been around since 1992.  The latest version was updated in 2012.  They "outline general principles that apply to all environmental marketing claims and provide guidance regarding many specific environmental benefit claims."  The purpose is to cut down on deceptive practices regarding green marketing.  The Green Guides are not law and are not independently enforceable.  But, the FTC can take action if someone or some entity makes an environmental...

Florida Public Bidders Must Understand the “Cone of Silence”

In Florida, public agencies typically have restrictions on bidder communications with public officials and employees. For example, an agency may have a prohibition on communicating with anyone other than a designated representative during the competitive solicitation process. These restrictions are often referred to as a “Cone of Silence”. Violations of the Cone of Silence can result in disqualification of the bidder. The purpose of a Cone of Silence is to prevent bidders or their representatives from lobbying decision makers while designated staff are afforded the opportunity to evaluate the bids or proposals in accordance with the terms of the solicitation. The restriction on communications may, for example, terminate when the agency’s board or commission meets to make a final decision. At that time the bidder may be able to address the board or commission directly before it makes a final award decision. While the restriction is in place, however, bidders must...

Safety First: Public Safety vs. Due Process

Does public safety take precedence over due process in a pending litigation? An on-going construction defects case in Las Vegas, Nevada recently addressed this concern.  Clark County District Judge Elizabeth Gonzalez recently approved a petition to demolish the Harmon Hotel—a never-opened 26-story structure fronting Las Vegas Boulevard between the Crystals shopping center and the Cosmopolitan resort—acknowledging the public safety risk if the building were to collapse during an earthquake. The Harmon was originally was designed to be a 40-story boutique hotel but has sat unfinished, as a costly Cirque du Soleil billboard since construction was halted in 2010 after the discovery of defects involving missing or improperly installed reinforcing steel.  The owner, CityCenter, blames Tutor-Perini, the general contractor and its subcontractors saying demolition is the surest way to deal with the dangerous structure.  The general contractor was sure the Harmon could be repaired and claims CityCenter is just trying to get rid...

New Public Records Requirements for Contracts with Public Agencies

The Florida Legislature recently enacted Florida Statutes, Section 119.0701 (Chapter 2013-154) which requires that contracts for services with public agencies, where the contractor is acting on behalf of the agency, must provide a provision mandating compliance with the public records laws.  Specifically, Section 119.0701(2) mandates that the provision require the contractor to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter [119] or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer,...

What Owners Need To Know About Florida Statute §558.0035

Effective July 1, 2013, Florida Statutes Chapter 558 was amended to provide a “safe harbor” to individual design professionals for claims of negligence. Specifically, Florida Statutes §558.0035 states that any design professional “who is employed by a business entity or is an agent of a business entity is not individually liable for damages resulting from negligence occurring within the course and scope of a professional services contract.” Florida Statute §558.0035 also expands the definition of “design professionals” to include geologists in addition to architects, interior designers, landscape architects, engineers and surveyors. These changes are limited to individual design professionals only, not business entities, and the statute covers only economic damages. The new law does not limit claims for personal injury or property damage. It is also worth noting that §558.0035 will not limit professional negligence claims by parties who have no contract with an individual design professional and/or his or her...

Florida courts’ application of the “new” economic loss rule since Tiara Condominium Ass’n, Inc. v. Marsh & McLennan, Cos., Inc.

The Florida Supreme Court’s March 7, 2013 decision in Tiara Condominium Ass'n, Inc. v. Marsh & McLennan, Cos., Inc., 110 So. 3d 399 (Fla. 2013), limited application of the economic loss rule [a judicially created doctrine that sets forth the circumstances under which a tort claim is prohibited if the only damages suffered are economic losses] to product liability matters. So, how have Florida courts analyzed the application of the economic loss rule since this March 7, 2013 decision? In short, Florida courts appear to be allowing non-contractual claims, such as fraud, negligence, negligent misrepresentation, and breach of fiduciary duty to proceed, notwithstanding the existence of a contractual relationship. F.D.I.C. v. Floridian Title Group Inc., 2013 WL 5237362 (S.D.Fla. Sept. 17, 2013).(denying a defendant’s motion to dismiss breach of fiduciary duty and negligence claims based upon the economic loss rule and rejecting an argument that these claims were in reality inextricably intertwined...