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In their article Solar Power Craze on Wall St. Propels Start-Up, authors Diane Cardwell and Julie Creswelljan remark on the “solar power craze that is sweeping Wall Street,” acknowledging the companies “riding a wave of exuberance over the industry.” “The broad stock market is coming off its best year since 1997 — the Standard & Poor’s 500-stock index rose nearly 30 percent in 2013 — and the shares of many young companies have leaped from one high to another.” They note that “[d]epending on whom you talk to, the rise of SolarCity and similar companies is either a sure sign that solar power is finally having its day or that yet another mania has gripped the markets.” Their article also touches on some of the growing pains felt by the industry. Others in the industry are weighing in as well on investing in solar in 2014, see additional sources below.

Additional Sources: The New York Times, Solar Power Craze on Wall St. Propels Start-Up (Jan. 3, 2014); Seeking Alphae, The Pros Pick 4 Solar Stocks For Energy Investments (Jan 2, 2014); TopStockAnalysts, The Best Solar Investment Of 2014 (Jan. 6, 2014); Forbes, The Riskiness Of Renewable Energy Investments (Jan. 8, 2014); pv magazine, Deutsche Bank Expects Solar Gold in 2014 (Jan. 8, 2014); The Globe and Mail, Solar Energy Stocks Riding A Hot Streak (Jan. 8, 2014); DailyFinance, Should You Stay Away From Solar Stocks in 2014 (Jan. 12, 2014); The Huffington Post, California More Than Doubles Solar Energy In 2013 (Jan. 13, 2014)

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UPDATE: The Sacramento Bee, E-cigarettes face restrictions as cities update smoking ordinances (Mar. 10, 2014)

Recently, the California Office of the Attorney General (“AG”) issued its Opinion No. 12-901 (Dec. 20, 2013), answering the question: “Under what circumstances does an owner-operated business with no employees nevertheless constitute a ‘place of employment’ under Labor Code section 6404.5, which prohibits smoking in a workplace?” Section 6404.5 provides, in relevant part: “No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.”

Smoking

The AG confirmed that “[a]n owner-operated business with no employees nevertheless constitutes a ‘place of employment’ under [S]ection 6404.5 when employment of any kind is carried on at the business location — that is, even when such employment is carried on by persons who are employed by someone other than the business owner.” As a result, “if employment is being carried on in an owner-operated business, then the owner-operator and all other persons are forbidden from smoking in any enclosed space therein, whether or not the owner-operator is the direct employer of those carrying on the employment.”

In its analysis, it noted that the term “employee” means “every person who is required or directed by any employer to engage in any employment or to go to work or be at any time in any place of employment” (Cal. Labor § 6304.1(a)) and the term “employer” uses the same broad definition used in the workers’ compensation context, i.e., “[e]very person including any public service corporation, which has any natural person in service” (Cal. Labor Code § 6304). Like these terms, the phrase “place of employment” is broadly defined and means “any place, and the premises appurtenant thereto, where employment is carried on … ” Cal. Labor § 6303(a).

Applying these definitions, the AG first found that “where, for example, a business owner-operator performs all of his or her own services–without utilizing the services or assistance of any compensated employees on any occasion–that owner-operator would fall outside the definition of ’employer’ because he or she does not have ‘any natural person in service,’ and that business location would similarly fall outside the definition of “place of employment” because no “employment is carried on” there. Under these narrow circumstances, then, the Section 6404.5 smoking prohibition would not apply.

It went on, however, to consider whether individuals directly employed by someone else may be carrying out their employment on the owner-operator’s premises. The AG noted that the Occupational Safety and Health Appeals Board (“OSHA”) previously ruled that both primary and secondary employers must provide a safe workplace to the employees, relying on California Labor Code § 6400 which requires that “[e]very employer shall furnish employment and a place of employment that is safe and healthful for the employees therein,” citing In the Matter of the Appeal of: Labor Ready, Inc., Employer, 2001 WL 575152 (Cal. O.S.H.A., May 11, 2001); In the Matter of the Appeal of: Strategic Outsourcing, Inc., Employer, 2011 WL 5016849, at 3 (Cal. O.S.H.A., Sept. 16, 2011); see also In The Matter of the Appeal of: Kelly Services, Employer, 2011 WL 2881536 (Cal. O.S.H.A., June 15, 2011), at 2. It was persuaded that, for purposes of Section 6404.5, “the owner-operator of a particular business need not be the primary employer of persons working on the business premises for those premises to be characterized as a ‘place of employment.’ It is enough that the business location is a ‘place . . . where employment is carried on,’ even if the workers are directly employed by someone else and only secondarily employed by the owner-operator.”

Other Sources: O.S.H.A.
Photo: Fried Dough, Taken December 3, 2011 – Creative Commons

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The U.S. Supreme Court recently showed strong support for enforcing forum-selection clauses in Atlantic Marine Construction Co., Inc. v. United States District Court for the Western District of Texas, 571 U.S. ___ (2013). The Court’s decision discusses forum-selection clauses in contracts generally, but lays the foundation and support for enforcing a forum-selection clause in a construction contract. The Court concluded that “a proper application of [28 U.S.C.] §1404(a) requires that a forum-selection clause be ‘given controlling weight in all but the most exceptional cases.'” Absent extraordinary circumstances, a forum-selection clause is to be enforced by the courts under the Supreme Court’s modified balancing-of-interest standard. Accordingly, a forum selection clause is not a boilerplate provision to be ignored or disregarded.

The Underlying Action

Atlantic Marine Construction Co., Inc. involves a subcontract dispute between Atlantic Marine Construction, Co., Inc., a Virginia corporation (“Atlantic Marine”), and J-Crew Management, Inc., a Texas corporation (“J-Crew”). The subcontract included a forum-selection clause confirming that all disputes between the parties would be litigated in the Circuit Court for the City of Norfolk, Virginia, or the U.S. District Court for the Eastern District of Virginia, Norfolk Division. When a dispute arose under the subcontract, however, J-Crew filed suit in the Western District of Texas. Atlantic Marine moved to dismiss the case under 28 U.S.C. §1406(a) for “wrong” venue and Federal Rule of Civil Procedure 12(b)(3) for “improper” venue. In the alternative, Atlantic Marine moved to transfer the case under Section 1404(a), which allows a district court to transfer a civil action to any other district or division for the convenience of the parties and witnesses or to any other district or division where all the parties have consented.

The District Court denied both motions. The court held that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum; that Atlantic Marine bore the burden of establishing that a transfer would be appropriate; and that the court would consider a list of public and private interest factors, of which the forum-selection clause was only one factor. The District Court held that Atlantic Marine failed to carry its burden. The Court of Appeal agreed with the District Court’s decision that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum. The Court of Appeal, however, held that Rule 12(b)(3) would be the correct mechanism to enforce a forum-selection clause that points to a nonfederal forum. The Court of Appeal denied Atlantic Marine’s petition, holding that the District Court did not abuse its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by §1404(a).

The U.S. Supreme Court’s Ruling

The U.S. Supreme Court agreed with the Court of Appeal that Section 1404(a) is an appropriate provision to enforce a forum-selection clause referencing a federal forum. The Court, however, rejected the Court of Appeal’s findings that a forum-selection clause pointing to a state or foreign forum can be enforced through Rule 12(b)(3). The Court instead held that these provisions should be enforced through the doctrine of forum non conveniens, the doctrine codified by Section 1404(a) that permits transfer to a more convenient forum. Because both Section 1404(a) and the doctrine of forum non conveniens use the same balancing-of-interests standard, the Court held that courts should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum.

Although the Court held that Section 1404(a) is the relevant statute, the Court rejected the Court of Appeal’s analysis of Section 1404(a) motions in cases involving a forum-selection clause. The Court held that a valid forum-selection clause requires courts to adjust their usual Section 1404(a) analysis in three ways. First, when a valid forum-selection clause exists, the plaintiff’s choice of forum has no weight. As the party defying the forum-selection clause, the plaintiff has the burden of establishing that transfer to the forum that the parties bargained for in the contract is unwarranted.

Second, a court evaluating a Section 1404(a) motion to transfer based on a forum-selection clause should not consider the parties’ private interests. When the parties agreed to the forum-selection clause, they waived the right to challenge the preselected forum as inconvenient or less convenient for themselves, their witnesses, etc. Thus, a court may only consider public interest factors. Public interest factors, however, will rarely defeat a motion to transfer unless extraordinary circumstances exist.

Third, a Section 1404(a) transfer will not carry with it the original venue’s choice-of-law rules. There is a Section 1404(a) exception to the general rule that requires a federal court to follow the choice-of-law rules of the state in which it sits. The Section 1404(a) exception allows the transfer court to apply the state law of the original court. The Court, however, held that this exception does not apply to cases where the motion is based on the enforcement of a forum-selection clause and the plaintiff has inappropriately filed a suit contrary to the forum contractually selected by the parties.

Finding that the District Court’s application of the Section 1404(a) did not comport with these principles, the Court reversed and remanded the case. The Court’s ruling, however, left open the possibility that forum-selection clauses could be enforced under Federal Rule of Civil Procedure Rule 12(b)(6), again, signaling the Court’s strong support for forum-selection clauses.

Whether the forum-selection clause points to a federal or non-federal venue, the Court’s ruling offers two mechanisms to enforce forum-selection clauses.

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UPDATE: CSLB, CSLB to Get Tough on RMO Abuses (Summer 2014)

Starting on January 1, 2014, amended Section 7068.1 of California’s Contractors State License Law, Bus. & Prof. Code §§ 7200 et seq., requires licensees’ qualifiers to exercise direct supervision and control over the licensees’ operations to ensure compliance with California’s Contractors State License Law. The amended law contemplates active involvement by the qualifier, and makes a violation of Section 7068.1 grounds for disciplinary action and a misdemeanor punishable by imprisonment in a county jail and/or a fine.

Section 7068 requires every license to have a qualifier, which may be a Sole Owner, Qualified Partner, Responsible Managing Officer (RMO), Responsible Managing Employee (RME), Responsible Managing Manager or Responsible Managing Member. The qualifier is the person who is listed in the Contractor State License Boards’ (CSLB) personnel of record, has demonstrated his/her knowledge and experience though the CSLB’s licensing process, and holds one or more license classifications.

The CSLB’s regulations, Cal. Admin. Code tit. 16, § 823, further define bona fide employee and direct supervision and control. “Bona fide employee” means “an employee that is permanently employed by the applicant and is actively involved in the operation of the applicant’s contracting business for at least 32 hours or 80% of the total hours per week such business is in operation, whichever is less.” Cal. Admin. Code tit. 16, § 823(a). “Direct supervision and control” “includes any one or any combination of the following activities: supervising construction, managing construction activities by making technical and administrative decisions, checking jobs for proper workmanship, or direct supervision on construction job sites.” Cal. Admin. Code tit. 16, § 823(b).

Contractor license applicants will also now be required to submit detailed information regarding the qualifier’s duties and responsibilities for supervision of the applicant’s construction operations.

Additional Resources: California Senate Bill 262; California Legislative History Online; CSLB Industry Bulletin – 12/31/2013; CSLB Winter 2012 Newsletter

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For most in the construction industry (and, for that matter, virtually all industries), the number one resolution is to be more profitable in the new year. We polled our Construction Counseling & Dispute Resolution and Real Estate teams for tips to help you keep this resolution. This is what they shared:

1. Take stock of what you did well in 2013 and why, and incorporate those principles and lessons learned into your 2014 business plan. (In turn, identify what you did not do well and why, and incorporate lessons learned into your 2014 business plan.) This should include, for example:2014 New year.jpg
A. Bidding;
B. Contracting;
C. Collections;
D. Disputes and dispute resolutions;
E. Employees;
F. Training;
G. Safety.

2. Identify who you worked well with in 2013 and determine whether there are or may be opportunities to work with them on other projects in 2014.

3. Consider industry growth trends and determine how your business model can meets the needs of the key players (e.g., renewable energy).

4. Look beyond your core business model to identify opportunities that you are not taking advantage of as part of your current business model (e.g., public projects, joint venture opportunities, additional scopes of work that are complimentary to your core business, etc.).

5. Consider federal and state financial incentives that may be available ( e.g., renewable energy).

6. Review your company’s own talent pool and pursue opportunities leveraging their strengths.

7. Recognize what your top competitors did well with in 2013 and determine whether there are or may be opportunities for you to do the same in 2014.

8. Don’t ignore that there may have been regulatory or legislative changes that are effective in 2014 that will require you to incorporate policies and procedures to address these changes in your 2014 business plan (e.g., recently, in California, the mechanic’s lien law was amended to require actual notice of the lien to the owner and to contemplate forfeiture of the contractor’s lien rights if notice is not given).

9. Consider emerging risk scenarios and incorporate policies and procedures to manage these risks in your 2014 business plan (e.g., recent trend to shift non-traditional risk to contractors).

Photo: Jiya Aggarwal, Taken Dec. 7, 2013 – Creative Commons

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Thirteen years after the complaint was filed, on Monday, December 16, 2013, California Superior Court Judge James P. Kleinberg, in People of the State of California v. Atlantic Richfield Co. et al., Santa Clara Superior Court Case No. 1-00-cv-788657, issued a proposed statement of decision (SOD) after a 23-day bench trial premised on an “alleged public nuisance created by lead paint manufactured or sold by five Defendants in ten jurisdictions in California.” SOD p. 1. The sole cause of action remaining in the fourth amended complaint (Complaint) was for a public nuisance stemming from sales of lead paint and pigments that were alleged to have contributed to the contamination of private homes and apartment buildings and risked residents’ health. The remedy sought was abatement of the public nuisance within the prosecuting entities’ jurisdictions. In the SOD, Judge Kleinberg found for the People and against ConAgra Grocery Products LLC (ConAgra), NL Industries Inc. (NL) and Sherwin-Williams Co. (SW) and dismissed the other two defendants.

Ultimately, the SOD ordered “institution of the abatement plan and establishment of the Fund,” as contemplated by the SOD. SOD p. 110. The abatement contemplated is “based solely on the issue of lead paint as produced, promoted, sold, and used for interior use.” SOD p. 10. The 4-year program is to encompass outreach efforts, inspections and, if necessary, abatement of lead paint hazards in about 2.84 million pre-1978 homes determined to pose the greatest likelihood of lead poisoning risk to children; $605 million, or 55% of the $1.1 billion Fund, will be set aside to pay for lead removal in Los Angeles County. SOD p. 108.

The Public Nuisance-Related Allegations

The operative Complaint alleges a single cause of action for “Public Nuisance On Behalf of the People of the State of California.” In support of this cause of action, the Complaint contends that “Defendants are liable in public nuisance in that they created and/or contributed to the creation of and/or assisted in the creation and/or were a substantial contributing factor in the creation of the public nuisance … , including, but not limited to: (a) “Engaging in a massive campaign to promote the use of Lead on the interiors and exteriors of private residences and pub lie and private buildings and for use on furniture and toys;” (b) “Failing to warn the public about the nature of Lead and its attendant health hazards;” (c) “Systematically selling, promoting, and distributing Lead throughout California for exterior and interior use, including use on furniture and toys, despite medical reports indicating that children were dying and suffering from serious injuries from Lead;” (d) “Engaging in a campaign to discredit the medical and scientific literature linking Lead poisoning to Lead;” (e) “Engaging in a concerted campaign to stop regulation of, and restrictions on, the use of Lead;” and (f) “Developing and establishing programs to increase the market for Lead.”

The Complaint further contends that “[a]s a direct and proximate result of Defendants’ conduct, Lead is present in, on and around large numbers of private and public buildings and property throughout the State of California, including residential homes.” It further contends that this Lead “inevitably has deteriorated and/or is deteriorating and/or will deteriorate thereby contaminating these homes, buildings, and property” and, “[a]s a direct and proximate result of Defendants’ conduct, large numbers of people throughout the State of California, and particularly children, have been exposed and/or are being exposed and/or will be exposed to Lead in, on and around the contaminated homes, buildings, and other property throughout the State of California, thereby affecting the health, safety, and welfare of each of those children.”

California’s Public Nuisance Law

California law defines “nuisance” to include “[a]nything which is injurious to health, including, but not limited to, … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” Cal. Civ. Code § 3479. In turn, it defines “public nuisance” to mean a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Cal. Civ. Code § 3480. The remedies against a public nuisance include abatement. Cal. Civ. Code § 3491. “A civil action may be brought in the name of the people of the State of California to abate a public nuisance … by the district attorney or county counsel of any county in which the nuisance exists, or by the city attorney of any town or city in which the nuisance exists.” Cal. Code Civ. Proc. § 731; Cal. Gov. Code § 26528.

According to the SOD, “the following language of the Appeals Decision is controlling:

“Here, the representative cause of action is a public nuisance action brought on behalf of the People seeking abatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or the cost of remediating their property. Liability is not based merely on production of a product or failure to warn. Instead, liability is premised on defendants’ promotion of lead paint for interior use with knowledge of the hazard that such use would create. This conduct is distinct from and far more egregious than simply producing a defective product or failing to warn of a defective product; indeed, it is quite similar to instructing the purchaser to use the product in a hazardous manner, which [City of Modesto Redevelopment Agency v. Superior Court , 119 Cal.App.4th 28 (2004)] found could create nuisance liability.’ (emphasis in original) [County of Santa Clara v. Atlantic Richfield Co., 136 Cal. App. 4th 282, 309 (2006)].
***
Because this type of nuisance action does not seek damages but rather abatement, a plaintiff may obtain relief before the hazard causes any physical injury or physical damage to property. A public nuisance cause of action is not premised on a defect in a product or a failure to warn but on affirmative conduct that assisted in the creation of a hazardous condition. Here, the alleged basis for defendants’ liability for the public nuisance created by lead paint is their affirmative promotion of lead paint for interior use, not their mere manufacture and distribution of lead paint or their failure to warn of its hazards. Id. at 309-310.

***

‘[L]iability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’ (emphasis supplied by Judge Kleinberg) Id. at 306, quoting Modesto at 38[.]”

SOD at 7. “[A]lthough California’s general nuisance statute expressly permits the recovery of damages in a public nuisance action brought by a specially injured party, it does not grant a damage remedy in actions brought on behalf of the People to abate a public nuisance.” People ex rel. Van de Kamp v. American Art Enterprises, Inc., 33 Cal.3d 328, 333 n.11 (1983).

Prohibition On Use of Lead Based Paint

In 1978, the U.S. Consumer Product Safety Commission prohibited the use of lead-based paint in homes. 16 C.F.R. § 1303.4. According to the People: “ConAgra manufactured lead pigments for use in house paints from 1894 until 1958. ConAgra was a member of the [Lead Industries Association (LIA)] from 1928 through 1958 and a Class A member of the [National Paint Varnish and Lacquer Association (NPVLA)] from 1933 through 1962.” SOD p. 21. “NL manufactured lead pigments for use in house paints from 1891 until 1978. NL was a member of the LIA from 1928 until 1978 and a member of the NPVLA from 1933 through 1977.” SOD p. 22. “SW manufactured lead pigments for use in house paints from 1910 to 1947. It manufactured paints with lead pigments from 1880 through the 1970s. SW was a member of the LIA from 1928 through May 1947 and was a Class A member of the NPVLA from 1933 through 1981.” Id.

The Proposed Statement of Decision

Judge Kleinberg was “convinced that the [defendants’] knowledge need not be actual, although proof of actual knowledge has been put in evidence, but that constructive knowledge will suffice.” Id. at 9. He found that the defendants’ constructive knowledge
“took a variety of forms,” citing to numerous sources, including NL Industries internal publications, medical journal articles going back to 1917, information from trade associations going back to the 1930s and other litigation. Id. at 13. He concluded that:

“Despite this actual and constructive knowledge, each Defendant promoted lead pigment and/or lead paint for home use. Defendants’ assertion that they were not aware of the effects of low-level lead exposure until long after they stopped producing and promoting lead paint is of no moment. Each Defendant certainly knew or should reasonably have known that exposure to lead at high levels, including exposure to lead paint, was fatal or at least detrimental to children’s health. That knowledge alone should have caused each Defendant to cease its promotion and sale of lead pigment and/or lead paint for home use. Instead, after becoming aware of the hazards associated with lead paint, they continued to sell it.”

Id. at 10 (internal citations omitted). He further found that “[a]t the same time they were promoting lead paint for home use, each Defendant knew that high level exposure to lead–and, in particular, lead paint–was fatal. Each Defendant also knew that lower level lead exposure harmed children.” Id. at 24. He found “ample authority to hold the Defendants liable.” Id. at 95.

Judge Kleinberg recognized that “[s]eeking the abatement of lead by inspections and rehabilitation of tens of thousands of homes – at a minimum — is a daunting decision.” Id. at 94. However, he was “convinced that although great strides in reducing lead exposure have been made, and the incidence of exposure with correlative blood lead levels has declined to a low level, thousands of children in the jurisdictions are still presently and potentially victimized by this chemical.” Id. He then confirmed that the proposed abatement plan, as amended by the court, “is an appropriate remedy justified by the facts and the law.”

Judge Kleinberg was not persuaded “that since the various lead control programs have been successes no further efforts are appropriate.” Id. at 96. He reasoned that “the existence of other sources of lead exposure has no bearing on whether lead paint constitutes a public nuisance. It does not change the fact that lead paint is the primary source of lead poisoning for children in the Jurisdictions who live in pre-1978 housing.” Id.

The companies likely will file objections to the SOD and, if the objections are not accepted, the defendants may ask for a new trial or mistrial. If that is denied, they may appeal. If the decision stands, the companies will be jointly responsible for paying $1.1 billion into a specifically designated, dedicated, and restricted abatement fund that will be used to abate lead paint contamination in potentially millions of homes in 10 California counties and cities.

Other Sources: U.S. Department of Housing and Urban Development; California Department of Public Health; Los Angeles Times; People of the State of California v. Atlantic Richfield Co. et al. Docket; Environmental Protection Agency

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Six months from now, on June 27, 2014, the 2014 Solar Decathlon Europe will kick-off. The Decathlon will be held in Versailles, France and run from June 27 through July 14. The participating teams are:

* Lucerne University of Applied Science and Arts – School of Engineering and Architecture * Universidad de Castilla – La Mancha and Universidad de Alcala de Henares University
* Chiba University
* ENSA Nantes, ESB, Audencia Group, Audencia Nantes, Ecole des Mines Nantes, ISSBA, IUT Nantes, Architectes, Ingenieurs Associes, Atlansun, Institut des Materiaux Jean Rouxel, Medieco, Novabuild, SAMOA, and SCE * Technical Institute of Denmark * Academy of Architecture and IIT Bombay * Universidad Tecnica Federico Santa Maria – Valparaiso and Universite de La Rochelle – Espace Bois de I’IUT * Universite d’Angers and Appalachian State University * University of the Arts Berlin and Technical University of Berlin * Technical University of Civil Engineering Bucharest, University Politehnica of Bucharest, and University of Architecture and Urbanism “Ion Mincu”
* Rhode Island School of Design, Brown University, and University o Applied Sciences – Erfurt * Delft University of Technology * University of Applied Science Frankfurt am Main * Costa Rica Institute of Technology – Cartago
* Universite Paris-Est, ENSA Paris Malaquais, ENSA Marne la Vallee, ESTP Paris, Ecole des Ponts Paris Tech, ESIEE Paris, ENSG, and IFSTTAR * Universita Degli Studi di Roma TRE * King Mongkut’s University of Technology Thonburi * Universitat Politecnica de Caralunya – Barcelona * National Chiao Tung University * Universidad Nacional Autonoma de Mexico and the Center of Research in Industrial Design and the School of Engineering and the School of Arts
Additional Resources: U.S. Department of Energy Solar Decathlon; Solar Decathlon Europe

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UPDATE: CSLB Message From the Board Chair: “… I am troubled by the increasing number of complaints CSLB is receiving about predatory C-20 Warm-Air Heating, Ventilating and Air-Conditioning (HVAC) contractors who are targeting vulnerable consumers after being called out for simple repairs or routine maintenance….” (Summer 2014)

In its 2013 California Licensed Contractor newsletter, the California Contractors State License Board (CSLB) announced that it and the Santa Clara County District Attorney’s office “will conduct a 2014 pilot program to identify HVAC contractors who are out of compliance with permitting and worker’s compliance insurance regulations.” It reported that the California Energy Commision will assist with the pilot program “by providing CalCERTS inspectors who will report non-compliance issues.” Contractors will be held accountable for code compliance on their own dime. This effort is in response to the CSLB finding that “the majority” of HVAC installations being performed are without the required permit; “an estimated 400,000 units were sold in California in 2012 and only 10 percent of those received building department permits.”

The CSLB further commented that it “will not accept illegal or unethical business practices” by HVAC contractors, referring to service and repair companies’ advertising low prices but up-selling or making unnecessary repairs. Its enforcement record includes convicting scammers on 71 felony counts, freezing scammers’ assets, and pursuing restitution for victims.

Additional Resource: Contractors State License Board

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UPDATE: CSLB industry Bulletin No. 14-02, Compliance Dates Delayed For Some Energy-Related Regulations in CA Building Standards Codes (Feb. 10, 2014) — New Effective Date Jul. 1, 2014
UPDATE: California Energy Commission, Blueprint (Jan. 23, 2014) – The California Energy Commission has established an “early adopter” program for compliance with the new energy efficiency standards.

On December 11, the California Energy Commission revised the effective date for the 2013 California Building Energy Efficiency Standards for residential and non-residential buildings from January 1, 2014 to July 1, 2013. The Standards are updated on an approximately three-year cycle. The Standards are located at Title 24, Part 1, Chapter 10 and Part 6 of the California Code of Regulations.

Additional Resource: California Energy Commission

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We previously reported that, in August, Maryland announced plans to utilize a public-private partnership (“P3”) to build and operate its $2.2 billion light rail project known as the Purple Line, which will run between Montgomery and Prince George’s Counties. This past Tuesday marked the deadline for companies competing to be the project’s private partner to respond to a Request for Qualifications to design, build, finance, operate, and maintain the Purple Line project.

According to the Maryland Department of Transportation (“MDOT”), six groups comprised of local, national, and worldwide private companies made submissions. Those groups are: (1) M-PG Connect LLC (Plenary Group USA Ltd. and Bechtel Development Company Inc.); (2) Maryland Purple Line Partners (VINCI Concessions, Walsh Investors, InfraRed Capital Partners, ALSTOM Transport, and Keolis S.A.); (3) Maryland Transit Connectors (John Laing Investments Limited, Kiewit Development Company, and Edgemoor Infrastructure & Real Estate LLC); (4) Purple Line Development Partners (CSCEC and United Labor Life Insurance Company, Inc.); (5) Purple Line Transit Partners (Meridiam Infrastructure Purple Line, LLC, Fluor Enterprises, Inc., and Star America Fund GP LLC); and (6) Purple Plus Alliance LLC Proposer (Macquarie Capital Group and Skanska Infrastructure Development Inc.).

In January, MDOT plans to select no more than four of these groups to submit a detailed proposal for the Purple Line project by next fall. MDOT will then choose the winning proposal by early 2015. The private partner is expected to contribute between $400-900 million, and additional funding for the project will come from the federal government. If that federal funding is obtained, MDOT predicts that construction of the Purple Line will begin in the spring of 2015 with services planned to begin in 2020.