The Construction Contract Review

16 Green Building Innovations of 2010 | Jetson Green

16 Green Building Innovations of 2010

By Preston | Topics: Lists, Technology | Comments (0)

Technology and design are inextricably intertwined in the world of green building.  During the last year, we’ve seen some fascinating technologies and clever designs that have the potential to reduce the environmental impact of the built environment in a new way.  I hope you enjoy this review of innovation culled from our archives of the last year.

 

Innovative Lifewall Living Facade Tiles by Ceracasa

Ceracasa unveiled Lifewall, a modular living wall tile for exterior applications made in one square meter panels that uses drip-water irrigation and can support a variety of plants. Read more.

Woolly Pockets Showing Up Everywhere!

Simple vertical gardens for interior applications can now be installed by a crafty DIYer. Various sizes and options are available for a few hundred dollars or less.  Read more.

Niagara Has a Stealthy New Efficient Toilet

Niagara Conservation unveiled Stealth, a WaterSense product and the world’s only 0.8 gallon per flush high-efficiency toilet. It’s quiet, too.  Read more.

Roof Integrated Solar Goes with Ceramic Tiles

via www.jetsongreen.com

Good summary of some new green technologies. Check out the full article here.

Making the Case for 'Clean Construction'

In the same way that LEED has transformed architectural design to improve energy efficiency and reduce greenhouse gas emissions, clean construction is emerging as the next big thing to revolutionize the building industry.

via www.greenbiz.com

The above is clip from a good article on clean construction today at GreenBiz.com. 

After the construction company I was General Counsel at was acquired, I initiated the practice of considering environmental impacts of remediation activities at every stage of the remedial process to maximize the net environmental benefit of a site cleanup. The company’s award winning sustainability efforts focused on the selection of a cleanup remedy, onsite energy requirements, efficiency of on-site activities, and reduction of impacts on surrounding areas. These efforts led to modified business procedures to include quantification and real reductions in air emissions, lower overall fuel usage and the use of alternative fuels, project impact assessments, reuse and recycling of construction debris, and use of renewable energy on job sites. 

Were we using "clean construction practices" before they had a name?  Contact me at wjb@SustainableLegal.com if you'd like to implement similar programs at your construction company.

Filing Mistake Invalidates $12.4 Million Mechanics Lien

Mechanic lien laws are highly technical, and they frequently change in unpredictable ways (see recent controversial example from Washington). We’ve expressed the sentiment a hundred times on this mechanics lien blog – it’s very easy to make a common lien mistake.

Unfortunately for JE Dunn Construction Co., it seems someone may have really dropped the ball filing its $12.4 Million mechanics lien. The developer of a stalled West Edge project in Kansas City now claims the construction company’s mega-lien has a mistake that invalidates it.

When it comes to filing a mechanics lien, sometimes you only get one chance to get it right. Depending on the merit of the developer’s claim, JE Dunn Construction Co. may have gotten a very frustrating and expensive lesson about the technical nature of mechanics liens.

From the press, it looks like the lien would have converted the debt from an unsecured claim into a secured claim in the bankruptcy proceedings pending on the West Edge project. Without the lien, the claim falls to an unsecured one, making collection a lot less likely. That makes this lien mistake one of the country’s most expensive.

What Could Have Went Wrong?

What could have went wrong with the mechanics lien, you ask? What kind of mistake could invalidate such a big claim?

Funny enough, the biggest claims in the world can be invalidated by just the simplest and most technical oversight. Here are examples of common filing errors that could have cost JE Dunn Construction Co. its secured claim:

• Poorly Identifying the Property: Most states require the use of a legal property description, and others require specific descriptions of the property. In every state, the requirement is technical, and a lien can be invalidated because of an inadequate description. (See article about describing properties on mechanic liens).
• Signing Mistakes: Mechanic liens must be signed in a particular way. Some states require they be notarized, some states require a verification with specific and statutory language. The smallest waiver from these requirements can result in the mechanics lien being invalidated. (See article on Washington lien invalidated because of verification error)
• Not Sending Notice: Some states require notice when you begin work. Some states require notice immediately before filing a mechanics lien. Some states require notice immediately after filing a lien. Failing to deliver this notice, can forfeit your mechanic lien rights. (See blog posts about preliminary and other notices)

Who is Filing Your Mechanics Lien?

Let us be the first to tell you that if you are about to file a $12.4 Million mechanics lien, you have no business filing it without the counsel of a qua

via www.constructionlawmonitor.com

EEEEE-gads!!! Great article from Scott Wolfe in Washington highlighting the risks of an improperly filed mechanics lien. I am willing to bet that this contractor wished they spent a few bucks on a construction attorney before filing this lien.

Green Construction Contract Checklist

I recently discovered these good tips from the California attorneys at Thoits, Love, Hershberger & McLean and found them interesting.  

Green Construction Contract Checklist

Implementing a sustainable, energy efficient construction project involves many considerations encompassing the full range of development activities: site selection, design, construction, operation, maintenance and demolition. Every owner must consider a wide variety of implications, including cost, availability of materials, schedule and quality. Among the first issues to be addressed is the content of the design and construction contracts. What follows is a checklist of issues to consider when negotiating and drafting contracts with architects, contractors and others involved in the project.

1. Should a certified green professional be retained? A design professional who has obtained accreditation in green design and construction will be recognized as an “Accredited Professional.”

2. If a specified standard of construction is required, be sure it is specified clearly, and with reference to the revision date of the applicable standard. A number of organizations offer certification standards and ratings, including the LEED Green Building Rating System, Living Building, Green Globes, Green Point Rated and the National Association of Home Builder's Green Building Program.

3. Be aware of changes in the law, especially local ordinances, relating to the requirements for any element of green design and construction.

4. Plan for extra time, and potentially extra cost, for delivery of materials.

5. Incorporate any applicable “performance” standards for the project, such as energy savings, air and water quality, water usage and recycling.

6. Watch for exculpatory provisions and disclaimers of responsibility at every stage. For example, a particular material requirement may draw a disclaimer of liability from an architect or contractor, who might not have confidence in the product. This may lead to extended negotiations over indemnities and damage waivers.

7. Watch for, or give thought to clauses that require a particular standard of care that might be higher than customary. Such clauses may trigger insurance exclusions, thereby negating coverage from professional liability insurance or complicate bonding.

8. Consider extending any payment retention until the required certification is obtained. In addition, require that all documents related to the green requirements are created, maintained and turned over as part of the certification.

9. Reexamine how the green requirements may impact standard construction clauses, including such matters as delay, indemnities, consequential damage waivers, change orders, insurance and substitutions.

10. Implement job-site recycling/waste management requirements, if not already contemplated by a particular standard that is applicable.

Some of the standard forms of design and construction contracts include provisions that promote consideration of sustainability issues, but typically those are general and not mandatory. As with any contract, the parties need to identify exactly what their expectations are and specifically provide for the accomplishment of those goals in the contract.

Stephen C. Gerrish, Real Estate Group

via www.thoitslaw.com

I recently discovered these good tips from the California attorneys at Thoits, Love, Hershberger & McLean and found them interesting.  

Implementing a sustainable, energy efficient construction project involves many considerations encompassing the full range of development activities: site selection, design, construction, operation, maintenance and demolition. Every owner must consider a wide variety of implications, including cost, availability of materials, schedule and quality. Among the first issues to be addressed is the content of the design and construction contracts. What follows is a checklist of issues to consider when negotiating and drafting contracts with architects, contractors and others involved in the project.

1. Should a certified green professional be retained? A design professional who has obtained accreditation in green design and construction will be recognized as an “Accredited Professional.”

2. If a specified standard of construction is required, be sure it is specified clearly, and with reference to the revision date of the applicable standard. A number of organizations offer certification standards and ratings, including the LEED Green Building Rating System, Living Building, Green Globes, Green Point Rated and the National Association of Home Builder's Green Building Program.

3. Be aware of changes in the law, especially local ordinances, relating to the requirements for any element of green design and construction.

4. Plan for extra time, and potentially extra cost, for delivery of materials.

5. Incorporate any applicable “performance” standards for the project, such as energy savings, air and water quality, water usage and recycling.

6. Watch for exculpatory provisions and disclaimers of responsibility at every stage. For example, a particular material requirement may draw a disclaimer of liability from an architect or contractor, who might not have confidence in the product. This may lead to extended negotiations over indemnities and damage waivers.

7. Watch for, or give thought to clauses that require a particular standard of care that might be higher than customary. Such clauses may trigger insurance exclusions, thereby negating coverage from professional liability insurance or complicate bonding.

8. Consider extending any payment retention until the required certification is obtained. In addition, require that all documents related to the green requirements are created, maintained and turned over as part of the certification.

9. Reexamine how the green requirements may impact standard construction clauses, including such matters as delay, indemnities, consequential damage waivers, change orders, insurance and substitutions.

10. Implement job-site recycling/waste management requirements, if not already contemplated by a particular standard that is applicable.

Some of the standard forms of design and construction contracts include provisions that promote consideration of sustainability issues, but typically those are general and not mandatory. As with any contract, the parties need to identify exactly what their expectations are and specifically provide for the accomplishment of those goals in the contract.

Stephen C. Gerrish, Real Estate Group

Construction Contract Checklist

I’m pleased to roll out a handy free reference tool for construction companies.  The Mayfield | Broderick Construction Contract Review Checklist is a good starting point to help you know what to look for in your construction contracts.  

When bidding a construction contract, it is critical to know your risks, manage your risks, and price your risks accordingly.  This Construction Contract Review Checklist highlights some of the key construction, commercial, and legal clauses to look for in your contracts.  

Grab your free checklist here and let us know at Mayfield | Broderick if you have any questions.  

Remodeling your home?

Good advice below from Money Magazine.  Also, don't forget to contact an experienced construction attorney.  It's like measuring twice and cutting once - just a good idea that can saves time, effort and money later. 

(Money Magazine) -- Home improvement is one of the fastest-growing segments of e-commerce. But the consequences of a bad decision when it comes to finding a contractor or remodeling products online are far worse than buying the wrong paperback.

What if those rave reviews you read about a contractor are ringers posted by his daughter -- or if your supposedly in-stock sink order doesn't ship for two weeks, throwing off your entire work schedule?

Follow these tips to avoid glitches and get the most for your money.

To find a contractor: Sites that are driven by consumer ratings are your best bet. That's because you get to see what as many as hundreds of prior customers say about all the pros in your area.

Just watch for sites with anonymous postings and ads that appear in search results that look like positive ratings. In the New York, Chicago, and Los Angeles metro areas, or a few counties in New York, Connecticut, and Florida, check out Franklin-Report.com, which compiles user comments into Zagat-like ratings.

Beyond those regions, a good alternative is Angieslist.com, which charges $5 a month, and uses the credit card info to prevent anyone from creating more than one login in order to

via money.cnn.com

Construction firm settles suit for $3.9 million

A Livermore construction company that has built housing for university students and low-income residents has agreed to pay $3.9 million to settle a lawsuit filed by the state claiming that the firm cheated its workers out of pay for two years, officials said Wednesday.

Country Builders Inc. must pay $2.2 million in back pay to more than 120 construction workers to settle a suit that Attorney General Jerry Brown filed in Alameda County Superior Court. The remaining money consists of civil penalties and payments to a state compensation insurance fund.

Under the settlement, the company is also barred from working on any government-funded public works projects for three years, the maximum period allowed by state regulations.

Some of the company's government-funded construction projects have included the University Village student housing in Albany for UC Berkeley students with families, student housing at California State University East Bay, and housing complexes in Oakland, Berkeley, San Pablo and San Jose.

Brown's office began investigating the company after employees reported that they weren't being paid the prevailing wage for public-works projects. The company also misclassified its hourly wage rates to avoid paying the full amount it owed to the state in workers' compensation premiums, the state's lawsuit said.

The attorney general's office sued the company in March, claiming that the company engaged in unfair competition and violated state labor laws. Besides Country Builders, the complaint named President Weldon Offill, Chief Financial Officer Keith Offill and agents Kelly Offill, Sandra Offill and Bryan Offill as defendants.

Bryan, Keith and Kelly Offill are Weldon Offill's sons, and Sandra Offill is Kelly Offill's wife.

Weldon Offill said Wednesday that the lawsuit "was a big union deal," but declined further comment.

"I'll just pass on that," he said. "I just wanted to get this behind me after 33 years of working everybody in the Bay Area."

His attorney, Roger Patton, said the company did not admit wrongdoing. "They're going to continue to do quality construction work," he said. "We think it's a fair settlement, and the company's happy to get it resolved and move on."

Paul Cohen, spokesman for the Northern California Carpenters Regional Council in Oakland, said the union is "very pleased that workers will get the wage they are entitled to."

E-mail Henry K. Lee at hlee@sfchronicle.com.

via www.sfgate.com

Are you paying prevailing wages and properly classifying your employees? Could you afford a settlement like this?

EASIER TO BUILD AND RENOVATE GREEN, LEED-CERTIFIED BUILDINGS

New "Building to LEED for New Construction" Designed to Help Contractors, Designers and Developers Navigate Green Building Certification Process, Maintain LEED Accreditation

The Associated General Contractors of America today unveiled a new green construction education program designed to make it easier to build and renovate green, LEED-certified buildings. The new program, called Building to LEED® for New Construction, Second Edition is designed to help contractors, designers and developers successfully navigate the green building certification process and keep their green accreditations current.

"Green building is rapidly changing from a niche market to the industry norm," said Stephen E. Sandherr, the association's chief executive officer. "Within a short time, the ability to master the complexities of green construction and certification will be essential to succeeding as a building contractor."

Sandherr said the association developed Building to LEED to meet the growing demand for green construction and design experts. He noted that the number of green buildings under construction is expected to grow by an estimated 25 percent by 2013. As a result, anyone involved in building construction will need to complete a course like the association's new program to be successful, the association head added.

Starting next Wednesday, August 18th, the association will begin taking orders for the Building to LEED program, which includes Instructor's Guides and Participants Manuals to be used during the program's one-day class. In addition to learning invaluable green construction and design skills, anyone taking the class will earn 7.5 continuing education credits that can apply to maintaining LEED certification.

Anyone interested in learning more about Building to LEED, ordering the program or finding out where the new education program is being offered should visit www.agc.org/green. Anyone can order the program, which is designed to be used by construction firms, community colleges, joint-apprenticeship training programs and construction association chapters, among other groups.

Sandherr said that the new education program was part of the association's broader commitment to green construction. He noted that the association released, earlier this year, a comprehensive new green construction plan, "Building a Green Future," that outlines a series of public and private measures to further increase demand for green construction. "Policy makers need to understand that you can't simply wish for a green future, you have to build it," Sandherr added.

via www.agc.org

Get Your License!

They say that any publicity is good publicity....but I'm not so sure. Make sure you do not end up on the news like this. Get your license!  (the interesting story starts after the commercial...sorry)

Key Questions for Your Construction Attorney

What to ask an Attorney -What questions can you ask an attorney to find out if he/she can help you, or is just someone eager to start billing.

Not surprisingly, there are many attorneys that will say anything in order to get a paying client. Their belief is that "its a legal problem" so they are qualified to help. You want to be sure that the attorney you select knows his or her stuff in the construction field.

Some typical questions would be:

Do they know the difference between construction-defect and construction law? (Surprisingly, there will be few attorneys outside the area of construction law that can intelligently define the differences, and if they cannot describe either to your satisfaction, then you should move on). Many attorneys that are not familiar with either area of law, think all construction related disputes are "construction defect".

Do they know how to calculate or determine CPM? (What is CPM?)

Do they know what float is? Who usually owns it?

How do they calculate or determine: general conditons, acceleration or compression, as-builts, red-line, change order impact (cost or time or both), delay impact, interference...?

How well do they know mechanics liens, design professional liens, stop notices... these are all legal situations, where any attorney should know the basic laws, but if they don't, then you shouldn't let them get up to speed at your expense. Find an attorney that already knows this area of law.

How well do they know indemnification, subrogation, Miller act, construction bonds (performance bonds, bid bonds, payment bonds, etc.), the different types of insurance. How well do they know the difference in public works projects vs. private works projects.

Do they know contractor licensing laws, notices such as preliminary notices, notice of completion, conditional and unconditional releases, abandonment. Do they know what conditions allow for total disgorgement.

These are typically questions that will help ferret out the construction law poseurs and give you a better feeling about who meets your qualifications as a knowledgeable construction law attorney.

via www.construction-laws.com

Thought this was a nice article from Scholefield Associates, P.C., a San Diego construction firm. Construction legal issues are unique and distinct from other legal issues and require appropriate expertise.

When I first started as general counsel to a construction company, I inherited some old construction disputes that were being handled by excellent litigators. However, those otherwise excellent litigators were not very experienced or focused on construction disputes. I found over time that the prosecution of those cases lacked a certain polish.

A similar example is often found on the financial side of a construction business. Percentage of completion accounting can be learned by accountants, but some financial experts just intuitively "get it."

Have you had any similar experiences on a construction dispute handled by a non-construction attorney?