Originally posted 2010-04-09 09:00:29.
For this week’s Guest Post Friday here at Construction Law Musings, we welcome Andrea Goldman for the second time. Andrea (@andreagoldman) is the principal in the Law Office of Andrea Goldman, 305 Walnut Street, Newton, Massachusetts 02460. She is a litigator, mediator and arbitrator. Andrea focuses on construction, contractor/homeowner and business law. She is fluent in Spanish and French and has served international clients in their native language. For more information about Andrea Goldman visit www.andreagoldmanlaw.com, or call (617) 467-3072.
- Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
- Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. All contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.
- The Lead-Based Paint Renovation, Repair and Painting Program Law is a federal law. That means that claims brought under that law can be brought in federal court. Keep in mind that your state may opt-out and pass laws that are more stringent.
- Even if you have an arbitration clause in your contract, it will not apply to a lead paint claim because the plaintiff would be the child or a pregnant woman who is not necessarily a party to the contract. Therefore contractors could be subject two legal proceedings at the same time.
- Provide homeowners with a checklist that verifies that they have received the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools pamphlet, they have seen the contractor’s firm and renovator certification, and they understand that the certified renovator will be on site when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator will be reachable by cell phone at other times. Consider whether to give your cell phone number to the homeowner.
- Let homeowners know that any requests for testing, abatement, or third-party cleaning verification will result in a written change order that that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
- Inform homeowners that any conditions that affect containment procedures (high winds, prior lead dust and paint chips at the site) will result in a written change order that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
- Even if homeowners say that no children under 6 or pregnant women are present in the home, or the home was built after 1978, the contractor should exercise due diligence and check records at the Registry of Deeds or the town tax assessor’s office to verify the date of construction. They should also make a reasonable inquiry regarding visitors, ages of children living outside the home who visit frequently and may be pregnant, etc.
- Remove “broom clean condition” clauses from your contract.
Contracts with subcontractors:
- Make sure you have written contracts with subcontractors.
- Include an indemnification clause where the subcontractor is liable for his portion of the work that requires lead containment procedures. If the general contractor is sued, he wants to require that the subcontractor has to reimburse him for his attorney’s fees and costs in defending himself against a suit that is based on the work performed by the subcontractor. The subcontractor would agree to be liable for any judgment that is a result of the work that he performed.
- The contract must clearly spell out the subcontractor’s scope of the work so everyone understands the apportionment of responsibility.
- Never hire subcontractors who are not certified firms and renovators with the EPA.
- Make final payment to subcontractors contingent upon completion of all documentation (including photographs and records of on the job training) required by the EPA