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Do you really need that progress payment lien release notarized? It’s such a pain in the rear, isnt’ it? Isn’t a signature enough? After all, you don’t get your contracts notarized–well, not most of them.

This was the discussion around our water cooler the other day, initiated while some of our lawyers were re-writing a standard form subcontract for a client who does work in many states. Notarizing documents certainly seems like something from a bygone era–when there were horses, buggies, and buggy-whips. Maybe notaries will be like those notorious buggy-whip makers a century ago. After all, the federal government has long accepted un-notarized declarations in lieu of notarized affidavits. See 28 USC § 1746.

So why do we still need notaries? Because some people are liars. Or, more accurately, forgers. Check out this nightmare.
Sadly, one good reason to have your lien releases notarized is to provide a last check that the party who supposedly executed it doesn’t say their signature was forged. Of course, a forged lien release is a lot different than a forged performance bond–but they’re both likely to land someone in the pokey.

But the first answer to the question is much less interesting: Many states require notarized lien releases by statute. Of course, those can change too.

Ah, Paris – arguably the most romantic place in the world (although my vote would be for MetLife Stadium). In a recent twist on Parisian public displays of affection, locals and tourists alike have taken to affixing locks to some of the city’s bridges and throwing the keys into the Seine. While city leaders debate whether the “lovelocks” are graffiti or a boon to tourism, one thing is absolutely certain – they represent a lot of dead load (or would they be considered live load?) that was never factored into the bridge design. Let’s hope these bridges don’t collapse under the weight of all that love.

The smell of love is in the air – or is it raw sewage? Take your special someone on this Valentine’s Day tour and they’re one and the same. Just remember the hand sanitizer. And, if anyone actually proposes during the tour, please upload it to YouTube!

Finally, for all you cynics out there, here’s a story that has absolutely nothing to do with love. Leave it to the hometown of Microsoft (and grunge music) to build a bridge that has record-setting brawn and a whole lot of electronic brains. Seventeenth century physics will keep the world’s largest floating bridge from sinking to the bottom of Lake Washington but its remote sensors and construction methods will sport a decidedly more modern feel. The new pontoons will be affixed with over 1,000 water sensors which will send a signal through a programmable logic controller to the 24 hour maintenance facility whenever water leaks are detected. Rebar will be protected from corrosion by low-voltage DC electricity. And, in a nod to security concerns, the bridge will be outfitted with multiple security cameras, intrusion detectors and sharks with laser beams attached to their backs will patrol the depths below – just kidding about that last one – or am I?

To learn more about the ways investors and new market entrants are attempting to develop what is emerging as a new single-family asset class, the regulatory changes that have caused banks to retreat from participation in the mortgage servicing business, and compliance challenges for existing and new servicers, click here to read the client alert entitled Trends in Single-Family Housing written by Craig A. deRidder, Peter G. Freeman and Joseph T. Lynyak, III.

Recently, the California Contractors State License Board (CLSB) issued an Industry Bulletin confirming that contractors may not perform abestos removal or abatement work if the work is not performed within the contractor’s license classification(s). An asbestos abatement certification by itself is not a CSLB contractor’s license classification. To obtain such a certification, the applicant is not required to have four years of experience, the minimum experience requirement for the CSLB to issue a contractor’s license.

Contractors who want to become certified to perform asbestos removal and/or abatement must be tested by CSLB and also register with the Department of Industrial Relations’ Division of Occupational Safety and Health (Cal OSHA). Once registered, the contractor must submit verification of the Cal OSHA registration to the CSLB. The CSLB will then add “ASB” on the license to indicate that asbestos removal/abatement can be performed within the contractor’s license classification(s).

To read the CSLB’s Industry Bulletin, click here, and to read the related legal opinion, click here.

Assembly Bill 2237, which took effect January 1, 2013, confirms that anyone, including a consultant to an owner-builder, who provides or oversees bids for construction, arranges for subcontractor work and schedules, and/or has oversight for a home improvement project is, in fact, acting in the capacity of a contractor and must be state-licensed for any project that is more than $500 in combined labor and material costs. “Consultant” is defined as “a person, other than a public agency or an owner of privately owned real property to be improved, who meets any either of the following criteria as it relates to work performed pursuant to a home improvement contract as defined in [Business & Professions Code section] 7151.2: (A) Provides or oversees a bid for a construction project. (B) Arranges for and sets up work schedules for contractors and subcontractors and maintains oversight of a construction project.” To read A.B. 2237, click here.

The CSLB sponsored the bill as “a valuable consumer protection measure.” CSLB Registrar Steve Sands commented: “All too often, people who don’t have a state contractor license call themselves construction consultants and encourage property owners to take on a home improvement project as the owner-builder. The so-called consultant collects a fee and many times leaves the homeowners with all of the project responsibility and liability.”

The new law addresses to some extent California’s Second District Appellate Court’s decision in The Fifth Day, LLC v. Bolotin, 09 C.D.O.S. 4019 (March 30, 2009), clarifying the definition of “consultant.” The Fifth Day court, in a case of first impression, considered whether an entity that provided construction management services to a private owner was required to be licensed under the California Contractor’s State License Law, Business & Professions Code section 7026. In a 2-to-1 decision, the Fifth Day court concluded that the services contemplated under the agreement in question did not cause the construction management company to fall under section 7026’s definition of “contractor.” To read our Client Alert entitled California Appellate Court Confirms that Certain Construction Managers Need Not Be Licensed Contractors, click here.

For additional information about several other laws affecting consumers, contractors, and the construction industry take that took effect January 1, 2013 click here.

With the passage of Assembly Bill 1794, effective January 1, 2013, accurately and timely reporting new employees is now even more important. The new law authorizes the Employment Development Department (EDD), until January 1, 2019, to provide the specified new employee information to the Joint Enforcement Strike Force on the Underground Economy, the Contractors’ State License Board (CSLB), and the State Compensation Insurance Fund (SCIF).

Efficient information-sharing among state offices is expected to ensure that employers are accurately reporting their employee payroll to their insurance carriers for establishing their workers’ compensation insurance premiums.

This new law specifically enables the EDD, the CSLB, and the SCIF to establish a memorandum of understanding to audit, investigate, and prosecute those who violate tax withholding requirements and commit premium insurance fraud. With the newly shared information, the CSLB is expected to take disciplinary action against contractors who fail to accurately report new employee information within 20 days of the established hire date, as required by California Unemployment Insurance Code section 1088.5(d). To read the CSLB’s Press Release on A.B. 1794, click here, and to read A.B. 1794, click here.

The replacement of the eastern span of the Bay Bridge is a process many here in the San Francisco Bay Area have had a first-hand view of, as the new span is being built next to the old span. According to Caltrans, the new span will be the longest Self-Anchored Suspension span in the world. Here CalTrans explains the fascinating process by which the weight of the new bridge is transferred from the falsework which has supported it during construction to the new suspension cable. The load transfer process is scheduled for completion this month, with the new span slated to open Labor Day 2013.

Wish the election were over already? This little girl does too.

Do parking structure designs account for loads generated by large numbers of dancing people? Maybe they should. [Audio NSFW]

• As if gas prices aren’t enough. San Francisco pushes for a tax based on the miles you drive.

• A new form of procrastination for students. This amazing video shows students working together to make a building dance by opening and closing its windows.

• Taking “green building” to a whole new level – with a live micro-algea bio-facade.

Developers got a significant win in California last week when the California Supreme Court held that an arbitration provision contained in a recorded instrument bound a homeowners association, despite the fact that the homeowners association did not exist when the instrument was recorded and thus had no opportunity to negotiate the provision. The opinion can be found here.

In Pinnacle Museum Tower Association v. Pinnacle Market Development (US), LLC (August 16, 2012) 2012 Cal. LEXIS 7665, a homeowners’ association (“HOA”) sued the developer of a mixed-use residential and commercial common interest community, alleging construction defects. Prior to selling any units, the developer had recorded a declaration of covenants, conditions, and restrictions (“CC&R’s”), which provided that the developer, each individual homeowner, and the HOA, all consented to arbitration under the FAA of any construction-related disputes. Each individual homeowner’s purchase agreement specifically noted the homeowner’s acceptance of the CC&R’s, and the arbitration provision in particular. However, pursuant to California law, the HOA was not actually created until the sale of the first unit.

The HOA sued the developer, alleging construction defects, and the developer moved to compel arbitration. The trial court found that the arbitration agreement was substantively and procedurally unconscionable, and refused to enforce it. The appellate court affirmed, concluding that the arbitration provision in the CC&R’s was not sufficient to waive the HOA’s right to a jury trial, and further that it was unconscionable and unenforceable.

The California Supreme Court reversed, holding the arbitration provision enforceable against the HOA. The court found that the CC&R’s were in the nature of a contract, and that since an HOA is bound by law to other provisions in the CC&R’s, to treat the arbitration provision differently would run afoul of U.S. Supreme Court precedent prohibiting the application by states of more onerous requirements to arbitration clauses than are otherwise generally applicable to contract provisions. And, since the HOA’s membership consisted entirely of the individual condominium owners, each of whom agreed to arbitration of construction disputes by agreeing to the CC&R’s, it was not unreasonable to bind the HOA to arbitration to prevent the individual owners from circumventing the CC&R’s by acting through the HOA. Further, although the HOA argued that the arbitration provision was unconscionable because the HOA had no meaningful opportunity to negotiate the provision because it did not yet exist, the court disagreed. The court found that inclusion of the provision was permissible under the applicable statutes, and that the lack of opportunity to negotiate the provision represented a legislative policy choice.

Established in 1934 by an executive order and then made an independent agency in the Executive Branch by Congress in 1945, the Export-Import Bank is the official export credit agency of the United States whose mission is to assist in financing the export of U.S. goods and services to international markets. In 2011 alone, Ex-Im financed approximately $32 billion in U.S. exports, sustaining 290,000 American jobs. Because of the fees and interest it charges borrowers, Ex-Im is a self-sustaining entity which, since 2005, has returned a profit to the U.S. Treasury.

On May 15, 2012, Congress passed the Export-Import Bank Reauthorization Act of 2012 (H.R. 2072), which extends Ex-Im’s authority for an additional three years and, by 2014, will raise the bank’s credit exposure ceiling from $100 billion to $140 billion. President Obama is expected to sign the Act into law before May 31, 2012, when the bank’s charter is scheduled to expire.

To learn more about this, click here to read the client alert that was written by Jessica R. Berenyi.