USA - ALABAMA Law and Practice Contributed by: Adam J. Sigman, Crystal H. Walls, Nathan Stotser and Katie Sinclair, Dentons
law does not impose on a landlord a duty to mitigate damages absent an express obligation in the lease to do so (Bowdoin Square, LLC v Winn-Dixie Montgomery, Inc, 873 So 2d 1091 (Alabama 2003)). The typical form of an evic - tion proceeding involving commercial leases is an action for an unlawful detainer. See Section 35-9-1 to -100 and Section 6-6-310 to -353. 7. Construction 7.1 Common Structures Used to Price Construction Projects The type of pricing structure used for projects depends on several factors, including: • the current economic climate; • owner’s desires; • financing concerns; and • public entity status. In commercial construction projects, there are typically more guaranteed maximum or fixed- price contracts than open-ended cost-plus contracts, while fixed-price contracts are used almost exclusively in the public works sector. 7.2 Assigning Responsibility for the Design and Construction of a Project Alabama law requires a registered architect to sign off on plans for the design and construc - tion of a project (Section 34-2-32). For projects of USD50,000 or more, a contractor must be licensed by the Alabama Licensing Board for General Contractors (Section 34-8-9). If there are engineering requirements, a licensed engineer must be consulted and approve the plans. In addition, most trades are required to be licensed by their respective governing author - ity, such as plumbers/gas fitters and electrical
contractors (Sections 34-37-1 and 34-36-1 et seq). The project’s owner will typically employ an architect and engineer to work with a general contractor to conceptualize the project; the gen - eral contractor then delegates subcontracts as necessary, often without being subject to owner approval, unless the owner contractually retains that right. 7.3 Management of Construction Risk Owners and general contractors frequently utilize insurance policies and indemnification agreements in their contracts with each other, and in particular with their subcontractors. Since contribution among joint tortfeasors is unavail - able, the only method for obtaining contribution is to contractually oblige the counterparty to indemnification. Waivers are generally accept - able, and interim and final lien waivers are highly recommended. Each payment on a pay application should be accompanied by an interim lien waiver, and the final payment (including retainage) should be accompanied by a final, unconditional lien waiver and hold harmless agreement. Furthermore, limi - tations or caps on liability can be negotiated into the contract, in addition to provisions requiring the contractor to post payment and performance bonds from a reasonably acceptable surety. 7.4 Management of Schedule-Related Risk Delays in construction should always be addressed in the contracting documents. While a penalty is not available, the contract can pro - vide for an agreed-upon “liquidated damages” provision providing for a certain amount to be allocated for each day, week, or month that the project is behind schedule or for each milestone missed. Delay damages can be accounted for as
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