Category Archives: Law Notes

ConsensusDocs v. AIA: a useful chart (Tue Tip)

Posted on by
one large and one small strawberry

Which strawberry (er, form contract) will YOU choose?

In advance of the ConsensusDocs training, thought you might like to see a handy comparison chart  of the common ConsensusDocs forms to their standard AIA counterparts.

The chart is produced by the folks at ConsensusDocs, so I’m sure any ambiguities were interpreted in their favor.  That being said, if you are considering using a different standard form contract for your next project, you might want to check it out!

Have you taken the plunge into the ConsensusDocs?  Prefer to stick by the tried and true AIA documents?  Are you an EJCDC maverick instead?  Drop me a line to tell me why you use the contract you do.

——————-

Photo (c) This is Chris via Creative Commons License.

S.Korea strengthens Building Code after Quake

Posted on by

Korea

 

As an update to my post on the Japanese earthquake, there is news from South Korea that the government there is already working to strengthen quake-resistant capacity. 

“We are seeking to revise a construction law to strengthen quake-resistant capacity for two-story and smaller buildings,” the land and transportation ministry said. “The government will complete its final plan for that by next week.”

Under current Korean law, only large buildings with more than two stories and floor space of more than 1,000 square meters are required to be built according to quake-resistant guidelines, and the ministry is looking to expand the quake-resistent guidelines to smaller buildings.  Currently,  smaller structures are not subject to the requirement, even though they make up 84% of the total construction.  

The U.S. is unlikely to adopt new standards in such a lightening fashion.

Comments? Questions?  Drop me a line, or follow me on Twitter @melissabrumback

Japan Earthquake: Engineering that saved lives

Posted on by
globe showing earthquake activity
Photo: NASA. Cumulative Earthquake Activity (1960-1995).

 

The earthquake that hit Japan one week ago today, which had a reported  magnitude of 8.9, ranks as the 7th largest earthquake ever recorded, and the death toll continues to rise from the trifecta of earthquake, tsunami, and nuclear power issues.    The death toll could have been even worse, however, without the strict Japanese Building Codes which doubtless saved thousands of lives.

According to the New York Times, such features as extra steel bracing, giant rubber pads and embedded hydraulic shock absorbers in high buildings make modern Japanese buildings among the sturdiest in the world during a major earthquake.   Japan has such strict building codes because it is located in the “Ring of Fire,” where over 90% of the world’s total earthquakes occur.

John Wilson of Swinburne University (Melbourne) Centre for Sustainable Infrastructure says Japan’s “stringent” building regulations make the country well-prepared for earthquakes and tsunamis.  “[Building codes] were tightened up a lot in the 1980s – most of the buildings built over the last 30 years in Japan will be subject to very tight seismic regulations,” he said.  “They are designed for quite a high lateral force, to allow for the forces that get generated from such earthquakes… but also in many buildings they add additional features such as additional damping in the buildings to absorb some of the energy.”

During the earthquake, despite being hundreds of miles from the epicenter, Tokyo’s tall buildings literally swayed like trees as the quake shook the ground.  According to structural engineer Bill Faschan:  “The basic idea, particularly (for) a tall building, is it’s supposed to act like a tree. A tree in the wind, it sways back and forth. And in a seismic event, it’s very similar. Obviously, the ground (is) shaking as opposed to the building being moved back and forth by the wind, but (it’s) the same idea. It’s supposed to move. It’s supposed to give.”

Is the U.S. ready for a big earthquake?

Not according to some experts.  Even in the more earthquake-prone areas such as California, they say, the U.S. is far behind Japan in the building technology.  As Donald R. Prothero with the L.A. Times pointed out:

Although California building codes are among the most stringent in the United States (thanks to what the 1933 Long Beach quake, which destroyed nearly all of our unreinforced masonry buildings), they don’t begin to match the standards demanded in Japan. Just consider the high overpasses where the 5 and 14 Freeways meet — which fell in the 1971 Sylmar quake; their replacements fell in the 1994 Northridge quake — and you begin to realize just how vulnerable our infrastructure is. And those quakes were only 6.6 and 6.7 in magnitude.

What comes next for the Building Codes?

Will U.S. jurisdictions create more stringent Building Codes after seeing the Japanese earthquake’s damage?  Although California does take  the likelihood of earthquakes into account its Code, will it now tighten them further?

Drop me a line in the comments to discuss this or any other Construction law topic.  And don’t forget to sign up for email delivery of blog posts directly to your mailbox. 

Friday Extra:  Check out this Blog Post for a simple to understand explanation of the science behind Japan’s earthquake.

Lien Law Changes: Bad for Designers?

Posted on by

UPDATE:  Designers may file Notices of Commencement when they start their work, which should eliminate or significantly reduce the priority date concerns expressed below.  See this post for more details.  — mdb  3/4/11

gavel, law books, & hard hat

The work of the NC Bar Association’s Construction Section Lien Law committee continues, and it may drastically change the lien law landscape for architects and engineers.

On February 18, the Construction Law Section Council, the governing body of the Section, voted 11-4 to accept the latest draft version which must still be approved by the NC Bar Board of Governors.  After approval by the Board, it will then need sponsorship at the General Assembly.   The lien law changes have divided the construction industry – some believe the changes are beneficial, while others worry about new requirements contained within the bill.

Of particular note for architects and engineers, the new lien law envisions a new Notice of Commencement which would then act as the first date of service for everybody who works on the project.  The new law would give almost everyone on a project the same priority date.  Almost all liens would then relate to and take effect as of the Notice of Commencement date.

In other words, designers and others who perform work very early in the project would have no stronger lien rights than those who perform work at the very end of the project.  If there are insufficient funds to satisfy all of the liens, the net result is that architects and engineers will have to share pro rata will all contractors and subcontractors from the owner’s assets.   (And, to answer a question posed to me the other day, yes, architects and engineers have lien rights on projects in North Carolina!)

Is there a way around this for designers and other early performers? Yes and no.  One way a designer can protect his priority is by filing a Claim of Lien before the Owner files the Notice of Commencement.  (See section 44A-10 of the new draft bill).  However, as you can imagine, filing a Claim of Lien before construction has even started is likely to be frowned upon by the Owner.  Furthermore, the lien would have to be timely perfected, which involves actually suing the Owner.  Obviously, use of the Claim of Lien to beat the proposed Notice of Commencement date will have limited, if any, practical use for construction professionals who are working on a project and want to maintain a good relationship with the Owner.

There are many good things in the new bill: a way to streamline payment issues to ensure subcontractors are timely paid when the general contractor is paid, for example, as well as an attempt to provide lien rights to parties even after a bankruptcy filing, which had been made impossible by recent cases.   However, the priority issue is definitely bad for designers, as well as others who do their work very early in the project.

Comments, questions, or thoughts about the proposed changes?  Let me know in the comment section, below.  And sign up for regular email updates from this Blog, so you never miss a post.

Engineering flaws cited in Oil Spill Report

Posted on by

Horizon explosion

The Chief Counsel’s Report on the BP Deepwater Horizon Oil Spill and Offshore Drilling has been released.  Following on the heals of the January National  Commission report to the President, the Chief Counsel’s report “provides damning evidence that preventable engineering and management mistakes—rather than mechanical failings—were the primary cause of the Deepwater Horizon rig explosion last spring,” notes ENR’s Pam Hunter.

Among the Technical Findings, the Report states that the root cause of the failure was that the cement that BP and Halliburton pumped to the bottom of the well did not seal off hydrocarbons in the formation.  The report acknowledges several factors which may have increased the risk of cement failure, including:

  • drilling complications forced engineers to plan a finesse  cement job that called for, among other things, a low overall volume of cement.
  • the cement slurry itself was poorly designed—some of Halliburton‘s own internal tests showed that the design was unstable, and subsequent testing by the Chief Counsel‘s team raised further concerns.
  • BP‘s temporary abandonment procedures—finalized only at the last minute—called for rig personnel to severely underbalance the well before installing any additional barriers to back up the cement job.

Among the Management Findings, the Report states:

  • BP did not adequately identify or address risks created by last-minute changes to well design and procedures. BP changed its plans repeatedly and up to the very last minute, sometimes causing confusion and frustration among BP employees and rig personnel.
  • Halliburton appears to have done little to supervise the work of its key cementing personnel and does not appear to have meaningfully reviewed data that should have prompted it to redesign the Macondo cement slurry.
  • Transocean did not adequately train its employees in emergency procedures and kick detection, and did not inform them of crucial lessons learned from a similar and recent near-miss drilling incident.

Legal Status?  The lawsuits that will be flowing (pardon the pun) from this disaster will be extreme.  Expect to see possible class action certifications requested for some of those that were suffered damages.  In any lawsuit related to the spill, the report by the Chief Counsel will, undoubtedly, be Exhibit A.

——————————–

Photo credit:  Richard Sullivan, via Wikimedia/Creative Commons license.