Construction Law

Paradoxes

Posted on July 20, 2009
For the past six months or so, I've been using ConsensusDOCS agreement forms wherever I can reasonably do so ---- meaning that I'm using them for projects on which there is not an owner or architect who insists on using AIA documents. I usually represent owners, have used many AIA standard form agreements over the years (with modifications) and continue to use them...

ConsensusDOCS for Public Contracts? Yes, In South Dakota

Posted on June 18, 2009
It will be interesting to see how quickly South Dakota begins using ConsensusDOCS for public contracts after the February 2009 legislation permitting the use of the "ConsensusDOCS 200 Standard Agreement and General Conditions Between Owner and Contractor...

How do you measure damages when a construction blunder saves an owner $200 million?

Posted on March 23, 2009
A recent story out of Las Vegas, covered in the NY Times, poses an interesting question for construction and real estate lawyers ---- what would be the measure of damages for defective construction, the result of which is estimated to save the owner at least $200 million?The Harmon hotel tower, part of MGM Mirage's acclaimed $9 billion development called the CityCenter, had been designed as a 48-story tower, the upper 20 floors to be luxury condominiums...

Employee Free Choice Act Reintroduced; Battle Lines Are Already Drawn

Posted on March 13, 2009
On Tuesday, March 10, George Miller (D-CA), Chairman of the House Education and Labor Reform Committee, introduced the Employee Free Choice Act (H.R. 1409). Asserting that the bill would ?give workers the ability to stand up for themselves? and heralding the effort as a key component of economic recovery, Chairman Miller insisted the EFCA would restore employee rights...

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Real Estate Developers Ask for a Bailout

Posted on December 23, 2008
The WSJ and the Washington Post report that some of the country's biggest commercial property developers have sought out government assistance as debt comes due.Although the numbers vary by source, roughly $530 billion in commercial mortgages will be coming due in the next three years, with $160 - $400 billion coming due in 2009...

Family Online Safety Institute (FOSI) Releases Online Safety Proposals

Posted on December 22, 2008
The Family Online Safety Institute ("FOSI") released its report Making Wise Choices Online in which it provides a survey of ongoing initiatives to ensure the safety of children using the Internet as well as four policy proposals for the coming Administration to consider...

Entrepreneur Removes Home From the Power Grid with the Help of LEDs

Posted on December 08, 2008
Eric Taub of the New York Times posted an interesting story this morning about Dean Kamen, the eccentric inventor of the Segway scooter. Mr. Kamen owns a small, three-acre island off the coast of Connecticut where he built his home, and he recently decided to take his entire island off the power grid--that is, produce his own electrical power (in this case through wind and solar)...

Infrastructure Projects In the Obama Administration --- a Bright Spot In An Otherwise Gloomy Future

Posted on December 03, 2008
From the early days of his presidential campaign, President-Elect Obama has emphasized the importance, and priority, of rebuilding our nation's infrastructure. At first, this was not particularly tied to the goal of job creation, or at least that part of the equation was not stressed...

AASHE Conference Highlights Sustainability Agenda, Colleges and Local Governments

Posted on November 26, 2008
The second biennial conference of the Association for the Advancement of Sustainability in Higher Education (AASHE) was held at the new Raleigh (NC) Convention Center from November 9-12. The purpose of the conference was to provide a "unique opportunity for every sector of higher education in the United States & Canada to come together to demonstrate how colleges and universities can lead the way to a sustainable future...

Ten Battle-tested Rules for Communicating Well in Hard Times

Posted on November 10, 2008
The line of organizations delivering bad news these days is a long one. And with the financial market challenges causing a ripple effect across the broader economy, that line may be long across America for some time. Communicating tough news is an unenviable task, and legal advisers are increasingly called upon to guide clients through the delivery of news that can be jarring: layoffs, declining profits, product recalls and ethical breaches, to name a few...

Architects Feel the Hit

Posted on October 31, 2008
A recent article in Architectural Record describes the economic downturn's effect on design firms, and the gloomy forecast for the forseeable future. According to the article, retail and hotel building will fall 10 per cent in 2009, with office construction constricting by 12 percent...

Housing Construction Decline Hits Long-time Construction Supply Company

Posted on October 27, 2008
Stock Building Supply, established 86 years ago in Raleigh, North Carolina as Carolina Builders, "is slashing 3,000 jobs and closing 86 facilities in six states as it struggles with the biggest housing slump in more than six decades" reports the News & Observer...

Zero Trans fat Homes?

Posted on October 23, 2008
Michelle Kaufmann, an architect known for her line of prefab homes, recently proposed a standardized "nutrition" label to communicate the benefits of a green building to potential buyers. She notes that we traditionally buy a home based on qualities like location, curb appeal, size, and upfront costs, but exclude important factors like sustainability, healthfulness of the indoor environment, and the cost of operating a home...

House Energy Bill Seeks Improved Energy Efficiency and Green Development for the Built Environment

Posted on September 23, 2008
On Tuesday of last week, the U.S. House of Representatives passed the much talked about energy bill, H.R. 6899, by a vote of 236 to 189. Politicians and the press have spent a great deal of energy focusing on this year's hot button issue, offshore drilling, but the bill also includes a number of provisions that could have an impact on sustainable development and construction...

California's Green Building Standard

Posted on September 16, 2008
California's Green Building Standard, adopted by the California Building Standards Commission on July 18, 2008, appears to remain the only state-wide green building standard in existence --- which is somewhat surprising, given the sudden popularity of "going green" in so many business sectors...

First Measure to Link Transportation Funding to Urban Planning

Posted on September 11, 2008
The Wall Street Journal recently reported that a revolutionary bill has just passed both houses of the California legislature and is on its way to Governor Schwarzenegger's desk for his signature or veto. The Bill, Senate Bill 375, intends to cut carbon-dioxide emissions by rewarding cities and counties that prevent sprawl and improve public transportation...

Another Construction Nightmare

Posted on September 10, 2008
The Womble Carlyle Fair Labor Standards Act Law Blog chronicles the Act with a particular emphasis on the southeast United States. In a blog entry posted yesterday, Charlie Edwards focuses on the increase in new construction industry filings in several specific areas, including a dispute over what constitutes compensible time for purposes of recording worked time...

BIM for Facilities Management

Posted on August 28, 2008
Today I listened in on a webinar presented by Autodesk on the subject of BIM in Facilities Management. Although I am a construction lawyer, not an architect or a facilities manager, I could readily see the value of BIM to facilities managers. To be able to have at one's fingertips complete information on all your facilities, including the physical structure, the mechanical and electrical systems, furnishings, furniture and equipment is quite remarkable...

Couple Runs Afoul with Implied Warranty of Habitability

Posted on August 25, 2008
A recent NC case arises from an Outer Banks construction lot in Duck, which according to an online resource on Duck is a town established in the 1870?s and named for the many ducks and water fowl in the area. A migratory town with around 500 full time residents, nearly a quarter million people flock there every summer...

The Hidden Risks of Going Green

Posted on August 19, 2008
In a recent article entitled "The Hidden Risks of Green Buildings: Avoiding Moisture and Mold Problems", authors J. David Odom, Richard Scott and George H. DuBose of the Liberty Building Forensics Group, LLC caution owners and other parties thinking of building a "sustainable" or "green" building to pay close attention to the materials being used to determine whether the materials have been adequately tested to ensure that the materials not only qualify as sustainable or LEED certified materials, but also to ensure that the materials are durable and will last as long as other non-green materials...

Mutual Waiver of Consequential Damages Re-Visited

Posted on August 06, 2008
From an Owner's perspective, the mutual waiver of consequences damages that was introduced into the AIA standard form design and construction contracts in 1997 and survives in the 2007 edition of these contracts continues to be problematic. While Architects and Contractors embrace this waiver, it is not so good for owners...

Centralizing International Study on Campus: FedEx Global Education Center at UNC-Chapel Hill

Posted on August 04, 2008
As noted in the "Buildings and Grounds" blog of The Chronicle of Higher Education, and recently highlighted at the Society for College and University Planning?s annual conference in Montreal, UNC-Chapel Hill has gathered its various international program elements under one roof at The FedEx Global Education Center at University of North Carolina at Chapel Hill, designed by Leers Weinzapfel Associates, and Pearce Brinkley Cease + Lee...

NC Court of Appeals Holds That Risk Allocation Provision Does Not Violate North Carolina Anti-Indemnification Statute

Posted on July 28, 2008
Indemnification and limitation of liability provisions are commonplace in construction contracts. By statute in North Carolina (N.C. Gen. Stat. § 22B?1 (2007)), any contractual agreement relating to the design, planning, construction, alteration, repair or maintenance of a building, road, appurtenance or appliance purporting to indemnify a party against liability for damages caused by such party?s own negligence, in whole or part, is unenforceable...

Mobile Art Pavilion will make stop in Central Park - Then Disappear...

Posted on July 25, 2008
According to a story in the July 24 New York Times, a traveling art building (of sorts) designed by London architect Zaha Hadid is heading to Central Park this fall. The "Mobile Art" pavilion will showcase works of contemporary artists as well as advertise for its sponsor, Chanel...

Builders Instituting Lender Liability Lawsuits

Posted on July 24, 2008
The Wall Street Journal reports that the "love affair" between lenders and builders that existed during the housing boom is over, and the lender liability lawsuits that characterized the real-estate downturn in the early 1990s are making a comeback.Builders are beginning to file suits against lenders contending that the lenders forced the builders and their projects into insolvency by acting in bad faith...

Indemnification Provisions --- Owner-Architect Agreements

Posted on July 14, 2008
Owners routinely require an indemnification in their agreements with architects. Architects frequently ask that the indemnification obligation be mutual, citing "fairness" as the reason.On the surface, it does seem fair for a contractual indemnity obligation to be mutual --- but in a professional design contract, it is actually fair for it to be one-sided, i...

Italian Architect Poised To Build 80-Story Tower With Revolving Floors Powered By Wind Turbines

Posted on July 09, 2008
It looks like Dubai will get yet another amazing feat of construction if David Fisher has his way. The Italian architect recently announced "the launch of a revolutionary skyscraper in Dubai dubbed as the 'world's first building in motion,' an 80-story tower with revolving floors that give it an ever-shifting shape...

Court Doesn?t Leak Out Remedy for Homeowner?s Defective Roof

Posted on June 24, 2008
An unhappy homeowner sued a roofing contractor for roof defects seven years after her roof was installed. Roemer v. Preferred Roofing, Inc., 660 S.E.2d 920 (N.C. App. 2008) (NC Lawyers Weekly No. 08-07-0634). The homeowner alleged negligence, breach of contract and breach of warranty, seeking only monetary damages...

USGBC to Outsource LEED Certification

Posted on June 19, 2008
GreenSource, a publication of McGraw Hill (publisher of ENR), reports that the US Green Building Council (USGBC) is preparing to outsource certification of buildings for its multitude of LEED rating systems. Outsourcing is intended to bring LEED into alignment with norms established by the International Organization for Standardization (ISO) for certification programs, which norms require the standard-setting organization to be separate from the certification organization...

NC Supreme Court Alters Incorporation by Reference

Posted on June 16, 2008
A recent case handed down by the North Carolina Supreme Court is likely to have a significant impact on how construction contracts are drafted in North Carolina.In Schenkel & Shultz, Inc. v. Hermon F. Fox & Associates, 685 S.E.2d 918 (2008), the North Carolina Supreme Court held that the standard practice of incorporating the entirety of a prime contract into a subprime contract (e...

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