By Kevin Bridston
Colorado’s trust fund statutes (CRS § 38-22-127 and CRS § 38-26-109) require that all funds paid to any contractor or subcontractor “shall be held in trust for the payment of the subcontractors, laborers, or material suppliers” who have worked on a project. The trust fund also provides that such funds may be comingled in an account with other funds, so long as separate records of account for the project are maintained. Violation of the trust fund statute may be prosecuted as criminal theft under CRS § 18-4-401, and as civil theft under CRS § 18-4-405. Civil theft, if proven, entitles the claimant to three times the amount of actual damages, plus reasonable attorneys’ fees.
In Franklin Drilling v. Lawrence Construction, 2018 COA 59, the Colorado Court of Appeals held that mere violation of the trust fund statute is not sufficient by itself to prove a civil theft claim. “To prove civil theft a plaintiff must prove that the defendant ‘knowingly obtains, retains, or exe..
By: Jim Borgel
In November’s general election, Denver voters approved the so-called green roof ordinance, which goes into effect on January 1, 2018. Under the ordinance, all new buildings in the City and County of Denver that are 25,000 square feet or larger, any additions to existing buildings that cause the building to equal or exceed 25,000 square feet, or a roof replacement on a building in that is 25,000 square feet or larger, must incorporate green roof technology into their design. A “green roof” is one that incorporates growing vegetation, and the percentage of the roof that must be green will vary depending on the size of the building. Buildings between 25,000 and 49,999 square feet will be required to have twenty percent of their roof surface green, while that percentage will increase to 60 percent on buildings over 200,000 square feet. The initiative will also allow a portion of the green roof requirement to be satisfied by the installation of solar panels, as long as at le..
By: Anna Eberlin
Commercial Real Estate Women Network, or CREW, is an organization that supports women’s advancement in the commercial real estate industry. CREW has been conducting research and developing industry white papers since 2007 to promote diversity in the real estate industry. The latest white paper, Diversity: The Business Advantage – Best Practices for Gender Equity and Inclusion in Commercial Real Estate (2017), is a great compilation of research and case studies that demonstrate why it is important to promote and maintain diversity in the workplace.
One case study is the construction firm Bozzuto Group, a company that has developed, acquired, and built more than 42,000 homes and apartments in the United States. The company unwaveringly supports women and minorities, and its organization includes almost an equal divide between men and women, which is quite unusual for the development industry. Three lessons learned from Toby Bozzuto (Chairman of the Bozzuto Group):
By: Dora Lane
Senate Bill (SB) 253
The bill created the Nevada Pregnant Workers’ Fairness Act, which applies to employers with 15 or more employees (for at least 20 weeks in the current or preceding year). The bill makes it unlawful for an employer to do any of the following (except for where the action is taken based upon a bona fide occupational qualification):
Refuse to provide a reasonable accommodation to a female employee or applicant, if requested, for a condition of the employee or applicant relating to pregnancy, childbirth or a related medical condition, unless the accommodation would impose an undue hardship on the business (as discussed below);
Take an adverse employment action against a female employee because the employee requests or uses a reasonable accommodation for a condition of the employee related to pregnancy, childbirth or a related medical condition, such as failing to promote the employee, requiring the employee to transfer to another position, declining to ..
By: Timothy Gordon
The Supreme Court of Colorado has held that a contractual provision that gives a non-breaching party the option of choosing between recovery of liquidated damages and pursuing actual damages is enforceable so long as the two remedies are exclusive. Ravenstar v. One Ski Hill Place, 2017 CO 83. The dispute in Ravenstar was over the failure of certain buyers to close on the purchase of condominium units. After the buyers breached, the developer/seller, kept their deposits as liquidated damages as permitted by the purchase and sale agreements.
The buyers sued for the return of their deposits, arguing that the liquidated damages provision in the agreements was unenforceable because it gave the developer/seller the option of pursuing actual damages. The agreements provided in relevant part as follows:
If Purchaser defaults in the performance of any obligations under this Agreement . . . Seller shall have the right to terminate this Agreement and shall be entitled to ret..
By: Rebecca W. Dow, Esq.
Denver’s housing market was recently named as one of the top four overvalued markets in the nation by CoreLogic (a leading provider of consumer, financial and property information), due to rising home prices as a result of a lack of inventory of homes for sale. The median sales price of a single-family home in Denver reached a record $407,000 in May, and statewide it topped $365,000. Experts have argued that in Denver alone, 16,000 to 18,000 new homes a year are needed to meet demand. Last year, only 11,038 homes were built in Denver according to MetroStudy. In Lakewood, the current median selling price for homes is $494,000 according to Lakewood realtors. Corelogic has predicted that the small supply of existing homes for sale and insufficient single-family construction will continue to put upward pressure on home prices.
Despite the reported need for more residential housing, on July 28, 2017, a group named Lakewood Strategic Growth submitted petitions with..
By: Clay Karwisch
A recent Idaho Supreme Court case has important lessons for drafting force majeure clauses in development agreements. In Burns Concrete v. Teton County, the Idaho Supreme Court held that a force majeure clause in a development agreement was broad enough to apply to Teton County’s failure to grant appropriate approvals for the construction of a concrete plant contemplated by the development agreement. In the case, Burns Concrete (the Developer) acquired property zoned for commercial use, and successfully applied to have the zoning changed to industrial. Under the applicable zoning ordinance, buildings in the industrial zone could not exceed 45 feet in height unless approved by a conditional use permit. The Developer made a timely application for a conditional use permit to exceed the height limitation, which the planning and zoning office recommended for approval.
After the property was re-zoned, the Developer and the County entered into a development agreement requi..
By Kevin Bridston, Tim Gordon and Sean Hanlon
There are a few basic rules that any contractor needs to be aware of before bidding a project in Colorado, including rules related to licensing, bonding, bid preferences for local contractors, local employment rules, bid shopping rules, bid mistakes, and bid protest issues. No article can cover these topics with the specificity needed to determine whether to bid a project in Colorado, and what steps need to be accomplished to do so (those are issues that should be discussed with a lawyer) but at a very high level, we lay out some of the basic requirements under Colorado Law in this post.
Colorado does not have a state level licensing requirement for general contractors. All general contractor license requirements are handled at the municipal level or county level. On the other hand, engineers and other design professionals, and certain specialty subcontractors, do require a state license. And any company seeking to do business ..
By: Sean Hanlon
Denver’s first Stock Show took place in 1906. As an emerging city, Denver was often referred to as a “Cow Town.” A lot has changed since 1906. The National Western Stock Show continues to thrive, buts its National Western Complex is showing its age.
Enter the National Western Stock Show Project. The Stock Show Project is focused on creating a global agribusiness epicenter that will attract private companies and public organizations to collaborate on solving long developing problems associated with food, animal health, and water. A global think tank of sorts. The expanding complex will also have a new livestock center, a new equestrian center (with 1,000 permanent stalls), a new expo hall, and a new arena. The Stock Show Project—expected to cost more than $1 billion—will result in a 250-acre campus containing a unique cross-pollination of industries. Expected to span a decade, the Stock Show Project will be completed in phases, and will not interrupt the annual Stock S..
By: Rebecca Dow
Construction defect litigation reform will take a small step forward this week when Gov. John Hickenlooper signs HB 1279 on May 23, 2017. HB 1279 will go into effect immediately after signature by the Governor, and developers and residential builders will need to be aware of certain aspects of the law. HB 1279 has been much touted as a bipartisan effort toward addressing the housing squeeze in Colorado, as reflected by just 3.4 percent of new housing starts in 2016 being for sale condominiums in the Denver metro area. HB 1279 passed unanimously by both the House and the Senate on May 4, 2107. This is the first piece of legislation passed in the last several years to address any aspect of construction defect litigation reform, although during that time more robust construction defect reform ordinances have been passed by approximately 12 cities and counties in Colorado. HB 1279 offers some pluses to developers/builders, but also contains some pitfalls, as discussed belo..