Thanks to my friend Chris Hill and his Construction Law Musings for allowing me to publish a guest post on this blog this morning survey the nation’s changing immigration laws.
The post titled “The Landscape of US Immigration Laws and How It Affects The Construction Industry,” reviews the states that have and are considering immigration law reform, and discusses how these new laws can possible effect your construction business.
We’ve talked about these immigration laws a good bit on this blog in our discussion of the E-Verify system. You can more of these posts under the tag: E-Verify.
Big thanks to Chris Hill for the opportunity to do another guest post on his blog.
Engineering News Record (ENR) (among other publications, including my good friend Chris Hill’s Construction Law Musings Blog) recently reported that the construction contract documents published by ConsensusDOCS were substantially updated.
The update comes just a little over three years since the launch of the ConsensusDOCS program, which is a collaboration of organizations who publish a set of construction documents to rival the industry-leading AIA forms. These updates are actually two years early. They weren’t due until 2013, but were updated early according to the group because “the economics of the construction industry today looks nothing like it did [in 2007]”
So, what’s new?
According to an analysis by ENR.com, here are some of the changes:
- A change in terminology. “Constructor” replaces “contractor” and “design professional” replaces “architect.”
- An objective “standard of care” is added to the documents.
- Greater flexibility to provide documents in electronic format. For a great discussion about going paperless on a construction project, take a look at this article by Matthew DeVries on his Best Practices Construction Law Blog: Paper to Paperless on the Modern Construction Project.
- Contract documents are better defined.
- Property owner can audit construction books, and subcontractor can get finanical information from the owner.
- Erroneous constructor termination for cause changes to a “termination for convenience.”
Last week, we published an article identifying some Things That Can Go Wrong On A Green Building Project. To prepare for these potential problems (and others), here is a list of things you should keep in mind when contracting for a green building project:
1) Define Things: Terms like ‘sustainability,’ ‘green certification’ and ‘high performance building’ do not have any universal meanings. Clearly define the goals of the building and project. Consider adopting a rating system, and specify the system and the version.
2) Designate a responsible party for certification: A green/LEED coordinator can go a long way, designating someone who will be responsible for coordinating all parties, analyzing the work to ensure compatibility with the rating system, and put together all the paperwork required on the project.
3) Responsibility Matrix: Create a “matrix” of who will be responsible for what. This will at least mitigate the finger-pointing if or when something goes arwy.
4) Payment Issues. An especially important consideration for contractors: Be cautious about tying certification with substantial or final completion. Certification may never come, but in all cases, it could take between 6-18 months after substantial completion to get certified. That’s a long time to have money withheld – and this will create payment problems with subs and suppliers. If nothing else, make sure your contracts up and down the chain have the same payment timeframes and expectations.
5) Know Vendors and Products. These technologies are new and can be complex. Don’t subscribe to a technology without investigating. Get to know the products and manage the expectations of the owner. For a discussion of how these new green technologies can present problems, see Paul Beers’ guest post on Chris Hill’s Construction Law Musings.
6) Consequential or Specific Damage Waivers (LDs). Damages for failure to certify or for failure to meet certain benchmarks may be murky. Consider waiving consequential damages, and call out these specific expectations and considering waiving those damages or presenting LDs for them. For a discussion about whether a consequential damage waiver is effective for green building damages, see this blog post: Is Failure To Achieve LEED Certification Consequential Damages?
7) Flow Down. Make sure your obligations up the chain, go down the chain.
Here is a truth: Green Building is not a fad.
Between 2005 and 2008, the Green Building Construction industry has grown by 500%, from a $10 billion industry to a $49b industry. McGraw-Hill Trends Driving Change Report’s Green Outlook 2009 predicts the industry tripling between now and 2013, to a $140b market.
If you’re in construction, these numbers should get your attention. Especially in this market.
The unavoidable marriage between the green and construction industries is why our construction law practice has paid very close attention to green legal issues. We operate two topic-specific blogs on the topic (Louisiana Green Law and Northwest Green Law), and I’m a LEED AP.
The first ever conference focusing on the green industry’s legal issues is taking place this week in New Orleans, LA, Green Legal Matters. I’m very excited to take part in the conference by speaking at two programs:
Thursday, 3pm – 4pm
Agreements for Smart Building Certification and Green Litigation Risks
Presenting with James D’Entremont, Phelps Dunbar
Friday, 11am – 12pm
LEEDigation: The Impact of LEED 3.0, Litigation and Building Regulation
Presenting with Christopher Hill, Law Office of Christoper Hill
View all of the Green Legal Matters programs at this PDF link.
I have Keynotes put together for the presentations.
For the one on Friday with Chris Hill (check out his great construction law blog here: Construction Law Musings), the presentation is available on my SlideShare account. You can also view it right here:
As can you for the one on Thursday with James d’Entremont:
A big thanks to Christopher Hill (@constructionlaw) for inviting me to guest post on his Construction Law Musings blog for the fourth time.
The post discussed how to “Prepare For and Avoid Residential Construction Disputes,” and looked at the issue from the perspective of both the homeowner and the residential contractor. Here is a tease:
Residential construction disputes come in all shapes and sizes, but very typically have one thing in common: they can get very nasty.
This is understandable, especially in today’s economy. The homeowner is spending hard-earned money on something very personal to them, their home. They want it done right. The contractor is working on really tight margins, and with a diligent client.
These disputes can become frustrating legal battles that costs thousands of dollars. And since it’s such a hot topic politically (there is lots of pressure for legislatures to protect against construction fraud), many states have layers of consumer protection laws that are consequential to both the residential contractor and the homeowner.
Read the full post at Chris’ blog, Construction Law Musings.