Guest Post Friday – Page 3 – Construction Law Musings- Richmond, VA

When Should You Call Your Lawyer? Not Too Late!

Originally posted 2017-08-14 09:23:21.

For this week’s Guest Post Friday, Musings welcomes back Timothy R. Hughes, Esq., LEED AP. Tim (@timrhughes on Twitter) is Of Counsel to the Arlington, Virginia firm of Bean, Kinney & Korman, P.C. In his practice as a business, corporate, and construction law attorney, Tim has served as the Chair of the Construction Law and Public Contracts Section of the Virginia State Bar. He has served in numerous volunteer, board and leadership roles with many organizations and has been recognized by Virginia Lawyer’s Weekly as a 2010 “Leader in the Law”. A regular speaker and writer, Tim is the lead editor of his firm blog, Virginia Real Estate, Land Use and Construction Law.

The last Musings post resonated with me on a very important point: you do not want to contact your lawyer too late in the game. Many people do not like talking to lawyers … we have a reputation (well earned by some) of being difficult, confrontational, obtuse and expensive. Many clients only call their lawyer when they are actually sued and absolutely must retain counsel. This is a very bad approach: your case is most often won or lost based on documents, facts and positions taking during the project. It is far more cost effective to involve counsel earlier in the game.

Even better, lawyers can provide the most cost efficient advice by helping you structure your business correctly, obtain proper licensing, and draft solid contracts. Especially in Virginia, your contract terms are critical to defining what happens in court. Drafting a solid contract form and using that contract is a great risk management tool and not an expensive investment. Incorporating and minimizing or eliminating personal liability is really inexpensive and a huge potential benefit.

Contrast that with calling too late. I have received many calls on cases where new clients did not incorporate. Clients have used weak contracts or even no contracts. Clients have moved forward on game changing critical elements of projects with no documentation. Clients have failed to reply or rebut highly inflammatory project correspondence that mischaracterizes events. Trying to use verbal testimony years later to rebut a letter during a project is a very tough sell to a jury. Engaging counsel too late means you are taking on tremendous risks and actually driving up your ultimate exposure and legal fees.

The real question of reluctance to call your lawyer may stem from a lack of trust and confidence. Clients should feel their lawyer has their best interests in mind, is concerned with the relation of costs and benefits, and adds value. Ultimately, this question may hinge on selecting the correct lawyer.

One of the more rewarding aspects of practicing law has been developing clients who came across my doorstep with significant corporate, contract and liability issues and helping them evolve into proactive risk managers. Involving a lawyer as a trusted business advisor from the start of the business or as early as possible is ultimately the most cost-efficient way to hire counsel. It is a lot cheaper to have a good contract than a bad lawsuit. This is not to say that a good contract ensures no suits or victory, but it does help set the playing field. It does establish significant advantage and leverage to resolve issues before they erupt.

Tim and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.

CALGreen. It’s finally here. Now what?

Originally posted 2017-03-22 13:35:13.

For this week’s Guest Post Friday, Musings welcomes Imad Naffa. Imad was the Founder and President of NAFFA International, a private Building Code Services firm in Fresno, CA. He is also the Developer and Administrator of the Building Code Discussions Group (BCDG), one of the largest building code online communities on the internet with 23,000+ members from 100+ countries.

You can also find him on the web where he posts on topics dealing with Building, Fire and Accessibility /ADA codes, housing and construction; along with news relating to design, construction, LEED/Green/CALGreen and Global Affairs.

You can follow Imad on Twitter (@imadnaffa). If you have technical questions related to Building, Fire, Accessibility/ADA Codes or CALGreen, Imad would be happy to respond by email.

Background

Every three years, the building codes are updated. That in by itself is always a challenging time for all involved in the building permitting process (Owners/Developers, Design Team and the Code Enforcement Community).

In California a new family of building codes, known as the 2010 California Codes, became effective throughout the state on January 1st, 2011.

This time around, a brand new code known as the “2010 California Green Building Standards Code”, aka “CALGreen”, was introduced. This code is Part 11, of the California Code of Regulations, Title 24. It is the nation’s first statewide green building standards code and applies to newly constructed residential and nonresidential occupancies.

CALGreen stems from former Governor Arnold Schwarzenegger’s mandate to reduce greenhouse gases in California. Estimates predict a reduction of 3 million metric tons of greenhouse gases by 2020 as a result of the requirements of CALGreen.

CALGreen creates uniform and consistent environmental regulations for new California buildings, but it is not meant to replace individual jurisdictions’ environmental programs and ordinances. The Code requires that all local environmental ordinances still be followed. Local jurisdictions also have the ability to amend portions of the Code based on a finding of need due to climate, topography, or geology. Complementary sustainability programs, such as Leadership in Energy and Environmental Design (“LEED”), may still be used as long as they do not interfere with CALGreen requirements. Some jurisdictions in California had their own Green Codes before CALGreen came about.

Continue reading CALGreen. It’s finally here. Now what?

Certification Bodies: Who Are They And How Do I Do Business With Them?

Originally posted 2016-01-14 14:20:31.

For this week’s Guest Post Friday, Musings welcomes back Doug Reiser (@douglasreiser) for the fourth time. Doug is a construction attorney, LEED AP and the principal at Reiser Legal PLLC in Seattle, WA. His office provides construction counsel for businesses in the construction industry. He also runs the Builders Counsel, a blog focused on progressive issues in green building and construction law.

Certification, they all want it. What makes your building look better than your neighbor’s? That plaque, that logo or that sign denoting that a prominent organization said your project is worthy enough to carry their torch.

LEED, Passive Haus, Living Building Challenge, Greenroads – you’ve all heard of them. They are examples of a growing group of third party organizations that are willing to tell you whether your project is exceptional. These organizations aren’t contractors, they’re document reviewers. But, that review can be very valuable to a builder or government agency.

People like to think that you simply line up to the trough and get your certification. But, the reality is that certification is never guaranteed. Are you ready to be told no? Do you even know how the process works? Do you know your remedies against these organizations? Probably not.

Continue reading Certification Bodies: Who Are They And How Do I Do Business With Them?

Lead-Based Paint Renovation, Repair and Painting Program Law-Important Legal Issues

Originally posted 2013-04-15 09:00:30.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Andrea Goldman for the second time. Andrea (@andreagoldman) is the principal in the Law Office of Andrea Goldman, 305 Walnut Street, Newton, Massachusetts 02460. She is a litigator, mediator and arbitrator. Andrea focuses on construction, contractor/homeowner and business law. She is fluent in Spanish and French and has served international clients in their native language. For more information about Andrea Goldman visit www.andreagoldmanlaw.com, or call (617) 467-3072.

Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. Painting contractor Spring TX, other contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.
The Lead-Based Paint Renovation, Repair and Painting Program Law is a federal law. That means that claims brought under that law can be brought in federal court. Keep in mind that your state may opt-out and pass laws that are more stringent.
Even if you have an arbitration clause in your contract, it will not apply to a lead paint claim because the plaintiff would be the child or a pregnant woman who is not necessarily a party to the contract. Therefore contractors could be subject two legal proceedings at the same time.

Homeowner Contracts:

Provide homeowners with a checklist that verifies that they have received the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools pamphlet, they have seen the contractor’s firm and renovator certification, and they understand that the certified renovator will be on site when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator will be reachable by cell phone at other times. Consider whether to give your cell phone number to the homeowner.
Let homeowners know that any requests for testing, abatement, or third-party cleaning verification will result in a written change order that that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Inform homeowners that any conditions that affect containment procedures (high winds, prior lead dust and paint chips at the site) will result in a written change order that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Even if homeowners say that no children under 6 or pregnant women are present in the home, or the home was built after 1978, the contractor should exercise due diligence and check records at the Registry of Deeds or the town tax assessor’s office to verify the date of construction. They should also make a reasonable inquiry regarding visitors, ages of children living outside the home who visit frequently and may be pregnant, etc.
Remove “broom clean condition” clauses from your contract.

Contracts with subcontractors:

Make sure you have written contracts with subcontractors.
Include an indemnification clause where the subcontractor is liable for his portion of the work that requires lead containment procedures. If the general contractor is sued, he wants to require that the subcontractor has to reimburse him for his attorney’s fees and costs in defending himself against a suit that is based on the work performed by the subcontractor. The subcontractor would agree to be liable for any judgment that is a result of the work that he performed.
The contract must clearly spell out the subcontractor’s scope of the work so everyone understands the apportionment of responsibility.
Never hire subcontractors who are not certified firms and renovators with the EPA.
Make final payment to subcontractors contingent upon completion of all documentation (including photographs and records of on the job training) required by the EPA

Andrea and I encourage your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

Finishing Strong: Why Timely Project Close-Out Should Matter to Contractors

Originally posted 2017-12-11 09:24:24.

For this week’s Guest Post Friday post here at Construction Law Musings, we welcome back Matt Bouchard. Matt is a partner with Lewis & Roberts, PLLC in Raleigh, North Carolina. For over ten years his practice has focused on representing the interests of contractors, sureties and owners in connection with commercial construction projects. You can follow his blog, “N.C. Construction Law, Policy & News.” You can also follow him on Twitter @MattBouchardEsq.

Final completion.

The ultimate milestone for any construction project. The date when the owner accepts the finished facility, assumes legal responsibility for the work and renders final payment to the contracting team that built it. An occasion for ribbon-cutting and photo opportunities, and perhaps for evaluating lessons learned. A time for moving on, maybe a little wearier, maybe a little wiser, and probably a bit of both.

Continue reading Finishing Strong: Why Timely Project Close-Out Should Matter to Contractors