Christopher G. Hill, LEED AP

As any of you that read this construction law blog realize, the Virginia mechanic’s lien statute is near and dear to my heart.  Because of the already picky and statute driven nature of these powerful but detail oriented tools of collection, any change to the statute must be considered for its practical effect on the Virginia construction industry. HB 1265, introduced and out of committee for consideration during the 2012 Virginia General Assembly session, is just such a potential change.The operative language of the bill would amend the basic filing and notice provisions for a mechanic’s lien in Virginia to add the following:

 At least 60 days prior to filing a memorandum of lien pursuant to this section, a lien claimant shall send a copy of the memorandum and written notice of the lien claimant’s intention to file the memorandum by certified mail, return receipt requested, to the owner of the property at the owner’s last known address. After the expiration of this 60-day period, the lien claimant may file a memorandum of lien. The lien claimant shall also file with the clerk a copy of the written notice sent to the property owner and certify that such notice was sent. The clerk shall not accept or record any memorandum of lien filed prior to the expiration of this 60-day period or that is not accompanied by a copy of the notice sent to the property owner.

In short, the proposed amendment would place yet another hurdle in front of a potential mechanic’s lien claimant in the form of the necessity of a notice to the owner of the property 60 days prior to the date of recording a memorandum of lien.  This notice would have to be sent certified, return receipt and contain a certification of mailing.  The notice would also have to be filed with the Clerk of the Virginia Circuit in which the property is located.  Furthermore, unlike the provisions of the statute that require notice to a mechanic’s lien agent in the residential setting only to protect residential homeowners that do not deal with contractors on a regular basis, this amendment does not make any distinction between commercial and residential projects.

While I really do try and keep this blog apolitical, I feel the need to voice my opinion on the practical consequences I see for my friends and clients in the Virginia construction industry.

My thoughts?  This bill puts an undue burden on both the Circuit Court Clerks and the construction professionals that at times need to file liens to protect their ability to collect for work properly performed.  Given that many construction contract payment terms require payment within 30 days, the amendment would force contractors and subcontractors to perform title searches, hire attorneys, and file notices of intent to lien on even the smoothest of projects, potentially prior to their entitlement to payment, in order to avoid running up against the 90-day recording deadline.

This would increase the administrative and cost burden on all in the construction payment chain and turn a tool usually used as a last resort into one that, should the amendment pass, would require routine notices of intent to lien prior to any chance for negotiation before having to create a cloud on the title of the property with the business consequences on contractor and owner alike.  The potential souring of good business relationships because of statutory mandates (no one wants to have a lien recorded against their property) is yet another reason I don’t like this bill.  Of course this analysis does not even begin to take into account the potential burden on the great clerks of court that will have an additional paperwork burden beyond what they already carry.

While I fully understand the clear intent of this bill to protect owners and give them the ability to deal with potential liens prior to their recording (particularly in the present economy), this bill goes much too far in doing so in my opinion (along with the opinions of the AGC of Virginia and the Virginia ABC).  The noble goal is outweighed by the administrative, economic, and governmental burden it imposes.

As always, these are just my opinions.  What to you think?  Do you agree?  Disagree?  Agree, but for other reasons?  If so, please comment below or contact me with your thoughts.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Originally posted 2010-04-23 09:00:13. Republished by Blog Post Promoter

For this week’s Guest Post Friday, Construction Law Musings welcomes Steve Szoke, P.E., LEED AP.  Steve is Director of Codes and Standards for the Portland Cement Association in Skokie, Illinois.  He graduated with a Bachelor’s of Science degree in Civil Engineering from Lehigh University, in his native state of Pennsylvania.  He is a register professional engineer in Virginia and the District of Columbia.

His accomplishments and activities related to sustainability include past chair and honorary member of the Sustainable Building Industry Council; International Code Council Sustainable Buildings Technology Committee which developed of the draft version of the International green Construction Code; ASTM Committee E60 on Sustainability; and ACI Committee 122 Energy Efficiency of Concrete and Masonry Systems.

Many state and local jurisdictions are developing or considering the development of green or sustainable codes for the design and construction of buildings.  PCA has observed that there are currently no national reference standards or model codes available at this time, but these efforts are progressing.  Most code development that PCA has reviewed tend to be based on or using language from  the US Green Building Council (USGBC) certification program Leadership in Energy and Environmental Design (LEED) or language from drafts of the American Society for Heating Refrigerating and Air Conditioning Engineers (ASHRAE) standard 189.1 Standard for the Design of High Performance Green Buildings Except Low-rise Residential Buildings.

The LEED program is not written in mandatory language and tends to be broader in scope than what is typically within the purview of building code departments.  The ASHRAE standard is still a draft.  PCA has reviewed several of the state and local efforts and compiled these proposed changes into one set of amendments for consideration of adoption for the design and construction of high performance buildings.  In addition to the typical “green” or “sustainable” provisions, PCA included provisions for increased durability and disaster resistance.

Adding green or sustainability features to buildings designed and built to the minimum life safety codes just does seem to make sense.  Sustainable buildings should be more durable and more resistant to natural disasters, including but not limited to hurricanes, tornadoes, other high wind events, hail storms, floods, structure fires and wildland fires.  This is especially true with the extreme weather conditions that are occurring.  Over recent years the intensity, extremes and frequency of severe weather has increased.  Wildland fires are become more intense.  Last year Georgia was in a drought and concerns about wildland fires were paramount.

This year Georgia is experiencing extreme flooding.  Many buildings built to the minimum life safety code requirements of conventional building codes need to be demolished and rebuilt or significant portions need to be reconstructed.  Deconstruction, demolition, replacement and repair due to severe weather that is becoming more commonplace simply doesn’t seem to consistent with the overlying philosophy of green building.  More stringent design and construction requirements will reduce the amount of demolition, replacement, and reconstruction when disasters occur.  This philosophy is not currently being addressed in most national model code and reference standards efforts regardless of proposals and pleas by a minority represented in these efforts.  Opposition has historically been, “green buildings can be provided” or “safer and more secure buildings can be provided as long as they don’t cost a penny more to build.”

Maybe buildings built to the minimum building code requirements should not be classified as high performance buildings.  The approach taken by PCA is consistent with the whole building design guide model adopted as a model by the High Performance Building Council.  Fortunately in the United States there are opportunities to amend and append building codes at the state and local level so that building codes may be modified to address regional and local geography, geology, population density, disaster recovery programs, climate, and other conditions and priorities within the jurisdiction.  For more information visit  www.cement.org/codes/hpbc_ordinance.asp.

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

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

I just wanted to thank Mark Buckshon (@CMIblog) of the Construction Marketing Ideas blog for the kind nomination to his 2012 Best Construction Blog list.  I am honored to be a part of the list and hope that my loyal readers will come out an vote for Construction Law Musings (you can vote at the link above).

If you don’t vote for me, you can check out the blogs and links listed there (including friends of Musings @matthandal and @melissabrumback among others).  Each of those listed provides a great insight into different aspects of construction, from law to marketing.  Even if you don’t vote (and I hope that you will), read some of these blogs, you will certainly learn something.

Thanks again to Mark and to all of my readers and contributors that make this blog fun to publish.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

PS- Guest Posts will start up again next Friday with what will be a great one!

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

About a week ago, I attended (and sponsored (check out page 2)) the 2012 AGC of Virginia Annual Convention at the Homestead.  Aside from being a great venue and a wonderful time with my wife and many of the friends I have made while participating in this organization of construction professionals, the event was a great networking opportunity. The food was great. The meetings and banquet were entertaining.  Most importantly, the various activities from shooting (and missing) sporting clays to the Friday night entertainment gave me a wonderful opportunity to interact with clients, potential clients and friends in an informal manner.

While much has been (rightly) made of the marketing and business opportunities of social media and Web 2.0, as a construction attorney, I still cannot beat face to face interaction for fun and client development.  My view is that contractors (and legal clients in general) are more likely to trust and therefore hire those that they know personally.  Friendships can and do grow into attorney client relationships.

This is particularly true with the construction industry in Virginia (and presumably elsewhere).  Contractors and subcontractors are more likely to work with those they know, whether through an association like the AGC, or a breakfast meeting.  The recent convention refreshed many of these in person bonds and acted as another reminder of why I am so active in the organization.  In short, while a web presence is necessary, I would not give up the personal aspects of marketing.  Not only are a smile and a handshake a great combination for business development, they can, and do, lead to friendships that go beyond the potential business.

Thanks to all of you that said “hi” at The Homestead.  I appreciate the old friendships strengthened and the new ones made.  I also got to put faces to many folks that I’d talked to on the phone or interacted with online.  I really do enjoy meeting people in the Virginia construction industry and hope that we’ll catch up again soon.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Originally posted 2010-03-05 09:00:55. Republished by Blog Post Promoter

This week, Musings welcomes back Mark Buckshon of the Construction Marketing Ideas blog to Guest Post Friday. Mark publishes several regional construction industry newspapers and websites. He can be reached at 888-432-3555 ext 224 or by email at buckshon@cnrgp.com.

Recently, in co-ordination with my business’s primary business consultant Bill Caswell, we coordinated a Webinar, Taking Your Construction Business to the Next Level. The participants enjoyed the event and discovered value in Bill’s insights, but I know I must give myself a large “F” for preparation and testing.  I simply did not allow enough rehearsal time to fully understand the Webinar software, so when our guests were waiting for the program to begin, I fumbled over technical details and we couldn’t use all of the online Webinar software’s functionality.

After the event, Caswell said he didn’t enjoy the lack of face-to-face interaction with participants.  They could communicate by text messaging but, even though DimDim’s advanced software allows a second camera and the ability to switch microphones, the rules of the game are different when people are located in many different locations (and in my rush to overcome the technical problems from lack of preparation, we couldn’t access these useful functions.)

DimDim’s software is free for Web presentations with 20 or fewer participants, and its fees for larger events and greater functionality are truly reasonable.  You can access the service at http://www.dimdim.com.

I made another mistake in the event’s advance marketing.  I tried out various types of event promotion software and went past the stage of reasonableness to overkill in repeated promotional messages.  One reader  sent me his forthright opinion.  “I’m really getting tired of your repeated Caswell promotions,” he wrote.  Following up to my apology, I communicated:  “BTW, I truly appreciate this because it raises a question:  When is there “too much” marketing?”

His response:

In response to your question, as Seth Godin says, “It’s all about me….me, me, me.” Readers are only interested in themselves (myself included). I believe there is a frequency “line” you can cross by marketing too much. Below the line represents value to the consumer (because you are making me aware of the product) and above the line represents meaningless (you’re wasting my time) promotion. Each of us draw the line in a different place, but we do draw a line.

So, it seems I over-marketed the event, while under-preparing the technical aspects, leaving the presenter in a frustrating situation where he had to proceed in a framework of discomfort.  Will Bill Caswell ever want to do this sort of thing again?  Will I want to go forward with other Webinar-type programs in the future?

The answer, in part, is that if we don’t try new things and learn from them, we cannot grow. But you can never prepare too much and if you are using various marketing methods, you should never forget that even if they are readily available and easy to use, you should always respect the frequency and volume of messages you deliver.

Lessons learned . . .

P.S.  After this posting, several readers – including Chris Hill – commented favorably, and the person who sent me the original complaint sent me a courteous email thanking me for accepting responsibility for my mistakes; showing the power of authenticity and humility in marketing. But I hope I don’t make these mistakes again.

Bill Caswell’s website is http://www.caswellccc.com.  It includes a useful free (and extremely quick) resource of answers to some of the most common and challenging business questions.

As always, please join the conversation with a comment below and contact Mark for more.  If you enjoy what you’re reading, please subscribe to keep up with the latest Construction Law Musings and check out the other Guest Post Fridays here at Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Construction Law Musings we welcome back Nick Pacella.  Nick is an architect licensed in New York, New Jersey and Connecticut. His practice has spanned several economic swings and he has been able to reposition the eggs in his basket to make the most of each recovery. He is currently focusing on adapting existing commercial buildings to take advantage of materials and processes that promote improved energy efficiency for both the owner and the tenants. For a more colorful rendition of projects you can visit his company’s website, www.nmparch.com.

It used to be that when you bought something (a car, a refrigerator, a television) it came with an owner’s manual that told you how to operate it, take care of it and prolong its usefulness to you. These days most of these manuals have been boiled down to a pdf on a website somewhere that you can access if and when you find the need. I understand that this is mostly in the name of saving cost (and trees) and at least the information is out there if you need it.

The relationship of the construction drawings to the written specifications is much more closely tied and yet most times there isn’t even that lonely little pdf orphaned out in cyberspace for you to hunt down and reference. Drawings, even on their best day, can only hope to tell part of the story. On their worst day they provide a hit or miss collection of thoughts that rely on the contractors good will and honesty to protect your client’s best interests.

Drawings are meant to generically represent the size, dimension, shape and relationship of the many components that make up a project. They also show details that depict the relationship of one product to another and how they join. The specifications actually tell you what those components are, who makes them, how you expect them to perform, how they are to be installed and in what finishes and textures. Without the specifications a wide range of products might satisfy the same overall image that the drawings represent. A drawing will say ‘install spray foam insulation Type 1’. The specifications will tell you it is closed cell polyurethane at 7.6 R per inch, the acceptable manufacturer(s), that a Type 1 is to be 5” thick, that it needs a required wrap to meet fire code and it should cure for a certain number of days before it is enclosed by sheet rock. Imagine putting that on the drawings the several dozen times the product occurs (sections, details, plans, etc.) and you get the actual point of using specifications: to help streamline the process. Not to mention if you want to change Type 1 to 7.5” or to open cell you only have to do it in one location, in the specifications.

Think about the project where the potential contractor has received his bid set only to see a lot of notes like “to be confirmed by the architect the field” or “as directed by the architect once the samples are received” or a generic statement that says “provide wood doors, jambs and hardware to our standards” that don’t mention that the products in question are expected to be hand laid up and lacquered sapelle with hand wrought door handles and hinges (haven’t you seen our brochure – that’s our trademark). The contractor who is familiar with what that architect is expecting has a major dilemma on their hands. Do you provide a price that gives the client what they are expecting (because they did hire this starchitect for a reason) or do you bid it like the drawings say, knowing you will be fighting for change order requests down the road, and alienating both the client and the architect. From the contractors that I have spoken, to this is too often the realty rather than the exception, particularly in residential and small commercial projects.

So why does this happen. One could postulate that it happens for the same reason architects don’t use formal contracts. I’ll let you decide whether it is the belief in the benevolence of mankind, or just sloth. Either way, you can get your butt sued and create all sorts of construction administration nightmares along the way. And given the logical outcome that you will, at some point have to go to the site and make all those decisions that you put off to get the drawings out ‘on time’, why not just do it right in the first place? Particularly since field time is much more expensive and less controllable than office time.

As always, Nick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

In May of last year, we discussed an opinion in U.S. ex rel. Thyssenkrupp Safway Inc. v. Tessa Structures LLC.  If you recall, this case involves a three way payment dispute between a supplier, Thyssenkrupp, a subcontractor, Tessa Structures, and a general contractor, Vista Contracting.  As discussed in the prior post, Thyssenkrupp did not get paid on a federal project and filed a Miller Act bond claim against all of the appropriate parties and a breach of contract claim against Tessa Structures.  Tessa Structures then cross claimed against Vista Contracting for indemnification and contribution.  Vista Contracting moved for a stay pending mediation and/or arbitration of the cross claim.

Of course, the contract between Vista Contracting and Tessa Structures required mediation between subcontractor and contractor in one place and arbitration of any claim relating to the subcontract.  In the opinion (U.S. ex rel. Thyssenkrupp Safway Inc. v. Tessa Structures LLC) the U. S. District Court for the Eastern District of Virginia in Alexandria considered the interaction of the two seemingly contradictory clauses.  In doing so, the Court considered other courts’ opinions as to the application of the Federal Arbitration Act to mandatory mediation clauses.  After running through these opinions, the Court eventually determined that there was no need to talk about these distinctions given the broad nature of the arbitration provision of the contract.

In short, the Court determined that the broad language (i. e. any claim) required a stay despite Tessa Structures making the argument that its claim could not be determined until after the Court determined the validity and value of Thyssenkrupp’s claim.  The Court, as Virginia state and federal courts are want to do, looked at the plain language of the agreement and tossed this seemingly logical and practical issue aside.

The takeaway?  Look at dispute resolution provisions in your construction contracts very carefully. I have discussed arbitration clauses in the past and only like them in the right circumstances.  In this case, Tessa Structures got caught in a practical bind by moving forward with the broad mandatory arbitration language in its contract.  These clauses will be enforced, an properly so in most instances.  Should you, as a contractor or subcontractor, find yourself faced with such a provision, an experienced construction attorney can assist you in negotiating a more equitable clause.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Originally posted 2009-03-31 17:11:00. Republished by Blog Post Promoter

This month’s Virginia Business Magazine is a great issue on green jobs in Virginia. The whole issue is very worth reading.

I was fortunate enough to be interviewed in connection with the piece entitled “LEEDing the Way?” The topic of discussion in this article is the incentive provided by the market and state and local governments for building green.

Please check it out.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Construction Law Musings, we welcome back Elaine Hirsch.  Elaine describes herself as a kind of a jack-of-all-interests, from education and history to medicine and videogames. This makes it difficult to choose just one life path, so she is currently working as a writer for various education-related sites and writing about all these things instead.

While layoffs and business closings are making the news, there is one sector that is quietly educating and growing a new economy filled with transformation and economic recovery. Leadership in Energy and Environment Design (LEED) initiatives not only consume less energy in the long run, but bring recognition and cost savings for institutions in the short run. MBA Online states that the need for innovation is driven by an exceptionally difficult economic environment, and given today’s stagnant economy, greener energy solutions have become such innovations. According to the Pew Charitable Trust report, between 1998 and 2007 there were two times the amount of job creation in the clean energy sector as any other sector in the nation.

One of the significant differences in LEED driven job positions is that there are levels and opportunities unlike manufacturing or service positions that offer little growth. It is not necessary to spend the rest of your life paying back a student loan when going into a LEED based educational field. To date, there are almost 175,000 LEED professionals throughout the world that have been certified in special areas of green energy and this number is expected to double in the next 2-3 years. According to the US Green Building Council, green construction contributed to 2.4 million jobs between 2000 and 2008, and this number is expected to grow to 7.9 million by 2013.

The government has provided the work available through a Coalition for Better Buildings and affordable training can be easily found. There are 34 states to date that have adopted LEED-based policies for public and private buildings and hundreds of local governments are following suit. Being a veteran offers even better programs with reimbursements available for exams. Many times receiving a LEED Certification in a given area of your interest can open doors just by getting hired by a fine company at the ground level.

The economy is not continuing on a downward slide but simply transitioning into a new direction if you take the time to notice a LEED-based career and where it can lead. Just as electricity, gas-powered vehicles and plastics have changed our way of life, electronics, renewable energy and LEED building is leading us in a new, exciting direction. Take part in the positive side of a changing world and find out how beneficial Sustainability Education and Economic Development (SEED) can guide you to being competitive in the direction of tomorrow.

As always, Elaine and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.