Attorneys Aileen Leipprandt and Suzanne Sutherland Present “The Art & Law of Living Neighborly,” to NAWIC

Posted by: Hilger Hammond On: 24th January 2018 | no responses.

Attorneys Aileen Leipprandt and Suzanne Sutherland will present “The Art & Law of Living Neighborly,” to the National Association of Women in Construction, in Grand Rapids, Michigan on February 14, 2018.

Aileen Leipprandt practices in the areas of commercial and real estate litigation and construction law. Her clients include owners, developers, design professionals, contractors, suppliers, manufacturers, and insurers/sureties. Aileen assists clients with transactional and litigation, including contract review, preparation, and negotiation, and pre-suit claims evaluation and facilitation.  For more than 20 years, Aileen has been a lecturer and author on many topics involving contract and construction law including Construction Contract Clauses, Sustainable (LEED) Construction, Building Information Modeling (BIM), and MIOSHA Compliance.

Much of Suzanne’s practice concerns commercial litigation serving clients in the construction industry, including owners, developers, design professionals, general contractors, subcontractors, and suppliers. Suzanne routinely counsels clients on business law matters, as well as commercial and residential real estate transactions. The remainder of Suzanne’s practice involves environmental law, with an emphasis on compliance with regulatory agencies.

Hilger Hammond Receives 2018 Best Law Firms Tier 1 Ranking

Posted by: Hilger Hammond On: 24th January 2018 | no responses.

Hilger Hammond, PC is pleased to announce that the firm has received a Tier 1 ranking in the 2018 edition of U.S. News “Best Law Firms”, in the areas of Construction Law and Litigation-Construction.

The Tier 1 ranking is determined through a firm’s overall evaluation, which is derived from a combination of clients’ impressive feedback, and the high regard that lawyers in other firms in the same practice area have for the firm.

Hilger Hammond, P.C. provides a broad array of legal services to the construction, real estate and business communities. Some services include preparation and negotiation of complex multi-party construction agreements, defending and pursuing construction defect, and working with delay and lien claims.

 

The Enforceability of Prehearing Arbitration Subpoenas

Posted by: Hilger Hammond On: 23rd January 2018 | no responses.

The Enforceability of Prehearing Arbitration Subpoenas After CVS Health Corporation, et al vs. Vividus, LLC, fka HM Compounding Services, LLC

By Stephen A. Hilger, Esq.

This is Part 4 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.

Those who have participated in arbitration proceedings understand the difficulty of getting documents from non-parties. For example, in a Contractor – Subcontractor dispute, litigants may want documents from the owner, architect, testing lab, and the like. However, those non-parties may not be connected to the Contractor – Subcontractor arbitration agreement. The litigants can require or request that the arbitrators issue subpoenas, which arbitrators typically do, but what happens when the third-party simply refuses to comply?

That dilemma was recently discussed, in part, by the Ninth Circuit Court of Appeals on December 21, 2017 in CVS Health Corporation, et al vs. Vividus, LLC, fka HM Compounding Services, LLC, et al, No. 16-16187 (December 21, 2017). In that case, the appellants obtained a prehearing arbitration subpoena to produce documents and attempted to enforce that subpoena on a third-party. The third-party simply ignored the subpoena, so the moving party filed litigation in the United States District Court to compel pre-hearing discovery based on the subpoena.

Section 7 of the Federal Arbitration Act confers upon arbitrators the power to summon in writing any person to attend a hearing before them as a witness and in a proper case to bring with them any book, record, document or paper which may be deemed material as evidence in the case. The “hearing” is where everyone sits in a room and presents their case to the arbitrator(s). By the time the “hearing” comes around, the litigants, and especially their lawyers, would prefer to be prepared by having the documents in advance so they can be adequately prepared. However, the United States District Court read the language of Section 7 and concluded that the plain reading of the statute did not allow for prehearing discovery from third parties outside of a hearing. The Ninth Circuit affirmed.

The court drew a fine line distinction between the enforceability of the subpoena prehearing versus during a hearing. Enforceability during a hearing does not appear to be questioned in the opinion. The court then looked at other Circuit Courts in the Second, Third, and Fourth Circuit, all of which agreed with the Ninth Circuit’s opinion. The Eighth Circuit, on the other hand disagreed.

Nothing in the opinion would discourage arbitrators from traveling to different cities and conducting mini “hearings” for the sole purposes of compelling a third-party subpoena. That means if the process is very important, it will become very expensive as parties ferry the arbitrators and their attorneys to various different cities in various different states simply to collect documents.

The opinion also did not address the enforceability of subpoenas under other rules, such as the rules of the American Arbitration Association. Those decisions will be left for another day. More than likely, the decisions will be the same.

As a practical matter, this means that complex arbitration proceedings will likely be lengthier and more expensive since the issues will not be narrowly refined by having the luxury of looking through third-party discovery documents in advance of the hearing.

If you enjoyed this article, you might also like “Should You Make Meetings of CEOs A Condition of Arbitration?”

Commercial Real Estate Purchase Agreement Do’s and Don’ts

Posted by: Hilger Hammond On: 20th December 2017 | no responses.

By Ben Hammond

Whether you are purchasing commercial property as an investment or to address the needs of your business, there are at least 5 “do’s” and 5 “don’ts” you are going to want to consider when negotiating the Purchase Agreement. The Purchase Agreement in many cases can follow a letter of intent, but letters of intent are most times non-binding. Careful attention must be paid to the terms and conditions of the Purchase Agreement as the details can greatly impact your risks and liability in the transaction.

Do #1: Make sure the property is properly described.
While this sounds obvious, many times errors are made by using tax property descriptions or old legal descriptions that don’t actually reflect the property being sold. This can lead to boundary disputes, zoning problems or worse when you go to sell the property.

Do #2: Allow for enough time for due diligence.
In today’s world of national and international investors and 1031 exchanges the timelines for “clean” deals can be extremely short. Twenty-one days may not be a sufficient amount of time to review the title work, obtain a Phase I environmental assessment, physically inspect the site, review any applicable tenant lease and understand the local zoning ordinances.

Most deals are sold as having no issues. However, I have yet to be involved in a deal where there wasn’t one issue to address, review or consider. Every transaction is unique and you really don’t have a full grasp until you start the due diligence process. Make sure you have enough time.

Do #3: Consider the condition of the property when you agree on the price in the Purchase Agreement.
In older developments immediate upgrades might be necessary, such as a new parking lot, HVAC, signage, etc. These points may be areas of negotiation after the Purchase Agreement is signed and that should be considered on the front end.

Do #4: Understand the transfer taxes, local taxes, and fees in the jurisdiction where the property is located.
Each state has a different set of rules and this must be carefully considered.

Do #5: Get estoppel certificates from the tenants.
While this step is common place for national tenants, you need to remember that some national tenants charge $500 or more for these certificates. That cost should be addressed in the Purchase Agreement. Also, some national tenants will have up to 21 days to provide an estoppel certificate which could delay closing. It is tempting to avoid requiring estoppel certificates from smaller tenants, such as in a strip mall or shopping center, but this is the best way to confirm if the seller/landlord has lived up to its end of the existing lease and find out if the landlord is obligated to perform any work on the property.

Don’t #1: Don’t tie up the property for a long period of time without the earnest money deposit “going hard”, or becoming non-refundable.
There is a real cost to a seller in terms of waiting for a buyer to investigate the property for 1-2 years and then pull out of the deal. Consider triggering timelines every six months or less when milestones are achieved in the due diligence process, such as a successful zoning variance, acceptable environmental report, etc.

Don’t #2: Don’t agree to ridiculous warranties, guarantees and representations.
From time to time I see a Purchase Agreement that goes overboard. It asks the seller to warranty, guarantee and represent a host of items that it simply has no way to verify. One way to soften these stringent requirements is to add language that the representations and warranties are “to the knowledge of the Seller”.

Don’t #3: Don’t skip having a lawyer look over the Purchase Agreement.
There is a temptation to justify skipping this step by saying “the deal is only XXXX dollars”, “this is a simple, clean deal”, or “lawyers just slow down the process and cost too much”. I’ve heard all of these and more. While true that some lawyers have reputations as “deal killers”, most who practice in this area attempt to clarify ambiguities so there are no surprises at or after the closing. Like most things in life, an ounce of prevention is worth a pound of cure, and I’ve seen that hold true more so in Purchase Agreements that many other areas of the law.

Don’t #4: Don’t get stuck with unknown fees if there is a termination.
Typically if the buyer breaches the agreement, the seller’s damage is the recovery of the earnest money deposit. However, if the seller breaches, many agreements are silent as to what recovery is available. Some form agreements provide for attorney fees to be awarded to any prevailing party in a subsequent lawsuit. Others will allow a buyer to recover its actual costs (including due diligence and legal) incurred in pursuing the transaction. If the buyer has incurred costs for an ALTA survey, Phase 1, Phase 2, property inspections, zoning reports, attorneys’ fees, zoning variance applications, etc. the costs can run up quickly. If the buyer insists on this type of a provision, setting a max dollar amount for such recovery provides clarity and caps the risk to the seller.

Don’t #5: Don’t close until you are ready.
Many times there are loose ends to tie up, such as a repair that is scheduled, landscaping that needs to be planted, a release of a construction lien that is in the process of being paid, etc. As you approach the closing date, there will be pressure from the brokers and others to close and address “minor” concerns after the fact. Sometimes these concerns can be addressed by putting some closing funds in escrow for a specific purpose. However, as a general rule, once you close, you have to expect silence and no assistance from the other party. While the Purchase Agreement may require the seller to take some action post-closing, these matters frequently become the buyer’s problem once the seller receives its money and signed closing papers. Avoid the temptation to close before you have addressed all foreseeable concerns.

A significant portion of Ben Hammond’s practice involves commercial and residential real estate transactions, business law, and commercial litigation.  You can contact Ben with questions at (616) 458-3600.

Should You Make Meetings of CEOs a Condition to Arbitration?

Posted by: Hilger Hammond On: 11th December 2017 | no responses.

By Stephen A. Hilger, Esq.

This is Part 3 in a 20-part series of articles dealing with issues of arbitration, mediation and alternate dispute resolution in the construction industry.

Over the last decade, a requirement has slipped into the dispute resolution clauses of many construction contracts requiring the CEOs of the various parties to meet as a condition precedent to any arbitration. If something is a “condition precedent” and the contract uses those specific terms, then the meeting must occur before a party can either demand arbitration or file litigation.

Since the parties negotiate their contract, the question becomes whether this is a prudent requirement to place in the contract. The answer is, in most instances, yes. Often times, the parties’ representatives who are involved in the dispute are not the CEOs of the companies. The CEOs, generally speaking, have cooler heads when it comes to resolving heated disputes. They may be one step removed. Forcing the CEOs to meet and discuss the claim has a general influence on either resolving the disputes or substantially narrowing them.

In general, I recommend such a clause as a condition precedent to arbitration, mediation or litigation.

If you found this article interesting, you might also like “Language You Need for an Enforceable Arbitration Clause.”

Contractor Stung By Liquidated Damages

Posted by: Hilger Hammond On: 10th November 2017 | no responses.

By Aileen Leipprandt

The recent case of Abhe & Svboda Inc. v MDOT (Court of Appeals, August 2017), underscores the difficulty in challenging Liquidated Damages, particularly where a contractor does not comply with delay claim provisions.

This case arose from the late completion by Abhe & Svboda, Inc (ASI) of a contract with the Michigan Department of Transportation (MDOT) to clean and paint part of the Mackinac Bridge. The contract specified Liquidated Damages (LDs) of $3,000 a day for each day of late completion. The contract also gave ASI the right to seek a time extension for bad weather, provided that ASI asserted the request within the time period required by the contract. ASI did not timely complete the project and the State assessed LDs of about $1.9 million for being 644 days late.

ASI sued the State challenging the LDs assessment for a number of reasons. For instance, ASI argued that the LDs should not apply to 362 days of the planned winter shutdown during which it was impossible for MDOT to suffer any losses and that the LD clause was void for failing to be a good-faith effort to estimate losses. ASI also argued that MDOT’s dilatory behavior in approving ASI’s scaffolding plan caused 56 days of delay. ASI argued that 459 days of work were caused by environmental circumstances beyond its control. The trial court rejected all of ASI’s arguments and granted summary disposition to the State. ASI appealed.

The Court of Appeals affirmed the ruling that the Liquidated Damages provision was not a penalty. The Court deemed it irrelevant that ASI could not work during the planned winter shutdown, because LDs were based upon the total delay, not discreet periods of time during the contract performance.

The appellate court also rejected ASI’s argument that MDOT’s own dilatory behavior in failing to timely approve ASI’s scaffold plan prevented the assessment of liquidated damages. The Court affirmed the general principal that a party seeking to impose LDs cannot interfere with the other party’s performance causing the other party to fail and triggering LDs. However, in this case, the contract provided a mechanism for ASI to seek an extension of time. Since MDOT could contractually extend the time for performance, then MDOT causing a delay was not synonymous with obstructing ASI’s performance unless MDOT improperly failed to grant an appropriate extension. Because ASI did not timely request a time extension, MDOT did not breach the contract by declining to grant that request. Further, the contract did not support ASI’s argument that ASI could wait until the end of the project to seek a time extension; instead, ASI was required to seek an extension each and every time an impediment to its work occurred.

Lesson Learned – parties must understand and negotiate liquidated damages provisions at the front end of a project and then strictly abide by claim procedures. Otherwise, the parties run the risk of an unfavorable outcome at project completion.

Aileen Leipprandt practices in the areas of commercial and real estate litigation and construction law. She has represented a variety of clients in these areas, including developers, design professionals, contractors, subcontractors, owners, sureties, manufacturers, governmental agencies, insurers, and suppliers. 

Considerations for Billboard Lease Agreements

Posted by: Hilger Hammond On: 10th November 2017 | no responses.

By Ben Hammond

Let’s face it, billboards are just about everywhere and it seems more and more are going up or converting to digital billboards with computer-controlled electronic displays every day. With the uptick in the economy and an expansion of urban areas, billboard companies are seeking to expand their footprint as well, largely along the major highways and roads.

If you are the owner of land along a highway or major road, you may be approached by a billboard company with an offer to lease a portion of your land. Billboard lease agreements come in various shapes, forms and lengths and are typically used by the billboard companies in many different states and jurisdictions. Each one should be carefully reviewed to make sure that the terms match your particular situation.

1. When Do I Get Paid?

In situations where the billboard company will be erecting a new sign, the agreements typically provide for lease payments to begin upon actual installation and use of the sign. This process could take many months or years depending on zoning approvals, construction permits or other issues concerning the constructability of the sign itself. A good agreement would consider a reasonable timeline within which the sign must be erected or the contract is terminated. Otherwise, your property could be tied up for years without this income stream and no ability to exit the deal.

2. Lease Terms

Pay careful attention to the terms of the lease as they vary greatly. Some provide terms up to 25 years with rate increases every 5 years – others do not. Are the payments due monthly or yearly? Are you entitled to any late payment fees or collection costs? If you have to sue to collect rent do you have to sue in another jurisdiction? Just like waterfront property, there is only so much billboard space available due to typical zoning restrictions. A good lease rate for a sign on a major highway in 2017 might not be such a great deal in 2030 if the demand increases over time. All of these factors should be weighed up front.

3. Where Exactly Will the Billboard Be Located?

Often this point is overlooked and a vague description of the general area is given to the land owner. This could result in a sign blocking sight lines or use of the property by the land owner. Ideally the lease would attach a detailed survey with the exact location of the anticipated billboard. If another location is necessary due to zoning or governmental restrictions, both parties should have the right to approve the new location.

4. Indemnification

As in any lease, an indemnification provision is critical. What happens if the billboard company doesn’t pay the contractor who erected the sign and they record a construction lien on your property? This lien could affect your financing and loan obligations. What happens when an advertiser sues you because they claim their ads were not displayed for the right amount of time, or at the wrong times, on the electronic billboard on your property? The lease should contain a strong indemnification provision requiring the billboard company to address these kinds of legal issues by defending, indemnifying and holding you harmless from any such claims and potential damages.

5. Insurance

Accidents happen. The purpose of insurance is to provide peace of mind and a financial solution in the event of an accident. The lease should require the billboard company to maintain adequate insurance and name the land owner as an additional insured on the policy.

6. Regulating Content

While many billboard companies are reluctant to agree in advance to not put up certain advertising, remember that they likely need the lease more than you do and everything is negotiable. For example, if the billboard is on land owned by a church, the church may want to prohibit certain “adult” advertising. If the billboard is on land where a business operates, the business may not want ads for its direct competitor to be displayed. Another source of distress is over ads that confuse the ad with the business located on the land. All of these things should be considered at the time of the lease, afterwards it may be too late without going to court.

7. Access Easement

Many leases will give a broad easement across the entire parcel for the billboard company to access the sign. This can cause problems when you later want to sell part of the land, or build a building on part of the parcel. The best practice is to clearly identify the location of any access easements, and at a minimum provide that the land owner has the ability to change the location of the access easement at its discretion with notice to the billboard company so long as the access is not materially altered or restricted.

8. Restrictions on Other Billboards

If you own a large parcel, the local zoning ordinances may permit you to have more than one billboard on your property. Be careful of boilerplate language that would prohibit you from any other billboards on the surrounding land you own or may own in the future.

9. Right of First Refusal

Frequently billboard companies will ask for a right of first refusal to buy the land in the event of a sale. Consider staying away from these provisions as they are not necessary, you are likely not getting money for this right, and it may unnecessarily delay any future sale of the land.

10. Can I Sell This Lease?

Your lease may prohibit you from selling the lease separate from the land. You may want to craft language to keep this option available if you need an infusion of cash down the road and a willing buyer comes along.

11. Eminent Domain

When roads expand, for example, the government can take private land as long as they pay for it. This oversimplification of eminent domain is important to think about in terms of how this would affect your lease. You want to be clear on whether such action would terminate the lease, and who would be paid the money for the land.

12. The End Game – Who Pays to Take This Down?

At the termination of the lease it is presumed that the land owner will want the billboard removed and the property returned to its original state. Be sure to include this requirement in your lease so you are not stuck with a large bill at the conclusion of the lease.

A significant portion of Ben Hammond’s practice involves commercial and residential real estate transactions, business law, and commercial litigation.  You can contact Ben  with questions at (616) 458-3600.

Construction Contract Clauses, Part 7 – Indemnification and Insured Contract Coverage

Posted by: Hilger Hammond On: 10th October 2017 | no responses.

By: Mark A. Rysberg

Indemnification provisions frequently appear in construction and commercial contracts. They operate to shift risk from the party being provided indemnification to the party providing indemnification. The principle behind such risk shifting is to shift potential risks onto the party or parties that are best able to prevent, mitigate, or insure those risks. In that respect, indemnity provisions do not necessarily need to be a source of disagreement during contract negotiation.

Consider, for example, indemnification provisions that require one party to indemnify and defend other parties from the risks relating to personal injury and property damage. At first blush, the party who is to provide such indemnity may feel that they should not assume those risks. However, agreeing to a well-drafted provision requiring indemnification for personal injury or property damage can be a benefit to all of the parties—including the party providing the indemnity. Here is how that can occur.

Most general liability policies include insured contract coverage. What that does is provide coverage for certain losses arising from the contractual agreement to indemnify a third-party. In the example above, if a claim for personal injury or property damage was asserted against an indemnified party, the indemnified party could in turn assert an indemnity claim which may trigger coverage under the indemnifying party’s general liability policy. In that scenario, the transfer of risk has ultimately allowed the contracting parties to shift the risk onto an insurer. The end result is the possibility of insurance coverage coupled with the probability being reduced that the contracting parties find themselves litigating their respective liability so they may instead focus on completing the construction project.

Properly negotiated and drafted, indemnification provisions are tools which can shift risk potential to an insurer and reduce the chances of liability litigation, benefiting all of the parties.

Mark Rysberg practices in the areas of construction law and commercial litigation having represented clients involved in the construction industry with complex matters before numerous state courts, state appellate courts, federal trial courts, federal bankruptcy courts, and federal appellate courts.

If you enjoyed this article, you might also like “Waiver of Claims for Insured Losses.”

 

Changes to the 2017 AIA A201 General Conditions: Section 1.1.8 on Initial Decision Maker

Posted by: Hilger Hammond On: 9th October 2017 | no responses.

By Steve Hilger

This is part 1 of a 15-part series on the changes to the AIA A201 General Conditions. This part deals with section 1.1.8.

In the 2017 changes, particularly section 1.1.8, there are some fairly significant changes to the Initial Decision Maker clause. The changes are as follows:

 

 

 

 

 

First, in my humble opinion, the whole Initial Decision Maker process is a bad idea. It usually ends up, by default, being the Architect under section 15.2.1 because people generally do not change the language and select a third-party. That places the Architect, as the Initial Decision Maker, in the unenviable position of having to exercise control over the outcome of the dispute.

This scenario was attempted to be worked out by the language that “the Initial Decision Maker shall not show partiality to the Owner or Contractor…” but that does not fix the problem as it makes enforcement impracticable.

In addition, the second clause of the change provides that the Initial Decision Maker shall not be liable for the results or for the interpretations or decisions rendered in good faith. If the Architect assumes the role of IDM, there is no reason why the Architect should be shielded from responsibility in the exercise of that role. There is also a question as to whether the second clause is even enforceable. In many jurisdictions, you cannot release yourself from liability for negligence in advance. Nevertheless, this clause is probably going to be enforced.

My general recommendation is to strike everything in the AIA A201 General Conditions that has anything to do with the Initial Decision Maker process.

Steve Hilger is an attorney and partner at Hilger Hammond, PC.   In Steve’s practice, he is routinely involved in extensive contract preparation and review including contracts in the construction industry, material purchase orders, vendor agreements, documents involving the Uniform Commercial Code, licensing agreements, and multiple other commercial contracts and related documents. You can reach Steve at sahilger@hilgerhammond.com.

 

Do I Really Need to Create Corporate Minutes?

Posted by: Hilger Hammond On: 6th September 2017 | no responses.

By Ben Hammond

From time to time I get asked this question from small business owners. My response is typically a question along these lines, “How attached are you to your boat?”

This might sound like a strange response, and it certainly does not apply in all circumstances, but the point is that the failure to follow corporate formalities could result in losing the corporate shield of liability – resulting in personal liability for a claim – and thus a sudden decrease in ownership of personal toys, or worse.

Generally speaking, shareholders are not liable for corporate obligations. MCL 450.1317(4). Over time the phrase “piercing the corporate veil” has evolved to mean that this corporate shield from liability can be erased.

Typically, the courts focus on five factors to determine if a shareholder should be held personally liable for a claim. These factors are:

(1) a failure to follow sufficient corporate formalities beyond the initial filing of the articles of incorporation;

(2) severe undercapitalization;

(3) the corporate entity was used as a device to achieve fraud;

(4) a pervasive failure to document transactions between the owners as individuals and the corporation; and

(5) a general failure to keep financial records of the corporation separate from those of the individual shareholders.

Keeping proper corporate records is not just a good idea to prevent liability, it is also required under the law. The Michigan Business Corporation Act requires corporations to keep:

(1) books and records of account and

(2) minutes of the proceedings of its shareholders, board (and executive committee if your company has one).

Corporate record-keeping is typically on the bottom of the list when facing the demands of any given day. However, it is important to note that maintaining corporate records is a factor the court considers when determining if you will be personally liable for company debts, and is required by Michigan law.

For assistance with your corporate records, contact Hilger Hammond at (616) 458-3600.