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FASA
The FASA Contractors’ Knowledge Depot is your one-stop shop for tools to manage your construction subcontracting business. Members of the American Subcontractors Association receive a discount off the cover price for all titles.
Click on link:  FASA

The Contractors Subcontractors Education Catalog has great resources from the Foundation of ASA, such as live webinars, books, and videos-on-demand, and much more.
   GET YOURS TODAY!
     

Attend ASA CALIFORNIA MEETINGS -They are open to members:  

ASAC Government Relations Committee (GRC)
April 20, 2015 
Details here.

    Contact Jordi Grant
for more information.
For meetings in your area contact your local chapter.
Click here
 for Chapter location and Information.
_________________________


Vantreo Insurance Brokerage

ASAC Health Plans Pay ASAC and Your Local Chapter!
Act now and Vantreo Insurance Brokerage will provide all your adds, terms and cobra administration for free. Contact Dave Hodges for details.
1-800-967-6543
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Convert your STATE FUND Workers Compensation plan from an individual policy to the ASAC group program and
save 6% Call 888-310-2722 for details. Ask for
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RETIREMENT PLAN:
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The retirement plan is custom designed to meet your needs. 401K, Pension, SEP and Defined Benefit Plans are all available.
We offer most major no load funds in our pension and 401k plans. Whether you have an existing retirement plan or are considering establishing a plan, ASAC can help. Please contact our Benefits Administrator David Hodges.
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CSLC 2015

We invite your company to "Get Ready for Success" by participating in the 3rd annual

California Subcontractors Legislative Conference
Tuesday, April 21, 2015
8:30 a.m. – 4:30 p.m.
Sheraton Grand Sacramento Hotel
1230 J Street, Sacramento CA 95814

Your business is welcome to co-host this important event that you and your key employees will want to attend.
Subcontractors and suppliers and industry service providers will be gathering at the Sheraton Grand Sacramento Hotel near the Capitol to discuss pending legislation that affects the construction industry.

There are issues you will want to learn about and lobby:

    • SB 474 Clean-Up to Close Loop-Hole GC’s Use to Require 2010 11/85 Additional Insured Coverage for their own Negligence
    • Change Order Prompt Payment on Public Contracts
    • Controlled Insurance Programs by Owners (OCIPs) and Contractors (CCIPs)

More than 2,000 bills will have been introduced and dozens will deal with payments, liability, remedies, bonds, contract rights and obligations, etc. With three dozen new legislators, the time to make your mark on the issues in 2015 is during this conference when the bills are being amended for committee hearings and voting. Attendees will have the opportunity to visit their own senator and assembly member after learning how to lobby their position on bills affecting the construction industry. Talking points will be provided. This event is the least expensive and most productive way to get your message across. Please join the effort and stand out as a leader in the legislative arena.

Given today’s economic realities, two things are obvious:

    ●We all need to have a say in anything the legislature does regarding construction.
    ●Combining our resources for this event will help make our lobbying successful.

Planning and marketing the event is a joint effort among the hosting organizations/companies. They will determine the day’s program, their logo will appear on the conference materials, and their identity and issues will be presented to legislators and key capitol staff. Should you wish to participate as an event sponsor, please contact our Executive Director, Jordi Grant, using the information provided below.

AMERICAN SUBCONTRACTORS ASSOCIATION CALIFORNIA INC.
TOLL-FREE: 888-310-ASAC (2722) FAX: 530-662-2865
asac@asacalif.com       

To Register and pay, go to www.CaSubLegConf.org
asac@asacalif.com

(Updated March 7, 2015)

Wage Statement Litigation on the Rise

Class action lawsuits, based in part on violations of California Labor Code Section 226, are increasing at an alarming rate. Section 226 mandates that employers provide their employees with, as a detachable part of the employee's paycheck, an itemized statement containing several categories of specific information. These class action lawsuits seek penalties on behalf of all employees who receive non-compliant wage statements.

Section 226 was amended in 2013 to provide for hefty penalties - even where the employee cannot prove any actual damages. Compliant wage statements must set forth accurate and complete information, including but not limited to:

1. Gross wages earned;
2. All deductions;
3. Net wages;
4. Total hours worked by the employee (unless exempt);
5. The inclusive dates of the period for which the employee is being paid;
6. The name of the employee and either the last four digits of the employee's social security number or an alternative employee identification number;
7. The name and address of the legal entity that is the employer; and
8. All applicable hourly rates in effect during the pay period.

Many employers include only the pay period end date and fail to include their correct legal name and their full address. These mistakes can result in significant liability to employers. We urge you to check your wage statements to ensure they are in compliance with Section 226.

Act now!
________________________________________________________________________
For more information, please contact Roger M. Mason, Esq. at (408) 356-3000.
The information provided is general in nature and is not intended to answer every question that may arise under different fact situations and should not be relied on in the place of professional advice in a given case. If you have specific questions, please contact Sweeney, Mason, Wilson & Bosomworth, a long time member of the Bay Area Chapter of ASA.

SWEENEY, MASON, WILSON & BOSOMWORTH is a Professional Law Corporation located at 983 University Avenue, Suite 104C, Los Gatos, California, 95032, (408) 356-3000.
www.smwb.com

This notice is designed to assist our clients and other business owners in spotting issues which may result in costly litigation and court awarded damages if allowed to continue unaddressed.

SWEENEY, MASON, WILSON & BOSOMWORTH's philosophy is that by educating our clients, and other businesses, about their legal obligations, including changes in the law, we best serve our legal goal of minimizing or preventing expensive litigation.


(Updated March 7, 2015)

Defeating the Ten Year Statute of Repose For Latent Construction Defects

It is an all-too-common scenario in California construction: Nine and a half years after completion of a major California construction project, immediately before the 10 year "statute of repose" for suing on "latent" construction defects expires, a lawsuit claiming damages for "recently discovered" latent construction defects is filed. The property owner sues the contractor for the alleged defects. The direct contractor sues all its subcontractors for indemnity and defense. The attorneys spontaneously generate. Experts proliferate. Claimed defects are extrapolated. Four or five years later, after a few dozen attorneys earn a small fortune in fees, the insurance companies make payments. Attorneys collect more fees. The owners take what remains. They repair nothing . . . and buy vacation homes.

Perhaps a cynical view. But there are many in the construction defect world who would reach a similar conclusion. The question is: How can you defeat this seemingly inevitable chain of events? Under a case known as Brisbane Lodging L.P. v. Webcor Builders, Inc. 216 Cal. App. 4th 1249 (2013) there may be hope. California Code of Civil Procedure sections 337.1 and 337.15 grant a 10 year "statute of repose" for bringing claims for "latent" construction defects. These statutes allow a lawsuit for such claimed defects to be filed in court up until ten years after the project has been completed. Latent defects are generally defined as those which are "not apparent by reasonable inspection" (CCP §337.15(b)). It is extremely common for such claims to be filed immediately before this 10 year deadline expires. When the lawsuit is brought, the cash register begins to ring.

In Brisbane v. Webcor the California Court of Appeal determined that sophisticated parties (e.g. represented by counsel, negotiations took place, etc.) may contractually limit the time periods for filing a lawsuit to less than 10 years. In that case, the court held that a clause in the AIA form A201 con-struction contract, Art. 13.7.1.1, which provided that all causes of action relating to the work would accrue from the date of substantial completion of the project, was enforceable. This effectively limited the statute of limitations to four years for breach of contract (CCP 337), rather than ten years under the statute of repose (CCP 337.15). The useful contract language is as follows:

"As to acts or failures to act occurring prior to [substantial completion], any applicable statute of limitations shall commence and run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of [substantial completion]"

The project in the case was the construction of a hotel. The hotel owner discovered previously unknown underground plumbing problems 5 years after the project was completed. The owner filed a lawsuit relying on the fact that because the defect was underground, "not apparent by reasonable inspection" and therefore "latent", it had 10 years to bring suit. The Court of Appeal disagreed, ruling that because the owner and contractor negotiated their contract freely in an arms-length transaction, even utilizing the assistance of counsel to do so and because the parties were sufficiently sophisticated, the above contractual language meant that the 10 year statute of repose for the delayed discovery of latent defects would not apply. Instead, the 4 year statute of limitations for written contracts would apply. The action was therefore time barred because it was brought more than 4 years after completion.

The message from the case is clear. In California, the 10 year statute of repose for the discovery of latent construction defects can be defeated. First, include a clause in the contract like that found in AIA A201 Art. 13.7.1.1. Next, make sure that the parties engage in negotiation of the contractual terms, even to the extent of both sides having their legal counsel review the contract and negotiate changes. Finally, make sure that the quality of the construction is sufficient to keep you out of court for 4 years following completion of the work. After these 4 years the contractor might just be home free.

Article Written by William L. Porter of Porter Law Group, Inc. in Sacramento, CA in 2015. Website: www.porterlaw.com . Mr. Porter can be reached at (916) 381-7868 or at bporter@porterlaw.com

(Updated March 7 2015)

Notice of Non-Responsibility Often Ineffective

The "Notice of Non-Responsibility" is one of the most misunderstood and ineffectively used of all the legal tools available to property owners in California construction law. As a result, in most cases the answer to the above question is "No", the posting and recording of a Notice of Non-Responsibility will not prevent enforcement of a California Mechanics Lien.

The mechanics lien is a tool used by a claimant who has not been paid for performing work or supplying materials to a construction project. It provides the claimant the right to encumber the property where the work was performed and thereafter sell the property in order to obtain payment for the work or materials, even though the claimant had no contract directly with the property owner. When properly used, a Notice of Non-Responsibility will render a mechanics lien unenforceable against the property where the construction work was performed. By derailing the mechanics lien the owner protects his property from a mechanics lien foreclosure sale. Unfortunately, owners often misunderstand when they can and cannot effectively use a Notice of Non-Responsibility. As a result, the Notice of Non-Responsibility is usually ineffective in protecting the owner and his property.

The rules for the use of the Notice of Non-Responsibility are found in California Civil Code section 8444. Deceptively simple, the rules essentially state that an owner "that did not contract for the work of improvement", within 10 days after the owner first "has knowledge of the work of improvement", may fill out the necessary legal form for a Notice of Non-Responsibility and post that form at the worksite and record it with the local County Recorder in order to prevent enforcement of a later mechanics lien on the property.

What commonly occurs however is that early in the process the owner authorizes or even requires its tenant to perform beneficial tenant improvements on the property. This authorization is often set forth in a tenant lease or other written document. The dispositive factor for determining whether the Notice of Non-Responsibility will be enforceable though is that the owner knows that these improvements will be made to the property and intends that they be made, usually long before the work begins. Indeed, the owner has usually negotiated these very terms into the lease contract. The owner then mistakenly believes that once work on the property commences it has 10 days to post and record a Notice of Non-Responsibility and thereby protect itself from a mechanics lien.
The usual error is two-fold. First, the statute states that the Notice is available when the owner "did not contract for the work of improvement". The fact though is that the owner did contract for the work of improvement. It did so through the lease contract. This is true even though the owner's contract was not with the contractor or supplier directly. Secondly, the 10 day period to post and record the Notice begins when the owner first "has knowledge" of the work of improvement. This knowledge was of course gained when the lease was negotiated and signed, providing knowledge typically many days before the work has begun. Thus, the 10 day period can also seldom be met. The Notice of Non-Responsibility will therefore fail both rules because the owner has in fact contracted for the improvement and because he does not act within 10 days of gaining this knowledge.

The next event in the typical scenario occurs when the tenant does not pay its contractor. The contractor then has nothing to pay its subcontractors. Material suppliers also go unpaid. Mechanics liens are then recorded by the unpaid claimants, followed by foreclosure actions within ninety days thereafter. Owners will typically point to the Notice of Non-Responsibility they posted and recorded, claiming its protection. Claimants then in turn point to the lease or other evidence that the owner knew of the pending improvements and contracted in some way that the improvements be performed, often also more than 10 days before they posted the Notice. Judges generally agree with the unpaid mechanics lien claimants and the Notice of Non-Responsibility is deemed ineffective.

The fact that the Court does not enforce the Notice of Non-Responsibility under these circumstances is not an unfair result. Since the owner authorized the work to be performed and it received a substantial benefit in the form of those improvements, it is not unfair that the owner should pay for those benefits. It would be inequitable for the owner to obtain the benefit of the improvements which it authorized but for which it did not pay, while allowing those who provided the benefit to go unpaid. Moreover, without such a system in place the door would be open to owners setting up sham "tenants" who would enter into contracts to have work performed, only to disappear when the work is completed, leaving the contractor without a source of payment. The system in place as described above prevents such duplicity. Owners would do well to arm themselves with proper knowledge of when the Notice of Non-Responsibility will and will not protect them and then responsibly use the Notice of Non-Responsibility.

For the legal eagles among you, the following cases illustrate the view of the courts, consistent with the above: Baker v. Hubbard (1980) 101 Cal.App.3d 226; Ott Hardware v. Yost (1945) 69 Cal. App.2d 593 (lease terms); Los Banos Gravel Co. v. Freeman (1976) 58 Cal.App.3d 785 (common interest); Howard S. Wright Construction Co. v. Superior Court (2003); 106 Cal.App.4th 314 (participating owner).
Article Written by William L. Porter of Porter Law Group, Inc. in Sacramento, CA in 2015. Website: www.porterlaw.com . Mr. Porter can be reached at (916) 381-7868 or at bporter@porterlaw.com


(Updated March 11, 2015)

I
MPORTANT REMINDER: IN ORDER TO BE LISTED ON A BID FOR PUBLIC WORK AS OF MARCH 1, 2015, OR TO PERFORM WORK ON A PROJECT AWARDED ON OR AFTER APRIL 1, 2015, CONTRACTORS AND SUBCONTRACTORS MUST REGISTER WITH THE
DEPARTMENT OF INDUSTRIAL RELATIONS


Senate Bill 854, signed into law on June 20, 2014, requires all contractors and subcontractors who bid on or perform "public work" to register with the Department of Industrial Relations. There is a $300 nonrefundable application fee to register. You can register online at: https://efiling.dir.ca.gov/PWCR/ActionServlet?action=display PWCRegistrationForm.

Beginning March 1, 2015, no contractor or subcontractor may submit a bid on public work unless it has registered. Labor Code § 1725.5(e). Effective April 1, 2015, a public agency cannot enter into a construction contract with a contractor that is not registered, and may require that a contractor replace a subcontractor that has not registered. Once this requirement takes effect, it is important to ensure that the subcontractors your company lists in its bid proposals are registered, as listing of an unregistered subcontractor will likely lead to bid protests and to having to replace subcontractors at additional cost. The Department maintains a searchable database of registered companies at: https ://efiling. dir.ca.gov/PWCR/Search.

Untimely registration is costly. The new law allows for late registration after March 1, 2015, if the contractor or subcontractor pays a $2,000 nonrefundable fine and the failure to register was inadvertent.

Annual registration renewal and payment. Contractors and subcontractors on an annual basis will need to renew their registration and to pay a renewal fee in an amount to be determined by the Department.

An inadvertent error by a general contractor in listing a subcontractor who is not registered shall not be grounds for filing a bid protest against the general contractor or grounds for considering the general contractor's bid to be nonresponsive, provided that any of the following apply: (1) The subcontractor is registered prior to the bid opening;
(2) Within 24 hours after the bid opening, the subcontractor is registered and has paid the penalty registration fee; or (3) the subcontractor is replaced by another registered subcontractor pursuant to Section 4107 of the Public Contract Code.

The definition of "public work" under SB 854 is extremely broad and is the same as the definition for prevailing wage laws. For example, if a private developer receives any public money in connection with a project, or is excused from paying fees or from other obligations, then the project likely will be considered to be a public work and subject to registration requirement of SB 854. See Labor Code §§1720 & 1725.5. Low income housing developments, animal shelters, and zoological parks and museums may appear to be private projects, but because of a contribution of public funds or benefits in many instances may be public work subject to registration and prevailing wage requirements.

It therefore is a good idea to register even if you do not usually perform work on public projects. You may find yourself performing public work even if you did not expect to do so.

METHOD OF CERTIFIED PAYROLL SUBMISSION

SB 854 also will change the way that certified payrolls are submitted. Certified payrolls will be submitted directly to the California Labor Commissioner, except where: (1) the owner has enforced an approved labor compliance program continuously since December 31, 2011; or (2) there is a Project Labor Agreement (PLA) that includes a mechanism for resolving disputes about the payment of wages. The Department of Industrial Relations has indicated that certified payroll reports will not be submitted directly to the California Labor Commissioner on projects awarded by Caltrans, the City of Los Angeles, County of Sacramento, and the Los Angeles Unified School District provided that these agencies continue to maintain Labor Compliance Programs approved by the Department. The requirement to submit certified payroll reports (CPRs) to the Labor Commissioner will be phased in as follows:
Contractors will continue to submit CPRs to the Labor Commissioner if they already do so;
Projects awarded on or after April 1, 2015, will be subject to the new requirement; and
On or after January 1, 2016, all projects, whether new or ongoing, will be subject to the new requirement.
The Department has published an online fact sheet concerning the SB 854:
www.dir.ca.gov/dlse/PublicWorks/SB854FactSheet 6.30.1 4.pdf.

For more information, contact Janette Leonidou, Bob Rosin or Patricia Walsh at (650) 691-2888.
This alert is intended to provide information about changes in legislation and should not be relied upon as legal advice. This document may be considered to be advertising under the California Rules of Professional Conduct. Copyright 2014 Leonidou & Rosin Professional Corporation, (650) 691-2888. www.lrconstructionlaw.com


(Updated March 11, 2015)

New Construction Laws for 2015

Over 4200 bills were introduced by the California Legislature in the 2013-2014 session. Below are summaries of some of the more important bills affecting contractors in their roles as contractors, effective January 1, 2015 unless otherwise noted.

Each of the summaries are brief, focusing on the gist of the bill, while most of the bills have additional provisions that are not mentioned. Links are provided to the full text of each of the bills for those wanting to know in detail the provisions of the new law. Lastly, reference is made to failed bills that are likely to be revisited next session.

Many other bills will impact contractors in other roles, such as being businesses, taxpayers, and employers. For changes in the laws affecting employers in 2015, please visit the Employment Law Notes page of the McLennon Law Corp. website.
_________________________________________________________________

This article was provided by Daniel F. McLennon of McLennon Law Corp. (MLC) Dan is the Chairman of the ASAC Government Relations Committee and a member of both the ASAC and Bay Area Chapter ASA Boards of Directors. Special thanks to ASAC Legislative Advocate Skip Daum of Capitol Communications Group for his assistance in sifting through and summarizing bills.

Click Here for a List of the New Construction Laws for 2015

(Updated March 7, 2015)


CLICK HERE TO REGISTER!

Registration
Early-Bird Deadline to Register: March 2, 2015
Register Securely Online
Printable Registration Form
Hotel Reservations

Make Your Reservations Online.  Or, call 1 (877) 901-6632 and identify yourself as a member of the American Subcontractors Association 2015
$169 single/double.  Cutoff date for room block is on or before 5:00 p.m. ET on March 2, 2015

Education
Keynote Speaker Monroe Porter:
Opening General Session: Confessions of an Industry Consultant - Industry Changes and What You Have to Do to Prosper
Workshop: How to Find, Train and Motivate Employees
Workshop: How to Sell and Negotiate Jobs

Gregg Schoppman, Principal, FMI:
Workshop: Building Your Backlog - Regardless of Market Conditions
Workshop: Leveraging Your Competitive Advantage by Improving Productivity
Workshop: Elements of Cash Flow Management and Getting Paid Turning Your Project Managers into Business Managers
Workshop: Key Principles in Building an Enduring Organization

ASA Chief Advocacy Officer E. Colette Nelson:
Workshop: Changing the Business Environment for Subcontractors: The Missing Element
Scott Wolfe Jr., CEO, zlien:
General Session: Is Your Computer Smarter than You?

(Updated March 7, 2015)

ASA OF CALIFORNIA MEETINGS Open to all ASA Members

A
SAC Government Relations Committee (GRC)

ASAC Board of Directors: Your opportunity to provide input to ASAC Legislative movements.

April 20, 2015 - Sacramento CA
2:00 - 5:00 followed by Dinner at Chops!
Contact Executive Director Jordi Grant to get involved!
1-888-310-2722
asac@asacalif.com


(Updated February 12, 2015)

ASAC Appreciates YOUR Help!

Once again as we work in a very active legislative session, ASAC leaders anticipate your doing your part, helping our Subcontractor community when we ask for your letters and phone calls.

Remember -- We only ask when we truly believe your efforts will be influential in determining the direction a bill or movement heads.

Those efforts do make a difference! There's strength in numbers!!!!!

Brett Eckles
ASAC President
Eckles Construction Inc.
714-843-5831
Daniel McLennon, Esq.
ASAC Government Relations Chair
McLennon Law Corporation
415-394-6688
beckles@ecklesconstruction.com dmclennon@mclennonlaw.com
 


ASAC - Leading Construction Subcontractors to Equitable Legislation in California


Notes on the ASAC Website Layout: The American Subcontractors Association of California (ASAC) website is divided into the sections covering ASAC strengths as an association. We have our Legislative Advocacy program tracking and developing the new construction laws in Sacramento. The ASAC, also, is very fortunate to have a Judicial Advocacy program run by the finest construction attorneys up and down California to follow and try the latest construction cases in California's courts. And, lastly, ASAC has an expanding Benefits program from insurance offerings, to the website which has been developed to help keep subcontractors and suppliers informed of the latest construction issues affecting their daily business.



American Subcontractors Association of California
American Subcontractors Association California Inc.
 P.O. Box 292867, Sacramento, CA. 95829-2867
Phone: 888-310-2722   Fax: 530-662-2865  Email
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