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Georgia Construction Law Handbook

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Bart Gary


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Georgia Construction Law Handbook follows and unpacks new movement in this area of law as it develops.

It is a guide to common construction law issues, such as regulatory matters and the collection of money using the mechanic’s lien law or the public works bond laws. A ready reference for attorneys and construction and design professionals, the Handbook analyzes construction law in Georgia, as set forth in the Official Code of Georgia Annotated and reported State and federal court decisions, and includes relevant legal forms.





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  • Brand: Daily Report (GA)
  • Product Type: Books
  • Page Count: 488
  • ISBN: 978-1-62881-605-1
  • Pub#/SKU#: GCLH7
  • Pub Date: 05/28/2019

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  • Bart Gary

Bart Gary is a founding partner of the law firm of Freeman Mathis & Gary, LLP in Atlanta, Georgia.  Following his graduation from the University of Georgia School of Law, he clerked for a federal district judge and a federal court of appeals judge.  He entered the private practice of law in Atlanta in 1981.  During those 30 years, his practice has been primarily devoted to construction and design law, representing contactors and subcontractors, design professionals, and owners in diverse matters, including catastrophic construction failures, construction defects, claims for delay and other economic damages, and lien and payment bond claims.  He has been a member of the Atlanta Bar Association, Construction Law Section for many years, and in 2012-2013 served as the section Chair.  


Chapter 1: The Construction Contract
1-1 FORMALITIES OF THE CONTRACT
1-1:1 Requirement of a Written Contract
1-1:2 Requirement of a Seal
1-1:3 Execution
1-2 APPLICABILITY OF THE UNIFORM COMMERCIAL CODE TO CONSTRUCTION CONTRACTS
1-3 TYPICAL CONSTRUCTION CONTRACT CLAUSES
1-3:1 Exculpatory Clauses
1-3:2 Clauses Relating to Payment and Changed Work
1-3:3 Time for Performance and Delays
1-3:4 Contract Interpretation
1-3:5 Merger or Integration Clause
1-3:6 Incorporation by Reference and “Flow Down” Clause
1-3:7 Effect of Decision by Architect
1-3:8 Termination Clause
1-3:9 Disputes
1-3:10 Choice of Law Provisions
1-3:11 Forum Selection Clauses

Chapter 2: Public Contracts
2-1 COMPETITIVE BIDDING FOR LOCAL GOVERNMENT
2-2 PREFERENCES FOR GEORGIA RESIDENTS IN BIDDING FOR STATE CONTRACTS
2-3 REMEDIES FOR BIDDING IRREGULARITIES
2-4 RELIEF FROM MISTAKES IN BID
2-5 HOLDING A SUBCONTRACTOR TO A PRICE QUOTATION
2-6 BID BONDS AND PAYMENT AND PERFORMANCE BONDS FOR PUBLIC WORKS PROJECTS
2-6:1 Approval of Bonds and Sureties
2-6:2 Bid Bonds for State Projects
2-6:3 Bid Bonds for Local Public Works Projects
2-6:4 Payment and Performance Bonds on State Projects
2-6:5 Payment and Performance Bonds for Local Public Works Projects
2-7 FORMALITIES OF CONTRACTS AND CHANGE ORDERS WITH PUBLIC BODIES
2-8 SPECIAL RULES ON PAYMENTS AND RETAINAGE ON PUBLIC CONTRACTS
2-8:1 General Retainage Statutes
2-8:2 Utility Contractor’s Retainage and Escrow Statutes
2-8:3 Retainage on Highway and Road Projects
2-9 SALES TAX ON CONTRACTS FOR THE STATE
2-10 FEDERAL WORK AUTHORIZATION PROGRAM
2-11 STATE CONSTRUCTION MANUAL
2-12 GEORGIA FALSE CLAIMS ACT

Chapter 3: State Regulations of Contractors and Construction Activities
3-1 OCCUPATION TAXES
3-2 CONTRACTORS’ LICENSES
3-2:1 State Licensing Board for Residential and General Contractors
3-2:2 Specialty Contractor License Requirements
3-2:3 Fire Protection Sprinkler Contractors
3-2:4 Blasting Contractors
3-2:5 Asbestos Contractors and Foreman
3-3 NON-RESIDENT CONTRACTORS
3-3:1 Non-Resident Contractor’s Bond
3-3:2 Foreign Corporation
3-4 BUILDING CODES
3-5 REGULATIONS AFFECTING THE JOB SITE
3-5:1 Control of Soil Erosion and Sedimentation
3-5:2 Metropolitan River Protection Act
3-5:3 Sewage Holding Tanks
3-5:4 Drug-Free Workplace Act
3-5:5 Public Employee Hazardous Chemical Protection and Right to Know Act of 1988
3-5:6 Oil or Hazardous Material Spills or Releases
3-5:7 Blasting or Excavating Near Underground Gas Pipes and Facilities
3-5:8 High-Voltage Safety Act
3-6 REGULATIONS CONCERNING PAYMENTS TO SUBCONTRACTORS AND OTHERS
3-6:1 Sales and Use Tax Bonds
3-6:2 Payments to Minority Subcontractors
3-6:3 Criminal Conversion

Chapter 4: Design Professionals
4-1 REGULATION OF DESIGN PROFESSIONALS
4-1:1 Architects
4-1:2 Professional Engineers and Land Surveyors
4-1:3 Landscape Architects
4-1:4 Overlap of Services
4-2 DUTIES OF THE PROFESSIONAL
4-2:1 Standard of Care
4-2:2 Breach of Contract
4-2:3 Negligence
4-2:4 Negligence Per Se
4-2:5 Negligent Misrepresentation
4-2:6 Professional Seal
4-3 DEFENSES
4-3:1 Proximate Cause; Deviation from Plans and Specifications
4-3:2 Statute of Limitations
4-3:3 Statute of Repose
4-3:4 Disclaimers
4-3:5 Limitation of Liability
4-3:6 Economic Loss Rule
4-3:7 Limitations on Indemnity Clauses
4-4 SPECIFIC TYPES OF CASES
4-4:1 Job-Site Safety
4-4:2 Review of Submittals and Shop Drawings
4-4:3 Nuisance and Trespass

Chapter 5: Surety Bonds
5-1 INTRODUCTION TO SURETY BONDS
5-1:1 Overview
5-1:2 History of the Surety
5-1:3 Insurance vs. Surety Bond: A Comparison
5-1:4 Indemnity Agreement
5-1:5 Subrogation
5-1:6 Nature of Surety’s Liability
5-1:7 Surety’s Defenses
5-1:8 Surety’s Right to Contract Funds
5-1:9 Discharge of Surety by Failure to Sue Principal
5-2 OTHER SURETYSHIP ISSUES
5-2:1 Surety’s Liability for Attorney’s Fees and Penalties
5-2:2 Surety’s Liability for Other Damages
5-2:3 Surety Liable for Overpayment to Principal
5-2:4 Coverage for Defective Work
5-2:5 Surety and Arbitration
5-2:6 Venue for Action Against Sureties

Chapter 6: Construction Liens
6-1 MECHANIC’S AND MATERIALMEN’S LIENS
6-1:1 Overview
6-1:2 Who Can Claim Liens?
6-1:3 What Items Can Be Included in Lien Claims?
6-1:4 Whose Property Is Subject to Being Liened?
6-1:5 Summary of Steps to Perfect a Lien Claim
6-1:6 Notice of Commencement and Notice to Contractor
6-1:7 Loss of Lien Rights by Contractors’ Affidavits
6-1:8 Preliminary Notice of Lien Rights
6-1:9 Lien Waivers
6-1:10 Filing the Claim of Lien and Lawsuit
6-1:11 When Do the Time Periods Start to Run?
6-1:12 Limitations on Lien Rights (Full Payment Defense)
6-1:13 What Is the Lien Claimant’s Burden to Prove That Goods or Services Were Used on a Particular Project?
6-1:14 Bonds to Discharge Liens
6-1:15 Lien Priorities
6-2 EQUITABLE LIENS AND CONSTRUCTIVE TRUSTS
6-3 QUANTUM MERUIT AND LIENS—FAILURE TO PERFECT LIEN

Chapter 7: Payment Bonds
7-1 PUBLIC WORKS CONTRACTS IN GEORGIA (THE LITTLE MILLER ACT)
7-1:1 Overview
7-1:2 Who Are Proper Claimants Under the Bond?
7-1:3 Notice Requirements to Perfect Claim on the Payment Bond
7-1:4 Summary of Notice Requirements of Georgia’s “Little Miller Act”
7-1:5 Limitations on Time to Bring an Action
7-1:6 Obtaining a Copy of the Bond
7-1:7 Burden of Proof on Bond Claimant
7-2 FEDERAL MILLER ACT
7-2:1 Overview
7-2:2 Notice Requirement
7-2:3 Jurisdiction and Limitations
7-2:4 Waiver of Right to Bring Action
7-3 NON-STATUTORY BONDS (PRIVATE WORK PAYMENT BONDS)

Chapter 8: Payment, Interest and Other Remedies
8-1 PAYMENT
8-1:1 Appropriation of Payments
8-1:2 Accord and Satisfaction
8-1:3 Voluntary Payments
8-1:4 Joint Payee Checks
8-2 INTEREST
8-2:1 Interest on Liquidated Amounts
8-2:2 Interest on Unliquidated Damages
8-2:3 Georgia Prompt Pay Act
8-2:4 Interest on Judgments
8-3 ATTORNEY’S FEES
8-3:1 Attorney’s Fees Under the Prompt Pay Act
8-3:2 Attorney’s Fees for Bad Faith
8-3:3 Attorney’s Fees Under O.C.G.A. § 9-15-14
8-3:4 Attorney’s Fees and Penalties Against Sureties

Chapter 9: Defective and Non-Conforming Work
9-1 BASES FOR LIABILITY
9-1:1 Common Law Liability
9-1:2 Statutory Liability
9-2 RIGHT TO REPAIR LAW
9-3 DEFENSES
9-3:1 Limitations
9-3:2 Statute of Repose
9-3:3 Compliance With Plans and Specifications
9-3:4 Acceptance of the Work
9-3:5 Independent Contractor Defense
9-3:6 Economic Loss Rule
9-3:7 Acts of God
9-3:8 Frustration of Performance
9-3:9 Contributory and Comparative Negligence
9-4 RISK ALLOCATION
9-4:1 Indemnity
9-4:2 Limitation of Liability
9-4:3 Agreement to Procure Insurance
9-4:4 Performance Bonds
9-4:5 Comprehensive General Liability

Chapter 10: Damages for Breach of Contract
10-1 OVERVIEW
10-1:1 Purpose of Damages for Breach of Contract
10-1:2 Measure of Damages for Breach of Contract
10-2 DAMAGES IN CONSTRUCTION DISPUTES
10-2:1 Contractor’s Damages for Owner’s Breach
10-2:2 Owner Damages for Contractor’s Breach
10-2:3 Defective or Nonconforming Construction Work
10-2:4 Quantum Meruit
10-3 INDIRECT DAMAGES
10-3:1 Consequential Damages
10-3:2 Damages for Delay
10-4 APPORTIONMENT OF DAMAGES
10-4:1 Damage to Property
10-4:2 Apportionment of Damages for Delay
10-5 LIMITATIONS ON THE RECOVERY OF DAMAGES
10-5:1 Economic Waste
10-5:2 Economic Loss Rule
10-5:3 Mitigation of Damages
10-5:4 Improvements to Plaintiff’s Condition
10-5:5 Punitive or Exemplary Damages
10-6 PROOF OF DAMAGES
10-6:1 Market Value
10-6:2 Costs of Repair
10-6:3 Total Costs

Chapter 11: Worksite Risks
11-1 OVERVIEW
11-2 INJURY TO WORKERS
11-2:1 OSHA Standards and Negligence Per Se
11-2:2 Workers’ Compensation
11-2:3 Responsibility of Owners for Worksite Injuries
11-2:4 Borrowed Servant Rule
11-2:5 Responsibility of Subcontractor and General Contractor for Worksite Injuries
11-3 DAMAGE TO THE WORK
11-3:1 Builder’s Risk Insurance
11-3:2 Waiver of Subrogation

Chapter 12: Arbitration
12-1 FEDERAL AND STATE LEGISLATION
12-1:1 Federal Arbitration Act
12-1:2 Georgia Arbitration Code
12-1:3 Preemption
12-2 AGREEMENTS TO ARBITRATE DISPUTES
12-2:1 Intent to Arbitrate
12-2:2 Demand for Arbitration
12-2:3 Motion to Compel Arbitration
12-2:4 Questions for the Court/Arbitrator
12-2:5 Appeal of Orders Granting or Denying Motion to Compel Arbitration
12-3 THE ARBITRATION PROCESS
12-3:1 Qualifications and Appointment of Arbitrators
12-3:2 Joinder and Consolidation
12-3:3 Discovery, Exchange of Information, and Subpoenas
12-3:4 Conduct of Hearings; Continuances
12-3:5 Award
12-3:6 Relief Awardable; Attorney’s Fees
12-4 CHALLENGES TO THE AWARD
12-4:1 Modification of Award by the Arbitrator
12-4:2 Vacation of Award; Grounds
12-5 CONFIRMATION OF AWARD

Appendix
Table of Cases
Table of Statutes
Index