Recently in Construction Generally Category

Florida Bill Would Revise Methods For Labor Pools to Compensate Day Laborers

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On January 22, 2015, Florida Senate Bill 456 was introduced, proposing to revise the methods by which a labor pool may pay day laborers. If signed into law, Senate Bill 456 would permit a labor pool to compensate day labors, paying them in cash, using a commonly accepted negotiable instrument that is payable in cash, on demand at a financial institution, and without discount, using a payroll debit card, or by electronic fund transfer to a financial institution designated by the day laborer.

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NV Overview of Contractor License Requirements

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The Nevada State Contractors Board has an Overview of Contractor License Requirements for Nevada that addresses commonly asked questions about the general requirements for applying for a contractors license and the corresponding answers.

The topics addressed in the overview include:

AR Transaction Privilege Tax License Still Required For Contractors

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The Arizona Registrar of Contractors (ROC) warns contractors that even if they have received a notice from the Department of Revenue stating: "If you are a contractor whose only business is to enter into contracts with the owner of real property for the maintenance, repair, replacement or alteration of existing property, beginning January 1, 2015, you do not need to have a transaction privilege tax (TPT) license," Arizona Revised Statutes § 32-1122(B)(1)(h) requires all contractor license applicants and licensees to provide the ROC with a TPT license number to obtain or renew a contractor license. The ROC confirmed that it has asked the legislature to make these laws more consistent by removing this TPT requirement. However, it cautions that, until this change is made, contractors need to maintain their Arizona TPT license.

2015 California Contractors License Law Reference

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Recently, the California Contractors State License Board posted a link to the 2015 edition of the California Contractors License Law & Reference Book. This is an incredibly helpful resource if you are currently a contractor, subcontractor or materials supplier in California or if you may become one in the near future.

NCSB Warns Contractors To Be On Look Out for Out-of-State Solar Manufacturers Looking for Installation Services

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Today, the Nevada State Contractors Board (NSCB) issued an Industry Bulletin confirming that, in recent months, it "has been seeing an increase in the number of out-of-state solar manufacturers entering into contracts with licensed Nevada contractors to perform solar installation services for Nevada residents." It noted that many of these out-of-state manufacturers do not possess a Nevada contractor's license and the Nevada contractors performing installation services for such businesses are being disciplined by NSCB for aiding and abetting an unlicensed contractor.

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NV State Contractors Board to Discuss Pre-filed Legislative Bills at Next Meeting

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In its Public Notice of Nevada State Contractors Board (NSCB) Meeting scheduled for January 22, 2015 at 8:30 a.m. by videoconference at its Henderson and Reno NSCB offices, the NSCB's agenda indicates that the meeting may include a legislative discussion and possible action on several pre-filed senate and house bills.

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California Contractor License #1,000,000 Issued

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Today, the California State Contractors License Board (CSLB) announced that, over the weekend, it issued its one-millionth contractor license to a tree service company in Norwalk, California. The CSLB was created on August 14, 1929, with the support of the State of California's construction industry, so the public would be protected from irresponsible contractors.The law creating the CSLB defined three contractor categories that remain in effect today: Class "A" General Engineering, Class "B" General Building, and Class "C" Specialty contractors. In 1939, those categories evolved into the original license "classifications" and CSLB also began to examine applicants on their trade qualifications.

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New CA Public Accommodation Bill Introduced

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Existing California law allows a plaintiff to collect statutory damages in a construction-related accessibility claim against a place of public accommodation only if the plaintiff was denied full and equal access to the place of public accommodation on a particular occasion, as specified. It also requires a demand letter alleging the construction-related accessibility claim to, among other things, state facts sufficient to allow a reasonable person to identify the basis of the claim, and imposes a $1,000 limit on such statutory damages if the defendant demonstrates that it has, among other things, cured the construction-related accessibility violation within 60 days of being served with a complaint. Assembly Bill 54 (Olsen), introduced in early December 2014, seeks to amend this law to provide that, when a plaintiff brings a claim alleging a violation of a construction-related accessibility standard within 3 years of a change in that standard, a plaintiff may only collect statutory damages if she/he also provides the owner, agent, or other party responsible for the place in violation with a written notice or demand letter with specified information at least 60 days prior to filing any action and the violation is not cured.

California Civil Code § 55.56 would be amended to read (new language underlined):

"(a) Statutory damages under either subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion. occasion, and the requirements of Section 55.565 have been met, if applicable."

New California Civil Code § 55.565 would provide:

" (a) When a plaintiff brings a construction-related accessibility claim alleging a violation of a construction-related accessibility standard within three years of a change in that standard, statutory damages under subdivision (a) of Section 52 or subdivision (a) of Section 54.3 may be recovered against a place of public accommodation only if the plaintiff provides the owner, agent, or other party responsible for the place of public accommodation where the alleged violation occurred with sufficient written notice of the allegations and alleged access barriers on which the claim is based at least 60 days prior to the filing of any action and the alleged access barriers are not removed.
(b) A written notice is sufficient for the purposes of subdivision (a) if either of the following conditions is met: (1) The notice states facts sufficient to allow a reasonable person to identify the basis of the construction-related accessibility claim under subdivision (a) of Section 55.31 and states that the recipient may be civilly liable for actual and statutory damages for a violation of a construction-related accessibility requirement if the access barriers that constitute the basis of the construction-related accessibility claim are not removed within 60 days. (2) The notice is a written demand letter that offers prelitigation settlement negotiations in accordance with subdivision (b) of Section 55.31.
(c) For the purposes of this section, "construction-related accessibility claim," "construction-related accessibility standard," and "place of public accommodation" have the meanings set forth in Section 55.52."

A Cautionary Tale for Small and Large Businesses in a Mentor-Protégé Relationship: Size Appeal Of Kisan-Pike

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Yesterday, we published our client advisory titled A Cautionary Tale for Small and Large Businesses in a Mentor-Protégé Relationship: Size Appeal Of Kisan-Pike. The Advisory discusses the Small Business Administration ("SBA") Office of Hearings and Appeals' ("OHA") November 24, 2014 finding that a mentor-protégé joint venture agreement between Kisan Engineering Company P.C., a small 8(a) business, and The Pike Company Inc., its large business mentor, caused the joint venture to lose its status as a small business. As a result, the joint venture was not qualified to receive a contract award on a procurement reserved for small businesses. OHA disqualified the mentor-protégé joint venture despite the fact that the SBA had approved the Kisan-Pike mentor-protégé agreement, through which Pike was to mentor Kisan.

You Can't Change That - We Had a Deal!

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On December 9, 2014, the U.S. Civilian Board of Contract Appeals ("CBCA") decided Kiewit-Turner, a Joint Venture v. Department of Veterans Affairs, in which general contractor Kiewit-Turner ("KT") scored a major victory against the Department of Veterans Affairs ("VA"). The CBCA ruled that a change order required the VA to deliver a design that could be built for costs that were capped at a specified amount -- shifting risk to the owner from the contractor.

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California Department of Industrial Relations Posts 2014 Legislative Digest

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Today, the California Department of Industrial Relations (DIR) released its 2014 Legislative Digest, which includes, among other things, an overview of new laws related to the work of DIR and its divisions, which include the Labor Commissioner's Office, Cal/OSHA, the Division of Workers' Compensation and the Division of Apprenticeship Standards.

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Demolition/Construction Full Steam Ahead on Sacramento Entertainment and Sports Center

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The Sacramento Business Journal in Arena builders hitting some -- but not all -- targets for local and small-business contracts reports on the progress of the Sacramento Entertainment and Sports Center (ESC), including confirming that the "oversight committee says the Sacramento Kings are exceeding commitments to hire local companies to build the downtown arena." For additional information on the "World-Class Home of the Sacramento Kings", check out the Sacramento Kings ESC website. Recent postings include an update on the ESC demolition/construction (Dec. 16, 2014), and notice of a March 6 Subcontractor Outreach Meeting. Contractors Bid Opportunity Information and renderings of the ESC are also posted. For additional information, also check out the City of Sacramento's Arena News. The ESC is expected to be completed by October 2016 in time to open for the 2016-17 NBA season.

Additional Source: Demolition For Sacramento Kings New Arena Scheduled To Commence By Month End

Chung Report Critical of Caltran's Protocols, Data Interpretation and Conclusions re San Francisco-Oakland Bay Bridge SAS Span Integrity

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A report titled Validity of Caltrans' Environmental Hydrogen Embrittlement Test on Grade BD Anchor Rods in the SAS Span dated December 2, 2014 prepared by Yun Chung, Materials Engineer (Retired), purportedly for Steve Heminger, Chair, Toll Bridge Program Oversight Committee recently surfaced. Seven other professors, consultants and engineers purportedly reviewed the report and provided comments, including Robert G. Bea, Ph.D., Russell Kane, Ph.D., Harold J. Mantle, P.E., Charles J. McMahon, Jr., Sc.D., Cory Padfield, P.E., Patrick Pizzo, Ph.D., and Pierre R. Roberge, Ph.D., P.E. The Chung Report responds, in part, to Caltrans' conclusion "that all the 2,210 HDG BD rods in the SAS are "safe" as installed from future EHE failures." The San Francisco-Oakland Bay Bridge Self-Anchored Suspension Bridge Evaluation of the ASTM A354 Grade BD Rods was issued on September 30, 2014.

In part, the Chung Report concludes that "This review revealed that Caltrans' EHE test protocols and data interpretation are both problematic and unscientific and that their conclusions as to the integrity of the [self-anchored suspension span (SAS)] could not be supported." Section 8.0 of the Chung Report sets forth 12 conclusions and recommendations, including that "Caltrans' conclusions and recommendations in their September 2014 report on the A354 BD Rod Evaluation are incorrect and will not resolve the concerns about possible hydrogen embrittlement (HE) failures of hot dip galvanized (HDG) Grade BD rods that are critical to the structural integrity of the self-anchored-suspension (SAS) span." Among other things, the Chung Report recommends that Caltrans should "adopt the strategy of using HDG BD rods that are metallurgically not susceptible to EHE failures, for example those with peak hardness of 32 - 35 HRC maximum" and "identify HDG BD rods in the SAS that are susceptible to EHE failures and replace them with new HDG BD rods or equivalent rods not susceptible to EHE failures." As for monitoring, the Chung Report recommends that Caltrans "concentrate on the tower base anchor rod performance because they are not replaceable and their failures would be critical to the SAS structural integrity.... It may take years but it is difficult to predict the timeframe of EHE failures. Caltrans should develop a risk analysis of the tower base anchor rod performance."

Additional Source: The Sacramento Bee, Independent report calls Bay Bridge Tests 'unscientific,' 'erroneous' (Dec. 2, 2014).

Texas Railroad Commission Revises Common Carrier Permit Application Rule

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In the 2012 case of Texas Rice Land Partners, Ltd., et al., v. Denbury Green Pipeline-Texas, LLC, 363 S. W. 3d 192 (Tex. 2012), the Texas Supreme Court held that the routine and ministerial issuance of a common carrier pipeline permit to Denbury Green did not conclusively establish the pipeline's status as a common carrier as a matter of law, thereby enabling the pipeline to exercise eminent domain powers over private property. Consequently property owners now have the right to challenge that status in state court. The Texas Railroad Commission took note of the criticisms lodged against its rules and procedures, and on December 2, 2014, the Commission promulgated changes to its permitting rule, which is located in Title 16, Part 1, Chapter 3 of the Texas Administrative Code, Rule § 3.70. The new rule is effective on March 1, 2015.

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TX Supreme Court Will Hear Arguments in San Jacinto Waste Pits Insurance Controversy Jan. 15

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The Texas Supreme Court confirmed that it will hear oral arguments in McGinnes Indus. Maint. Corp. v. The Phoenix Ins. Co., et al., No. 13-20360, case on January 15, 2015. The issue was certified to the Texas Supreme Court by the Fifth Circuit Court of Appeals on June 11, 2014. The Court will decide whether, under Texas law, an EPA order to clean up a site is a "suit" triggering an insurer's duty to defend. A trial in which the companies' liability to pay civil penalties to Harris County was litigated, concluded a few weeks ago, with mixed results.

As described by the Fifth Circuit Court of Appeals in an unpublished opinion (issued June 11, 2014), McGinnes is in the waste disposal business. In the 1960s, McGinnes removed waste from a paper mill and released the waste into three ponds located in Harris County, Texas, adjacent to the San Jacinto River. During that time, McGinnes was covered by commercial general liability (GCL) insurance policies which required the insurers to defend its insured in any "suit" (an undefined term in the policies) seeking damages on account of property damage. Many years later, EPA sent a series of CERCLA notice letters to Waste Management, McGinnes parent company, including a Unilateral Administrative Order ordering McGinnes to conduct a remedial investigation and feasibility at what became known as the San Jacinto Waste Pits Superfund Site. Failing to comply with the Order would subject McGinnes to substantial civil penalties. McGinnes then notified its insurers of these demands, and requested that they provide a defense in accordance with the terms of the insurance policies. Travelers refused to defend, arguing that no "suit" had been filed. McGinnes then filed a lawsuit against the insurers in the US District Court for the Southern District of Texas, seeking over $2 million in attorney's fees as well as a declaratory judgment that Travelers was required to provide a defense to the EPA actions. However, the District Court granted the insurers motion for summary judgment, determining that the EPA CERCLA action was not a suit triggering the duty to defend. It based its decision on the fact that when the policies were issued in the 1960s and 70s when "this sort of administrative bullying did not exist." McGinnes appealed the order to the Fifth Circuit Court of Appeals.

The Fifth Circuit, realizing there was no controlling Texas precedent to guide it in deciding "an important question of Texas law, for which there is no controlling Texas precedent", certified a question of law to the Texas Supreme Court, asking whether the EPA's PRP letters and/or unilateral administrative order received by McGinnes constitute a "suit" within the meaning of the GCL policies, triggering a duty to defend. The appeal was filed on June 11, 2014.

Additional Sources: Houston * Chronicle, Science & Environment, Settlements, split verdict yield murky result in waste pit case (Nov. 13, 2014); HoustonPress, Blogs, Two Companies Settle Over San Jacinto River Waste Pits, Jury Clears Lone Holdout of Liability (Nov. 14, 2014); Texas Supreme Court's Case Information, McGinnes Indus. Maint. Corp. v. The Phoenix Ins. Co., et al., No. 14-0465