Articles Posted in Construction Generally

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On the eleventh anniversary of the September 11 terrorist attacks, One World Trade Center steadily progresses toward a late 2013 completion date. The spire on top of the 104-story skyscraper will reach 1,776 feet, a symbolic reference to America’s independence. David Childs of Skidmore, Owings and Merrill, Architect, is the architect for One World Trade Center, and Tishman Construction is the primary contractor. Although reports vary, the final construction cost of the tower will be close to $4 billion. The current images of One World Trade Center are inspiring and an uplifting image on this day of remembrance.

On June 14th, President Obama joined Governor Cuomo, Governor Christie and Mayor Bloomberg to see first-hand the tower’s progress. The President added a personal touch to one of the final steel beams to be installed at the top of the skyscraper by including the following signed message: “We remember We rebuild We come back stronger! Barack Obama.” One World Trade Center will be surrounded by three additional high-rise office buildings and the National September 11 Memorial & Museum.

While the tenth anniversary of 9/11 put the memorial on full display, the 100,000-square-foot museum is currently behind schedule. Delayed by funding, oversight, and financing, construction of the museum came to a halt after the tenth anniversary. On Monday night, however, the 9/11 Memorial and Museum Foundation (chaired by Mayor Bloomberg) and the Port Authority of New York and New Jersey (controlled by Mayors Cuomo and Christie) signed a memorandum of understanding, resolving the outstanding issues. The parties negotiated additional payments from the September 11 foundation, in an attempt to ensure that no additional public funds are needed to complete the National September 11 Memorial & Museum. Originally planned to open today on the eleventh anniversary, the museum is now likely to open at the end of 2013.

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When trouble, in the form of adverse changes in financial conditions or the property marketing environment, strikes during the period between construction contract signing and completion of procurement and construction activities, the developer often will have to consider taking the course of action that will maximize value for all stakeholders. Ultimately, it may reluctantly determine that the construction contracts and work should be suspended for some period of time or terminated altogether. Our white paper Shutting Down the Construction Project, updated to include California’s mechanic’s lien laws effective July 1, 2012, outlines significant issues that an owner should consider when suspending or terminating a California commercial construction project.

Things to consider include providing notice of the suspension/termination, if the contract is suspended, keeping the contract and subcontracts in effect, and closing out the claims exposure. Similar principles apply to projects in other states and projects of a residential, industrial or public nature. As becomes quickly apparent, the laws governing these issues are highly technical and often impose short deadlines for compliance, and also pose signfiicant risk to owners and contractors for non-compliance. To learn more about this, click here to our white paper.

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The Olympics are in full swing, with the world’s attention on the playing fields and pools dotting the United Kingdom. But how about the venues themselves, how green are they? The London Organizing Committee planned the Games with a green tint, focusing on sustainable principles for everything from stadium construction, food service, and the use of public transportation. Plus, the large number of preexisting venues around the city (tennis at Wimbledon, for example) made some additional construction unnecessary.

Planning for Green – The Organizing Committee took the forward-thinking step of setting up the London Legacy Development Corporation three years ahead of the Games, which has focused on long-term uses of the Olympic venues after the torch is passed to Russia’s winter Olympics. The Development Corporation’s plans for housing and parks were developed with an eye to rebuilding parts of London, particularly East London. The Organizing Committee even took the extra step of working with the Independent Standards Organization to develop a global standard for sustainable event management, now known as ISO 20121:2012.

Green Building – Venues constructed for the games include a number of innovative green features. The roof of Olympic Stadium, for example, was constructed from unwanted gas pipes from the North Sea and over 40% of the concrete used for construction is made of recycled materials. While the question remains as to whether this much new construction can ever be considered truly sustainable when developed for a single mega-event, the Organizing Committee took great steps to reduce waste. Many Olympic venues that do not have long-term uses were built only to be used for the Games and will then be taken apart and their materials will be reused.

Looks like a tough act to follow for Sochi and Rio.

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  • What ever happened to tough love? Report shows that members of DOJ staff manipulated hiring process to get their kids jobs.
  • Sustainable cities beneath the sea? The “highly imaginary concept” of seascrapers is segmented into garbage collection units at the bottom, recycling plants in the middle, and housing and recreational zones at the top.

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Throughout the world, the popularity of “green roofs” is on the rise. ENR.com reports that green roofs are being used to mitigate various environmental problems facing urban areas, most notably, storm water management. According to the EPA, green roofs also help combat a problem known as “Heat Island Effect” by removing heat from the air through evapotranspiration. This process reduces temperatures of both the roof surface and the surrounding air, allowing the surface temperature of a green roof to be lower than the surrounding air temperature on a hot day. Other benefits of green roofs include corrosion protection, noise reduction, energy efficiency, and improved air quality. And the uses for green roofs vary widely from practical to pure entertainment. The ENR.com article notes that the largest green roof project currently underway in the United States – the Croton Water Filtration Plant in Bronx County, New York City – will include a 36,512-sq-m golf driving range.

Green Roofs for Healthy Cities, one of a number of groups advocating for the increased use of green roofs in construction, defines a green roofing system as an “extension of the existing roof which involves a high quality water proofing and root repellant system, a drainage system, filter cloth, a lightweight growing medium and plants.” Green roofing systems may be modular (with drainage layers, filter cloth, and growing plants already prepared in movable, interlocking sections), or the elements of the system may be installed separately. Green roofs can be used on a wide variety of buiildings, from private residences to industrial complexes, and the vegetation sustained thereon can range from simple groundcover to tall trees.

While typically more expensive to install than a traditional roofing system, proponents say that green roofs pay for themselves in terms of increased property value, aesthetic appeal, reduced heating and cooling costs, and extended life of the roofing materials. Many cities throughout the U.S. and abroad (particularly in Europe) already promote the use of green roofs – either through mandates or incentives. And the use of green roofs is only expected to increase as green infrastructure continues to gain political support.

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Under the Texas code, the workers’ compensation exclusive remedy bar applies up and down: barring injured employees of subcontractors from bringing common law tort suits against a general contractor which provided workers compensation insurance, and also in reverse, barring injured employees of the general contractor from bringing suit against a subcontractor, even when the employees are covered under separate workers’ comp policies. So says the Texas Court of Appeals in Garza v. Zachry Construction Corp., 2012 WL 1864350 (Tex. Ct. App. May 23, 2012).

In Garza, an employee at DuPont’s Ingleside, Texas plant was injured when the railcar mover he operated came loose. He received workers’ compensation benefits through a policy provided by DuPont, and later brought common law tort claims against a subcontractor and two of its employees for negligence in causing the accident. The subcontractor, whose employees were covered by a separate workers compensation insurance procured by DuPont, successfully argued that DuPont was their deemed employer and the injured worker and subcontractor employees were deemed fellow employees. In this way, the subcontractor was shielded from such actions by the workers’ compensation exclusive remedy bar contained in Texas Labor Code section 408.001 as made applicable to subcontractors by Labor Code section 406.123. On appeal, the Court of Appeals agreed.

Garza, the injured employee, argued that the exclusive remedy bar could not apply where the subcontract specified that the subcontractor’s employees were not employees of DuPont, Garza’s employer. But even if they were deemed employees for purposes of statutory workers compensation benefits, the bar could not apply where the subcontractors were covered under a separate workers’ compensation policy than that covering DuPont’s employees. Lastly, if the statute does immunize the subcontractor, then it violates the open courts guarantee (assuring that a person bringing a well-established common-law cause of action will not suffer unreasonable or arbitrary denial of access to the court) in the Texas constitution.

In rejecting these arguments, the appellate court first ruled that the subcontract at issue required DuPont to procure workers’ compensation coverage for Zachry’s employees, “thereby, creating the legal fiction of DuPont as the ‘deemed employer’ and Zachry and its employees as ‘deemed employees'” under Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 438 (Tex.2009) and HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex.2009). The subcontract, however, did not provide these same “deemed employees” with the other more traditional employee benefits enjoyed by DuPont’s actual employees. Secondly, the court ruled that nothing in the workers compensation statute, section 406.123, “specifies that when a general contractor purchases a workers’ compensation policy for its own employees and also purchases a second policy for its subcontractors, then its own employees and its “deemed” employees may freely sue each other simply because they receive their coverage under different policies, albeit from the same “employer” for work performed at the same job site.” According to the court, such an interpretation would be contrary to the purpose of the legislation – which is to encourage coverage of employees. Finally, the court concluded that Garza’s rights under the open courts provision are not violated because “[t]he workers’ compensation benefits he receives from his employer, which also provides those same benefits to its subcontractors, is an adequate substitute for his right to bring his tort claims against those subcontractors.”

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Effective July 1, 2012, all of the existing statutes governing mechanics liens, stop notices and payment bonds in California will be repealed and replaced by updated statutes. The law will also result in new statutes governing stop notices (on both public and private works), payment bonds and related claims. The law relocates and renumbers the Mechanics Lien Law, but many of the provisions are substantively the same. Pillsbury attorneys prepared a handy chart that will assist those of you familiar with the old statutory scheme to retool for the new layout. To learn more about this, click here to read the client alert and chart.