University of Washington Aims to Make Roads Green

Guardian News ran an article last week about “Greenroads,” opening with these daunting statistics:

With 4m miles of highway, the USA has around 10% of the entire planet’s paved roads – and spends $85bn (£52bn) annually on rolling out tens of thousands more miles. Building and maintaining a single mile of freeway takes as much energy as 200 US homes use in a year, consumes as much raw material as 1,000 households get through in 365 days and generates more waste than 1,200 homes produce annually.

Wow.

The good folks at the University of Washington have been focused on the greening of roads, and have announced the development of a rating system for road construction.

The “Greenroads Sustainability Performance Metric” works a lot like the U.S. Green Building Council’s LEED program, awarding credits for approved sustainable practices.     The metric already has a bit of support from states according to the Guardian article and the Greenroads website, which states that Greenroads “already has the support of five US state departments of transport.”  Greenroads is following a few projects as “case studies,” one of which was the I-90 West of George paving project in Washington.

Interesting metric system creating that is worth following, as it may one day change the way states and the federal government pave all their roads.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Green Building Law Blog.

Is Utah’s SCR (State Construction Registry) A Model For Rest of States?

Since 2005, Utah has maintained a standardized, state-wide system for filing preliminary notices, notices of commencement and notices of completion – the State Construction Registry, or SCR.  The result?  Any supplier, contractor or other interested party can log into the system, search for a project, and know exactly when it started and begun, and who is working on it.

This is a huge time-saver for folks working on construction projects in Utah.    We know the frustration contractors and suppliers have in other states, because we experience them ourselves.

The property records offices in counties across the country can be an absolute mess.   Sometimes, its next to impossible for a subcontractor or supplier to locate the legal proeprty description for a parcel of land, the name of the property owner, and whether anything has been filed on the project.    Even though its incredibly hard to find this information, the contractor or supplier may still be responsible to know it.

Imagine if across the country this information was inputted into standardized online registry of construction projects?    That’s how things work in Utah.

This article was originally posted on Express Lien’s topic-specific Construction Lien Blog.

Washington Bill Ties Sales Tax Deferrals to LEED Standards

Thanks to the Beer With A Construction Lawyer blog for pointing out a new bill in the Washington State Legislature that has green building implications.    The bill is sponsored by Senators Kastama, Rockefeller, and Ranker.

The bill, if passed, would offer very aggressive tax incentives to projects that meet LEED certification standards.   Here is the breakdown:

Platinum Certification:   100% Sales and Use Tax Deferred

Gold Certification:  75% Sales and Use Tax Deferred

Silver Certification:  50% Sales and Use Tax Deferred

Less than Silver:  25% Sales and Use Tax Deferred

Projects would have to apply for the deferral before initiation of the construction.

The bill is interesting to green building nerds because it completely relies on the LEED green building standards published by the United States Green Building Council.   While the LEED program is certainly the most widespread of programs in the country, it’s not without its critics.   See Chris Cheatham’s recent article on his Green Building Law Update blog analyzing the complaint against the USGBC for using anti-competitive practices.

You can follow this bill at the legislature’s website, or by subscribing to the bill’s RSS feed.   Download the original bill text.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.

Is New Orleans Non-Sustainable?

The New Orleans Times Picayune reported that a group of scientist have written to Gov. Bobby Jindal urging him to take greenhouse gases more seriously.  The group linked the state’s eroding coastline with greenhouse gases produced by the state’s industries, aruging that if something isn’t done soon, much of New Orleans will erode away.

This story underscores an often overlooked issue.

While we spend a great deal of time on this blog talking about what green initiatives are being taken by Louisiana (mostly in the green building sector), we forget how uncommon and unpopular green building and green initiatives actually are.

Louisiana has a smaller number of LEED APs and LEED projects than most any other state, and while our local governments are trying to structure green incentives, we’re behind many other cities and states.  In large part, green building isn’t widespread in these neck of the woods.

This call to Gov. Jindal, however, is another effort to get the green sector in Louisiana moving, and in theory, the moss will continue to accrue.

This article was originally posted on Wolfe Law Group’s topic-specific Louisiana Green Building Law Blog.

House Bill in Washington Alters Bond Requirements for Public Contracts

Representatives Hinkle and Kretz introduced House Bill 3055 yesterday, whose digest explains will “modif[y] provisions regarding contractors’ bonds for public contracts.”

If passed, the bill would amend RCW 39.04.155 and 39.08.010, and make the following substantive changes:

  • Contracts $35,000 or less would not require a bond
  • On contracts between $35,000 and $100,000, in lieu of a bond, the county or public entity may retain 25% of the contract amount for a period of 30 days after final acceptance of the work

Currently, bonds are required on every project, with the state having the option to retain 50% of contract funds in lieu of a bond when the contract is less than $35,000.00.

The suggested amendment here seems to make practical sense.

Requiring a bond for tiny public contracts is a bit overkill, and the 50% retainage figure is near unworkable.    The amended figures and bond requirements feels more aligned with the practical needs of smaller public projects.

Stay tuned here for updates on this bill, or you can follow it online or subscribe to its RSS feed.   Download the original bill here.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.

Green Building Regulations: Can the LEED Rating System become law?

There is a growing debate on whether or not legislatures should seek to codify and incorporate provisions of the LEED rating system into state and local law. The debate is now hitting the blogosphere.

One of our favorites, Chris Cheatham, over at the Green Building Law Update has theorized that there are three simple reasons why codification of the LEED rating system will not work: (the following section is take in direct quote from his site)

“1.  There are troubling antitrust issues associated with the LEED rating system.  These antitrust issues are significantly exacerbated by the incorporation of LEED into regulations or building codes.

2.  The LEED rating system was never intended to be codified.  In fact, the LEED rating system is meant to apply to only 25 percent of new construction starts.

3.  I believe the USGBC has recognized the problems associated with codification of the LEED rating system.  In response, the USGBC, along with other groups, is quickly pushing along publication of ASHRAE 189.1P, which codifies many of the elements of the LEED rating system.  This is just a hunch, but I anticipate that the USGBC will start urging jurisdictions to adopt ASHRAE 189.1P instead of the LEED rating system.”

I think Chris has some good points, as he seeks to illustrate why LEED codification is simply not practical. But please check out Chris’ comment board – he has plenty of detractors.

I, for one, agree that the 25% rule does limit the ability of governing agencies to effecively regulate new construction. As is posed in this dizzying display of what the LEED 25% rule is composed of, you will understand that it means that only 25% of new construction starts or ground-breakings are actually intended to meet LEED certification.

But, there are certainly problems with the allegations that there might be an antitrust problem. All building standards (and other standards) come from a single source at some point and time. So, its likely that this is not as big an issue as posed in the article.

In any event, Jim Broughton posted a nice counter-comment discussing support for codification of LEED ratings. Check it out here.

It remains to be seen whether or not codification is a possibility – but it certainly raises a good topic for discussion.

This article was originally posted on Wolfe Law Group’s topic-specific Northwest Construction Law Blog.

Christopher Hill Launches Great Resource for Virginia Mechanic Liens

Our friend at Construction Law Musings, Virginia construction attorney Christopher Hill, just add a really great resource to his top-notch construction law blog for those interested in construction liens.   A Mechanic’s Lien Page.

Before the lien page, Musings was already a great source of  information on Virginia lien laws.   The new page really organizes that data.

Here are a few of the articles you can find within the new section:

A Lien By Any Other Name Can Sound Just As Sweet (written by yours truly)

Q:  What can you lien?  A: What did you bring to the project?

Contracts, Liens and Notices

Enjoy.

(P.S. If you’re looking for information on Virginia’s lien scheme you can just check out the Virginia tag at the Construction Lien Blog.    It even includes a post by Chris Hill).

This article was originally posted on Express Lien’s topic-specific Construction Lien Blog.

Uh-Oh: I Made A LEED Mistake And Don’t Know What To Do

LEED projects are hotter than ever, especially with the amount of public works projects being funded by the Stimulus package. As more and more LEED projects get underway, more and more mistakes occur. Unfortunately, mistakes all too often lead to disputes and litigation.

I Don’t Get It? LEED What?

Here is the readers digest explanation of LEED projects.

A property owner or public entity wants to construct its project to be environmentally friendly. In doing so, it can seek a certification from one of many organizations – one of which is the U.S. Green Building Council, who certifies a project as a LEED project (Gold, Silver, Platinum, etc. – depending on how green it is).

Seeking certification carries certain benefits (i.e. PR, tax credits), and in some circumstances certifications are required.

Certification is achieved by meeting two types of goals.

On the one hand, the project meets the goal of saving energy in the construction process. This is done by purchasing materials manufactured locally (to prevent the environmental price of long-range delivery), recycling materials, creating a job site that meets debris and water run-off requirements, etc.

On the other hand, the project meets the goal of saving energy while in use post-construction. This is done by using energy efficient appliances and lighting, planting trees and reducing the “heat island effect,” enhancing the quality of life of those who will spend time in the building, etc.

The LEED certification is achieved by collecting points. For each sustainable goal met by the project, a point is awarded. A project must accumulate a number of points for certification, with the level of certification increasing with the collection of additional points.

Those administering LEED projects spend a great deal of time planning the construction project to ensure that the proper number of points are accumulated…and sometimes, it’s a close-call.

How One Contractor Can Hurt A Project’s Chance At Getting LEED Credits

After the planning phase, work on the project begins, and the property owner or architect will depend upon each supplier and subcontractor to performing its work or delivering its materials to qualify for LEED credit. Work performed or supplies delivered incorrectly can easily result in the loss of a LEED point.

Let’s take the example of concrete.

The LEED system requires concrete used in a parking lot or a rooftop to be a certain color to achieve LEED credit (LEED credit 7.1 requires concrete to meet certain color requirements to reduce the “heat island effect” for example).

Let’s say that the concrete subcontractor is a bit asleep at the wheel, and pours the wrong concrete. The concrete solidifies, and the owner/architect doesn’t notice for a few days (if not later!) that the concrete is incorrect.

That LEED point is lost.

The LEED Point is Lost….but Now What?

This is a very concerning question for the construction industry, and many legal experts are at a loss in predicting just how this will play out in the courts. The problem is more complex than it seems at first glance.

Let’s assume that a subcontractor or supplier actually was required to perform in a way that would qualify for LEED credit, and that it failed to do so for reasons that are 100% its fault.

The next question is tough: What are the damages? In answering this question, let’s look at two scenarios:

Scenario 1: The LEED Point is lost, but the LEED certification is still achieved.

This is entirely possible. While the construction planning often cuts LEED certification points close, there is usually at least some cushion between the points a project should get, and the points it is required to get. So, in theory, a subcontractor or supplier can completely mess up, the LEED point can be lost and the project may still get its certification.

If this happens, did the owner/architect sustain any damages? The answer is….possibly.

In some instances, the idea behind a LEED point is not just to get a certification…the owner may also be interested in energy savings. Let’s take our concrete example again – if the correct concrete was poured, this could theoretically cool off the project’s premises. This may result in lower energy bills during hotter months.

While the failure to gain the point may not have cost the owner certification, it may cost the owner thousands of dollars in energy savings over the coming years.

Other types of examples, however, may yield more complex results. There may not be any calculable damages for accidentally failing to buy locally manufactured materials, for example. If its the same materials – just manufactured somewhere else – there may not be any damages beyond the loss of a LEED point.

Scenario 2: The LEED point makes a difference

What if the LEED point costs the project’s LEED certification? What damage is sustained?

Calculating these damages may be more realistic in some circumstances versus others. If the property owner sought certification because it was required, or because of a desired tax break….the damages can at least be quantified. If, however, the owner was simply doing it to feel good, or for good PR, there will be much debate about just what – if any – monetary damages were sustained by the LEED failure.

Concluding

In the end, one issue that owners must remember is that they will have the burden at trial in proving their damages, and likely being required to prove it by a preponderance of evidence. Calculating the cost of losing a LEED point or the loss of theoretical energy savings can be quite tough. With that in mind, owners may want to consider liquidated damages provisions for these types of a defaults….and those signing contracts with owners or GCs may want to be weary of the same.

This article was originally posted on Wolfe Law Group’s topic-specific Louisiana Green Building Law Blog.