Guidelines For A Successful Construction Project

Every construction project starts with good intentions and a shared goal:  successfully deliver the project to the owner on time and on budget.   Of course, that’s much easier said than done.

A few groups collaborated to publish some guidelines on how to make this happen.

The Associated General Contractors of America (AGC), the American Subcontractors Association (ASA) and the Associated Specialty Contractors (ASC) published the updated guidelines at http://www.constructionguidelines.org.   Or you can download the PDF directly here.

Contractors of all sizes can benefit from having these guidelines desk side.  Keep them handy, and pick them up whenever you have a question or concern about a certain phase of work.   While it may not answer your problem directly, it may get you thinking in the right direction.

New Orleans Awarded Grant to Expand Streetcar Line

The U.S. Department of Transportation awarded TIGER Grants last week to cities across the country, funding projects that “foster job creation, show strong economic benefits, and promote communities that are safer, cleaner and more livable.”    New Orleans shared in the pie of funding, getting a $45 million grant to pay the full cost of a new streetcar line to run along Loyola Avenue, reaching from Canal Street to the Union Passenger Terminal.

Nola.com reports that RTA hopes to have the streetcar line up and running within 2 years.

In addition to the $45 million in federal funding, RTA is hoping to make a “French Quarter Loop” through local investment.

While much of the focus here has been on the development of retail establishments along the streetcar line, here are some benefits we see:

  • $45 – $115 Million investment into building the new lines;
  • Increasing alternative transportation options for residents and tourists (including transportation to the train station)
  • Additional step for New Orleans towards more sustainable practices

Congratulations to RTA and the team working on the TIGER Grant.

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

A Great Blog Focused On The Importance of Words

Ken Adams is the leading authority on modern and effective contract drafting, and I’m one of the many happy readers of his blog, Adams Drafting.

The blog focuses entirely on words, and how they effect the meaning of contracts.

Too frequently, lawyers draft contract documents by resurrecting a form from their database and changing party names.   While a lawyer may spend hours inspecting a contract’s wording when a dispute has arisen, they infrequently spend time inspecting the words when drafting the agreement.

Ken examines words and phrases used frequently in contracts, and discusses the problems they may cause.

Ever think about the word “specific” in a contract?   Ken’s post on the word specific discusses how it “more often than not…serves no purpose.”

Or what about the combination of words in a contract…we frequently see the terms “fraud” and “intentional misrepresentation” used in a contract together.  Ken asks, doesn’t these two words mean the same thing?  And if so, why use both of them?

The Adams Drafting blog also has good tips on contract layout issues, like how to number pages and what to put in a contract’s header and footer.

Words are so important to the practice of law, and as such, every lawyer should at least be thinking about their use of words.   Adams Drafting is a great resource for this.

But Adams Drafting is not just for lawyers.  Contractors and those in the construction business sign contracts left and right – sometimes they write those contracts, sometimes they negotiate its provisions, and sometimes they sign a provided form agreement.   They too can benefit from this blog’s discussion of words, and how they can affect agreements.

Mayor Mitch Landrieu May Help New Orleans Get Greener

Earlier this year, I attended a seminar promoted by the Louisiana Chapter of the USGBC with guest speaker John Moore from the New Orleans Office of Environmental Affairs.    Under the Nagin administration, this office has taken a bit of a beating, getting separeted and consolidated from other departments so often…they haven’t even had time to finish their website!

The election of Mitch Landrieu as Mayor of New Orleans shows promise for this department, and is good news for any New Orleanian interested in the green building industry.

Glassboth.org, a neat web organization that publishes candidates views on certain issues, had a survey filled out for Mitch during the election.   Here are his answers on Environmental and Sustainability issues.

Mitch supports:

  • City-funded recycling program
  • Expanding the role of the City’s Office of Environmental Affairs to include issues of sustainability
  • Supporting municipal carbon footprint regulations to control local CO2 emissions
  • Requiring all public buildings to meet LEED Standards
  • Implementation of the City’s plan for sustainable redevelopment called GreenNola

All good news for Mr. Moore and the team working on GoGreenNola.com.   And for Louisiana companies who build green.

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

Chart Explaining Miller Act Claim Rights and Deadlines

We spend so much time talking about Mechanic Liens we sometimes overlook the equivalent tool available to contractors and suppliers on federal projects – claims under the Miller Act.

The good news about the Miller Act’s requirements is that they are the same across the country.   As such, contractors on federal projects need only be familiar with one set of rules.   The bad news, however, is that the requirements are often misstated.

To make things easy, we created this chart.

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

Explaining Seatte’s New Energy Disclosure and Reporting Requirements

Building upon the “Efficiency First” SB 5854 signed into law last year by Washington Governor Chris Gregoire, the City of Seattle announced a new city ordinance that will require owners of large commercial and multi-family properties to measure its annual use of energy.

Why?  Seattle City Council Chair Richard Conlin explains in the city’s press release that “[y]ou can’t manage what you don’t measure.”

New Requirements in Washington & Seattle

In large part, the Washington bill and Seattle ordinance will require certain classes of private property owners to rate their buildings using Energy Star software, and disclose the information to prospective buyers, lessees and lenders prior to any closing transaction.

Here are some highlights of the new state-wide regulations, including information on how it may apply to you:

  • Non-residential buildings greater than 50,000 square feet must rate and disclose beginning January 1, 2011.   Buildings greater than 10,000 square feet required to rate and disclose beginning January 1, 2012.
  • Beginning January 1, 2010, public agencies may not lease or renew space in private buildings with Energy Star rating less than 75.

The Seattle ordinance adds a few wrinkles, highlighted as follows:

  • Multifamily buildings (5 units or more) are subject to disclosure requirements.
  • Rating date must be disclosed to current tenants, if they request it
  • Energy performance data must be reported annually to City of Seattle.   Multifamily properties must report beginning April 1, 2012.  Other non-residential property must report beginning April 1, 2011 if over 50,000 SF, and April 1, 2012 if over 10,000 SF.

Consequences for Failing to Report

Since the state law and city ordinance is so new and not even in full effect, it’s difficult to predict how aggressive the city and state will be in enforcing the regulations.   As time goes on and the challenges of the requirements are examined, these regulations may even be altered to aid in enforcement.

Seattle’s City Ordinance provides the city with the following remedies if a building owner fails to comply:

  1. Failure to Report:  $150 citation, and if not filed within 15 days of the citation, a $150 per day penalty for first ten days of noncompliance, then $500 per day for each day in violation pat the 10th day until compliance is achieved.
  2. Failure to Disclose:  $150 citation for first violation, $500 for subsequent violations.

The failure to disclose penalty is a lot less severe than then failure to report, which can become astronomical to a property owner if they try to ignore the ordinance.    As usual, the ordinance does provide administrative procedures to challenge and mitigate citations.

Related Links

Seattle Green Building Capital Initiative

Raw Text:   Seattle Ordinance 123226

Raw Text:   Washington Senate Bill 5854

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

How To Collect A NSF Check in Washington State

NSF Checks are a fact of life for those in the construction business.   They are especially so when working in turbulent economic clients.

Getting paid with a NSF Check is actually not a terrible situation.  In fact, in certain scenarios it can help your position against the non-paying party.  While each side may have arguments about the quality of work or completeness of items before payment is made, once a check is written and it goes NSF, the old arguments disappear and you can focus on a very simple legal issue:  (i) a check was written to you; (ii) it wasn’t honored; (iii) the money is now due.

In addition to simplifying the issues, most states (including Washington) have very powerful laws that impose penalties against dishonored checks.   It is key to follow the relevant statutes and properly demand that the NSF Check be paid.   Take special notice of RCW §62A.3-520 and RCW §62A.3-522.

Step 1:  Give Notice of Dishonor

Upon receipt of a NSF check, you should deliver a “Notice of Dishonor of Check” to the drafter.   The preferred language is provided for by statute, as follows:

NOTICE OF DISHONOR OF CHECK

A check drawn by you and made payable by you to ….. in the amount of ….. has not been accepted for payment by ……, which is the drawee bank designated on your check. This check is dated ……, and it is numbered, No…….

You are CAUTIONED that unless you pay the amount of this check within fifteen days after the date this letter is postmarked, you may very well have to pay the following additional amounts: (1) Costs of collecting the amount of the check, including an attorney’s fee which will be set by the court; (2) Interest on the amount of the check which shall accrue at the rate of twelve percent per annum from the date of dishonor; and (3) Three hundred dollars or three times the face amount of the check, whichever is less, by award of the court.

You are also CAUTIONED that law enforcement agencies may be provided with a copy of this notice of dishonor and the check drawn by you for the possibility of proceeding with criminal charges if you do not pay the amount of this check within fifteen days after the date this letter is postmarked.

You are advised to make your payment to ….. at the following address:  ………

Step 2:   Execute Affidavit of Sending Notice

This is a lot easier than it sounds.   Simply add the following language to the end of your “Notice of Dishonor of Check,” fill in the blanks and sign it.    Make sure you keep a copy of the Notice being sent, along with a signed Affidavit of delivery.

While not required by the terms of the statute, it’s good practice to send this notice via Certified Mail so you can track its delivery.   Here is the affidavit of delivery language:

AFFIDAVIT OF SERVICE BY MAIL

I, ………., hereby certify that on the ….. day of ………., 20.., a copy of the foregoing Notice was served on ……… by mailing via the United States Postal Service, postage prepaid, at ………., Washington.

Dated:  ………………….
(Signature)

What NOT To Do

The first two steps are things you should do…this is a list of statutory things you should not do.  The Washington statutes specifically enumerate these actions, and state that if a party does any of these things, that party will not be entitled to penalties, interest & attorneys fees in collecting on the NSF check:

  • Do Not demand interest or collection costs in excess of the amounts provided for by statute;
  • Do Not demand interest or collection costs prior to the expiration of fifteen days after the mailing of notice of dishonor;
  • Do Not demand attorneys fees without having the fees set by the court, or prior to the expiration of fifteen days after the mailing of notice of dishonor.

Your Reward and The Next Step

If you follow Steps 1 and 2, and do not do the forbidden items within the “What NOT To Do” step, the statutes provide that you are entitled to the following if the check is not honored within 15 days of the notice:

  1. A reasonable handling fee for each instrument;
  2. Interest at the rate of 12% per annum from the date of dishonor
  3. Cost of collection not to exceed $40 or the face amount of the check, whichever is less
  4. Reasonable Attorneys Fees
  5. Penalty in the amount of $300, or three times the face amount of the check, whichever is less

If payment is not made as requested in the Notice of Dishonor, you can proceed with a civil action to enforce payment of the check, along with the penalties, interest and attorneys fees provided for by statute.

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