Construction Law Blog
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When analyzing liens related to tenant improvements performed pursuant to a contract between a tenant and contractor, we are frequently asked whether the lien attaches just to the tenant’s leasehold interest (i.e., the value of the lease) or whether the lien can also attach to the landlord’s fee interest in the real estate where the leased premises are located. Landlords want protection from liens, whereas contractors want lien rights against both the leasehold interest and the landlord’s fee interest in the property because liening the fee interest will likely place additional pressure on the tenant to resolve the lien and because the fee interest typically provides greater security. Washington’s lien statute and several cases provide guidance.
As construction lawyers, we rarely have an opportunity to dabble in the area of immigration law, but immigration affects contractors. For example, the SkyRise Tower (“SkyRise”) stands at the center of Biscayne Bay in Miami, and is being financed by foreign investors who have at least $500,000 to fund the project. Similar to the Statue of Liberty, SkyRise will be the gateway to U.S. Citizenship – not for the tired, poor, and huddled masses, but for rich foreign investors seeking a green card.
State and local infrastructure banks are again in the spotlight with the State Transportation and Infrastructure Financing Innovation Act (“STIFIA”), which Representatives Richard Hanna (R-NY) and Janice Hahn (D-Calif.) recently introduced into Congress. The concept of state infrastructure banks has been around for many years. These banks work to provide loans, construction debt financing, or lines of credit for infrastructure projects in various local areas. STIFIA is designed to amend a federal highway bill already in effect: the Moving Ahead for Progress in the Twenty-First Century Act (known as “MAP-21”). STIFIA would put the projects and their financing in the hands of state and local governments, which are more familiar with the needs and priorities in those areas than the federal government.
Late night host of Last Week Tonight, John Oliver, took us on a tour of the Nation’s infrastructure on Monday night. The deplorable state of U.S. infrastructure has been the subject of a number of Ahlers & Cressman posts (It’s Time to Rebuild America’s Infrastructure – A Prospective Presidential Candidate Has an Idea!; Public-Private Partnerships: Completing Infrastructure Projects Without Public Funds; More Washington Infrastructure Projects On The Horizon – Yakima River Basin Integrated Water Resource Management Plan; Hurricane Sandy A Wake Up Call To Strengthen U.S. Infrastructure – A Topic Lost In The Recent Presidential Campaign; Private Investors Testify that the US Infrastructure Bank is Key to Attracting Private Capitol for Public Works; New ASCE Report: Old U.S. Infrastructure is Costing the Public Billions; China’s Road-Building Pace Leaves U.S. In The Dust; Now That The Republicans Have Taken Over the House – What Does That Spell For Infrastructure Investment?; Infrastructure Investment Gets Boost From The Daily Show with John Stewart; Call For Boost to Infrastructure Investment; $4 Billion National Infrastructure Bank Proposed by President Obama; Water Main Break Highlights Need for Infrastructure Investment; Chelan Washington’s wooden pipes emphasize the need for radical infrastructure upgrades; Pew Research Gives Washington State An “A” For Infrastructure Government Performance). Oliver in 30 minutes gave viewers the comedic side of the sorry state of the U.S. infrastructure and convinces us that infrastructure is worth talking about. One of his memorable lines was: The average U.S. dam is 52 years old and has “something deeply broken inside” – “like Botox users and clog dancers.”
On March 24, 2014, Division I of the Washington Court of Appeals affirmed the citation by the Washington Department of Labor and Industries (L&I) of a contractor who operated within 10-feet of an energized lines without taking mitigating measures, and rejected the contractor’s “infeasibility defense.”
Home field advantage matters in sports, and it also matters in litigation. In litigation, many battles are fought over the location where a dispute is to be decided and who is tasked with deciding the outcome of the dispute.
The Washington Industrial Safety and Health Act of 1973 (“WISHA”) is a statute that empowered the Department of Labor and Industries (“L&I”) to create and enforce safety and health regulations for nearly all employers and employees in the state. WISHA was the first fully-operational state safety and health program approved by the federal government. Under WISHA, L&I may conduct investigations into employers that it believes to be in violation of a safety of health statute or regulation, and issue a citation. These citations are posted at or near the place of violation, and also are posted online as a matter of public record.
Historically, the common law doctrine of sovereign immunity prevented liens against public property, and federal statutes allowed only those in privity of contract with the federal government to sue to enforce contractual rights. To address this concern, Congress enacted the Heard Act in 1894. In 1935, Congress repealed the Heard Act and enacted the Miller Act in its place. The Miller Act requires that all general contractors post payment bonds on contracts in excess of $25,000.00. If the contracting officer determines that a payment bond in the full amount of the contract is impractical, he or she may set a different amount for the payment bond. Bonds of half the contract amount are common on federal jobs.
Barely a day goes by without Seattle media attention focus on the Seattle Tunnel Project. Bertha, the tunnel boring machine (“TBM”), has been stuck (since last year) under Seattle’s waterfront approximately 1,000 feet from where the tunneling began. The tunnel is designed to replace the aging Alaskan Way Viaduct that was damaged in the 2001 Nisqually Earthquake. Read more here: Bertha Is Stuck and Challenges Persist: Latest Projected Opening is August 2017.
Valentine's Day is around the corner, a befitting occasion to scrutinize workplace romances. Employers wary of where cupid's arrow may strike are concerned about sexual harassment charges. Therefore, some employers are turning to "love contracts" - or in lawyer terms, a "Consensual Relationship Agreement." A Consensual Relationship Agreement is an effort to mitigate the risk of sexual harassment claims from an office romance gone awry by documenting that the relationship is consensual.