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March 31, 2008
Update on Immigration issues for the Heartland: No Match Letters Procedures
Please read, review and most of all......get ready for the government's efforts to deal with I-9 issues!
Procedures for Employers Who Receive a No-Match Letter (03/26/2008)
Supplemental Proposed Rule: http://www.dhs.gov/xlibrary/assets/press_nomatch-snprm.pdf
Department of Homeland Security (DHS) filed in the Federal Register a "supplemental proposed rule" entitled "Safe Harbor Procedures for Employers Who Receive a No-Match Letter," and invited public comments to be filed on or before April 25, 2008. The proposed rule does not contain an effective date. DHS previously filed a "final rule" on August 15, 2007 but implementation of that rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. The district court based its preliminary injunction on three findings. According to DHS, "This supplemental proposed rule clarifies certain aspects of the August 2007 Final Rule and responds to the three findings underlying the district court's injunction."
*** Capsules ***
Posted by Dave Seitter on March 31, 2008 | Permalink | Comments (0)
March 25, 2008
Construction Forecast for St. Louis, Missouri
This forecast looks similar to KC's forecast....
Commercial real estate experts forecast tough times locally By Riddhi Trivedi St. Clair ST. LOUIS POST-DISPATCH Tuesday, Mar. 25 2008 Commercial real estate professionals are preparing for changes in the market as the impact of the national housing slowdown and tighter lending standards trickle down to the St. Louis area. Three of those professionals shared their opinions on the office, industrial and investment property markets with the Post-Dispatch. They are expected to present their forecasts today at an annual event in Clayton held by the Society of Industrial and Office Realtors. INVESTMENT PROPERTY Area sales of investment property — office and industrial buildings bought by individuals and institutions for investment purposes — have slowed, said Tripp Hardin, senior vice president in the Clayton office of CB Richard Ellis. In the first three months of 2007, there were nine sales of office buildings with a price tag of at least $5 million for a total of $137 million. So far this year, there have been only two major sales totaling $67 million, he said. "This year as a whole compared to 2007 will not be business as usual," Hardin said. For industrial property, only one investment purchase for $19 million has taken place this year, compared to four sales for $22 million in the first three months of 2007. "The first half of this year is going to be a wait-and-see period for everyone," Hardin said. "There are fewer buyers in the market and there is less property in the pipeline." Sellers are not putting their properties on the market because they don't want their assets to be undervalued in a slow market. Many lenders have stopped financing large investments, Hardin said, and those that remain in the market are nervous. "They want more cash (down payment), better returns and underwriting standards are higher," he said. Historically, the St. Louis region has been able to weather negative cycles well, Hardin said, adding, "Hopefully we will see a more normal second half." INDUSTRIAL PROPERTY In industrial development, the housing meltdown and tougher credit environment are having an impact, said Terry Stieve, senior vice president and principal for the Clayton office of Colliers Turley Martin Tucker. Industrial property includes warehouse, distribution and manufacturing space. St. Louis is a regional distribution hub, not a national one, he said, and when the economy slows the regional hubs suffer. During slow economic times, companies tend to cut back on expanding into regional markets and handle more business from national hubs. In recent years, much of the demand for industrial space in the region has come from national companies looking for warehouse and distribution space, Stieve said, rather than local companies expanding. With the nation going through a major housing slowdown, house product suppliers and other large national retailers have reined in expansion plans. As a result, Stieve expects to see a significant decrease in speculative building — where developers build space without having tenants lined up. Speculative development lets the market accommodate unexpected growth from companies that need space immediately. Speculative development signals a healthy market for industrial space and high developer confidence. Of approximately 3 million square feet of industrial space added to the market last year, two-thirds was speculative development. This year, Stieve expects to see 3.4 million square feet of new space, but only 1 million square feet of that is speculative construction. "If we go into this year — with the tougher lending environment — and no speculative space (already in the market) to attract potential tenants, I would be really depressed," he said. OFFICE DEVELOPMENT Speculative construction of office buildings also will take a hit, said Mike Wolken, principal in Coldwell Banker Commercial. Last year developers started constructing four office projects with large amounts of speculative space: Meridian at Brentwood, Lakeside Crossing One in Maryland Heights, Central Park Square One in Chesterfield and 825 Maryville Office in Maryville. "That was different from the couple of years before last year, but we won't see it again for a while," Wolken said. "In this financing environment (developers) can't get financing without not only significant pre-lease but strong, credit-worthy leases." Given the lack of new office space, there will be greater demand for existing top tier — class A — office space allowing landlords to cut back on incentives offered to tenants. rtstclair@post-dispatch.com | 314 340 8206 |
Posted by Dave Seitter on March 25, 2008 | Permalink | Comments (0)
March 17, 2008
Going Green in Kansas and Missouri
The continued movement to sustainability or "going green" appears to be taking root here in the Midwest, according to this note from the Kansas City Star:
'Green' bills get states' attention
By JASON NOBLE and DAVID KLEPPERThe Kansas City Star
JEFFERSON CITY | Kansas and Missouri lawmakers are trying to go green this year but, so far anyway, it looks to be a pretty pale shade.
In Missouri, lawmakers have introduced nearly 20 bills promoting energy-efficient technologies and encouraging environment-friendly development — mostly through tax incentives aimed at consumers.
Similar proposals are under consideration in Kansas, although critics say they’re little more than concessions to calm opponents of a controversial power plant expansion.
“We’re pretty sensitive to the issue,” said Missouri Senate Majority Leader Charlie Shields, a St. Joseph Republican.
“There’s a lot of attention being paid to environmental, or green, initiatives and energy-saving initiatives.”
Both states, though, are avoiding far-reaching legislation and generally shying away from mandates that would require action by businesses or consumers.
Show Me green
In Missouri, the bills showing movement this year rely on tax policy as a prod to change consumer habits and business operations.
The House last week gave first-round approval to a bill granting a $2,000 income tax deduction for the purchase of hybrid vehicles manufactured in the United States.
“Government should be in the forefront of change, but we have to have an incentive,” said Rep. David Sater, a Cassville Republican and the bill’s sponsor.
The tax break would be available for American-made cars such as the Ford Escape and Chevrolet Malibu hybrids — both of which are produced at auto plants in the Kansas City area — but would leave out the Japanese-made Toyota Prius, far and away the country’s best-selling hybrid.
In the Senate, language recently added to a large agriculture bill also addresses alternative-fuel vehicles. The bill includes not only a tax deduction for hybrid purchases, but also incentives for consumers who purchase 85-percent ethanol gasoline and gas-station owners who install alternative fuel facilities.
A green omnibus bill encompassing several Democratic and Republican proposals is also in the works, said Sen. Kevin Engler, a Farmington Republican. That bill will include legislation, introduced by Sen. Jeff Smith, a St. Louis Democrat, aimed at encouraging environmentally-friendly development in the state.
Smith’s legislation would create a “Show Me Green” sales tax holiday each April in which consumers could purchase Energy Star-certified energy-efficient appliances free of state and local sales tax.
Smith’s bill would also create tax credits for constructing energy-efficient buildings, completing home-energy audits and buying Energy Star-certified appliances.
Such incentives could have far-ranging economic effects, he said.
“Encouraging green building can spawn more residential development at a time when the housing market is lagging,” Smith said. “It can spawn the development of new industries that will be created to meet the demand for more of the products that go into green houses.”
A few lawmakers have proposed bills demanding more forceful action against global warming, although it’s unlikely they’ll weather the legislative process.
A bill presented in a House committee last week by Rep. Talibdin El-Amin, a St. Louis Democrat, would go the furthest by requiring greenhouse-gas emissions in the state be reduced to 1990 levels by 2022.
Industry, manufacturing and energy lobbyists castigated the bill.
“We are not an island or a nation by ourselves. We have to compete with other states, with other nations and even our neighbors,” said David Overfelt, a lobbyist for Associated Industries of Missouri. “We’re afraid these types of regulations would make it virtually impossible to expand or even consider expanding in this state.”
One exception to lawmakers’ no-mandates mantra, however, is a Senate bill requiring all diesel fuel sold in the state to contain 5 percent biodiesel, an alternate fuel derived from vegetable oil or animal fat.
In Kansas
Kansas lawmakers have put forward several green bills, but all are overshadowed by the key issue of the year: a coal-burning power plant expansion in western Kansas.
Both the Senate and the House have passed legislation designed to clear the way for Sunflower Electric Power Corp. to build two new coal plants at its existing Holcomb, Kan., plant.
The state’s top regulator rejected the plans last year, citing the estimated 11 million tons of carbon dioxide the expanded plant would produce.
CO2 is currently unregulated by the state.
Lawmakers balked at the rejection, and created legislation to eliminate the regulator’s power to reject the plant so long as it meets current state environmental rules.
Gov. Kathleen Sebelius has vowed to veto the bill, saying it doesn’t do enough to encourage renewable energy or protect the environment.
To balance the coal plant bill, lawmakers inserted several provisions they hoped would curry favor with environmentalists.
They include:
•Standards to require most utilities to generate 10 percent of their electricity from renewable sources by 2012 and 20 percent by 2020.
•A proposal to allow those with solar panels on their homes to sell excess electricity back to their utilities.
•Incentives for landlords to invest in energy-efficient construction and air/heating systems.
•The creation of a new energy commission that will include both scientists and laypeople to study the state’s future energy needs and the role global climate change may play.
“I thought it was one of the greenest bills in the country,” said Rep. Rob Olson, an Olathe Republican who serves as vice chairman of the House Energy and Utilities Committee. He said the Holcomb expansion will include the latest in pollution safeguards and that it’s unrealistic to think Kansas can have a secure power supply without coal.
“What’s enough?” he asked, noting the opposition from environmental groups. “Do the people of Kansas want blackouts?”
Environmental groups say the modest green initiatives don’t come close to offsetting the backward step they think the coal plant bill to be.
The phrase “green lipstick on a pig” has been used more than once.
The environmentally friendly components “are an attempt to attract those legislators with environmental concerns,” said Stephanie Cole, spokeswoman for the Kansas Sierra Club chapter. “There’s no reason that Kansas shouldn’t have those in place already.”
Posted by Dave Seitter on March 17, 2008 | Permalink | Comments (0)
March 11, 2008
CONSTRUCTION ECONOMIC FORECAST
Posted by Dave Seitter on March 11, 2008 | Permalink | Comments (0)
March 10, 2008
Pay-When-Paid Decision from HONG KONG!
Is a 'Pay-When-Paid' Provision a Condition Precedent for Payment?
Contributed by Pinsent Masons
March 10 2008
In Falcon Building Materials Company Limited v Fine View Engineering Limited(1) the court considered whether a 'pay-when-paid' provision in a subcontract operated as a condition precedent for payment. The defendant argued that at the time the writ was issued, the plaintiff was not entitled to the amounts claimed, as the defendant had not been paid; therefore, under the pay-when-paid provision, the amounts were not yet due to the plaintiff. However, the plaintiff maintained that it was entitled to the sums claimed on the day the writ was issued.
The defendant, Fine View, was the main contractor of a government contract for the design, supply and installation of automatic doors at a government hospital. The main contract was administered by the government's Electrical and Mechanical Services Department, the employer.
The main contractor engaged the plaintiff, Falcon, as its subcontractor. The relevant part of the subcontract stated as follows:
"Payment terms:
(a) 20% deposit... on confirmation of order; and
(b) 80% to be settled by [Fine View’s] receipt of final payment from [the employer] within 45 days of the completion of testing and commissioning and the acceptance of the works by the [employer].
This contract shall be executed on a back-to-back basis in accordance with the relevant clauses within the main contract."
The 20% deposit was duly paid and the works were allegedly completed by the subcontractor by April 1 2006. Following testing and commissioning on April 26 2006, the subcontractor issued an invoice for the remaining 80% of the subcontract sum, believing it was entitled to be paid, as testing and commissioning had been carried out. However, it subsequently transpired that there were defects in the works and the employer delayed payment to the main contractor. The employer paid the main contractor on January 4 2007 after deductions for the defects.
Relying on the pay-when-paid provision in clause (b) of the payment terms, the main contractor did not settle the subcontractor's invoice for the remaining 80% of the subcontract sum immediately, as the main contractor had not been paid by the employer.
The subcontractor, believing that the pay-when-paid provision did not affect its entitlement to payment, commenced proceedings on November 16 2006 against the main contractor to recover the balance of the subcontract sum. The trial began on October 8 2007. Between the commencement of proceedings and the trial, the main contractor paid the subcontractor the balance of the subcontract sum, less HK$73,700, which the main contractor had deducted for defects. Therefore, the subcontractor claimed only HK$73,700 at trial.
A preliminary issue was whether clause (b) amounted to a condition precedent to the main contractor's liability to pay the balance of the price. In deciding this issue, the court relied on Wo Hing Engineering Limited v Pekko Engineers Limited.(2) In Wo Hing the judge reviewed a number of authorities from Australia, New Zealand and the United States and identified an underlying principle: when having to construe a pay-when-paid clause, sufficiently clear words must have been used in order for a court to construe that such a clause imposed payment to the main contractor as a condition precedent to the subcontractor's right to be paid, rather than limiting the time for payment. The judge held on the facts that, as the works had been completed in July 1995 and no complaint of unfinished or defective work had been raised, the plaintiff was entitled to be paid within a reasonable time of the completion of the works, despite the fact that the defendant had not been paid. The judge in Wo Hing was satisfied that a reasonable time had elapsed when the writ was issued in May 1996, and that the plaintiff was therefore entitled to be paid as of the date of the writ. Consequently, the plaintiff was entitled to costs.
The court in the present case decided the preliminary issue in the subcontractor's favour and held that clause (b) did not amount to a condition precedent - the subcontractor's right to be paid did not depend on the main contractor being paid first.
However, the subcontractor ultimately failed in its claim against the main contractor because of the existence of defects in the works. The court found that the clause "did not detract from the subcontractor's right to be paid if it had satisfactorily completed the works according to the contractual requirements". As there were defects in the works, the court found that the subcontractor had not satisfactorily completed the works according to the contractual requirements. The employer and the main contractor were thus entitled to withhold payment and to make a deduction against the final payment to account for the unrectified defects. Therefore, the subcontractor's claim was dismissed with costs.
This case confirms that a pay-when-paid clause is not a condition precedent to a subcontractor's right to be paid. Provided that the subcontractor has carried out its work satisfactorily according to the terms of its subcontract, it is entitled to payment within a reasonable time of completing its works, notwithstanding a pay-when-paid clause and the question of whether the main contractor has been paid by the employer.
Posted by Dave Seitter on March 10, 2008 | Permalink | Comments (0)
