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Architect carrying plans through corridor

Attorney Garret Murai discusses the nuances of the Listing Law.

Court Holds That Public Entity Can Unilaterally Replace Subcontractor Under California’s Subletting and Subcontracting Fair Practices Act

Monday, July 22, 2019 — Garret Murai - California Construction Law Blog

The Subletting and Subcontracting Fair Practices Act (Public Contract Code section 4100 et seq.), also known as the Listing Law, is intended to prevent direct contractors on public works projects from “bid shopping” and “bid peddling.”

Bid Shopping: Bid shopping is when a direct contractor discloses a subcontractor’s bid to other subcontractors in an attempt to obtain a lower bid than the one in which it based its bid to the owner.

Bid Peddling: Bid peddling is the other side of the equation. It is when a subcontractor whose bid was not selected, lowers its bid in an attempt to induce the direct contractor to substitute it for another subcontractor after the prime contractor’s bid has been awarded.

Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP

Mr. Murai may be contacted at gmurai@wendel.com

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Two stick figures teaching

Two numbers that are critical to the timing and content of any mechanic’s lien are 90 and 150, both found in Va. Code 43-4.

90 and 150: Two Numbers You Must Know

Monday, July 22, 2019 — Christopher G. Hill - Construction Law Musings

Mechanic’s liens are a big topic here at Construction Law Musings. I’ve discussed everything from the picky nature of this powerful payment tool to the changes that are upcoming on July 1, 2019. Given the strict way that the form and timing of a Virginia mechanic’s lien is so critical, I thought a quick reminder was in order.

Two numbers that are critical to the timing and content of any mechanic’s lien are 90 and 150, both found in Va. Code 43-4. 90 days is the time from the last date of work (not invoicing), or last date of the last month in which work was done given proper circumstances.

The 90 days prescibes the time during which a contractor can properly record a valid lien. This is a hard deadline and is 90 days, not three months. Miss this deadline and no matter what the type of payment that has not been made (something discussed below), the contractor will lose its lien rights. This is the easier of the two numbers to both understand and apply. Count 90 days from last non-corrective or warranty work and that is your hard out for filing.

Reprinted courtesy of The Law Office of Christopher G. Hill

Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Construction worker holding shovel next to freshly planted tree

Attorney Anthony B. Cavender covers recent environmental cases.

Recent Environmental Cases: Something in the Water, in the Air and in the Woods

Monday, July 22, 2019 — Anthony B. Cavender - Gravel2Gavel

State of Texas, et al. v. US EPA. The revised regulatory definition of “Waters of the U.S.” continues to generate litigation in the federal courts. On May 28, 2019, the U.S. District Court for the Southern District of Texas held that the 2015 rulemaking proceedings used by EPA and the U.S. Army Corp of Engineers to redefine this important component of the Clean Water Act were flawed in that the notice and comment provisions of the Administrative Procedure Act (APA) were violated because insufficient notice was provided by these agencies that “adjacent” waters newly subject to the regulatory jurisdiction of these agencies, can be determined on the basis of specific distances, which was a change in the agencies’ thinking, and insufficient notice of this change was provided to the public. In addition, the final rule “also violated the APA by preventing interested parties from commenting on the scientific studies that served as the technical basis” for the rule. However, the court did not vacate the new rule, but remanded the matter to the “appropriate administrative agencies” to give them an opportunity to fix this problem.

State of Oklahoma, ex rel. Mike Hunter, Attorney General of Oklahoma v. US EPA and the United States Army Corps of Engineers. A day later, on May 29, 2019, the U.S. District Court for the Northern District of Oklahoma rejected arguments that the new redefinition should be preliminarily enjoined.While this case was filed in 2015, intervening litigation in the federal courts, including the U.S. Supreme Court, caused a substantial delay in the disposition of this case. The court, noting that the tests for granting such an injunction against the federal government are fairly exacting, held that the plaintiffs, the State of Oklahoma and a number of industry groups and associations, failed to convince the court that the harm they would suffer if the rules remained effective would be irreparable. Presumably, this case will be going to trial in the near future.

Reprinted courtesy of Anthony B. Cavender, Pillsbury

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Building TWA Hotel's Quiet Space in the Middle of JFK Airport

July 22, 2019 — Eydie Cubarrubia - Engineering News-Record

To hear is to see, proclaims the title of a 1969 jazz album — and in building a quiet hotel in the middle of an airport, that phrase rings true.

Ms. Cubarrubia may be contacted at cubarrubiae@enr.com

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Insurer Not Required to Pay Twice When Contractor Cashes Jointly Payable Check Under Authority Granted in Construction Contract

July 22, 2019 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP

In Jozefowicz v. Allstate Ins. Co. (No. G055643, filed 5/28/19), a California appeals court held that Allstate was not required to pay the insured where his contractor negotiated a jointly payable check under a lost or stolen check provision of the Commercial Code, because the insured’s construction contract had authorized the contractor to cash the check, which negated a requirement for application of the statute.

Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
Ms. Moore may be contacted at vmoore@hbblaw.com

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A Reminder to Renew Your Public Works Registration by June 30, 2019

July 22, 2019 — Garret Murai - California Construction Law Blog

A friendly reminder from the folks at the CSLB . . .

June 24, 2019 CSLB #19-05
Public Works Contractors: Renew Your Registration Online by End of This Month

Contractors can now register for one, two, or three fiscal years
The Contractors State License Board (CSLB) and the Department of Industrial Relations (DIR) are informing public works contractors that their registration will expire on June 30. The public works contractor registration application was recently updated to process applications within one business day when paid by credit card, and provide the applicant with a credit card receipt.

Mr. Murai may be contacted at gmurai@wendel.com

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The California Lawyers Association Annual Meeting

July 22, 2019 — Beverley BevenFlorez - CDJ STAFF

The annual CLA seminar will be “packed with multiple CLE programming, networking opportunities, interactive sessions with CLA Leadership, keynote speakers, an unforgettable night at the Monterey Bay Aquarium, exhibits” and more.

October 10th-12th, 2019
Monterey Conference Center
Portola Hotel & Spa at Monterey Bay
Two Portola Plaza
Monterey, CA 93940

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Red pencil on Construction Contract

Attorney David Adelstein analyzes the case Manor House, LLC v. Citizens Property Insurance Corp.

Consequential Damages Can Be Recovered Against Insurer In Breach Of Contract

Monday, July 22, 2019 — David Adelstein - Florida Construction Legal Updates

In a favorable case for insureds, the Fifth District Court of Appeal maintained that “when an insurer breaches an insurance contract, the insured is entitled to recover more than the pecuniary loss involved in the balance of the payments due under the policy in consequential damages, provided the damages were in contemplation of the parties at the inception of the [insurance] contract.” Manor House, LLC v. Citizens Property Insurance Corp., 44 Fla. L. Weekly D1403b (Fla. 5thDCA 2019) (internal citations and quotation omitted). Thus, consequential damages can be recovered against an insurer in a breach of contract action (e.g., breach of the insurance policy) if the damages can be proven and were in contemplation of the parties at the inception of the insurance contract.

In Manor House, the trial court entered summary judgment against the insured holding the insured could not seek lost rental income in its breach of contract action against Citizens Property Insurance because the property insurance policy did not provide coverage for lost rent. However, the Fifth District reversed this ruling because the trial court denied the insured the opportunity to prove whether the parties contemplated that the insured, an apartment complex owner, would suffer lost rental income (consequential damages) if the insurer breached its contractual duties.

Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Key in Lock on door

Anastasios Koutsogiannis is Content Marketing Manager at Let's Build.

How To Lock Disputes Out Of Your Project In Construction

Monday, July 22, 2019 — Anastasios Koutsogiannis – Let’s Build

Disputes are seen as one of the main threats for the successful completion of a project in construction. There is a plethora of factors which could lead to a construction dispute (e.g. contracts, behavior, environment) but, strangely enough, the industry seems to invest more attention on the resolution of a conflict instead of its prevention.

Thanks to the progress that digital technologies have witnessed during the last few years, there is a good chance that things in construction will change for the better soon. The ability to exchange crucial updates in real time, while keeping a detailed record of everything that happens on the field adds an extra level of protection to your project and ensures that all agents are on the same page.

In an effort to shed some light on the issue of construction disputes, we present below four tips that could help your team to lock conflicts out of your project:

1. Standardize your processes
Before you kickstart your project, it is of paramount importance that you standardize all your systems and processes. In that way, you will be able to add extra clarity to your workflow and eliminate misunderstandings.

Once you have achieved that, you can replicate the same process to your future projects. The more you manage to repeat the same project structure the better your team will become in completing their tasks without ending up in any kind of conflict.

In that sense, standardization could be a long-term investment for your organization.

2. Go digital
As soon as your processes are defined, it is time for the digital journey to begin. Finding the right tool for your project will result in a streamlined construction process where all the members of the team are on the same page without any room for costly mistakes or disagreements.

Furthermore, with the help of digital solutions it becomes easier for project managers to measure the performance on site and monitor the completion of the set benchmarks. Like that, all payments will be on time and the program of the project will reflect reality.

3. Be extra careful with the contracts

A poorly-written contract can have a big impact on the effort to lock disputes out of your construction project. While putting together a new contract, you should always make sure that you have taken into account all the different scenarios for your project.

Either that is a delay due to weather conditions or an accident on site everything should be described in detail in the contracts and be well understood by those in charge.

In any other case, things can get a bit risky and a costly dispute might wait to happen.

4. Hold regular meetings with all stakeholders

Last but certainly not least, meet regularly with all project stakeholders. The frequent contact with the different members of your team will allow you to discuss and resolve any problematic situations before they grow out of proportion.

What is more, regular meetings will help both your field teams and the people in the office to remain aligned and will eliminate the possibility of having people working on outdated versions of the program.

Of course, these meetings don’t need to be time-consuming or even in person. With the help of technology, you can keep these meetings short and to the point. In that manner, everybody involved will be able to get the most out of them.

Final word
All in all, it becomes clear that locking disputes out of your project in construction requires continuous work and a carefully-elaborated plan. Thankfully, the emergence and progress of digital solutions have made this process much easier contributing significantly to the development of the industry far from disputes and project misunderstandings.

About the author: Anastasios Koutsogiannis is Content Marketing Manager at LetsBuild.

Reprinted courtesy of Anastasios Koutsogiannis, Let’s Build

Businessman climbing stairs with city behind image

Ahlers Cressman & Sleight was rated as number one in Oregon and Alaska and number two in the state of Washington.

Ahlers Cressman & Sleight Rated as One of the Top 50 in a Survey of Construction Law Firms in the United States

Monday, July 22, 2019 — Jonathan Schirmer - Ahlers Cressman & Sleight PLLC

The magazine, Construction Executive, recently rated the top construction law firms in the United States. We are pleased to announce that our firm was rated as number one in Oregon and Alaska and number two in the state of Washington behind Perkins Coie, LLP. In its inaugural ranking, Construction Executive reached out to hundreds of law firms nationwide with a dedicated construction practice to determine who the industry leaders were. Ahlers Cressman & Sleight ranked 22nd overall in the United States among all construction law firms.

This survey considered revenues from each of the law firm’s construction practices, the number of lawyers in the firm’s construction practice, the percentage of the firm’s total revenues derived from construction practice, the number of states in which the firm is licensed to practice and the year in which the construction practice was established.

Reprinted courtesy of Jonathan Schirmer, Ahlers Cressman & Sleight PLLC

Mr. Schirmer may be contacted at jonathan.schirmer@acslawyers.com

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Construction worker carrying girder

TJPA will announce a reopening date later.

Repair of Fractured Girders Complete at Shuttered Salesforce Transit Center

Monday, July 22, 2019 — Nadine M. Post - Engineering News-Record

The repair of two fractured girders spanning Fremont Street and the reinforcement of twin girders spanning First Street are complete at the beleaguered Salesforce Transit Center in San Francisco.

Reprinted courtesy of
Nadine M. Post, Engineering News-Record

Ms. Post may be contacted at postn@enr.com


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Grazing native american land

Can I bring a lawsuit to enforce the contract and, if so, where would I file suit?

Construction in Indian Country – What You Need To Know About Sovereign Immunity

Monday, July 22, 2019 — Edward J. Hermes - Snell & Wilmer Under Construction Blog

There are many legal issues to consider when bidding on and building projects in American Indian Country. Which labor and employment laws apply? Are there contracting or hiring preferences that apply? Do the Prompt Pay Act and other state laws apply? Can I bring a lawsuit to enforce the contract and, if so, where would I file suit? This article addresses the final question, which is often the most important question when contracting with a tribal entity.

Many of the construction projects in American Indian Country are with tribes or entities wholly owned or by a tribe, such as housing authorities, casinos, hospitals, schools or other economic enterprises. Like the state and federal government, tribes (and their tribally—owned enterprises) enjoy sovereign immunity from any lawsuit, meaning they cannot be sued unless the tribe expressly agrees to waive its sovereign immunity. Sovereign immunity poses a unique issue for contractors that does not typically arise in other projects, but it need not be a deterrent to doing business with tribes. It is usually in the best interest of both the contractor and tribe to negotiate an acceptable waiver of sovereign immunity. Absent such a waiver, the tribe or tribal entity cannot be sued and the resulting forfeiture of remedies can be devastating for the contractor.

To waive sovereign immunity, the tribe must make it clear in the contract that it can be sued in a specific jurisdiction. Oklahoma Tax Comm'n v. Citizen Band Potawatomi tribe of Okla., 498 U.S. 505, 509 (1991). It does not matter whether the tribe is operating on or off its lands—if there is no express contractual waiver of sovereign immunity, a contractor will have no recourse in the event of non-payment or other breach of contract. See Kiowa tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).

Reprinted courtesy of Edward J. Hermes, Snell & Wilmer

Mr. Hermes may be contacted at ehermes@swlaw.com

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Businessman standing in front of sunset holding arms up in triumph

Attorney Christopher G. Hill celebrates the anniversary of his practice.

The Firm Hits the 9 Year Mark!

Monday, July 22, 2019 — Christopher G. Hill - Construction Law Musings

It was 9 years ago today that I announced the formation and start of my solo practice, The Law Office of Christopher G. Hill, PC. Back then, my children were in elementary and middle school. Now I have two college students, one at Appalachian State University (with a budding photography talent that has provided some photos for this blog (including that on this post)) and the other at West Virginia University, and a rising high school junior. In just the past year I began a tenure on the Section Council Virginia Bar Association Construction and Public Contracts Law section and chair of its Legislative Committee where I assisted in the drafting of the change in the mechanic’s lien form that takes effect today..

I was named to both the Virginia Business Magazine Legal Elite in Construction Law and for a 3rd consecutive year to Virginia Super Lawyers in Construction Litigation. I spoke on how to deal with a DPOR complaint this past November at the 39th Annual Construction Law and Public Contracts seminar (one I highly recommend for any lawyer interested in construction).

Reprinted courtesy of The Law Office of Christopher G. Hill

Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Construction Barrel Causes $1,600 Worth of Damage to Man's Car

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Clock

It is the city’s first construction manager at-risk project on any infrastructure project.

Baltimore Project Pushes To Meet Federal Deadline

Monday, July 22, 2019 — Justin Rice - Engineering News-Record

Two giant anaerobic digesters shaped like Faberge eggs have for years served as landmarks for commuters traveling on Interstate-695 east of downtown Baltimore. And cranes, recently removed, signaled the location of one of the latest projects in a years-long, $1.6-billion construction program to upgrade the 100-year-old Back River Wastewater Treatment Plant. “You probably won’t see a collection of this many ‘sticks’ anywhere else in the city,” Shane Lippert noted back in October.

Reprinted courtesy of Justin Rice, ENR

Mr. Rice may be contacted at ricej@enr.com

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Digital tunnel

This is the sixth article in the Precision Construction series, which explores the application of the Internet of Things to digitally transform the construction industry.

Mixed Reality for Construction: Applicability and Reality

Monday, July 22, 2019 — A. Vincent Vasquez - Construction Executive

One technology available to the digital contractor for mapping what’s happening in the physical world with the 3D models is mixed reality. Mixed reality often includes both augmented reality and virtual reality.

Preconstruction Phase
During the preconstruction design phase, mixed reality can be used for a number of tasks, such as:

  • conducting design iterations;
  • communicating designs to owners;
  • visualizing the impact of design changes;
  • discovering design and coordination clashes; and
  • mocking up virtual interior designs.

Marketing
Mixed reality can also be used to create marketing material, such as a virtual showroom. Imagine being able to show a potential client what the building will look like. For example, the client, wearing mixed-reality glasses, can see the physical neighborhood with the building or can take a virtual “walk” through of an apartment before it it is even completed.

Reprinted courtesy of A. Vincent Vasquez, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.



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Handcuffed person

Former President Michel Temer turned himself in, after federal court judges ordered his detention.

Brazil’s Former President Turns Himself In to Police

Monday, July 22, 2019 — Mario Sergio Lima - Bloomberg

Brazil’s former President Michel Temer handed himself in to police following a court ruling that’s unlikely to cause upheaval in domestic politics.

Temer turned himself in on Thursday afternoon, after federal court judges ordered his detention on charges of corruption, embezzlement, money laundering and conspiracy. The former head of state was initially arrested on March 21 but released four days later. Temer’s lawyers did not immediately respond to a request for comment. The 78-year old’s party, the MDB, issued a note condemning the “unreasonable” decision.

Reprinted courtesy of Mario Sergio Lima, Bloomberg
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Construction level

Emilia Rönkkö is an architect and a Docent of Urban Planning at the University of Oulu.

Taking Service Network Planning to the Next Level

Monday, July 22, 2019 — Aarni Heiskanen - AEC Business

Cities and municipalities are basically systems for delivering services for the benefit of their citizens. An experimental project demonstrated how improving the flow of data between these services could save a lot of time and taxpayer money.

Emilia Rönkkö is an architect who worked for the Finnish city of Kuopio. Besides that, she is a Docent of Urban Planning at the University of Oulu.

“In Kuopio, my job included doing architectural programming for public investments and service network reviews. More specifically, surveys about Growth and Learning Services that were focused on daycares and schools,” Rönkkö explains. “Typically, a service network review with manual data collection procedures takes place every three to five years. I and other functionaries involved in the process wondered if there might be a better, more efficient way to do the reviews.”

Reprinted courtesy of Aarni Heiskanen, AEC Business

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

Builders Standard of Care Expert Witness and Consulting General Contractor area area area

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