Plenary 3 – Legislating Construction Contract Terms and Conditions[1]

50 State Survey: Alabama - California

	Alabama	Alaska	Arizona	Arkansas	California
II. Legislation Affecting Project Delivery Systems
A. Design Build	Alabama statutes do not specifically address design build projects. However, based on dicta from several cases, a design build contract with a licensed general contractor and with plans/specifications properly stamped by a professional architect or engineer would be valid. See Med Plus Props. v. Colcock Constr. Group, Inc., 628 So. 2d 370 (Ala. 1993). The Alabama Supreme Court has affirmed a design build arrangement where a licensed contractor also performed the architectural plans. Id. at 374-375.	In private projects, there are no statutes regulating design build. In public projects, competitive contracts for design build are permitted under Alaska Stat. § 36.30.200(c). However, the University of Alaska, the Alaska Railroad Corp., the Alaska Housing Finance Corp. and the Alaska Court System are permitted to establish their own procurement regulations (including the use of CMAR). Id. §§ 36.30.005(c), -.015(e), -.015(f), -.030.	There is no regulation of project delivery systems in private construction projects. Project delivery systems in public projects are regulated through the Arizona Procurement Code. Ariz. Rev. Stat. § 41-2501 et seq. Each of the approved project delivery methods is defined by statute. Id. § 41-2503.	In public projects, Arkansas only allows school districts to use design build construction as a project delivery system. Ark. Code Ann. § 19-11-807.	California does not treat design build construction in any special manner, although it does acknowledge its use to certain public projects. For example, counties may use design build contracting for public works construction. Cal. Pub. Cont. Code § 20133. Also, there are other project delivery options available for schools and community colleges: traditional bid-build design, multi-prime, construction management at risk (CMAR), lease-leaseback, and piggyback contracts.
B. Construction Management	See Section II.A.	See Section II.A.	See Section II.A.	In both private and public projects, Arkansas requires that general contractors only perform construction management services in those fields in which they hold proper classification. 033-00-001 Ark. Code R. § 224-25-5(c). As to public projects, political subdivisions and agencies may enter into construction management contracts. Ark. Code Ann. §§ 19-11-801 to 805.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Alabama has a 6 year limitations period for any claim based on a written contract. Ala. Code § 6-2-34. If the contract is under seal, the limitations period is 10 years. Id. § 6-2-33. Any action against an architect, engineer or builder for defective design, supervision, or observation of construction or improvement to real property must be commenced within 2 years. Id. § 6-5-221. Any cause of action that accrues more than 13 years after substantial completion will be barred. Id.	Claims for a breach of contract have a 3 year statute of limitations. Alaska Stat. § 09.10.053. Tort claims have a 2 year statute of limitations. Id. at § 09.10.070. Statute of repose of 10 years for architects, engineers & land surveyors who are involved in improvements to real property.	An action based on a written contract has a 6 year limitations period. Ariz. Rev. Stat. § 12-548. However, actions based on a construction contract or the development of property have an 8 year limitations period after “substantial completion.” Id. § 12-552. If the injury occurs during the eighth year after substantial completion (or a latent defect was not discovered until the eighth year), the injured party has an additional year to bring a claim. Id.	Arkansas has a 5 year limitations period for any claim based on a written contract. Ark. Code Ann. § 16-56-111. Claims based on oral contracts or torts must be commenced within 3 years. Id. § 16-56-105. All other actions not specifically addresses in other statutes are subject to a 5 year statute of limitation. Id. § 16-56-115.	California has a 4 year statute of limitations for a breach of a written contract, and a 2 year limitations period for a breach of an oral contract. Cal. Civ. Proc. Code §§ 337, 339. The limitations period for bringing a claim of negligence for injury to real or personal property is 3 years. Id § 338. Claims for personal injury must be brought within 2 years of the date of injury. Id. § 335.1. 4 year statute for patent defects and 10 year statute for latent defects.
B. Licensing and Regulation	Architects, engineers, land surveyors, and landscape architects require licensing with the appropriate state board. Ala. Code §§ 34-2-1 et seq., 34-11-1 et seq., 34-17-1 et seq. General contractors and subcontractors also require licensing. Id. § 34-8-1. Practicing without a license may prevent these professionals from entering enforceable contracts and may result in civil and/or criminal liability.	Architects, engineers and land surveyors require state licensing. Alaska Stat. § 08.48 et seq. Electricians and mechanical contractors also require state licensing under Alaska Statute chapter 08.40. Id.§§ 08.18.026, -.028. All other construction contractors must comply with Id. § 80.18 et seq. and Alaska Admin. Code tit. 12, §§ 010-990. Persons who violate licensing provisions are guilty of a misdemeanor and may be liable for civil penalties (and may not be able to file suit for work performed).	Architects, assayers, certified remediation specialists, engineers, geologists, home inspectors, landscape architects and surveyors must obtain certification from the Board of Technical Registration. Ariz. Rev. Stat. § 32-101 et seq. Any person acting in the capacity of a contractor (who is not exempt by statute) must be licensed by the Registrar of Contractors. Id. § 32-1101 et seq. It is a misdemeanor to practice or hold oneself out as a practitioner without first registering with the Board. An unlicensed contractor may be liable for civil fines, and any contracts entered are void ab initio. Also, a construction professional cannot file suit in AZ courts unless it is licensed at the time of contracting and at the time the cause of action arose. ARS § 32-1151.	Architects, engineers, interior designers, landscape architects and surveyors have registration and licensing requirements. Ark. Code Ann. §§ 17-15-101 et seq., 17-30-101 et seq., 17-35-101 et seq., 17-36-101 et seq., 17-48-101 et seq. Contractors, electricians, HVAC workers, homebuilders plumbers and water-well constructors must meet similar registration and licensing requirements. Id. §§ 17-25-101 et seq., 17-28-101 et seq., 17-33-101 et seq., 17-38-101 et seq., 17-50-101 et seq. It is unlawful to practice architecture without a license.	Architects, engineers and landscape architects must be licensed to practice in California. Cal. Bus. & Prof. Code §§ 5500, 6762, 5652. Contractors, sub-contractors and specialty contractors (as defined by statute) also require licensing. Id. § 7000 et seq. It is a misdemeanor to practice without a license. Also, an unlicensed contractor may not bring an action to recover compensation or performance of a contract in California courts.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	Under the Prompt Payment Act, when any contractor, sub-contractor or sub-subcontractor has performed pursuant to its contract and submits an application for payment, the party to whom the pay application is submitted must deliver payment according to the terms of the contract (or if the contract is silent, pursuant to the terms of the Act). Ala. Code § 8-29-1 et seq. The Act does not apply to residential homebuilders, improvements of residential property consisting of less than 16 units, contracts in an amount less than $10,000, and contracts with the state and local governments of Alabama. Id. § 8-29-7.	No specific statutory provisions relating to private projects.For public projects, the contracting agency must pay the contractor within 30 days. Alaska Stat. § 36.90.200. Further, a contractor must include in its contract with a subcontractor a provision that requires payment to the sub-contractor within 8 days of completion and satisfactory performance. Id § 36.90.210. A penalty of not more than 5% interest above the bank advance rate set by the 12th Federal Reserve District may be assessed for non-payment. Id. § 45.45.10(a). Subcontractors must equally include a prompt payment provision in contracts with sub-subcontractors or face the same interest penalty. Id. § 36.90.210.	Under the Prompt Pay Act, failure by a contractor to pay its subcontractors for work and materials supplied within 14 days (unless otherwise agreed in writing) results in the accrual of interest on the unpaid balance at the rate of 1% per month, or at a higher rate if agreed by the parties. Ariz. Rev. Stat. § 32-1129 et seq.Prompt pay provisions are also applicable to persons subject to regulation by Az. Board of Technical Registration, such as architects, engineers and home inspectors. A contract provision that does not permit a party to suspend or terminate for failure to make payment is voice and unenforceable. ARS § 32-1129. Prime contractors on public projects must pay subcontractors and suppliers within 7 days of receipt of payment from the Owner.	In private projects, Ark. Code Ann. § 5-37-525 provides that a person commits the offense of defrauding if that person knowingly or willfully fails to pay a sub-contractor or material supplier within 30 days of receipt of the payment under contract. In public projects, a penalty of 8% interest per annum shall be assessed should a party fail to promptly process an uncontested payment request. Id. § 19-4-1411. Further, a public entity may be assessed a penalty of 10% interest per annum for failure to pay a contractor’s valid claim within 90 days. Id. §§ 22-9-202 to 204.	In private projects, owner must pay prime contractor within 30 days and the prime contractor must pay subs and suppliers within 10 days. On public projects, payment must be made within 30 days.
B. Retainage	The Prompt Payment Act restricts retainage to twice the disputed amount if there is a bona fide dispute. Ala. Code § 8-29-4.			Ark. Code Ann. § 22-9-604(a)(1) permits a public agency to retain 10% of any earned progress payments from a contractor who is required to furnish a performance bond to assure performance of the contract. However, upon certification by the project architect or engineer that 50% of the project is complete, no further retainage may be withheld.	Owner or contractor may withhold 150% of disputed amounts if good faith dispute exists. On private projects, Owner must disburse retention 45 days after completion or pay 2%/month interest plus attorney’s fees for collection. The prime contractor must disburse retention within 10 days after payment from owner, or pay 2% interest plus attorney’s fees. On public projects, retention must be released within 60 days of completion; and prime contractor must release within 7 days of receipt of payment from Owner.
C. Trust Fund Statutes
D. Penalties for Failure to Make Payments	The Prompt Payment Act entitles the unpaid party to interest on the unpaid balance due in the amount of 1% per month (12% per annum). Ala. Code § 8-29-4. Prevailing party in a civil action can recover reasonable attorney’s fees, costs and reasonable expenses. Id. at § 8-29-6.	See Section IV.A.	See Section IV.A. Disciplinary action may be taken against registered individual for failure to comply with statute.	See Section IV.A.	See Section IV.A. In private projects, California provides statutory penalties for owners that fail to promptly pay prime contractors, and contractors that fail to promptly pay subcontractors. Cal. Civ. Code § 3260.1; Cal. Bus. & Prof. Code § 7801.5. In public projects, California provides statutory penalties for state agencies, local agencies, the California State University and contractors that fail to make prompt payments. Cal. Pub. Cont. Code §§ 10261.5, 20104.50, 10853, 10262.5; Cal. Bus. & Prof. Code § 7108.5. On private projects, 2% interest/mo will accrue on improperly withheld payments, plus attorney’s fees and costs. On public projects, 10%/annum interest on late payments to prime contractors.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Alabama law implies a warranty of the adequacy of plans and specifications, and a warranty of fitness and habitability (for new home construction)..	Alaska law has adopted the Spearin doctrine, which implies that an owner warrants that the plans and specifications are sufficient and suitable to construct the project.	Arizona law implies a warranty to perform work in a good, workmanlike manner and without negligence and a warranty of habitability for new residential construction. Also, AZ Code R4-9-108 describes standards of workmanship applicable to contractors registered with the registrar of contractors.	Arkansas law implies a warranty of fitness and a warranty that plans and specifications supplied by the owner are suitable for the project which they were tendered.	California law implies a warranty that a structure was designed and constructed in a workmanlike manner and a warranty that product will be fit for its intended use. Also, an owner that provides plans or specifications impliedly warrants that the contractor will not be liable for the consequences of following those plans or specifications.
B. New Home Warranties	See Section V.A.		See Section V.A.	See Section V.A.	See Section V.A.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Alabama has not enacted an anti-indemnity statute. The enforceability of indemnity provisions in construction contracts is determined by common law.	Alaska Stat. § 45.45.900 limits the ability to enforce any clause that purports to indemnify another for his or her own sole negligence or willful misconduct.	Under Ariz. Rev. Stat. §§ 32-1159 and 34-226, any agreement in a construction contract that indemnifies or holds harmless the loss or damage resulting from negligence of another is against public policy and void. Agreement to indemnity against joint or concurrent negligence is not addressed and is probably enforceable.	Ark. Code Ann. § 4-56-104 makes unenforcable hold harmless clauses in construction contracts that seek to indemnify for the sole negligence or fault of the indemnitee. However, this statute does not prohibit the parties from providing insurance to cover the negligence of the parties.	With limited, specified exceptions, it is against public policy for any construction contract to have language in which the promisee attempts to contract away liability that arises from the sole negligence or willful misconduct of the promisee, or for defects in design furnished by the promisee. Cal. Civ. Code § 2782(a).
VII. Legislation Affecting Insurance Requirements
A. Worker’s Compensation	Contractors, sub-contractors and other employers must maintain statutory workers’ compensation coverage. Ala. Code § 25-5-1 et seq.	Employers with 4 or more employees must maintain certain limits of workers’ compensation coverage. Alaska Stat. § 23.30 et seq.	As a precondition to obtaining a contractor’s license under Ariz. Rev. Stat. § 13-1122, a contractor must obtain and comply with the rules governing workers’ compensation insurance.	All employers must maintain statutory workers’ compensation insurance. Ark. Code Ann. § 11-9-101.	All employers (including contractors) must provide workers’ compensation insurance. Cal. Lab. Code §§ 3200 to 6149, specifically 3600.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Alabama’s version of Little Miller Act is found at Ala. Code § 39-1-1, and it requires a payment bond in an amount not less than 50% of the contract amount for projects of more than $50,000.	Alaska’s Little Miller Act requires that general contractors furnish payment and performance bonds for public projects in excess of $100,000. Alaska Stat. § 08.18.101.	Arizona’s version of Little Miller Act requires public construction contracts to be secured by payment and performance bonds. Ariz. Rev. Stat. § 34-221 et seq.		California requires a payment bond for public projects. Cal. Civ. Code §§ 3247-3252, 3267.
B. Mandatory Payment on Public Projects		All licensed contractors must file surety bonds running to the state.	For public construction projects, Arizona requires 3 types of bonds: bid bonds, payment bonds, and performance bonds. Ariz. Stat. Rev. §§ 34-201(A)(3), 41-2573(A), 34-221 et seq. No statutory bond requirements imposed on contractors on private projects.	Arkansas requires that a contractor file a surety bond or a cash bond in the amount $10,000 (made payable to Arkansas) as a prerequisite to obtaining licensure in the state (this requirement is not limited to public projects). Ark. Code Ann. § 17-25-404.
C. Statute of Limitations for Filing Suit on Bond	As a condition precedent to bringing a claim under Alabama’s Little Miller Act, the claimant must provide written notice to the surety no less than 45 days before filing suit. Ala. Code § 39-1-1. Also, all actions must be brought within 1 year of the date of final settlement of the general contract. Id.	A subcontractor or supplier must file a notice of claim against a payment bond no later than 90 days after last furnishing labor or materials. Any protected subcontractor or supplier may bring suit up to 1 year after project completion. See Safeco Ins. Co. v. Honeywell, Inc., 639 P.2d 996 (Alaska 1981).
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	The Deceptive Trade Practices Act declares numerous acts and practices to be unlawful (many of which could arise in the construction setting). Ala. Code § 8-19-5.	Alaska’s consumer protection statute is codified at Alaska Stat. § 45.50.471. However, the statute is generally not applicable to construction, as it regulates “goods and services.”	The Arizona Consumer Fraud statute has broad application and is applied to the sale of any merchandise, including the sale, lease or rental of real estate subject to any form of deed restriction associated with a previous sale. Ariz. Rev. Stat. §§ 44-1521. The statute prohibits deceptive or fraudulent acts, including the concealment of material facts.	The Arkansas Deceptive Trade Practices Act prohibits deceptive trade practices such as false representations, disparaging the goods or services of another, and taking advantage of a consumer unable to protect his or her interest due to infirmity, ignorance or illiteracy. Ark. Code Ann. § 4-88-101 et seq.	Consumer protection from unfair and deceptive sales practices under the Magnuson-Moss and Song-Beverly Acts has been extended to some construction settings. 15 U.S.C. §§ 2301 et seq.; Cal. Civ. Code §§ 1790 et seq.
B. Residential Construction Acts	The Builders Licensure Board administers a Homeowners’ Recovery Fund “from which an aggrieved homeowner may recover actual economic damages, not including interest and court costs, sustained within the State of Alabama as the direct result of conduct of a licensee in violation” of the board’s rules. Ala. Code § 34-14A-15.			The Manufactured Homes Recovery Act established the Manufactured Homes Commission, which collects fees from the manufacturers of manufactured homes and maintains a Manufactured Housing Recovery Fund. Ark. Code Ann. § 20-29-101 et seq.	Home improvement and swimming pool construction must contain extensive notice provisions. Cal. Bus. & Prof. Code §§ 7159, 7165. Also, home improvement contracts over $500 must be in writing, legible and conform to statutory requirements. Id. § 7164.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	A liquidated damages provision in a construction contract will be enforced for each day of delay beyond the completion date, so long as the liquidated damages clause is not a penalty. Cove Creek Dev. Corp. v. APAC-Ala., Inc., 588 So. 2d 458 (Ala. 1991).	Liquidated damages may be assessed under Alaska law. However, recovery of actual damages plus liquidated damages (double recovery) , even if expressly agreed to in the contract, is prohibited against public policy. Arctic Contractors, Inc. v. State, 564 P.2d 30, 51 (Alaska 1977).	Arizona allows the parties to a contract to stipulate to the amount of damages for a breach of contract. Such a clause will be enforced if a court determines that the clause is a reasonable estimation of uncertain damages and not a penalty. Davis v. Tucson Ariz. Boys Choir Soc’y, 137 Ariz. 228 (1983).	A liquidated damages clause is enforceable if it is a reasonable forecast of the damages resulting from a breach and if damages are difficult to estimate. Hall v. Weeks, 217 S.W.2d 828 (Ark. 1949).	For private projects, a liquidated damages provision is valid unless it is unreasonable under the circumstances. Cal. Civ. Code § 1671. However, public entities are exempt from § 1671 and may include liquidated damages and penalties for delay in public projects. Cal. Gov’t Code § 53069.85.
B. Limitations on Remedies	Exculpatory clauses are generally disfavored on public policy grounds. Matthews v. Mountain Lodge Apts., Inc., 388 So. 2d 935 (Ala. 1980).	When an exculpatory clause limits liability for negligence, the contractual limitations must be clearly set forth. Dresser Indus., Inc. v. Foss Launch & Tug. Co., 560 P.2d 393, 395 (Alaska 1977).	There is no Arizona authority applicable to exculpatory clauses in construction and/or design contracts.	Exculpatory clauses are enforceable only when they clearly set out the negligent liability a party seeks to avoid; however, such a provision is strictly construed against the party asserting the provision. Jordan v. Diamond Equip. & Supply Co., 207 S.W.3d 525 (Ark. 2005).	California courts generally disfavor exculpatory clauses and generally do not enforce them as contrary to public policy. See, e.g., City of Santa Barbara v. Superior Ct., 41 Cal. 4^th 747 (2007).
XII. Legislation Affecting Dispute Resolution
A. Arbitration versus Litigation	Alabama has not adopted the Uniform Arbitration Act. However, Alabama’s arbitration provisions are located at Ala. Code § 6-6-1 et seq. The statutes provide that it is the duty of all courts to encourage the settlement of controversies by arbitrators chosen by the parties. The statutes also provide the mode of arbitration, the duties and powers of arbitrators, and the enforcement and review of arbitration awards. However, Alabama statute provides that an arbitration agreement cannot be specifically enforced (but may be enforceable under the FAA).	Alaska has adopted the Uniform Arbitration Act. Alaska Stat. §§ 09.43.010 to .180.	Arizona has adopted the Uniform Arbitration Act. Ariz. Rev. Stat. § 12-1501 et seq. Arbitration agreements are valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract. Id. § 12-1501.	Arkansas has adopted the Uniform Arbitration Act. Ark. Code Ann. §§ 16-108-201 to 224.	California has adopted arbitration statutes similar to the Uniform Arbitration Act. Cal. Civ. Proc. Code §§ 1280-1296.
B. Choice of Law			A contract provision that makes a contract subject to the law of another state or requires litigation or ADR be conducted in another state is void and unenforceable against public policy.
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	The Alabama Department of Environmental Management (“ADEM”) administers all major state and federal environmental laws, including clear air, clean water and safe drinking water acts, as well as federal solid and hazardous waste regulations. Environmental regulation programs administered by ADEM include the Air Pollution Control Program, the Scrap Tire Program, the Water Quality Program, the Water Supply Program, the Solid Waste Program, and the Hazardous Waste Program.	The Alaska Department of Environmental Conservation is responsible for monitoring and enforcing the environmental laws of Alaska. See Alaska Stat. § 44.46 et seq.	Arizona has statutes regulating water quality, air quality solid waste management, hazardous waste disposal and underground storage tank regulation. Ariz. Rev. Stat. §§ 49-201 et seq., 49-410 et seq., 40-701 et seq., 49-901 et seq., 49-1001 et seq. In addition, Arizona requires that an owner give written notice to a purchaser on whether a property has been subject to soil remediation. Id. § 33-434.01.	Arkansas has statutes that regulate water and air pollution quality, solid waste management, hazardous waste management, and the use of closed solid waste landfills for residential purposes. Ark. Code Ann. §§ 8-4-101 et seq., 8-4-201 et seq., 8-4-301 et seq., 8-7-201 et seq., 8-6-1401 et seq.	Contractors that are involved in remediation projects of hazardous substances require licensing. See, e.g., Cal. Bus. & Prof. Code § 7058.5 (providing the requirements for asbestos-related work). There are also specific provisions which relate to indemnification in construction contracts in which hazardous substances are involved. Cal. Civ. Code §§ 2782, 2782.6.
B. Green Building and Sustainable Construction Initiatives	There are few, if any, formal green building programs established by state or local governments in Alabama.	There are currently no green building programs of sustainable construction initiative created by statute or regulation in Alaska.	Major Arizona cities are adopting green building programs and sustainable construction initiatives, such as Phoenix’s Environmental Sustainability program.	There are currently no green building programs or sustainable construction initiatives created by statute or regulation in Arkansas.	In July 2008, the California Building Standards Commission adopted green building codes for all new construction statewide. The standards cover commercial and residential construction in the public and private sectors. Adherence to the California Green Building Code will be voluntary until 2010, when its provisions are expected to become mandatory.
C. Transfer of Contaminated Property

50 State Survey: Colorado - Georgia

	Colorado	Connecticut	Delaware	Florida	Georgia
II. Legislation Affecting Project Delivery Systems
A. Design Build	Private projects are open to all forms of project delivery. Under the Integrated Delivery Method for Public Projects Act, the design build delivery method is also available for public projects. Colo. Rev. Stat. § 24-93-101 et seq.	Although there are no licensing requirements in CT for design builders, an entity undertaking a design build project must hold appropriate licenses for each design or construction profession involved. However, firms offering both design and construction services under a single cororate structure must be aware of peculiar restrictions in the architectural licensing statutes. Per CGSA §20-298b, if a material part of a coproration’s business includes practice of architecture, the CEO and 2/3 of the voting stock must be licensed architects.	Professionals rendering project delivery services are required to comply with certain licensing requirements before engaging in such work. See generally 30 Del. C. § 2501 et seq. Delaware as not specifically addressed licensing issues raised by entities providing design-build services. However, the practice of architecture and engineering encompass administration of construction contracts and responsible supervision of construction as part of the activities for which the professions are licensed. 24 Del. C. §302(5), 2803(2).	Florida permits the use of design build contracts in both private and public construction projects. For private projects, a general contractor who is certified or registered is not required to be a licensed engineer or architect, so long as the engineering or architectural services are performed by a licensed engineer or architect. Fla. Stat. §§ 471.003(2)(f), 481.229(3). For public projects, the Department of Management Services shall adopt rules for the award of design build contracts. Id. § 287.055(9).	A contractor offering to perform a design build contract must indicate that all design services will be performed by a licensed architect or engineer. O.C.G.A. § 43-4-14(e). A licensed architect or engineer offering to perform design build services must indicate all services that will be performed by a contractor. Id. § 43-41-17(j). The Georgia Department of Transportation is authorized to use design build as a method of contracting.
B. Construction Management	See Section II.A.		See Section II.A. Delaware treats a person or entity that performs the services of a construction manager as a contractor. 30 Del. C. §2501. CMs must be licenses as either a resident or nonresident constrctor, as appropriate.	Local governments may use construction management and program management entities for public projects, provided they follow the process set forth in Section 287.05. Id. § 255.103.	The duty of a construction manager acting as an owner’s agent to supervise a project arises from the contract between the construction manager and the owner, and not from an independent contract.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Claims against any architect, contractor, builder, engineer or inspector performing construction related tasks must be brought within 2 years. Colo. Rev. Stat. §§ 13-80-104(1)(a), -102. Claims against land surveyors have a 3 year limitations period. Id. §§ 13-80-101, -105.	Claims for breach of contract have a 6 year statute of limitations. Conn. Gen. Stat. § 52-576. Tort claims must be brought within 3 years. Id. § 52-577. Claims for injury to real property have a 2 year limitations period. Id. § 52-584. Demands for arbitration involving architects and engineers are limited to 7 years after substantial completion of an improvement to real property. Id. at §52-584a.	A 6 year statute of limitations applies to construction work (excluding improvements to residential properties) under 10 Del. C. § 8127(b). Claims relating to improvements to residential properties have a 3 year limitations period. Id. § 8106.	Claims for a breach of a written contract have a 5 year statute of limitations. Fla. Stat. § 95.11(2)(b). Claims arising from the design, planning or construction of an improvement to real property have a 4 year limitations period. Id. § 95.11(3)(c). Claims based on professional malpractice have a 2 year statute of limitations. Id. § 95.11(4)(a).	Claims for a breach of a written contract have a 6 year statute of limitations. O.C.G.A. § 9-3-24. Claims of unjust enrichment have a 4 year limitations period. Id. § 9-3-26. Tort claims (including negligent design and construction) have a 4 year limitations period. Id. §§ 9-3-30(a), -31.
B. Licensing and Regulation	Architects, engineers and land surveyors require state licensing. Colo. Rev. Stat. §§ 12-25-301 et seq., -101 et seq., -201 et seq. Construction professionals do not require state licensing (although licensing may be required at the local level). Practicing without a license is a misdemeanor.	Architects, engineers, surveyors and landscape architects require state licensing. Conn. Gen. Stat. §§ 20-288 et seq., 20-300 et seq., 20-367 et seq. Interior designers, contractors, HVAC contractors and plumbers must obtain a certification of registration. Id. § 20-377k et seq, 20-341gg, 20-420, 20-341(t). Failure to have home impromevent registration is misdemeanor and an unfair trade parctice. Id. at §20-427(c), 42-110b et seq.	Architects, engineers, electricians, and contractors require state licensing. 24 Del. C. §§ 303(a), 2817, 1407-16; 30 Del. C. § 2502(a).	Architects, engineers and land surveyors require state licensing. Fla. Stat. §§ 481 et seq., 471 et seq., 472 et seq. Contractors, electricians, plumbers, mechanical contractors and other construction professionals require state licensing. Id § 489 et seq.	Architects, landscape architects, interior designer, engineers and land surveyors require state licensing and registration. O.C.G.A. §§ 43-4-1 to -37, 43-23-1 to -19, 43-15-1 to -30. General and residential contractors require state licensing. Id. § 43-41-1 to -17.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	The Colorado Public Works Prompt Pay Statute requires a contractor involved in a public project to pay its subcontractors within 7 days after the contractor’s receipt of payment. Colo. Rev. Stat. § 24-91-103. Payments made later than 7 days accrue interest at a rate of 15% per annum.	On public projects exceeding $100,000, a contractor must pay its subcontractors or material suppliers within 30 days after the contractor receives payment. Conn. Gen. Stat. § 49-41a. Failure to make prompt payment may result in a penalty of 1% monthly interest. Id. § 49-41a(b). On private projects exceeding $25,000, a contractor must pay its subcontractors and material suppliers within 30 days of receiving payment from the owner. Id. §42-158j. Failure to do so may result in a penalty of 1% monthly interest.	The Construction Prompt Payment Act requires each contract awarded by a contractor to include a 30 day payment provision and an interest penalty for any late payments. 6 Del. C. § 3506. Delaware law may also obligate a contractor for the wage payment of its subcontractors. 19 Del. C. § 1105.	The Florida Prompt Pay Act requires a party to a construction contract to promptly pay within 30 days any undisputed obligations for labor, services or materials. Fla. Stat. §§ 255.075 to -.078. When a contractor receives payment from a public entity, it must pay its subcontractors and suppliers within 10 days of receiving payment. Id. § 255.073(3).	The Georgia Prompt Payment Act requires an owner to pay a contractor within 15 days of the completion of satisfactory work. O.C.G.A. §§ 13-11-1 to -11. The Act also requires a contractor to pay its sub-contractors or material suppliers within 10 days of any periodic or final payment upon completion of the work or delivery of the supplies. Id. If payment is delayed beyond the time allowed by the Act, then the party delaying payment must pay 1% interest per month. Id. § 13-11-7.
B. Retainage		No construction contract may provide for retainage in excess of 7 ½ %. Conn. Gen. Stat. § 42-158k. Escrow accounts with banks domiciled in the state must be established by owner to maintain retained funds on private projects. A monthly report must be provided to the contractor indicating the value of retention maintained in the escrow account which report shall be made available for review by a subcontractor upon request. The form and provisions of the escrow account shall be included in all solicitations for construction services. Conn. Gen. Stat. § 42-158p.			In private projects, an owner may withhold a reasonable amount for retainage, not to exceed the amount specified in the contract. O.C.G.A. § 13-11-5. In public projects, the contracting agency must provide a maximum of 10% retainage. Id. § 13-10-80. When 50% of the contract value is due, no further retainage may be withheld. Id.
C. Trust Fund Statutes	All funds disbursed to any contractor or subcontractor must be held in trust for the payment of the sub-contractors, material suppliers, or laborers who have furnished laborers, materials or service. Colo. Rev. Stat. § 38-22-127(1). No requirement to hold funds in trust if good faith belief that claim is invalid or if good faith setoff. Section doesn’t apply if contractor furnishes bond or owner executed written release. Violation of this section constitutes theft.		All money received by a contractor from a construction contract is a trust fund in the hands of the contractor. 6 Del. C. § 3502. A contractor may not use these funds until payment is made to all persons furnishing labor and/or materials. Id. § 3503.	Fla. Stat. § 713.345 requires anyone receiving a payment for improving real property to use the payment to first pay its subcontractors and suppliers.
D. Penalties for Failure to Make Payments	See Section IV.A.	See Section IV.A. Wrongful withholding of funds after formal claim submitted may, in addition to interest, lead to award of attorney’s fees and costs per CGSA §42-158j.	See Section IV.A.		See Section IV.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Colorado law implies a warranty of workmanlike construction. As to new residential construction, Colorado also implies a warranty of habitability.	Connecticut law implies a warranty of the plans and specifications, a duty to reveal superior knowledge and a duty not to hinder performance.	Delaware law implies a warranty of workmanlike construction.	Florida law implies that any drawings or specifications provided by an owner are complete and accurate. With respect to condominiums, Florida law implies a 3 year warranty of fitness. Florida implies a 1 year warranty of fitness to all other improvements of real property	Georgia law implies a duty to perform a construction contract in a fit and workmanlike manner. Georgia law also implies a warranty that an owner’s plans and specifications are sufficient.
B. New Home Warranties	See Section V.A.	The New Home Warranty Act regulates new home warranties, and implies a number of warranties for the improvement of an existing home. Conn. Gen. Stat. §§ 47-117, -118.	See Section V.A.		On all construction valued at $2,500 or more, a 1 year warranty is implied to the contract unless agreed otherwise. O.C.G.A. § 43-41-7.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Colorado prohibits provisions in construction agreements that indemnify or insure the negligence or fault of another. Colo. Rev. Stat. § 13-21-111.5(6)	Connecticut prohibits any provision that indemnifies or holds harmless another’s negligence that results in bodily injury or property damage. Conn. Gen. Stat. § 52-572(k).	Indemnification agreements are generally enforceable, except provisions that indemnify the negligence of another that results in injury or property damage. 6 Del. C. § 2704.	In private projects, any provision that requires the indemnification of any act, omission or default of another is void unless there is an express monetary limit on the amount of indemnity and that amount bears a reasonable commercial relationship to the contracted loss. Fla. Stat. § 725.06. Indemnification provisions in public projects are governed by Fla. Stat. § 725.06(2)-(3).	Any agreement that purports to indemnify the indemnitee for any injury or property damage resulting from the indemnitee’s own negligence is void and unenforceable. O.C.G.A. § 13-8-2(b).
VII. Legislation Affecting Insurance Requirements
A. Worker’s Compensation	Contractors, sub-contractors and other employers must maintain statutory workers’ compensation coverage. Colo. Rev. Stat. §§ 8-40-101 et seq.	Anyone employing one or more employees must maintain workers’ compensation insurance. Conn. Gen. Stat. §§ 31-275(10), -284.	Any person seeking license as a contractor or a real estate developer must provide certification of workers’ compensation insurance or qualify as self-insured. 30 Del. C. § 2502(b).	Every employer, unless otherwise exempted under Chapter 440, must provide workers’ compensation coverage. Fla. Stat. §§ 440.10. Fla. Stat. 440.103 requires evidence of workers’ compensation as a condition to obtaining a building permit.	General contractors must obtain proof of workers’ compensation coverage for its employees. O.C.G.A. § 46-41-6(e).
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Public projects in excess of $100,000 require a payment bond, and the general contractor must execute a performance bond not less than one-half the total amount payable. Colo. Rev. Stat. § 38-26-106.	On public projects exceeding $100,000, a prime contractor must secure a bond to ensure payment to its subcontractors and suppliers. Conn. Gen. Stat. Ann. § 49-41. A performance bond may be required at the discretion of the contracting agent for any public project in excess of $25,000. Conn. Gen. Stat. § 49-41(b).	Bonds are required for public works contracts pursuant to 29 Del. C. § 6927.	For public projects in excess of $100,000, a contractor must provide a payment and performance bond. Fla. Stat. § 255.05. The contractor must also record the bond in the public records of the country where the project is located. Exemptions to the bond requirement may be permitted for public projects of $200,000 or less.	Georgia’s Little Miller Act requires a bid bond, performance bond, and payment bond or other form of security for all public projects with an estimated value of $100,000 or more. O.C.G.A. §§ §§ 13-10-1 to -65 (state), 36-91-40 to -95 (local gov’t).
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond	If a dispute arises between the contractor and a subcontractor, the subcontractor must file suit within 90 days and file a lis pendens with the public entity.	A subcontractor or supplier has 180 days after completion of its work to serve notice of a claim to the surety. Thereafter, a suit must be filed within 1 year of the completion date. Conn. Gen. Stat. § 49-42. Note, however, that Conn. Gen. Stat. § 38a-290 prohibits insurance companies from limiting the time within which suit must be brought on performance and payment bonds to less than three years.			Contractors furnishing bonds on private projects must file with the local superior court clerk a Notice of Commencement within 15 days of commencement of work and provide a copy to all those who request within 10 days. O.C.G.A. § 10-7-31(b). Subcontractors having no privity must provide written notice to the contractor who files the Notice of Commencement within 30 days of later of such filing or first delivery of labor or materials in order to preserve rights under the bond. O.C.G.A. § 10-7-31(a). The statute of limitations for a claim on bid or performance bonds required in public projects, or a payment bond, is 1 year from the completion date of the contract. O.C.G.A. §§ 13-10-24, -42, -65 (state); 36-91-54, -72, -95 (local gov’t).
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	The Colorado Consumer Protection Act prohibits an extensive list of deceptive trade practices, many of which apply to a construction and design projects in the consumer setting. Colo. Rev. Stat. § 6-1-101 et seq.	The Connecticut Unfair Trade Practices Act (“CUTPA”) prohibits persons from engaging in unfair or deceptive acts or practices in the conduct of any trade or commerce. Conn. Gen. Stat. § 42-110b et seq. CUTPA applies to construction claims. See Tessman v. Tiger Lee Constr. Co., 634 A.2d 870 (Conn. 1993).	The Delaware Uniform Deceptive Trade Practices prohibits certain unfair and deceptive conduct in the consumer setting. 6 Del. C. §§ 2531-2536. Although the statute does not cover real estate transactions, it may apply to the construction of or improvement to structures with respect to goods and services used.	Florida’s consumer protection laws are set forth in Fla. Stat. § 501 et seq. The home solicitation provisions may apply to design or construction contracts. Id. § 501.021(1). Section 501.1375 places certain limits upon developers and builders who receive deposits on residential sale contracts (if the developer or builder constructs or sells more than 10 residential units per year statewide).
B. Residential Construction Acts	Under the Soil and Hazard Analysis of Residential Construction Act, a builder must provide a purchaser with a summary report of a soil analysis at least 14 days prior to closing. Colo. Rev. Stat. § 6-6.5-101. The Residential Building Energy Conservation Act provides minimum insulation standards for energy conservation in the construction and renovation of residential buildings. Colo. Rev. Stat. § 6-7-101 et seq.			The Florida Homeowners’ Construction Recovery Fund compensates claimants who receive final judgment in design and construction claims. Fla. Stat. §§ 489.140 to -.144.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages are generally enforceable in Colorado, provided they meet certain criteria. See Yerton v. Bowden, 762 P.2d 786 (Colo. App. 1988).	Liquidated damages are generally enforceable in Connecticut, provided that they are reasonable and meet certain criteria. See Hanson Dev. Co. v. E. Great Plains Shopping Ctr., Inc., 485 A.2d 1296 (Conn. 1985).	A liquidated damages provision will be upheld where damages are uncertain and the agreed amount is reasonable. See Lee Builders v. Wells, 103 A.2d 918 (Del. Ch. 1954).	Liquidated damages are enforceable if they do not constitute a penalty or forfeiture and if the damages were not ascertainable when the contract was entered into. Osceola County v. Bumblebee Constr., Inc., 479 So. 2d 310 (Fla. 1985).	If the parties stipulate to damages, they are said to be liquidated, unless the agreement violates some principle of law. O.C.G.A. § 13-6-7. Rules for recovery of direct, remote and consequential damages which generally follow common law and Restatement (Second) of Contracts §347(a) are set forth in O.C.G.A. § 13-6-2 and 13-6-8.
B. Limitations on Remedies	Agreements exculpating a party in whole or in part are generally disfavored under Colorado law. See Jones v. Dressel, 623 P.2d 370 (Colo. 1981). Colorado has also adopted the economic loss rule.	Exculpatory provisions for delay damages are only permitted in certain circumstances. See, e.g., White Oak Corp. v. Dep’t of Transp., 585 A.2d 1199 (Conn. 1991).	Delaware law voids exculpatory clauses in certain construction contracts purporting to indemnify and hold harmless against damages that result from another’s negligence. 6 Del. C. § 2704(a). The Home Owner’s Protection Act repudiated the economic loss rule in Delaware. 6 Del. C. § 3652.	Exculpatory clauses are only valid where the intention is made clear and unequivocal. Middleton v. Lomaskin, 266 So. 2d 678 (Fla. 1972). However, exculpatory clauses are not enforceable in residential condominium contracts where they would violate the warranty provisions of Fla. Stat. § 718.203(2). Florida also recognizes the economic loss rule.	Exculpatory clauses must be clear and unambiguous, as any ambiguity will be construed against the drafter. Dep’t of Transp. v. APAC-Ga., Inc., 456 S.E.2d 668, 671 (Ga. Ct. App. 1995). Georgia has also adopted the economic loss rule.
XII. Legislation Affecting Dispute Resolution
A. Venue		Any provision in a construction contract for performance of work on a construction site in CT that purports to require that any dispute be adjudicated in or under the laws of a state other than CT shall be void and of no effect, regardless of where the construction contract was executed. CGS § 42-158m
B. Arbitration	Colorado has adopted the Uniform Arbitration Act. Colo. Rev. Stat. § 13-22-201 et seq.	Arbitration agreements are enforceable under Connecticut law. Conn. Gen. Stat. §§ 52-408, -409. Arbitration of a CT project must be venued in CT and is subject to CT law. CGS § 42-158m.	Delaware has adopted the Uniform Arbitration Act. 10 Del. C. §§ 5701-5725.	The Florida Arbitration Code is set forth in Fla. Stat. § 682.	Georgia has not adopted the Uniform Arbitration Act, but has adopted its own version of the Act. See O.C.G.A. §§ 9-9-1 to -18.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	Colorado has state agencies that regulate water quality, air pollution and hazardous materials and waste management.	Under Title 22a of the Connecticut General Statutes, there are a multitude of environmental laws that are inherently intertwined with construction.	Delaware has several statutory provisions and regulations that deal with environmental concerns affecting construction and design.	Florida has the Pollutant Discharge Prevention Control Act and the Air and Water Pollution Control Act. Fla. Stat. §§ 376 et seq., 403.11 to -.42. Otherwise, there are no specific statutorily required environmental concerns for design and construction contracts.	Georgia has regulation affecting water quality (O.C.G.A. §§ 12-5-20 to -53), hazardous materials (Id. §§ 12-8-60 to -97), asbestos (Id. §§ 12-12-1 to -21) and underground storage and sewage tanks (Id. §§ 12-13-1 to -22, 12-15-1 to -8).
B. Green Building and Sustainable Construction Initiatives	In 2007, Colorado enacted the High Performance Building Act. Colo. Rev. Stat. §§ 24-30-1301 to -1305.	New state buildings of $5 million or more, or renovations of state facilities exceeding $2 million or more, must meet or exceed a LEED silver rating or two-globe rating under Green Globes. Conn. Gen. Stat. § 16a-38k. Also, Conn. Gen. Stat. § 29-256a mandates sustainable energy practices for all new construction.	Delaware has not enacted statutorily mandated green building programs or sustainable construction initiatives.	There are currently no Florida statutes establishing mandatory green building standards. However, the Florida Green Building Coalition is a non-profit organization whose mission is to create a statewide green building program with environmental and economic benefits.	The Energy and Efficiency Sustainable Construction Act of 2008 applies to design agreements for major facilities projects entered into or after the Act’s effective date of July 1, 2010. See O.C.G.A. § 50-8-18.
C. Transfer of Contaminated Property		Conn. Gen. Stat. § 22a-134 et seq. deals with the transfer of contaminated property.

50 State Survey: Hawaii – Iowa

	Hawaii	Idaho	Illinois	Indiana	Iowa
II. Legislation Affecting Project Delivery Systems
A. Design Build	Hawaii has not enacted legislation dealing with licensing requirements for design build projects. However, an architect or engineer may not offer to provide construction services without a valid license.	Idaho has no statutory provisions for design build private projects. In public projects, Idaho does have statutes that govern design build, construction management and other delivery systems. Idaho Code §§ 67-5711A, 67-5711E, 54-4501 to -4514, 672320.	Illinois has no specific laws relating to project delivery systems in private construction projects. However, the Public Building Commission Act and the Design-Build Procurement Act deal with project delivery systems in which the state or a political sub-division accepts bids for public projects. 50 ILCS 20 et seq.; 30 ILCS 537 et seq.	Indiana authorizes the use of the design-build method by various state and municipal agencies. Ind. Code § 5-30-1-1 et seq.	A design build contract may be unenforceable when a contractor subcontracts design services and does not hold a license to practice architecture. Food Mgmt., Inc. v. Blue Ribbon Beef Pack, Inc., 413 F.2d 716, 724 (8^th Cir. 1969).
B. Construction Management	See Section II.A.	See Section II.A.	See Section II.A.	See Section II.A.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Claims for a breach of contract have a 6 year statute of limitations. Haw. Rev. Stat. § 657-1(1). Claims for damages based on construction to improve real property have a 2 year limitations period. Id. § 657-8. Claims brought by contractors to recover from the contractors’ recovery fund are subject to a 6 year statute of limitations. Id. § 444-28.	Claims for a breach of a written contract have a 5 year statute of limitations. Idaho Code § 5-216. Claims based on a breach of an oral contract have a 4 year limitations period. Id. § 5-217. Tort claims, including claims based on professional malpractice, have a 2 year statute of limitations. Id. § 5-219.	Claims based on tort, contract or otherwise in the construction and design context have a 4 year statute of limitation. 735 ILCS 5/13-214.	Claims based on breach of a written contract have a 10 year statute of limitations. Ind. Code § 34-11-2-11. Claims for a breach of an oral contract have a 6 year statute of limitations. Id. § 34-11-2-7. Malpractice claims against design and construction professionals have a 2 year limitations period. Id. § 34-11-2-4. All other claims against design and construction professionals that relate to real property have a 6 year statute of limitations.	Claims based on breach of a written contract have a 10 year statute of limitations. Iowa Code § 614.1(4). Claims based on breach of an oral or implied contract, and claims based on torts have a 5 year limitations period. Id. § 614.1(5). A 5 year statute of limitations covering property damage applies to restrictions in a declaration to a horizontal property regime. Bowles v. Schilling, 581 N.W.2d 192 (Iowa Ct. App. 1998).
B. Licensing and Regulation	Architects, engineers and construction professionals require state licensing. Haw. Rev. Stat. §§ 464-1 to -15, 444-9. Failure to be properly licensed prior to contracting will prevent recovery in a civil action for work done under a contract or quantum meruit theory of recovery. Haw. Rev. Stat. § 444-22.	Architects, landscape architects, engineers and land surveyors require state licensing. Idaho Code § 54-301 et seq., 54-3001 et seq., 54-1201 et seq. Electricians and public works contractors also require licensing. Id. § 54-1002, 54-1003A, 54-1903. Plumbers require certification with the state plumbing board. Id. § 54-2620. Contractors not working on public works only require registration. Id. § 54-5201 to -5219.	Architects, landscape architects, engineers and structural engineers require state licensing. 225 ILCS 305/5, 315/4, 325 et seq., 340/5. Interior designers require registration only. 225 ILCS 310/4. Plumbers, water well and pump installation contractors, roofing contractors and land surveyors require state licensing. 225 ILCS 320/3, 345/4, 335/2, 330/16. Irrigation contractors only require registration. 225 ILCS 320/2. General contractors have no state licensing or registration requirements, although certain municipalities (such as the city of Chicago) may impose such requirements.	Architects, landscape architects, engineers and land surveyors must obtain a Certificate of Registration and verify his or her qualifications. Ind. Code §§ 24-4-1-6, 25-4-2-3, 25-31-1-12(a), 25-21.5-5-2. Plumbers and water well drillers require state licensing. Ind. Code §§ 25-28.5-1-3, 25-39-3-1. Contractors, however, are generally regulated by local authorities.	Architects, engineers and land surveyors require state licensing. Iowa Code §§ 544A.15(1), 542B.1. Contractors must be registered with the Iowa Labor Commission. Id. §§ 91C.1-2. Municipalities have authority to license and regulate professional trades (such as plumbing). See Op. Iowa Att’y Gen. 1993-7 (1993).
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	In private projects, contractors are required to pay their subcontractors within 60 days after the subcontractor submits a statement that its services are complete. Haw. Rev. Stat. § 444-25. Amounts not paid within 60 days are subject to 1% monthly interest. Id. Under public contracts, a contractor is subject to payment 30 days after submitting an invoice. Id. § 103-10(a). Subcontractors are entitled to payment within 10 days of contractor receiving payment from the public entity. Id. § 103-10.5(a).		The State Prompt Payment Act and the Local Government Prompt Payment Act require governmental units to pay for goods and services within the statutory period, and failure to do so is penalized at an interest rate of 1% per month. 30 ILCS 540/0.01 et seq., 50 ILCS 505/1 et seq. Both acts require contractors receiving payments from state or local governments to distribute payments to subcontractors and material suppliers on a pro rata basis. 50 ILCS 505/9; 30 ILCS 540/7. A failure to distribute payment within 15 days results in a an interest rate of 2% per month. 30 ILCS 540/7.	Indiana has a series of statutes that deal with prompt payment in publicly-funded projects. See Ind. Code §§ 4-13.6-7-4, 5-16-5.5-5 to -6, 8-23-9-18, 36-1-12-17.
B. Retainage	Any public contract may include a provision for the retainage of a portion of an amount due to the contractor to ensure proper performance. Haw. Rev. Stat. § 103-32.1. The sum withheld shall not exceed 5%, and no sum shall be withheld when 50% or more of the project is complete. Id. § 103-32.1(c)(1).	Idaho Code § 29-115 applies to any construction contract in which proceeds are withheld from the contractor by the owner or from the subcontractor by the prime contractor. The retained proceeds cannot exceed 5% of the payment or 5% or the contract price. The 5% max is not applicable where the contractor does not provide a performance bond or where the contract is for private work to residential real property to be occupied by the owner.		Public construction projects are subject to various retainage requirements. See Ind. Code §§ 4-13.6-7-2, 5-16-5.5-2, 36-1-12-14, 8-23-9-17.	Public projects require a monthly retention of not more than 5% from payment made to a general contractor. Iowa Code § 573.12.
C. Trust Fund Statutes
D. Penalties for Failure to Make Payments	See Section IV.A.	See Section IV.A.	See Section IV.A.	See Section IV.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Hawaii law does not imply any warranties in the construction and design context.	Idaho law implies a warranty of workmanlike performance and a warranty of fitness/habitability.	Illinois law implies a warranty of workmanlike performance and a warranty of fitness for new homes.	Indiana law implies a warranty of habitability in the construction of homes.	Iowa law implies a warranty of workmanlike performance and fitness for an intended purpose in construction contracts.
B. New Home Warranties		See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.
C. Anti-Disclaimer Legislation				A builder may only disclaim an implied warranty if certain express statutory requirements are met. Ind. Code § 32-27-2-1 et seq.	Limitation of warranty provisions in construction contracts are permissible to limit exposure for contract and tort claims. Badgett Constr. & Dev. Co. v. Kan-Build, Inc., 102 F. Supp. 2d 1098, 1105 (S.D. Iowa 2000).
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Private parties may contract to indemnify the indemnitee for the indemnitee’s own negligence so long as there is a “clear and unequivocal” assumption of liability by one party for the other party’s negligence. However, a party to a construction contract cannot exempt itself from liability for bodily injury or property damage caused by its “sole negligence and misconduct.” Haw. Rev. Stat. § 431:10-222. It is not clear how this statute would be applied where there is some apportionment of negligence between the two parties.	Any contract provision that indemnifies a party for any injury or property damage that results from sole negligence of that party is void. Idaho Code § 29-114. Howerver, if indemnity clause in construction agreement does nto require a party to be indemnified for injuries to a 3^rd party caused solely by that party, the clause does not violate the Idaho Code.	In construction contracts, indemnity agreements against an indemnitee’s own negligence are void as against public policy. 740 ILCS 35/1.	Any construction contract (except those pertaining to highway contracts) that indemnify a party for any injury or property damage resulting from the sole negligence of that party is void and unenforceable. Ind. Code § 26-2-5-1.	Iowa does not have an anti-indemnity statute.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Employers must secure workers’ compensation insurance. Haw. Rev. Stat. § 386-121. Note, to obtain a contractor’s license, the contractor must show proof of liability insurance and submit a bond, if required by the licensing board. Id. at § 444-11(9), (10).	Employers must maintain statutory workers’ compensation coverage. Idaho Code § 72-101 et seq.	Employers engaging in construction work must maintain workers’ compensation insurance. 820 ILCS 305/3.	Indiana employers are subject to workers’ compensation insurance requirements. Ind. Code § 22-3-5-1 et seq.	Contractors must maintain workers’ compensation insurance. Iowa Code § 91C.2.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Bid bonds are required for public projects awarded through the state’s bidding process. Haw. Rev. Stat. § 103D-323.	The Public Contracts Bond Act is modeled after the Miller Act, and is intended to protect persons who furnish labor and materials to public works by obligating the prime contractor on its bond to satisfy their unpaid claims. Idaho Code §§ 54-1925, -1926.	The general Sureties Act for Illinois is found at 740 ILCS 155/1 et seq.	Bid, payment and performance bonds are generally required on public projects in which the contract amount is greater than $200,000. Ind. Code §§ 4-13.6-7-4 to .7, 5-16-5.5-4 to -6, 8-23-9-8 to -9, 36-1-12-1 et seq.	The general provisions for sureties are contained in Iowa Code §§ 540.1 to 540.4.
B. Mandatory Payment on Public Projects		See Section VIII.A.
C. Statute of Limitations for Filing Suit on Bond
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	Hawaii’s Unfair and Deceptive Trade Practices Statute is applied to design and construction contracts. Haw. Rev. Stat. § 480-2. Injured parties may sue for treble damages. The private right of action is, however, limited to “consumers,” defined as “natural persons.” Id. at § 480-13, 480-1. Failure to provide required disclosures under the contractor’s licensing statutes have been deemed an unfair and deceptive trade practice.	The Idaho Consumer Protection Act protects consumers and businesses against unfair competition and deceptive acts and practices in the conduct of trade commerce. Idaho Code §§ 48-601 to -609.	The Illinois Consumer Fraud and Deceptive Business Practices Act is found at 815 ILCS 505/1. Section 505/2Q deals specifically with home repair.		Iowa’s consumer protection laws apply to construction contracts, and any unfair, deceptive or fraudulent practice in connection with a lease, sale or advertisement of any merchandise (which includes real estate and related services) is unlawful. Iowa Code § 714.16.
B. Residential Construction Acts	Under Haw. Rev. Stat. § 444-26, the Contractors’ License Board is authorized to establish a recovery fund from which any person injured by the conduct of a licensed contractor may recover an amount not in excess of $12,500 per contract in actual damages.		Illinois enacted the Home Repair Fraud Act and the Home Repair and Remodeling Act to protect homeowners from unfair and deceptive practices relating to home repair. 815 ILCS 515/1 et seq., 513/1 et seq.	The Home Improvement Act places minimum requirements on the contents of home improvement contracts in order to protect homeowners from unfair or deceptive practices. Ind. Code §§ 24-5-11-1 to -14.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages are enforceable in the construction context. See Assoc. Eng’rs & Contractors, Inc. v. State, 567 P.2d 397 (Haw. 1977).	Liquidated damages are enforceable only when the actual damages are difficult to estimate and the estimated damages are a reasonable calculation. Margaret H. Wayne Trust v. Lipsky, 846 P.2d 904 (Idaho 1993).	Liquidated damages provisions are permitted in a construction contract when the terms are explicitly set out and the provision constitutes a reasonable estimation of the actual damages. 810 ILCS 5/2-718.	Liquidated damages are enforceable only if they are a reasonable attempt to quantify the actual damages suffered. Czeck v. Van Helsland, 241 N.E.2d 272 (Ind. Ct. App. 1968).	Liquidated damages provisions are enforceable when the actual damages are uncertain and amount fixed by the contract is fair. Rohlin Constr. Co. v. City of Hinton, 476 N.W.2d 78, 79 (Iowa 1991).
B. Limitations on Remedies	Exculpatory provisions that relieve parties from liability caused by their own negligence are not enforceable. Haw. Rev. Stat. § 431:10-222. Hawaii has adopted the economic loss rule.	Although Idaho appellate courts have not dealt with exculpatory clauses in the construction context, they have enforced these provisions in other contexts. Idaho also adheres to the economic loss rule. Idaho Code §6-2504 limits the elements of costs recoverable by claimants from construction professionals for construction defects.	Except in the context of a lease, exculpatory clauses in contracts are generally allowed in Illinois. Illinois has also adopted the economic loss rule.	Indiana courts will enforce exculpatory clauses if they are entered into knowingly, freely and free from fraud. Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999). Indiana courts also recognize the economic loss rule. Gunkel v. Renovations, Inc., 822 N.E.2d 150 (Ind. 2005).	Iowa courts disfavor exculpatory clauses that limit a party’s liability for its own negligence. Evans v. Howard R. Green Co., 231 N.W.2d 907, 913 (Iowa 1975). Iowa courts have adopted the economic loss rule, but it does not apply to a negligent misrepresentation claim against professionals. Burns Philp, Inc. v. Cox, Kliewer & Co., 2000 U.S. Dist. LEXIS 21653 (S.D. Iowa 2000)
XII. Legislation Affecting Dispute Resolution
A. Venue
B. Arbitration	Hawaii has adopted the Uniform Arbitration Act, and agreements to arbitrate are generally enforceable. Haw. Rev. Stat. §§ 658A-1 to -29.	Idaho has adopted the Uniform Arbitration Act. Idaho Code §§ 7-901 to -922.	Illinois has adopted the Uniform Arbitration Act. 710 ILCS 5/1 et seq.	Indiana has adopted the Uniform Arbitration Act. Ind. Code § 34-57-2-1 et seq.	Iowa has adopted a form of the Uniform Arbitration Act. Iowa Code §§ 679A.1 to 679A.19.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	Hawaii has a number environmental regulations that impact construction, such as regulations of water and air pollution, endangered species protection, hazardous waste, and underground storage tanks. Haw. Rev. Stat. §§ 340E et seq., 342B-1 et seq., 342D-1 et seq., 195D-1 et seq., 342J-1 et seq., 324L-1 et seq.		The Environmental Protection Act enumerates the procedural requirements for the issuing of permits when required. 415 ILCS 5/39.		Iowa has adopted land recycling and environmental remediation standards. Iowa Code § 455H.101 et seq.
B. Green Building and Sustainable Construction Initiatives	There are currently no green building programs or sustainable construction initiatives in Hawaii.	Idaho does not have any green building or sustainable construction legislation. However, some Idaho cities and counties have adopted green building initiatives. See, e.g., City of Boise Resolution No. 18710.	The Green Neighborhood Grant Act provides grants to private developments that meet certain standards for environmentally responsible design. 30 ILCS 737 et seq.	Indiana has no statutes or regulations addressing green building construction or sustainability initiatives.	State and local government buildings must adhere to certain thermal and lighting efficiency standards. Iowa Code § 103A.10(4). The State Building Code sets energy conservation requirements for new single and two-family residential construction. Iowa Code § 103A.8A.
C. Transfer of Contaminated Property

50 State Survey: Kansas – Maryland

	Kansas	Kentucky	Louisiana	Maine	Maryland
II. Legislation Affecting Project Delivery Systems
A. Design Build	For public projects, the Kansas Alternative Project Delivery Building Construction Procurement Act authorizes state agencies to use “alternative project delivery,” including design build and construction management at risk (CMAR). Kan. Stat. Ann. § 75-37,141 to -37,147. Unless the state agency elects to apply this Act to projects of $100,000 or more, the project must be awarded the lowest bidder. Id. § 75-3739.	There are no legal restrictions on project delivery methods for private projects. In public projects, Ky. Rev. Stat. § 45A.180 authorizes the Sec’y of the Finance and Administration to administer alternative methods of construction management, such as CMAR, design build, and construction manager-agency.	The design build method is generally permissible in private projects; however, an architect requires licensing as a contractor if it acts as the design builder. La. Rev. Stat. § 37:2150 et seq. On public projects, design build is not permitted without express statutory approval. Id. § 38:2225.2. Also, architects and engineers are prohibited from having any financial interest in the construction of a project. Id. § 38:2190A.	The Public Improvements Act authorizes bidding by contractors or teams utilizing design build, construction management advisor, CMAR, and other alternative delivery systems on public projects valued at $100,000 or more. Me. Rev. Stat. tit. 5, § 1743.	There are no special considerations relating to project delivery systems under Maryland law.
B. Construction Management	See Section II.A.	See Section II.A.	Construction management using multiple prime contractors may not be legal under Louisiana law. See Hosp. Serv. Dist. V. La. State Licensing Board, 723 So. 2d 1110 (La. Ct. App. 1998).	See Section II.A.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Claims for breach of a written contract have a 5 year statute of limitations. Kan. Stat. Ann. § 60-511. Claims for a breach of an oral contract have a 3 year statute of limitations. Id § 60-512. Tort claims generally have a 2 year limitations period. Id. § 60-513.	Claims for breach of a written contract have a 15 year statute of limitations. Ky. Rev. Stat. § 413.090(2). Claims for breach of an oral contract have a 5 year limitations period. Id. § 413.120(1). Tort claims generally have a 1 year statute of limitations. Id. § 44.110. Claims of fraud have a 5 year statute of limitations. Id. § 413.120(1).	Claims for breach of a written or oral contract have a 10 year statute of limitations. La. Civ. Code art. 3499. Tort claims generally have a 1 year limitations period. Id. art. 3492.	The general statute of limitations for civil actions is 6 years. Me. Rev. Stat. tit. 14, § 752. The limitations period for a breach of contract or warranty subject to Maine’s U.C.C. is 4 years. Id. at tit. 11, § 2-725. Professional malpractice or negligence claims (including claims against architects and engineers) is 4 years. Id. at tit. 14, § 752-A.	Claims for a breach of contract (both written and oral) and tort claims have a 3 year statute of limitations. Md. Code. Ann., Cts. & Jud. Proc. § 5-101. Claims relating a contract under seal or on a bond (other than a public officer’s bond) have a 12 year statute of limitations. Id. § 5-102(a).
B. Licensing and Regulation	Architects, engineers, land surveyors, landscape architects and geologists require state licensing. Kan. Stat. Ann. § 74-7001 et seq. Kansas empowers cities and local municipalities to regulate plumbers and other construction professionals. Id § 12-1501 et seq.	Architects, engineers, land surveyors and landscape architects require state licensing. Ky. Rev. Stat. §§ 323.020, 322.020, 323A.020. Interior designers require certification. Id. § 323.402(2). Electricians, HVAC contractors and plumber require state licensing. Id. §§ 227A.020, 198B.656(4), 318.030. General contractors have no state licensing or certification requirements.	Architects, engineers and land surveyors require state licensing. La. Rev. Stat. §§ 37:154, 34:700. All contractors and construction professional also require state licensing. Id. §§37:2150 to 2163.	Architects, engineers and landscape architects require state licensing. Me. Rev. Stat. tit. 32, §§ 220(1), 1351, 220(2)(A). Construction professionals (including contractors) do not require state licensing.	Architects, landscape architects, engineers, and land surveyors require state licensing. Md. Code. Ann., Bus. Occ. & Prof. §§ 3-302, 9-301, 14-301, 15-101. Interior designers require state certification. Id § 8-301. Contractors, electricians, plumbers, HVAC contractors, and home improvement contractors require state licensing. Id. §§ 17-601, 6-301, 12-101, 9A-103, 8-101.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	In public and private projects (except small residential projects), the Kansas Fairness in Private Construction Contract Act requires prompt payment by owners to contractors (30 days), and contractors to sub-contractors (7 days). Kan. Stat. Ann. § 16-1801 et seq. Failure to make prompt payment may result in a penalty of 18% interest per annum. Id. § 16-1803.	The Fairness in Construction Act requires payments due to a contractor (except retainage) to be made within 30 business days. Ky. Rev. Stat. § 371.405(5). Contractors are required to pay sub-contractors within 15 business days of receipt of payment from the owner or contracting entity. Id. § 371.405(8). Failure to make prompt payments results in the accrual of interest at a rate of 12% per annum. Id. § 371.405(9).	All state agencies must promptly pay all obligations arising under public contracts. La. Rev. Stat. § 38:2191(A). A public entity that fails to make payment within 45 days can be made to pay a contractor’s reasonable attorney’s fees if suit is filed. Id. § 38:2191(B). Contractors must pay their subcontractors and suppliers within 14 days upon receipt of payment from the owner/state agency or incur a penalty of up to 15% interest. The contractor may also be liable for the subcontractor or supplier’s reasonable attorney’s fees.	The Construction Contracts Act requires that an owner pay a contractor, and a contractor pay its subcontractors and suppliers, promptly and in accordance with the contract. Me. Rev. Stat. tit. 10, § 1111 et seq. If an owner, contractor, or sub-contractor has failed to comply with the prompt payment requirements of the Act, a penalty of 1% monthly interest accrues. Id. §1118. Also, the substantially prevailing party is entitled to its reasonable attorneys’ fees and expenses. Id.	If a construction contract does not specify a date for payment, an owner must pay within 30 days of the granting of an occupancy permit or taking possession (whichever is earlier). Md.Code Ann., Real Prop. § 9-302. If the contract specifies a date for payment, payment must be made within 7 days. Id. This prompt payment provision does not apply to state or local governments or school districts. Id. § 9-302(b)(2). Further, this prompt payment provision does not apply to contracts to build a single family dwelling. Id. §9-304.
B. Retainage		No more than 10% of an undisputed payment may be withheld by the contracting entity, contractor or sub-contractor after 50% of the project is complete.	Public entities may not retain more than 10% of payment due in contracts less than $500,000. On public projects of $500,000 or more, retainage is limited to 5% of the progress payment. La. Rev. Stat. § 28:2248.	The Construction Contracts Act regulates retainage. Payments may be retained from the contractor, sub-contractor or supplier only if there is a good basis to do so. Me. Rev. Stat. tit. 10, § 1118(1). Otherwise, retainage must be paid within 30 days after final acceptance of the work. Id. § 1116.	If a contractor furnishes performance and payment bonds (each must equal 100% of the contract price), an owner may not retain more that 5% of the contract price. Md. Code Ann., Real Prop. § 9-304.
C. Trust Fund Statutes					Money paid by an owner to a contractor or by an owner or contractor to a sub-contractor is deemed to be held in trust to ensure payment to all subcontractors and suppliers. Md. Code Ann., Real Prop. § 9-201.
D. Penalties for Failure to Make Payments	See Section IV.A.	See Section IV.A.	See Section IV.A.	See Section IV.A.	A court may award an injunction, interest and reasonable costs (including attorneys’ fees for bad faith) for an owner or contractor’s failure to make statutorily required prompt payment. Md. Code Ann., Real Prop. § 9-303.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Kansas law implies a warranty of workmanlike performance and a warranty of fitness for new homes.	Kentucky law implies a warranty of habitability and a warranty of merchantability. Also, Kentucky implies a warranty that an owner’s designs and specifications are accurate and suitable.	Louisiana law implies a warranty of workmanlike performance in construction contracts. Further, La. Rev. Stat. § 9:2774 implies a warranty that a project has been substantially completed within the plans and specifications. A Section 9:2774 warranty cannot be waived or disclaimed in a contract. Id. § 9:2774B.	Maine law implies a warranty of reasonably skilled and workmanlike performance in construction contracts.	Maryland law implies a warranty of construction free from faulty materials, a warranty of construction according to sound engineering standards, a warranty of workmanlike performance, and a warranty of fitness for habitation.
B. New Home Warranties	See Section V.A.	See Section V.A.	The New Home Warranty Act establishes exclusive remedies and warranties applicable to home construction, and the Act precludes the application of other forms of warranty law to home construction. La. Rev. Stat. § 9:3150.	The Home Construction Contract Act requires all new home construction contracts to include a clause warranting that the home be free from faulty materials, meet the standards of the building code, was built in a skillful manner fit for habitation, and applying the U.C.C. to the contract. Me. Rev. Stat. tit. 10, § 1487(7).	Builders have the option of providing buyers of new homes with new home warranties through a new home warranty security plan. Md. Code Ann., Real Prop. § 10-601 et seq.
C. Anti-Disclaimer Legislation			See Section V.A.
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Kan. Stat. Ann. § 16-121 prohibits indemnity provisions in construction contracts which require indemnification for anything other than an indemnitee’s own negligence.	Any provision in a construction contract that indemnifies or holds harmless a contractor for liability caused by his or her negligence is unenforceable. Ky. Rev. Stat. § 371.180(2).	Louisiana enforces indemnity clauses, even those which purport to indemnify the negligence of another, if the clause is expressed in clear and unequivocal terms. Polozola v. Garlock, Inc., 343 So. 2d 1000 (La. 1997).	Maine does not have a statute that prohibits indemnification. Indemnification of another party’s negligence is not against Maine public policy; however, such provisions are disfavored and strictly construed against an asserting party. Emery v. Waterhouse Co., 467 A.2d 986 (Me. 1983).	Any provision purporting to indemnify the indemnitee from liability caused by the sole negligence of the indemnitee is against public policy and void. Md. Code Ann., Cts. & Jud. Proc. § 5-401.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Contractors, sub-contractors and other employers must secure workers’ compensation insurance. Kan. Stat. Ann. § 44-532.	Employers must maintain workers’ compensation coverage. Ky. Rev. Stat. § 342.610(2).	Contractors, sub-contractors and other employers must secure workers’ compensation insurance. La. Rev. Stat. § 23:1168(A).	Contractors, sub-contractors and other employers must satisfy the statutory requirements for workers’ compensation insurance. Me. Rev. Stat. tit. 39-A, § 101 et seq.	Employers (including contractors) must satisfy workers’ compensation requirements. Md. Code Ann., Labor & Employ. § 9-101 et seq.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Kan. Stat. Ann. Chapter 78 regulates sureties. These statutes relate primarily to bonding requirements.	There are 3 types of bonds required for public projects: bid bonds, performance bonds (on contracts of $40,000 or more) and payment bonds (on contracts of $40,000 or more). Ky. Rev. Stat. §§ 45A.185(2), 45A.190(2).	Public projects require a performance bond. La. Rev. Stat. § 38:2216. However, the performance bond may be waived for projects that do not exceed $50,000, and the bidder meets other statutory requirements. Id. Payment bonds are also required under the Public Works Act. Id. at 38:2241(c).	The Public Works Surety Bond Law provides that contractors must supply both performance and payment bonds equal to the full contract price on public projects exceeding $100,000. Me. Rev. Stat. tit. 14, § 871.	The Maryland Little Miller Act governs suretyship and bonds in the context of state construction projects. Md. Code Ann., State Fin. & Proc. § 17-101 et seq.
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	The Kansas Consumer Protection Act applies to consumer transaction, including real estate transactions. Kan. Stat. Ann. § 50-623 to -643. The Act prohibits deceptive or unconscionable acts and practice by any supplier in connection with a consumer transaction.	Kentucky’s Consumer Protection Act does not apply to real estate or construction transactions. Craig v. Keene, 32 S.W.2d 90 (Ky. Ct. App. 2000).	There are no consumer protection laws applicable to design and construction contracts.	The Deceptive Trade Practices Act forbids a person from engaging in deceptive practices. Me. Rev. Stat. tit. 10 § 1211 et seq. This Act applies to contractors and likely applies to design professionals as well. Unfair and deceptive trade practices are also prohibited by the Uniform Trade Practices Act. Id. at tit. 5, § 205-A et seq.	The Maryland Consumer Protection Act prohibits any unfair or deceptive trade practices in connection with consumer transactions. Md. Code Ann., Com. Law II § 13-303. However, the Act does not apply to architects, land surveyors, property line surveyors and real estate brokers. Id. § 13-104.
B. Residential Construction Acts		The Kentucky Fairness in Construction Act, which applies to both private and public projects, voids clauses in construction contracts that waive or limit certain rights. Ky. Rev. Stat. §§ 371.400 et seq.		The Home Construction Contracts Act protects unsophisticated consumers from unscrupulous contractors and sets minimum requirements for construction contracts valued at $3,000 or more. Me. Rev. Stat. tit. 10, § 1486 et seq.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages provisions are enforceable if the provision is a reasonable estimation of uncertain damages and not disguised as a penalty. Unified School Dist. v. DeWerff, 626 P.2d 1206, 1208 (Kan. Ct. App. 1981).	Liquidated damages are enforceable if the actual damages are difficult to ascertain and the fixed amount is reasonable in light of the actual loss. See U.S. Auto. Ass’n v. ADT Sec. Servs., Inc., 241 S.W.3d 335, 340 (Ky. Ct. App. 2006).	Liquidated damages are enforceable as “stipulated damages.” La. Civ. Code Ann. tit. 2005. Stipulated damages for delay are only recoverable if the delay places the other party in default. Id. at art. 2010.	Liquidated damages are enforceable if the clause reflects a reasonable, good faith effort to stipulate damages when actual damages are difficult to calculate. Brignult v. Albert, 666 A.2d 82, 84 (Me. 1995).	Liquidated damages are enforceable so long as the stipulated amount is not grossly excessive or out of proportion to damages reasonably expected to result from a breach. Baltimore Bridge Co. v. United Rwys & Elec. Co., 125 Md. 208 (1915).
B. Limitations on Remedies	Exculpatory clauses are valid; however, the terms must be clear and unambiguous, as courts will interpret the clause against the party asserting exculpation. Zenda Grain & Supply Co. v. Farmland Indus., Inc., 894 P.2d 881, 887-888 (Kan. Ct. App. 1995). Kansas courts have adopted the economic loss rule.	Exculpatory clauses that release a party from future liability for ordinary or gross negligence are valid; however, the language of the clause is construed against the party asserting exculpation. Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.2d 644 (Ky. 2007). Kentucky courts have adopted the economic loss rule.	Exculpatory clauses are enforceable in contract claims; however, a party may not limit damages resulting from its own intentional or gross negligence, or exclude liability for causing physical injury to another. La. Civ. Code Ann. art. 2004. Louisiana courts do not recognize the economic loss rule.	Exculpatory clauses are generally enforceable. Reliance Nat’l Indem. V. Knowles Indus. Servs. Corp., 868 A.2d 220 (Me. 2005). Maine courts have adopted the economic loss rule.	Exculpatory clauses are generally enforceable under Maryland law.
XII. Legislation Affecting Dispute Resolution
Arbitration	Kansas has adopted a version of the Uniform Arbitration Act. Kan. Stat. Ann. § 5-401 to -422. The Kansas Fairness in Private Construction Contract Act prohibits any provision that waives, releases or extinguishes the right of a party to litigate a dispute, except provisions that require arbitration as a substitute to litigation. Id. § 16-1803.	Kentucky has adopted the Uniform Arbitration Act. Ky. Rev. Stat. § 417.001 et seq.	Louisiana has adopted the Uniform Arbitration Act without substantial modification. La. Rev. Stat. § 9:4201 to 4217.	Maine has adopted the Uniform Arbitration Act without substantial modification. Me. Rev. Stat. tit. 14, § 5927 to 5949.	Maryland has adopted the Uniform Arbitration Act without substantial modification. Md. Code Ann., Cts. & Jud. Proc. § 3-201 et seq.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review		Chapter 224 of Kentucky Revised Statutes governs environmental issues affecting construction, including pollution, air and water quality, asbestos, noise control, and solid and hazardous waste.	Louisiana has enacted statutes that regulate asbestos abatement, hazardous materials and lead hazards. La. Admin. Code tit. 33, § 27; La. Rev. Stat. §§ 30:2369, 30:2350 et seq.	Design and construction professionals should review the regulations and programs of Maine’s Department of Environmental Protection prior to commencing a construction project. Go to www.maine.gov/dep for more information.	Maryland has legislation affecting voluntary cleanup of pollution, sediment control and lead contamination. Md. Code Ann., Envir. §§ 7-501 et seq., 4-101 et seq., 6-1001 et seq.
B. Green Building and Sustainable Construction Initiatives	Kansas has not enacted any green building or sustainable construction initiatives.	Kentucky enacted the Energy Efficiency Program for State Government Buildings to promote energy efficiency in state buildings. Ky. Rev. Stat. § 56.770 et seq.	Louisiana currently has an active chapter of the U.S. Green Building Council and is engaged in public education of Green Initiatives and LEED certifications.	The Energy Efficiency Building Performance Standards Act imposes minimum efficiency standards on all new residential and commercial construction. Me. Rev. Stat. tit. 10, § 1411 et seq.	Maryland has no legislation regarding green building programs or sustainable construction initiatives.
C. Transfer of Contaminated Property

50 State Survey: Massachusetts – Missouri

	Massachusetts	Michigan	Minnesota	Mississippi	Missouri
II. Legislation Affecting Project Delivery Systems
A. Design Build	Massachusetts does not have any statutes regarding delivery systems in private projects.	There are no statutes or case law regarding design build, construction management or other delivery systems under Michigan law.	Private projects are generally free to use the full range of project delivery systems, including design-bid-build, agency construction management, CMAR, and design build. If design build is used in public projects, competitive bidding is required. However, there are some exceptions to competitive bidding in public projects (e.g., the University of Minnesota may be exempt from competitive bidding, see Minn. Const. Art. 13, § 3).	The Mississippi legislature has authorized a dual-phase design-build method of construction contracting and a construction manager at risk method of project delivery for certain public projects. Miss. Code Ann. §§ 31-7-13.1 to 13.2. Payment and performance bonds are required when either of these methods of project delivery are utilized. Miss. Code Ann. § 31-5-52. Mississippi has no other special rules regarding design-build, construction management or project delivery systems.	There is no single statute which governs the procedure for competitive bidding on public construction work. However, a public body may award a fixed price design-build contract through the normal competitive bid process. Further, the design-build portion of a construction contract must be performed by an architect/engineer licensed in Missouri. Also, where a design-build contract is not entered into with a licensed professional, a requirement must be placed in the contract that the design portion be performed by a licensed design professional.
B. Construction Management	See Section II.A.	See Section II.A	See Section II.A.	See Section II.A.	A public owner may contract with a construction manager for both the design and construction phases of a public works project. Proposals are to be circulated by advertising in a newspaper of general circulation. The public owner may consider a number of factors when choosing a construction manager, including: demonstrated ability to perform comparable projects, financial strength and references. Mo. Rev. Stat. § 8.677, 8.679, 8.681.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Claims for a breach of a written contract have a 6 year statute of limitations. Mass. Gen. Laws ch. 260, § 2. Tort claims have a 3 year limitations period. Id. § 2A.	Claims for a breach of contract have a 6 year statute of limitations. Mich. Comp. Laws § 600.5807. Personal injury claims have a 6 year limitations period. Id. § 600.5813. Tort claims against a licensed architect/engineer or contractor are either 6 years after occupancy, or 1 year after discovery of a defect based on gross negligence. Id. § 600.5839.	Unless the U.C.C. provides otherwise, claims for a breach of contract or tort have a 6 year statute of limitations. Minn. Stat. § 541.05. Claims relating to services or construction to improve real property have a 2 year limitations period. Id. § 541.051.	All actions without a prescribed statutory period of limitation must be brought within three years after the cause of action accrued. Miss. Code Ann. § 15-1-49.	Missouri has a five-year statute of limitations for any cause of action based on contracts, obligations, or liabilities, express or implied. Mo. Rev. Stat. § 516.120. The limitations period for negligence claims is five years. Id. § 516.120(4). An action accrues when damage is sustained and capable of ascertainment. Id. § 516.100.
B. Licensing and Regulation	Architects, engineers and land surveyors require certification and registration with the appropriate state board. Mass. Gen. Laws ch. 112. Landscape architects require certification and registration; however, landscape architects may perform landscape architectural services without meeting these requirements. Id. § 99. General contractors under certain circumstances require state licensing. 780 Mass. Code Regs. 116.2; Mass. Gen. Laws ch. 143, §§ 93-100.	Architects and engineers require state licensing. Mich. Comp. Laws § 339.2002. Residential contractors, electricians in most municipalities, plumbers and mechanical contractors require state licensing. Id. §§339.2401-2412, 338.881-900, 338.3511-3563, 338.971. Some electricians require licensing by certain local municipalities. Commercial contractors do not require state licensing.	Architects, engineers, land surveyors, landscape architects and geologists require state licensing and certification. Minn. Stat. § 326.02. Residential contractors, electricians, plumbers (in cities with populations of 5,000 or more), pipefitters, and asbestos abatement contractors require licensing. Id. §§ 326.83-992, 326.242-248, 326.37-45, 326.46-521, 326.70-81.	Architects and engineers require state licensing. Miss. Code Ann. §§ 73-1-1 to -45, 73-13-1 to -45. Contractors are required to hold a certificate of responsibility (COR) issued by the State Board of Contractors. Id. § 31-3-15.	Apart from a number of limited exceptions, a person must be licensed to practice architecture in Missouri. Mo. Rev. Stat. § 327.101 et seq. Further, professional engineers, land surveyors and landscape architects must also be licensed. Id. § 327.191 et seq., 327.281 et seq., 327.603 et seq. Moreover, in cities with a population in excess of 15,000, a plumber must be certified as either a master or a journeyman. Id. § 341.010.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	There are no Massachusetts statutes regulating prompt payment, retention or trust funds.	There is no prompt payment statute in Michigan.	Contractors must pay its subcontractors and material suppliers within 10 days of receipt of payment for undisputed services or supplies. Minn. Stat. § 337.10. Failure to make prompt payments to sub-contractors and suppliers results in an interest penalty of 1.5% per month. Id.	Interim or progress payments due to contractors under non-public construction contracts bear interest at 1% per month from the due date if not made within thirty days of becoming due. Miss. Code Ann. § 87-7-3. The contractor in a non-public construction contract is obligated to pay each subcontractor and supplier according to the percentage of work completed by each. Upon failure to do so within 15 days of receipt of the funds, a penalty will be due in the amount of 0.5% per day of the delinquency, not to exceed 15% percent of the outstanding balance. Miss. Code Ann. § 87-7-5.	A public owner must pay its contractor what is owed less retainage in an amount not to exceed 10 percent within 30 days of that later of (i) delivery of the materials or services; (ii) when the invoice is delivered to the public owner, or the date when the public owner’s estimate of payment is approved by the contractor. Failure to comply will result in the imposition of interest at the rate of one and one-half percent per month. Mo. Rev. Stat. § 34.057. Under a private contract, payments must be made pursuant to the terms of the contract. A court may award interest up to one and one half percent reasonable attorney’s fees if a party fails to comply. Id. § 431.180.
B. Retainage	See Section IV.A.	On public projects, the Michigan Retainage Act limits retainage to not more than 10% of payments until 50% of the project is complete. Mich. Comp. Laws § 125.1561 et seq. After 50% of the project is complete, additional retainage may not be withheld unless the contractor fails to make satisfactory performance. Id.	Unless the contract provides otherwise, an owner has the right to withhold up to 5% in retainage (however, this does not apply residential projects of fewer than 13 units per structure). Minn. Stat. § 337.10.		The Missouri retainage statute limits owner retainage in private construction projects except those for residential construction of four or fewer units to 10 percent of each progress payment. Retention must be reduced to no more than 150 percent of the value of uncompleted work within 30 days of substantial completion. Mo. Rev. Stat. § 436.303, 436.324 et seq.
C. Trust Fund Statutes	See Section IV.A.	The Michigan Building Contract Fund Act is a trust fund statute that requires contractors or subcontractors to retain all contractual funds until all laborers, suppliers and subcontractors are fully paid. Mich. Comp. Lawas § 570.151 et seq.
D. Penalties for Failure to Make Payments	See Section IV.A.		See Section IV.A.	See Section IV.A.	See Section IV.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Massachusetts law implies a warranty of workmanlike performance and a warranty of habitability in the sale of new homes.	Michigan law implies a warranty of workmanlike performance and a warranty of fitness for new residential dwellings.	Minnesota law implies a warranty of fitness for a purpose and a duty of care in the performance of work done by contractors and subcontractors. Minnesota law also implies a warranty to an owner’s plans and specifications.	Mississippi law implies a warranty that the plans and specifications supplied to the contractor are not defective and a warranty to build in a workmanlike manner.	A builder-vendor of new housing may be held liable for structural defects under a theory of implied warranty without regard to negligence, knowledge or fault. Courts have recognized an implied warranty of habitability or quality, and an implied provision that work be done in a workmanlike manner. Smith v. Old Warson Dev. Co., 479 S.W.2d 795, 801 (Mo. 1972); Jake C. Byers, Inc. v. J.B.C. Inv., 834 S.W.2d 7, 10 (Mo. App. E.D. 1992).
B. New Home Warranties	There are no statutes regulating warranties in construction contracts; but see implied warranties, Section V.A.	See Section V.A.	In residential construction, Minnesota imposes: (1) a 1 year warranty that a property will be free from defects caused by faulty workmanship and materials, (2) a 2 year warranty that a property will be free from defects caused by the installation of electrical, plumbing, heating and cooling systems, and (3) a 10 year warranty on the property’s load bearing structure. Minn. Stat. § 372A.04.	See Sections V.A and IX.B.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Contracts which limit a subcontractor’s obligation to indemnify the general contractor for personal injuries or property damage caused by the subcontractor are generally enforceable. M. DeMatteo Constr. Co. v. A.C. Dellorade, Inc., 652 N.E.2d 635, 636 (Mass. App. Ct. 1995). In addition, Mass. Gen. Laws ch. 149, § 29C prohibits any provision which requires a subcontractor to indemnify any party for personal injuries or property damages that is not caused by the subcontractor.	Mich. Comp. Laws § 691.991 prohibits an indemnitee from recovering from his or her sole negligence.	Minn. Stat. § 337.02 prohibits indemnification related to the improvement of real property for injury and damage beyond the extent to which the negligence or fault of the indemnitor caused the damage.	A construction contract provision indemnifying or holding harmless another person for his or her own negligence is unenforceable and void as against public policy. Miss. Code Ann. § 31-5-41.	Missouri’s anti-indemnity statute provides that an agreement to indemnify another person for his or her own negligence or wrongdoing is void and contrary to public policy. Mo. Rev. Stat. § 434.100. However, a party may provide insurance to cover the negligence of a third party. Id. § 434.100.2(2).
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Employers must provide workers’ compensation insurance. Mass. Gen. Laws ch. 152, § 1(5).	Employer are required to provide workers’ compensation insurance. Mich. Comp. Laws § 418.101 et seq.	Contractors, subcontractors and other employers must maintain statutory workers’ compensation coverage. Minn. Stat. § 176.181.	Contractors, subcontractors and other employers having 5 or more employees are required to maintain workers' compensation coverage. Miss. Code Ann. § 71-3-5.	Contractors, subcontractors and other employers must maintain statutory workers’ compensation coverage. Mo. Rev. Stat. § 287.040.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Mass. Gen. Laws ch. 149, § 29A regulates the use of payment bonds to ensure payments to sub-contractors and suppliers.	Although not statutorily required, bidding on most Michigan public projects will require a bid bond. Contractors are required to provide performance and payment bonds if awarded a public project. Mich. Comp. Laws § 129.201.	The requirements for bonding on public projects are generally covered by Minn. Stat. §§ 574.26-32.	General rules on suretyship are contained in Miss. Code Ann. §§ 87-5-1 to -13.
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond	A claimant has a 1 year statute of limitations to make a claim on a surety bond. Gen. Elec. Co. v. Lexington Contracting Corp., 292 N.E.2d 874, 875-876 (Mass. 1975).
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	Developers, contractors, design professionals and vendors are liable for unfair and deceptive business practices under Massachusetts’ consumer protection laws.	The Michigan Consumer Protection Act prohibits unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce. Mich. Comp. Laws § 445.901 et seq. Trade or commerce includes real estate transactions under the Act. Id. § 445.902(d).	Minnesota’s Prevention of Consumer Fraud Act prohibits the use of fraudulent and deceptive practices in connection with any sale or offer of service. Minn. Stat. §§ 325F.68-70.	Miss. Code Ann. § 75-24-5 lists various prohibited practices in the nature of unfair competition and unfair or deceptive trade practices.	Missouri does not provide a statutory scheme for consumer protection applicable to design and construction contracts.
B. Residential Construction Acts				Mississippi’s New Home Warranty Act, provides a statutory warranty by builders to purchasers of new homes. Miss. Code Ann. §§ 83-58-1 to -17.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages are enforceable when actual damages are not easily ascertainable and the stipulated damages are reasonable and foreseeable. A-Z Servicecenter, Inc. v. Segall, 138 N.E.2d 266, 268 (Mass. 1956).	Liquidated damages are enforceable when the stipulated amount is reasonable. Moore v. St. Clair County, 328 N.W.2d 47 (Mich. App. 1982). A party seeking to enforce a liquidated damages provision is limited to actual damages if it is responsible for any delay causing the breach. Grand Rapids Asphalt Paving Co. v. City of Wyoming, 185 N.W.2d 591 (Mich. App. 1971).	Minnesota law generally permits the use of liquidated damages provisions. See Blue Earth County v. Bisballe Constr. Co., 231 N.W. 30 (Minn. 1927).	Construction contracts frequently contain provisions for liquidated damages. In keeping with traditional contract law, these provisions are not enforced if characterized by the court as a penalty.	Missouri allows the parties to a contract to stipulate the amount of damages for a breach of contract. A stipulated damages clause will be enforced if reasonable in the light of the anticipated or actual loss caused by the breach. If the clause constitutes a penalty, it will not be enforced and a plaintiff will have to prove actual damages.
B. Limitations on Remedies	Exculpatory clauses are enforceable for negligent, but not knowing, misrepresentations. Sound Technologies, Inc. v. Hoffman, 737 N.E.2d 920, 924-925 (Mass. App. Ct. 2000). Also, Massachusetts has adopted an exception to the economic loss rule that allows recovery for purely economic losses resulting from negligent misrepresentation.	A no-damage-for-delay clause is enforceable in Michigan. Phoenix Contractors, Inc. v. Gen. Motors Corp., 335 N.W.2d 673 (Mich. App. 1984). Michigan recognizes the economic loss rule, but only when the transaction involves commercial parties.	Exculpatory clauses are generally enforceable, so long as (1) there was not a disparity between the parties’ bargaining power, and (2) the services offered were not public or essential. Schlobohm v. Spa Petite, Inc., 236 N.W.2d 920, 923 (Minn. 1982). Minnesota does not apply the economic loss rule.	While exculpatory clauses are not favored under Mississippi law, such provisions are enforceable if clear and unambiguous. Clauses limiting liability are given strict scrutiny by Mississippi courts and will not be enforced unless the limitation is fairly negotiated and understood by all parties. See Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc., 857 So. 2d 748 (Miss. 2003)	Missouri courts will generally enforce a no-damage-for-delay provision in a private commercial construction contract. However, these clauses in public procurement construction contracts are deemed void and unenforceable. Mo. Rev. Stat. § 34.058.
XII. Legislation Affecting Dispute Resolution
A. Venue
B. Arbitration	Massachusetts has adopted the Uniform Arbitration Act. Mass. Gen. Laws ch. 251.	Michigan’s general arbitration statute is not modeled after the Uniform Arbitration Act, but shares many of the same principles. Mich. Comp. Laws § 600.5001 et seq.	Minnesota has adopted a version of the Uniform Arbitration Act. Minn. Stat. §§ 572.08-30.	Mississippi has not adopted the Uniform Arbitration Act. Miss. Code Ann. §§ 11-15-101 to -143; however, Mississippi’s arbitration statutes allow agreements for binding arbitration in construction contracts and contracts for architectural, engineering and surveying services.	Missouri has adopted a version of the Uniform Arbitration Act. Parties must include a mandatory arbitration provision, and failure to comply with this requirement renders an arbitration agreement unenforceable. Also, Missouri recognizes the preemptive impact of the Federal Arbitration Act. Mo. Rev. Stat. § 435.350-435.470.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	The Massachusetts Oil and Hazardous Waste Release Prevention Act provides substantial regulation and penalties for the release of oil and hazardous materials into the environment. Mass. Gen. Laws ch. 21E.	Michigan has statutes regulating the hazardous waste, underground storage tanks, water quality and the cleanup of contaminated property. Mich. Comp. Laws §§ 324.11101 et seq., 324.21101 et seq., 324.21301 et seq., 324.3101 et seq., 324.20101 et seq.	Minnesota does not provide statutory regulation for specific environmental considerations.	Requirements and restrictions are placed on new construction by the laws and regulations administered primarily by the Mississippi Department of Environmental Quality (MDEQ). Also, anyone contemplating the purchase, lease, or construction of a new facility should initially receive a Phase I environmental audit on the property See also Miss. Code Ann. §§ 17-17-1 to -67 (Solid Wastes Disposal Law of 1974), 45-14-1 to -41 (Radiation Protection Law of 1976), 49-17-401 to -435 (Underground Storage Tank Act of 1988). .	Missouri has not adopted a licensing scheme for certifying environmental professionals. It is recommended that the provisions regulating architects, professional engineers and land surveyors be consulted. Mo. Rev. Stat. § 327 et seq.
B. Green Building and Sustainable Construction Initiatives	The Executive Office of Energy and Environmental Affairs (EOEEA) issued a Greenhouse Gas Emissions Policy and Protocol applicable to certain large projects undergoing review pursuant to the Massachusetts Environmental Policy Act. Mass. Gen. Laws ch. 30, § 61 et seq.	There is currently no Michigan legislation regarding green building or sustainable construction initiatives.	The Sustainable Building Guidelines is intended to develop energy-saving goals for utilities in Minnesota. Further, the state intends to have 1,000 commercial buildings Energy Star-labeled and 100 buildings LEED or Green Globes certified by the end of 2010. Minn. Stat. § 216B.241.	Mississippi has not enacted any green building legislation.	Missouri has adopted provisions for the economic development of abandoned property. Written assurance of future compliance with applicable federal, state and local environmental requirements is a condition of eligibility. An approved project may qualify for direct loans, loan guarantees or grants, as well as tax credits, inducements and abatements. See generally Mo. Rev. Stat. § 447.700 et seq.
C. Transfer of Contaminated Property					No person may knowingly sell, convey or transfer title to any property that contains a permitted or unpermitted solid waste disposal site or demolition landfill, without disclosure to the buyer early in the negotiation process. Mo. Rev. Stat. § 260.213.

50 State Survey: Montana – New Jersey

	Montana	Nebraska	Nevada	New Hampshire	New Jersey
II. Legislation Affecting Project Delivery Systems
A. Design Build	Except in the context of public contracts, there are no licensure requirements of design build projects. M.C.A. § 12-2-501 to 503 provide for use of alternative project delivery contracts on public construction projects in certain circumstances.		Nev. Rev. Stat. § 338.1721 et seq. contains procedures for awarding contracts to design build teams. There is no equivalent statute for private projects.	There are no statutes or case law regulating design build or project delivery systems in New Hampshire. The State Legislature has defined the term “design-build” as “[a] method of contracting where the state engages the professional services of a single entity designer/builder who is responsible for the provision of the design and construction of a project. The designer/builder can be either a single firm or a team of architect, engineer, and builder. The designer/builder contracts directly with all subcontractors and is responsible for the delivery of the completed project.” N.H. Rev. Stat. §§ 21-i:78, 228:1.	New Jersey has not adopted any statutes nor regulations specifically detailing project delivery systems. No statutory or regulatory provisions exist defining or specifically pertaining to the ability to construct by design build processes. Under the New Jersey architectural licensing requirements, N.J. Stat. Ann. § 45:3-1 et. seq., construction through design build delivery systems would arguably be required to be performed by an entity holding an architectural license since the design services could not be provided by a non-licensed entity.
B. Construction Management	See Section II.A.		See Section II.A.	There is no law regarding the work of a “construction manager,” but the term has been defined to mean “[a] method of contracting where the state engages the services of a contractor to work with an architect or engineer. The contractor assumes risk for construction and is required to provide design phase consultation, including the evaluation of costs, schedules, implication of alternative designs, systems, and materials.” N.H. Rev. Stat. §§ 21-i:78, 228:1	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Claims for a breach of a written contract have an 8 year statute of limitations, M.C.A. §27-2-202; claims for a breach of an oral contract have a 5 year limitations period, id.; the limitations period for an action based in tort or upon an obligation or liability (other than a contract) is 3 years, id.; see also § 27-2-204.	Actions based on any alleged deficiency in the design, planning, supervision, or observation of construction must be brought within 4 years of the occurrence. Neb. Rev. Stat. § 25-223. Actions for professional negligence (including actions against architects and engineers) must be brought within 2 years. Id. § 25-222.	Claims based on a breach of a written contract must be brought within 6 years. Nev. Rev. Stat. § 11.190(1)(b). Claims based for breach of an oral contract have a 4 year limitations period. Id. § 11.190(2)(c).	New Hampshire has a 3 statute of limitations for all personal actions, except actions for slander or libel. N.H. Rev. Stat. § 508:4.	With regard to contractors and design professionals, the statute of limitation is generally 2 years for negligence involving personal injury, N.J. Stat.Ann. § 2A:14-2, or 6 years for miscellaneous actions, including contract and warranty claims and claims of property damage. Id. § 2A:14-1.
B. Licensing and Regulation	Architects, landscape architects, professional engineers and land surveyors require licensing. See M.C.A. §§ 37-65-301, 37-66-104, 37-67-301, 37-67-308. Electricians, plumbers (under certain circumstances), construction blasters and well water contractors also require licensing. See id. §§37-68-101 to 322, 37-69-102, 37-72-101, 37-43-106. General contractors do not require licensing; however, § 39-9-101 requires general contractors to register with the state.	Architects and engineers require licensing by the state. Neb. Rev. Stat. § 81-3401 et seq. Electrical contractors require licensing by the state. Id. § 81-2101. Plumbing and HVAC contractors only require licensing and/or competency requirements by certain localities. Id. § 18-901 et seq., 12-2301 et seq. General contractors do not require licensing, but are required to register with the Nebraska Department of Labor. Id. § 48-2104.	Architects, interior designers, landscape architects, engineers and land surveyors require state licensing. Nev. Rev. Stat. §§ 623.180, 623A.165, 625.020. General contractors, subcontractors, and specialty sub-contractors require state licensing. Id. § 624.	Architects, engineers, land surveyors and landscape architects require state licensing. N.H. Rev. Stat. § 310-A:1. Electricians and plumbers require state licensing. Id. § 319-C:2, 329-A:2. There are no licensing requirements for general contractors.	Architects and engineers require licensing. N.J. Stat. Ann §§ 45:3-1 et. seq., 45:8-27. General contractors do not have any state licensing or registration requirements; however, home-improvement contractors must register with the state. Id. § 56:8-132 et seq.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	M.C.A. § 28-2-2104 requires an owner to pay a contractor (or a contractor to pay a subcontractor) interest in the amount of 1.5% for any unpaid amount 30 days past the date that payment is required. However, this statute does not apply residential construction less than $400,000 in value.	There is no Nebraska statute affecting the prompt payment of private construction. For public projects, Neb. Rev. Stat. § 52-118 requires a payment bond to ensure payment for all laborers and for the materials used in the erecting, furnishing or repairing of the public project.	Prompt payment of prime contractors and subcontractors for private projects is governed by Nev. Rev. Stat. § 624.606-640. For public projects, the public body awarding the contract must pay progress payments within 30 days after receiving a progress bill or such shorter time as the contract provides. Id. § 338.315.	There is no statutory or other legal authority within New Hampshire specifically regarding retention by a contractor, prompt payment to contractors or subcontractors, pay-when-paid provisions, or construction trust funds.	The “New Jersey Prompt Payment Act,” N.J. Stat .Ann. § 2A:30A-1 et seq. applies to all owners (public and private) and to contractors, subcontractors, and others defined in the statute, who are obligated to make payments on construction projects.
B. Retainage	M.C.A. § 28-2-2110 limits retainage to a maximum of 5%.		Owners are permitted to withhold up to 10% of each payment, as the contract provides, as retention to be paid out with the final payment. A public body may not pay out more than 90% of any progress payment until 50% of the work under the contract has been performed. At such time, the public body may pay the full progress payments without withholding additional retainage. Nev. Rev. Stat. § 338.315.	See Section IV.A.
C. Trust Fund Statutes				See Section V.A.
D. Penalties for Failure to Make Payments	See Section IV.A.			See Section V.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	The Montana Supreme Court has implied the warranties of workmanlike performance and habitability in new home construction. See McJunkin v. Kaufman & Broad Home Systems, Inc., 748 P.2d 910 (Mont. 1987); Chanler v. Madsen, 642 P.2d 1028 (Mont. 1982).	A contractor constructing a building impliedly warrants that the building will be erected in a workmanlike manner and in accordance with good usage and accepted practices within the community. Henderson v. Forman, 436 N.W.2d 526 (Neb. 1989). The risk of unexpected costs is usually carried by the contractor, unless the parties agree to warranties which allocate the risk between the parties. Knight Bros., Inc. v. State, 199 N.W.2d 720 (Neb. 1972).	No Nevada case law or statute squarely imposes an implied warranty of workmanlike performance for contractors. However, Nevada common law suggests that the courts would recognize such an implied warranty.	New Hampshire law implies a warranty that the contractor or builder will use the customary standard of skill and care. In new home construction, New Hampshire law implies a warranty of habitability and workmanlike construction.	New Jersey law implies a warranty of habitability in new home construction.
B. New Home Warranties	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.	In addition to the implied warranty of habitability, builders must also comply with the New Home Warranty Act. N.J. Stat .Ann. § 46:3B-2, et. seq.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	M.C.A. § 28-2-2111 invalidates provisions in a private contract which require one party to indemnify another party for its own negligence. This statute applies to all contracts entered into after October 1, 2003.	Any agreement to indemnify or hold harmless another person from such person’s own negligence is void against public policy. Neb. Rev. Stat. § 25-21,187(1). However, a provision requiring one party to obtain insurance for another does not violate the anti-indemnity statute. Id.	There are no specific statutes limiting contractual indemnity.	The New Hampshire Legislature has enacted a broad “anti-indemnity” statute pertaining to indemnity provisions within construction contracts. N.H. Rev. Stat. § 338-A:2.	By statute, New Jersey places limits upon a contractor’s ability to obtain indemnification for its own negligence. See N.J. Stat. Ann. § 2A:40A-l. This anti-indemnity statute applies to all parties to a construction contact, including contractors, design professionals, and others involved in the work.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Under Title 39, Chapter 71 of the Montana Code, contractors, sub-contractors and other employers must maintain statutory workers’ compensation coverage.	Contractors, sub-contractors and other employers must maintain statutory workers’ compensation coverage. Neb. Rev. Stat. § 48-106 et seq. Contractor registration requirements include submission of proof of worker’s compensation insurance. Neb. Rev. Stat. § 48-2105(7).	Nevada’s workers’ compensation requirements in the construction context are covered by the Nevada Industrial Insurance Act. Nev. Rev. Stat. §§ 616A to 616D.	Any contractor, subcontractor, or other construction professional who qualifies as an “employer” under New Hampshire Workers’ Compensation Law is required to maintain statutory Workers’ Compensation coverage. N.H. Rev. Stat. § 281-A:5.	New Jersey places specific insurance requirements upon those involved in the construction process, other than specific insurance requirements pertaining to workers’ compensation, N.J. Stat. Ann. § 34:15-1, et. Seq.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	All public construction contracts with a cost of $50,000 or more must be bonded to ensure the faithful performance of the work, and to ensure payment of those who provide labor and material on the project (as well as their suppliers and sub-contractors). M.C.A. § 18-2-201 et seq.		Nev. Rev. Stat. § 339.025 requires payment and performance bonds on all public work contracts exceeding $100,000. There is no statute requiring or authorizing bid bonds for public works; however, Nevada governmental bodies typically require a bid bond in the invitation for bids.	N. H. Rev. Stat. § 447:16 governs contractor bonds with respect to work done for the State or any political subdivision of the State. This statute requires that for contracts involving expenditures of $25,000 or more, the contractor must obtain sufficient security, by bond or otherwise, in an amount equal to at least 100% of the contract price, or of the estimated cost of the work if no aggregate price is agreed upon.	When the project is in excess of designated values, bonds in a proscribed form are required for both performance and labor and materials on public projects. N.J. Stat. Ann. § 2A:44-143 et. Seq.
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	Under the Montana Unfair Trade Practices and Consumer Protection Act of 1973, unfair or deceptive acts or practices in the conduct of any trade are unlawful. M.C.A. § 30-14-103. The Montana Supreme Court has held this Act applicable to misrepresentations made by home builders. Plath v. Schonrock, 64 P.3d 984 (Mont. 2003).	Nebraska has no specific consumer protection laws applicable to design and construction contracting.	Nevada’s Deceptive Trade Practices Act makes it unlawful for a contractor to knowingly state that services or repairs are needed when no such services or repairs are actually needed. Nev. Rev. Stat. § 598.092(3). It is also a violation of the Act for a contractor to conduct business without all required state, county or city licenses. Id. § 598.0923(1).	New Hampshire’s Consumer Protection Act (“CPA”) makes it unlawful “for any person to use any unfair method of competition or any unfair or deceptive act or practice in the conduct of any trade or commerce in this state.” N.H. Rev. Stat. § 358-A:2.	The Contractors’ Registration Act states that “no person shall offer to perform, or engage, or attempt to engage in the business of making or selling home improvements unless registered with the Division of Consumer Affairs in accordance with the provisions of this act.” N.J. Stat. Ann. § 56:8-138(a).
B. Residential Construction Acts					The New Home Warranty and Builders’ Registration Act, N.J. Stat. Ann. 46:3B-1 et seq., provides certain consumer benefits by assuring that new home builders are registered with the state and will provide warranties relating to workmanship and certain structural issues either through the state’s program or through private policies. Further protection for residential consumers on home improvements are provided in The New Jersey Retail Installment Sales Act, N.J. Stat. Ann. § 17:16C-l et seq.; the New Jersey Home Repair Financing Act , N.J. Stat. Ann. § 17:160-62 et seq.; and the New Jersey Door to Door Home Repair Sales Act, N.J. Stat. Ann. § 17:16C-95.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Contractual provisions for liquidated damages are considered void except where it is impractical or extremely difficult to fix the actual damages. M.C.A. § 28-2-721(1)-(2). A party seeking to avoid a liquidated damages provision has the burden of proving the clause is unconscionable. Am. Music Co. v. Higbee, 103 P.3d 518 (Mont. 2004).	Nebraska follows traditional contract law in allowing parties to stipulate damages for a breach of contract. A stipulated sum will be an enforceable liquidated damages clause where: (a) the damages are reasonably difficult to ascertain, and (b) the stipulated amount is a reasonable estimation of a breach. Growney v. CMH Real Estate Co., 238 N.W.2d 240 (Neb. 1976).	Liquidated damages clauses are valid unless the challenging party proves that the clause is an unenforceable penalty. Joseph F. Sanson Inv. Co. v. 268 Ltd., 106 Nev. 429 (1990).	Liquidated damages clauses will generally be enforced by New Hampshire courts if they do not constitute a penalty provision. See Technical Aid Corp. v. Allen, 134 N.H. 1, 23 (1991).	Liquidated damages are valid and enforceable if the fixed sum provided is a reasonable forecast of just compensation for delay and is difficult to assess accurately. See, e.g., Wasserman’s Inc. v. Twp. Of Middletown, 137 N.J. 238 (1994).
B. Limitations on Remedies	For breach of an obligation other than contract, tort damages are generally allowed for all damages proximately caused by the breach, whether the damages were foreseeable or not. M.C.A. § 27-1-317.	The economic loss rule prohibits tort recovery when a product damages only itself, the damages are purely economic in nature, and there is not personal injury or damage to other property. Such claims may be brought exclusively under contract law.	Exculpatory clauses in construction contracts are generally enforceable. See J.A. Jones Const. Co. v. Lehrer McGovern Bovis, Inc., 120 Nev. 277 (2004).	Exculpatory clauses are generally prohibited under New Hampshire law. See Tanguay v. Marston, 127 N.H. 572, 577 (1986).	New Jersey has developed limited statutory controls over exculpatory clauses. To the extent that an indemnification clause may so qualify, N.J. Stat. Ann. § 2A:40A-1 et. Seq., or to the extent that an exculpatory clause may under certain circumstances be deemed violative of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1 et. Seq., the ability to establish some contractual limitations is restricted
XII. Legislation Affecting Dispute Resolution
A. Venue
B. Arbitration	A written agreement to submit to arbitration is valid and enforceable except when the agreement to arbitrate is unduly oppressive, unconscionable or against public policy. See M.C.A. 27-5-114; Solle v. Western State Ins. Agency, Inc., 999 P.2d 332 (Mont. 2000).	A voluntary written agreement to submit any controversy to arbitration is enforceable and irrevocable, except upon such grounds as may exist at law or in equity. Neb. Rev. Stat. § 25-2601 et seq. Also, any standardized agreement in which binding arbitration is the sole remedy must contain the following statement: “THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES” (this statement must be capitalized and underlined in the signature block of the agreement). Id. § 25-2602.02	Nevada has adopted the Uniform Arbitration Act as subsequently amended in 2000. Nev. Rev. Stat. § 38.206 to 248.	New Hampshire has not adopted the Uniform Arbitration Act. New Hampshire instead follows its own statutory arbitration provisions found at N.H. Rev. Stat. § 542:1 et seq.	New Jersey has adopted the Uniform Arbitration Act, N.J. Stat .Ann. § 2A:24-1 et. Seq.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review		Nebraska businesses involved in lead abatement or asbestos projects are subject to licensing requirements. Neb. Rev. Stat. § 71-6301 et seq. Also, Nebraska requires disclosure in the event of an underground storage tank leak. Id. §§ 81-15,117 – 127.	Permits may be required depending on the project’s effect on air, land, or water. See Nev. Rev. Stat. §§ 278.335 to 278.377 (subdivision of land), 444A.420 (water quality), 445A.300 to 730 (water pollution control standards), 445B.100 to 640 (air pollution control). Additional statutes and regulations may impact disposal of waste at construction projects. Id. §§ 444.440 to 444.645 (disposal of solid waste), 459.400 to 459.600 (disposal of hazardous waste), 459.400 to 459.600 (disposal of asbestos).	Some New Hampshire environmental statutes of interest to the developer are: The Toxic Substances in the Workplace Act (N.H. Rev. Stat. § 277-A); The Asbestos Management and Control Act (N.H. Rev. Stat. § 141-E); The Oil Spillage in Public Waters Act (N.H.Rev. Stat. § 146-A); The Water Pollution and Waste Disposal Act (N.H. Rev. Stat. § 485-A); The Fill and Dredge in Wetlands Act (N.H. Rev. Stat. § 482-A); The Safe Drinking Water Act (N.H. Rev. Stat. § 485).	Some of New Jersey major environmental requirements are the Spill Act (N.J. Stat. Ann. § 58:10-23.11 et seq.); the Wetlands Act (N.J. Stat. Ann. § 13A:9A-1); and the Environmental Rights Act (N.J. Stat. Ann. § 2A:35A-4(a)).
B. Green Building and Sustainable Construction Initiatives	Title 15, Chapter 32 of the Montana Code provides a number of tax incentives for environmental initiatives, such as the use of alternative energy systems, energy conservation and the purchase and use of recycled materials.	The Nebraska Department of Environmental Quality administers a program for the voluntary cleanup of land or water pollution. Neb. Rev. Stat. § 81-15,181 to 81-15,188.	At the present time, there are no green building requirements in Nevada. However, there are several statutes that have created a “Green Building Rating System” to determine the eligibility of a building or other structure for tax abatements based on meeting certain requirements. Nev. Rev. Stat. § 701A.	Although the New Hampshire Legislature has not enacted any green building programs or sustainable construction initiatives, Executive Order 2005-4 mandates that requests for new construction or renovation of State buildings require design criteria to exceed the State energy code by 20%, require that energy modeling be conducted during the design process, and requires third party building commissioning in accordance with the recommendations of the Energy Efficiency in State Government Steering Committee.	The Green Building Tax Credit Act, a seven-year program that would provide an incentive package of tax credits to companies that build environmentally sensitive buildings, was introduced to the state Senate in 2008. If approved, it would require or encourage builders to adhere to the Leadership in Energy and Environmental Design Green Building Rating System (LEED).
C. Transfer of Contaminated Property					New Jersey imposes disclosure requirements to advance its environmental protection goals through the Worker and Community Right to Know Act, N.J. Stat. Ann. § 34-5A et seq. The legislature has also adopted requirements with respect to the listing of environmentally hazardous sites and disclosure requirements for residential developers to provide hazardous waste site information to prospective purchasers. N.J. Stat. Ann. § 463C-1 et. Seq.

50 State Survey: New Mexico – Ohio

	New Mexico	New York	North Carolina	North Dakota	Ohio
II. Legislation Affecting Project Delivery Systems
A. Design Build	Though the majority of construction projects in New Mexico still follow the traditional “design and then contract to build” delivery system, design-build delivery systems have been gaining greater acceptance for private commercial projects. Check with municipal and county officials as to whether their local procurement code allows for design-build procurement for public works projects. It is now recognized and permitted in the New Mexico State Procurement Code, see N.M. Stat. Ann. § 13-1-119.1, and in most major municipalities.	Design build contracts do not violate public policy where the contract provides that all architectural or engineering services will be performed by a licensed design professional. Sokoloff v. Harriman Estate Development Corp., 96 N.Y.2d 409 (2001).	North Carolina allows design-build contracts in the public arena only with specific approval from the State Building Commission. In addition, the Department of Transportation may award up to 25 design-build contracts per year. N.C. Gen. Stat. § 143-135.26(9), 136-28.11. Also, a design-builder must be properly licensed as a general contractor, and design-build undertakings are exempt from the architectural licensing requirements. Id. § 87-1, 83A-13(b).	North Dakota does not have any special statutory rules relating to design build, construction management, or other delivery systems relating to contracts generally.	Ohio provides an express statutory means for a single contractor to provide design/build services. Ohio Rev. Code §§ 4703.182, 4733.161. These statutes permit a design/builder to sell professional design services, and they permit an architect or engineer to work with a design/builder. “Design/Build” is defined at id. § 4703.182©(2).
B. Construction Management	See Section II.A.	See Section II.A.	See Section II.A.	See Section II.A.	A public authority may enter into a separate construction management contract to schedule, coordinate, manage and direct all phases of a project. Ohio Rev. Code § 9.33(A). “Construction Manager” does not include the person or firm providing the professional design services (i.e., architect, landscape architect, engineer or surveyor), or actually performing the construction work. Id. Certain procedures for evaluating proposals submitted by construction managers, selecting a construction manager and negotiating the contract must be followed. Id. § 9.332.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Tort claims have a 3 year statute of limitations. N.M. Stat. Ann. § 37-1-8. The statute of limitations for unwritten contracts is 4 years. Id. § 37-1-4. The statute of limitations for breach of a written contract is 6 years. Id. § 37-1-3.	Whether the theory is tort or contract, actions for malpractice, other than medical, dental, or podiatric malpractice, must be commenced within three years of the time of accrual. N.Y.C.P.L.R. § 214(6). Further, the limitations period for a contract claim against an architect or engineer is six years, while claims based upon a failure to exercise due care are subject to a three year limitation period. Id. §§ 213, 214(6).	The statute of limitations provides 3 years to bring an action for breach of a construction contract, 4 years for a breach of warranty claim, for a latent defect, 3 years from the date the injury becomes apparent, and 2 years for suits filed against a public entity. N.C. Gen. Stat. § 1-52(1), 25-2-725(1), 1-52(16), 1-53(1).	All actions based on breach of contract have a 6 year limitations period. N.D. Cent. Code § 28-01-16. One exception is that an action for breach of contract for sale must be commenced within 4 years. Id. § 41-02-104. Actions for malpractice (which includes architects and engineers) must be commenced within 2 years. Id. § 28-01-18.	Ohio has a 15 year statute of limitations for any cause of action based on a written contract, Ohio Rev. Code § 2305.06, and a 6 year statute of limitations for any action based on an express or implied oral contract. Id. § 2305.07. Professional negligence claims against design professionals are governed by a 4 year statute of limitations. Id. § 2305.09(D).
B. Licensing and Regulation	Architects and engineers must be registered and certified with the appropriate state board. N.M. Stat. Ann. §§ 61-15-1 et seq., 61-23-1 et seq. Contractors (both residential and commercial) require state licensing. Id. § 60-13-1.	The practice of architecture, landscape architecture, engineering and surveying are all regulated by the State and a license is required to practice each. N.Y. Educ. Law §§ 7304, 7320, 7206. Also, there is no general requirement that construction professionals have licenses unless engaged in electrical or plumbing work. Electricians and plumbers are subject to licensing requirements. N.Y. Gen. City Law §§ 20(27), 40 et seq.	North Carolina provides licensing requirements for architects, engineers/land surveyors, landscape architects, contractors and construction managers/design-builders. N.C. Gen. Stat. §§ 83A-12, 89C-2-3, 87-1.	Architects, landscape architects, engineers and land surveyors require licensing. N.D. Cent. Code §§ 43-03-01 et seq., 43-19.1-01 et seq. Plumbers and electricians also require licensing. Id. §§ 43-09-01 et seq., 43-18-01 et seq. As to contractors, no person may engage in contracting or subcontracting without a license when the value of the original contract or subcontract exceeds $2,000. Id. § 43-07-02.	Architects, engineers and surveyors must satisfy state registration and certification requirements. Ohio Rev. Code §§ 4703.06, 4733.01 et seq. Landscape architects must be licensed with the state. Id. § 4703.32. Electricians, plumbers, HVAC contractors and mechanical contractors require state certification. Id. § 4740.01 et seq. There are no licensing or registration requirements for general contractors.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	New Mexico has adopted a Prompt Payment Act that is applicable to all construction contracts except for those for residential property containing four or fewer dwelling units. N.M. Stat. Ann. § 57-28-1 et. Seq.	The New York Prompt Payment act addresses payment terms for private contracts and subcontracts. It does not apply to public contracts or to small residential projects. Numerous payment terms such as billing cycles, payment dates, withholding rights, approval process, retention release, suspension rights and interest requirements are established unless the parties provide for other different terms in their respective contracts. N.Y. Gen. Bus. Law §756, et seq.	On all public construction contracts, the balance due prime contractors shall be paid within 45 days after the project has been accepted by the owner, certified by the designer, or occupied by the owner, whichever occurs first. When a subcontractor has performed in accordance with his contract, the contractor must pay to the subcontractor within seven days the full amount received for the subcontractor’s work and materials. N.C. Gen. Stat. §§ 143-134.1, 22C-2, et seq.		Ohio’s Prompt Payment Act covers all construction projects whether public or private, except single, double or three-family housing. Ohio Rev. Code § 4113.61. However, there is no requirement that the State or its political subdivision promptly pay its contractors. Id.
B. Retainage	Retainage is prohibited under the Prompt Payment Act. N.M. Stat. Ann. § 57-28-5(E).	Retainage is addressed in the New York Prompt Payment Law with respect to private projects although without a specified amount. N.Y. Gen. Bus. Law §756-c. Public contracts are to be subject to 5% retention when bonds are provided. N.Y. State Fin. Law §139.	No retainage on periodic or final payments made by the owner or prime contractor shall be allowed on public construction contracts in which the total project costs are less than $100,000. Public owners cannot retain more than 5% of any project costing over $100,000, and after 50% of the project is complete, no further retainage can be withheld. Further, within 60 days of either substantial completion or beneficial occupancy, all retainage must be released. N.C. Gen. Stat. § 143-134.1.	N.D. Cent. Code § 43-07-23 provides that retainage on a contract shall not exceed 10% until the project is 50% completed (this rule applies to both private and public projects, except public projects governed by federal law or regulation).	For private improvements, the amount and the release of retention are governed by the terms of the written contract with contractors, design professionals and construction managers. For public contracts, see Ohio Rev. Code § 153.12. After the contract is 50% complete, no further funds shall be retained for public contracts. Id.
C. Trust Fund Statutes		New York imposes a trust on funds to be used for construction. N.Y. Lien Law § 70. Persons or entities having claims for payment of amounts for which the trustee is authorized to use trust assets are beneficiaries of the trust whether or not they have filed or had the right to file a notice of lien. Id. § 71.
D. Penalties for Failure to Make Payments		Late payments may be subject to interest under the New York Prompt Payment Act §756-b for private projects and on public projects under the New York Public Prompt Payment Law, N.Y. State Fin. Law §179d, et seq.	If final payment is unjustly delayed by more than 45 days, the prime contractor must be paid interest at the rate of 1% per month. N.C. Gen. Stat. § 143-134.1. If any periodic or final payment to a subcontractor is delayed by more than seven days after receipt by the contractor of payment, the subcontractor is entitled to interest of 1% per month on the unpaid balance. Id. § 22C-5.		If a contractor or subcontractor fails to pay its suppliers or subcontractors within 10 days or fails to pay retainage within the appropriate time period, interest in the amount of 18% per annum will apply. Ohio Rev. Code § 4113.61(A).
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	New Mexico law implies a warranty to a contractor that the plans and specifications the owner provides to the contractor are possible to perform, and are adequate for the purpose to be accomplished. Staley v. New, 250 P.2d 893, 896 (N.M. 1952). New Mexico also implies a warranty of workmanlike performance. Ibid.	New York provides consumers who purchase new homes with an implied warranty of workmanlike performance and an implied warranty of fitness. N.Y. Gen. Bus. Law § 777, 777-a, b. There is also a notice requirement as a condition precedent to the buyer’s right to commence suit for breach. Consumers are also protected from deceptive business practices. Id. § 771-780.	North Carolina recognizes an implied warranty of workmanlike construction. Moss v. Best Knitting Mills, 190 N.C. 644 (1925). This warranty extends to ordinary care and skill only, and extends to materials used to work. Id. The statute of limitations in an implied warranty claim is 3 years. North Carolina courts also recognize (1) an implied warranty not to delay or hinder the other’s performance under the contract; (2) an implied warranty that the plans and specifications are adequate; and (3) in residential construction, an implied warranty of habitability.	North Dakota law implies the warranty of good and workmanlike construction and the warranty fitness for the purpose.	Ohio law implies a warranty of workmanlike performance.
B. New Home Warranties	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	New Mexico law limits the scope of indemnity clauses on virtually any construction or improvement of real property and makes indemnity clauses void unless the limitations set out in N.M. Stat. Ann. § 56-7-1 are incorporated as a limitation on the indemnity liability.	An indemnification clause will not be enforced where there is any evidence of negligence on the part of the indemnitee. N.Y. Gen. Oblig. Law § 5-322.1(1). In this context, a finding of negligence is dependent upon the degree of control or supervision exercised by an owner, contractor or subcontractor. Damon v. Starkweather, 185 A.D.2d 633 (4^th Dept. 1992).	Certain construction indemnity agreements are considered against public policy and will not be enforced. Any provision that indemnifies against liability for personal injury or property damage proximately caused or resulting from the negligence, in whole or in part, of the indemnitee is against public policy and is void and unenforceable. N.C. Gen. Stat. § 22B-1. The unenforceable portion will generally be severed from an otherwise valid provision. International Paper Co. v. Corporex, 96 N.C. App. 312 (1989).	An agreement to indemnify a person against an act thereafter to be done is void if the act is known by such person at the time of doing it to be unlawful. N.D. Cent. Code § 22-02-02. An agreement to indemnify a person against an act already done is valid, even though the act was known to be wrongful, unless it was a felony. Id. § 22-02-03.	Ohio Rev. Code § 2305.31 prohibits indemnity and renders any indemnification clause void when the damages are “caused by or resulting from the negligence of the promisee.”
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Contractors must obtain statutory workers’ compensation insurance coverage as a condition of obtaining and maintaining their licenses. N.M. Stat. Ann. § 52-1-2.	All employers are required to have Worker’s Compensation insurance. N.Y. Work. Comp. Law § 50. See also N.Y. State Fin. Law §142.	North Carolina generally requires the following types of insurance on a construction project: workers’ compensation, motor vehicle, commercial general liability coverage, builder’s risk insurance, design professional’s liability insurance and project insurance. N.C. Gen. Stat. § 97; see Deutsch, Kerrigan & Stiles, Construction Industry Insurance Handbook (John Wiley & Sons, Inc., 1991).	To obtain a license as a contractor, an applicant must submit with the application a certificate of insurance establishing that the contractor has liability insurance and that the contractor has secured Workforce Safety and Insurance Company coverage. N.D. Cent. Code § 43-07-04.	Contractors, subcontractors and other employers are required to maintain statutory workers’ compensation coverage. Ohio Rev. Code §§ 4121, 4123.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	For public works projects in excess of $25,000, New Mexico has a “Little Miller Act.” N.M. Stat. Ann. § 13-4-18. The New Mexico Little Miller Act generally requires that the bond be issued at 100% of the contract price, though there are provisions within the act that allow it to be reduced to 50% under certain circumstances.	In contract for the construction of public improvements, general contractors must post a bond guaranteeing prompt payment to all persons furnishing labor or materials to the contractor or his subcontractor. Subcontractors who have furnished labor or materials, and who have not been paid in full within 90 days, may bring suit. N.Y. State Fin. Law § 137 et seq. Payment bonds on private projects are required to be filed with the local county clerk and in the event of a failure to do so the owner may be liable for attorneys fees by a successful bond claimant. N.Y. Gen. Oblig. Law §322.3.	The Little Miller Act requires performance bonds on public projects from any contractor or construction manager at risk with a contract more than $50,000, where the total amount of construction contracts awarded for the project exceed $300,000. N.C. Gen. Stat. § 44A-26.		The primary statutes requiring guaranty and performance bonds for public projects are set forth in Ohio Rev. Code §§ 153-154 et seq.
B. Mandatory Payment on Public Projects	See Section VIII.A.	See Section IV.A.	See Section VIII.A.
C. Statute of Limitations for Filing Suit on Bond		Any suit for payment on a public project must be brought within one year from the date on which the final payment was due. N.Y. State Fin. Law § 137 et seq.
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	New Mexico provides consumer protection through the Unfair Practices Act. N.M. Stat. Ann. § 57-12-1 et seq.	Consumers are protected from deceptive business practices. N.Y. Gen. Bus. Law § 771-780.	North Carolina grants a cause of action to anyone injured by another’s unfair or deceptive acts in or affecting commerce. N.C. Gen. Stat. § 75-1.1.	North Dakota has no separate consumer protection act.	The Ohio Consumer Sales Practices Act defines a “consumer transaction” to include a sale or service to an individual for purposes that are primarily personal, family or household. Ohio Rev. Code § 1345.01(A).
B. Residential Construction Acts	There are special consumer protections under the Manufactured Housing Act. N.M. Stat. Ann. § 60-14-1 et seq.		North Carolina provides for the reimbursement of homeowners who have suffered a reimbursable loss in the construction or alteration of a single-family residence. These claims must meet certain criteria laid out in the Act. N.C. Gen. Stat. §§ 87-15.8, 87-15.5.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Current New Mexico law has generally been favorable to the enforcement of liquidated damages clauses. Generally enforcement of liquidated damages clauses in a construction contract will only be denied where the stipulated amount is so extravagant or disproportionate as to show fraud, mistake or oppression. Gruschus v. C.R. Davis Contracting Co., 409 P.2d 500, 504 (N.M. 1965).	New York allows parties to agree regarding the amount of damages to be paid upon breach of contract. Courts will enforce such an agreement unless the amount prescribed is deemed a penalty because it is plainly or grossly disproportionate to the probable loss anticipated when the contract was executed. Truck Rent-A-Center, Inc. v. Puritan Farms 2^nd,Inc., 41 N.Y.2d 420, 424 (1977).	Liquidated damages are enforceable so long as the liquidated damages clause was not intended as a penalty. In making this determination, courts consider whether anticipated actual damages would be difficult to estimate, and whether the amount stipulated was a reasonable estimate of the anticipated actual damages. Knutton v. Cofield, 273 N.C. 355 (1968).	A liquidated damages clause is valid only when it is impractical or extremely difficult to fix the actual damages. N.D. Cent. Code § 09-08-04.	Ohio allows the parties to a contract to stipulate the amount of damages for breach of the contract. Stipulated liquidation clauses will be enforced if a court determines that the clause is a reasonable estimation of uncertain damages and not a penalty.
B. Limitations on Remedies	The New Mexico Supreme Court has held that exculpatory clauses are to be generally construed against the drafter and must be sufficiently clear and unambiguous so as to inform the person signing it of its meaning. See Berlangieri v. Running Elk Corp., 76 P.3d 1098, 1107 (N.M. 2003).	It is against public policy in New York for the parties to a construction contract to agree to indemnify any person against that person’s own negligence. N.Y. Gen. Oblig. Law § 5-322.1. However, a promisee is not precluded from requiring indemnification for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence of some other party, whether or not the promisor is partially negligent. Id.	Unambiguous no-damage-for-delay clauses are generally enforceable. However, no contractual language forbidding or limiting compensable damages for delay caused solely by the owner or its agent may be enforced. Owner or agent does not include prime contractors or their subcontractors. N.C. Gen. Stat. § 143-134.3.	Exculpatory clauses which directly or indirectly exempt anyone from liability for fraud, willful conduct or a violation of law (whether willful or negligent) are against public policy and void. N.D. Cent. Code § 09-08-02.	Ohio Rev. Code § 4113.62© provides that a “no damage for delay” clause is not enforceable for delays caused by the owner. Such a provision is unenforceable against a subcontractor when the delay is caused by the contractor.
XII. Legislation Affecting Dispute Resolution
A. Venue		The New York Prompt Payment Act provides that a provision in a construction contract other than a material supply contract that requires dispute resolution in another state is void and unenforceable. N.Y. Gen. Bus. Law, §757.			Arbitrators have the power to fix the time and place of hearings; adjourn from time to time and place to place; subpoena persons and papers; and petition a Court of Common Pleas where a majority of arbitrators are sitting for the taking of a deposition. Ohio Rev. Code §§ 2711.06-2711.07.
B. Arbitration	New Mexico has adopted a modified version of the Uniform Arbitration Act. N.M. Stat. Ann. § 44-7A-1 et seq.	New York has its own arbitration statute, under which construction contracts may contain a clause requiring partnering, mediation or arbitration. Such contracts may also require the dispute to be brought in a particular place or forum and/or made within a particular period of time. N.Y. Civ. Prac. L. & R. § 7501 et seq.	Under North Carolina’s revised Uniform Arbitration Act, an arbitration agreement is valid, enforceable and irrevocable except upon a ground that exists at law or equity for revoking a contract. Also, arbitration agreements must be in writing. N.C. Gen. Stat. §§ 569.1-569.31.	North Dakota has adopted the Uniform Arbitration Act, and compulsory arbitration provisions are generally enforced. N.D. Cent. Code § 32-29.3-01 et seq.	Ohio has not adopted the Uniform Arbitration Act, although the Ohio Arbitration Act closely parallels it. Ohio Rev. Code §§ 2711.01-2711.15.
C. Choice of Law		The New York Prompt Payment Act provides that a provision in a construction contract other than a material supply contract that makes the contract subject to the law of another state is void and unenforceable. N.Y. Gen. Bus. Law, §757.
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	New Mexico’s Environmental Compliance Act, N.M. Stat. Ann. §§ 74-7-1 to -8, addresses the construction industry's compliance with environmental regulations.	The State Environmental Quality Review Act requires review of the potential environmental impacts of any construction project which: (1) will be planned or proposed by a state or local government agency; (2) will receive financing directly or indirectly from a state of local government agency; or (3) will require the approval of a state or local governmental agency (e.g., a permit). N.Y. Envtl. Conserv. Law § 8-0113, et seq.	A practitioner should be aware of the following North Carolina laws: (1) Solid Waste Management Act; (2) Water and Air Resources Act; (3) Oil Pollution and Hazardous Substances Control Act; (4) Sedimentation Pollution Control Act; and (5) Inactive Hazardous Sites Act. N.C. Gen. Stat. §§ 130A-290 et seq., 143-211 et seq., 143-215.75 et seq., 113A-50 et seq., 130A-310 et seq.	North Dakota does not have a comprehensive statutory scheme relating to environmental concerns, so federal regulations provide the source of most regulatory administration.	The Ohio Environmental Protection Agency (“EPA”) enforces Ohio’s environmental laws and regulations pertaining to the control of air and water pollution, transporting, treating, storing or disposing of hazardous wastes, solid wastes, infectious wastes, and construction and demolition debris. Ohio Rev. Code § 3734.01 et seq.
B. Green Building and Sustainable Construction Initiatives	New Mexico recently revised its building and construction laws to engender the construction of more green buildings. The New Mexico Construction Industries Commission (CIC) is responsible for state-wide building codes. The CIC adopted by reference the 2006 International Energy Efficiency Code (IEEC), which updated the relevant commercial, residential, earthen and non-load bearing straw construction building codes. N.M. Code R. § 14.7.6.8.	Under the Green City Buildings Act, many of New York City’s new municipal buildings, as well as additions and renovations to existing buildings, are required to achieve certain sustainability standards as measure by LEED standards. Further, the Act provides that non-residential capital projects with estimated construction costs of $2 million or more must be designed and constructed to achieve an LEED silver rating or higher. The Act also requires certain energy requirements for other projects. New York City Local Law 86.	The State Energy Office is supporting the Green Builder Program, which will be administered by the NC Solar Center. Two laws have been passed detailing incentives offered in different areas for compliance with certain standards. See Session Law 2007-241, Session Law 2007-381.	North Dakota has adopted standards for energy conservation in new building construction. N.D. Cent. Code § 54-21.2-01 et seq.	In Ohio, there are no statutory requirements for green building programs or sustainable construction initiatives. However, Ohio does offer tax incentives to individuals and companies that are "green friendly" and there is pending legislation to expand the tax credits.
C. Transfer of Contaminated Property

50 State Survey: Oklahoma – South Carolina

	Oklahoma	Oregon	Pennsylvania	Rhode Island	South Carolina
II. Legislation Affecting Project Delivery Systems
A. Design Build	There are no statutes regulating the use of design build in private projects. However, the use of design build and at-risk construction management delivery methods in a public sector project requires approval of the Director of Central Services or an act of the legislature. Okla. Stat. tit. 61, § 202.1(A).	Oregon regulates six basic methods of project delivery: (1) Traditional Approach. Or. Rev. Stat. § 279C.335; (2) Construction Manager as Agent Approach; (3) Construction Manager/General Contractor Approach (“CMGC”). Or. Admin. R. 125-249-0690; (4) Design-Build Approach. Or. Admin. R. 125-249-0670; (5) General Qualifications-Based Approach. Or. Rev. Stat. § 279C.400, Or. Admin. R. 125-249-0640; (6) Short List/Sole-Source Approach.	The Separations Act provides that where the erection, construction or alteration of public buildings exceeds $4,000, separate bids are required for plumbing, heating, ventilation and electrical work. 71 Pa. Stat. Ann. § 1618 et seq. The separate contracts requirement applies to design build projects as well. Mech. Contractors Ass’n v. Se. Pa. Transp. Auth., 654 A.2d 119 (Pa. Commw. Ct. 1995).	Varying forms of project delivery systems are authorized and utilized on construction projects in Rhode Island, including design-bid-build, design-build, construction management, program management, and multi-prime. The fact that alternative forms of project delivery systems are not prohibited in Rhode Island is supported by the State Purchases Act, which permits the Department of Administration to enter into any type of contract promoting the best interests of the state. R.I. Gen. Laws § 37-2-31 (excepting provisions under Rhode Island law limiting the use of cost-plus contracts in § 37-2-29 and § 37-2-30).	Recent changes have been made to the South Carolina Consolidated Procurement Code governing project delivery systems for public projects. S.C. Code Ann. § 11-35-3005. There are no special statutes pertaining to the private sector.
B. Construction Management	See Section II.A.	See Section II.A.		See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Oklahoma applies a 5 year statute of limitations to all actions based on written contracts. Okla. Stat. tit. 12, § 95. If the agreement is not in writing, the limitations period is 3 years. Id.	Oregon provides a 6 year statute of limitations for breach of an oral or written contract. Or. Rev. Stat. § 12.080(1). Suits against architects and engineers have a 2 year statute of limitation, regardless of the legal theory employed. Id. § 12.135(2). Actions for misrepresentation, fraud and negligence have a 2 year statute of limitations. Id. § 12.110(1).	The statute of limitations for breach of contract, including construction contracts, is 4 years. 42 Pa. Con. Stat. Ann. § 5525(a)(8). The limitations period for tort claims is 2 years. Id. § 5524. Claims under the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) are subject to a 6 year statute of limitations. Id. § 5527(b). Also, in the case of latent construction defects, the “discovery rule” tolls the applicable statute of limitations. Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 842 A.2d 334 (Pa. 2004).	Except as otherwise specifically provided, all civil actions shall be commenced within 10 years after the cause of action accrued. R.I. Gen. Laws § 9-1-13(a). With respect to improvements to real property, the statute begins to run when the evidence of injury to property is sufficiently significant to alert the injured party to the possibility of a defect. Lee v. Morin, 469 A.2d 358 (R.I. 1983); Boghossian v. Ferland Corp., 600 A.2d 288 (R.I. 1991)	South Carolina has a 3 year statute of limitations for breach of contract and tort claims. S.C. Code Ann. § 15-3-530. Agreements to shorten a limitations period are unenforceable. Id. § 15-3-140.
B. Licensing and Regulation	Architects, landscape architects and interior designers require licensing. Okla. Stat. tit. 59, §§ 46-1 – 46-41. Engineers and land surveyors are required to be licensed or hold a certificate of authorization in order to render professional services. Id. §§ 475.1-475.23. Mechanical contractors, plumbers and electricians must be licensed. Id. §§ 1850.7, 1012, 1690. However, there is no state licensing of construction contractors and welders. Id. at tit. 68, §§ 1701-1707; tit. 59 §§ 1624-1641	Architects, engineers, construction contractors, and landscape contractors are required to obtain a Certificate of Registration from the appropriate state board. Or. Rev. Stat. §§ 671.020, 672.020(1), 701.026, 671.530(4).	Architects and engineers must meet licensing and certification standards. 63 Pa. Cons. Stat. Ann. § 34.1 et seq, 148 et seq. Landscape architects must be registered in order to practice. Id. at § 901 et seq. Generally, plumbers and electricians must be licensed and registered with the appropriate city or township in which they practice. 53 Pa. Cons. Stat. Ann. §§ 4591, 4593; Will v. City of Erie, 763 A.2d 566 (Pa. Commw. Ct. 2000).	Architects, engineers, land surveyors and landscape architects must satisfy state licensing and certification requirements. R.I. Gen. Laws §§ 5-1-1 et seq., 5-8-1 et seq., 5-51-1 et seq. Contractors, electricians and plumbers must obtain a certificate of registration. Id. §§ 5-65-1 et seq., 5-6-1 et seq., 5-20-1 et seq.	Architects and landscape architects must be licensed in South Carolina. S.C. Code Ann. § 40-3-10. Also, engineers and land surveyors must be licensed. Id. § 40-22-10. Further, general and mechanical contractors must have a license where the cost of a contract entered exceeds $5,000. Id. § 40-11-30. Moreover, a construction manager must hold a contractor, architect or engineer license. Id. § 40-11-320. Also, plumbing contractors and residential home builders must meet licensing requirements. Id. §§ 40-49-10, 40-59-30. It is illegal to divide work into portions so as to avoid the financial or other requirements provided by South Carolina Code. Id.§ 40-11-260.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts		On private projects, an owner must pay a contractor within 14 days after a billing is submitted, unless an alternative billing is specified. Or. Rev. Stat. § 701.625. A contractor must pay a subcontractor or material supplier within 7 days of receipt of payment. Or. Rev. Stat. § 701.630(2). On public projects, interest accrues 30 days after receipt of invoice or 15 days after approval of payment, and a contractor must pay a subcontractor within 10 days of payment. Or. Rev. Stat. §§ 279C.570(2), 279C.580(3)(a).	The Pennsylvania Contractor and Subcontractor Payment Act requires owners to make timely payments to contractors and subcontractors “strictly in accordance with the terms of the construction contract” at issue, and provides remedies if payments are wrongfully withheld. 73 Pa. Cons. Stat. Ann. § 501 et seq.	R.I. Gen. Laws § 34-27.1-1 creates a statutory lien upon construction funds in the hands of the lender in order to provide the subcontractor with additional remedies.	When a contractor or a subcontractor has performed in accordance with the provisions of a contract, the owner shall pay the contractor the undisputed amount owed within 21 days of receipt of a pay application. Also, the contractor shall pay his subcontractor, and each subcontractor shall pay his subcontractor within 7 days. S.C. Code Ann. § 29-6-30. South Carolina also has a Subcontractors Prompt Pay Act, which, among other provisions, invalidates pay-when-paid clauses. Id. § 29-6-230.
B. Retainage	Public construction contracts must provide for partial payment based upon the work completed. Okla. Stat. tit. 61, § 113.1. The contract must provide that up to 10% of all partial payments shall be held in retainage, which is reduced to 5% when the contractor has completed 50% of the project. Id.	Or. Rev. Stat. § 701.420(1) limits the allowable retainage to 5% of the contract price, but only if the contractor or sub-contractor provides a performance and payment bond in accordance with Or. Rev. Stat. § 701.430.	An owner is required to pay retainage to the contractor within 30 days after final acceptance of the work. 73 Pa. Cons. Stat. Ann. § 509(a). Contractors are required to pay their subcontractors the full amount due 14 days after receipt of retainage from the owner. Id. § 509(c).
C. Trust Fund Statutes	Any funds received as payment for a building contract, construction mortgage or conveyance of a warranty deed are deemed held in trust for payment of all lienable claims owed by the recipient. Okla. Stat. tit. 42, § 152.
D. Penalties for Failure to Make Payments		Or. Rev. Stat. § 701.420 provides that an owner, contractor or subcontractor must pay 1% interest per month on the final payment due to a contractor or subcontractor.	Untimely payments are subject to interest of 1% per month, plus reasonable attorneys’ fees for any amounts “deemed to have been withheld in bad faith and to the extent that the withholding was arbitrary or vexatious.” 73 Pa. Cons. Stat. Ann. § 3935.		If payment to a contractor or subcontractor is late by more than 21 days, the person owing payment must pay interest of 1% per month or a pro rata fraction on the unpaid balance beginning from the due date. However, the person being charged interest must be notified of the prompt payment statute at the time of request. S.C. Code Ann. §§ 29-6-50, 29-6-30. The prompt payment statute does not apply to residential homebuilders. Id. § 29-6-60.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	Oklahoma law implies a warranty of workmanlike performance. As to new home construction, Oklahoma law also implies a warranty of fitness and a warranty of habitability. Also, Oklahoma requires the seller of a residence to disclose any known defects prior to sale. Okla. Stat. tit. 60, §§ 831-839.	Oregon law implies the warranty of good faith and fair dealing, the warranty of fitness of design (Spearin doctrine), the warranty of workmanlike manner/habitability, the warranty of professional performance, the warranty of no hindrance or delay, and the warranty of completion in a reasonable time.	Pennsylvania law implies the warranty of habitability, the warranty of reasonable workmanship, and the warranty of architectural services.	Rhode Island law implies a warranty of workmanlike performance and habitability. Also, Rhode Island courts apply the Spearin Doctrine, which provides that the owner of a construction project warrants the plans and specifications as sufficient.	A party that furnishes plans and specifications for a contractor to follow impliedly warrants the plans. One who overtakes to design and oversee a construction project impliedly warrants the design and quality of construction. Also, the implied warranty of habitability arises from the sale of a home and can be imposed on a seller who is not a builder. Further, a builder is subject to the implied warranty of workmanlike service.
B. New Home Warranties	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Oklahoma does not have specific anti-indemnity statutes.	Or. Rev. Stat. § 30.140 provides that any clause in a construction agreement requiring a person or that person’s surety or insurer to indemnify another against personal injury or property damage caused in whole or part by the indemnitee is void.	An indemnification agreement that indemnifies or holds harmless an architect, engineer, surveyor or their agents, for any damages arising from either the preparation or approval of designs or the giving of instructions is void as against public policy. 68 Pa. Cons. Stat. Ann. § 491.	R.I. Gen. Laws § 6-34-1 limits the application of indemnity clauses where the effect of the indemnity provision results in a person being indemnified from his or her own negligent act. Section 6-34-1 does not bar a general contractor from attempting to obtain indemnification from the subcontractor for claims resulting from the negligence of the subcontractor or his or her agents. Rodrigues v. Depasquale Building & Realty Co., 926 A.2d 616 (R.I. 2007).	Agreements to indemnify against liability for damages arising out of bodily injury or property damage proximately caused by or resulting from the sole negligence of the promisee, its independent contractors, agents, employees, or indemnitees are against public policy and unenforceable. S.C. Code Ann. § 32-2-10.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Independent contractors, sub-contractors, construction firms and corporations must comply with Oklahoma’s workers’ compensation statutes. Okla. Stat. tit. 85, §§ 1-203.	Every employer with one or more covered employees is subject to Oregon’s workers’ compensation scheme. Or. Rev. Stat. § 656.023. see also Or. Rev. Stat. §§ 701.081 and 701.804.	In order for a municipality to issue a builder’s permit, a contractor must present proof of workers’ compensation insurance or an affidavit that the contractor is exempt. 77 Pa. Cons. Stat. Ann. § 462.2(1).	Contractors are required to obtain worker’s compensation insurance. R.I. Gen. Laws § 5-65-7(b).	The Workers’ Compensation Title does not apply to casual employees or any person who has regularly employed in service less than four employees in the same business within the State or who had a total annual payroll during the previous year of less than $3,000. Id.§ 42-1-360.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Contractors on public projects must post performance and payment bonds. Okla. Stat. tit. 61, §§ 1-2.	Oregon provides specific bonding requirements for public improvement contracts with as estimated value exceeding $100,000, or in transportation projects, more than $50,000. Or. Rev. Stat. § 279C.380(5).	The Public Works Contractors’ Bond Law requires that the prime contractor on a public-works project exceeding $5,000 provide a payment bond and a performance bond, each at 100% of the contract amount. 8 Pa. Cons. Stat. Ann. § 193(a).	Chapter 12 of Title 37 of the Rhode Island General Laws governs contractors’ bonds in the context of public works projects. Under Rhode Island law, in an action against a performance or payment bond, a court will determine the extent of liability of the surety solely by the language of the bond. See Narragansett Pier R. Co. v. Palmer, 38 A.2d 761, 763 (R.I. 1944).
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond	The procedures for filing an action against a contractor or the surety on any bond is described in Okla. Stat. tit. 68, § 1706(a)-(b).
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts		The Oregon Unlawful Trade Practices Act (“UTPA”) applies to transactions involving real estate, goods or services for personal, family or household purposes. Or. Rev. Stat. § 646.605(6). UTPA covers both construction services and construction products. The Act generally prohibits unconscionable sale tactics, failure to deliver and misrepresentations.	The Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) broadly covers consumer transactions, including construction services transactions. 73 Pa. Cons. Stat. Ann. § 201-1 et seq. UTPCPL prohibits “unfair or deceptive acts or practices,” which includes failing to comply with a warranty, performing repairs or improvements of an inferior quality than that agreed in writing, or engaging in fraudulent and deceptive conduct.	Rhode Island’s Deceptive Trade Practices Act is codified in Title 6, Chapter 13.1. Under this legislation, “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” R.I. Gen. Laws § 6-13.1-2.	The South Carolina Unfair Trade Practices Act applies to all trade and commerce. S.C. Code Ann. § 39-5-10 et seq. The Act prohibits unfair methods of competition and unfair or deceptive acts in the conduct of trade and commerce. Id. § 39-5-20. To be actionable under the Act, an alleged act must have an impact on the public. Id. Also, the Act specifically requires certain information regarding the physical condition of buildings proposed to be converted from rental units to condominiums to be disclosed to all prospective purchasers, and failure to do so constitutes a violation. Id. § 27-31-430.
B. Residential Construction Acts	Oklahoma has enacted the Home Repair Fraud Act as part of the Consumer Protection Act. Okla. Stat. tit. 15, § 765.1.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages are valid in situations where damages from a breach are “impracticable or extremely difficult to fix.” Okla. Stat. tit. 15, § 215.	Liquidated damages are generally enforceable if: (1) the amount specified is a reasonable forecast, and (2) the harm caused by the breach is very difficult to estimate accurately. Illingworth v. Bushong, 688 P.2d 379 (Or. 1984).	Liquidated damages clauses are “universally accepted as a necessary part of the law governing construction contracts.” A.C. Cullen Constr., Inc. v. State. Sys. Of Higher Ed., 898 A.2d 1145 (Pa. Commw. Ct. 2006).	No Rhode Island statute modifies the common law governing liquidated damages. In general, courts will enforce the agreed upon liquidated damages for delay provided that measuring the actual damages would be difficult to ascertain and the fixed amount of damages is fair. See Psaty & Fuhrman Inc. v. Housing Authority of City of Providence, 68 A.2d 32, 38 (R.I. 1949).	South Carolina allows parties to a contract to stipulate to the amount of damages for breach of contract. If the clauses creates a penalty it will not be enforced. Benya v. Gamble, 321 S.E.2d 57 (S.C. Ct. App. 1984).
B. Limitations on Remedies	Exculpatory clauses are enforceable provided “the intent to excuse one party from the consequences of his own negligence is expressed in clear, definite and unambiguous terms.” Kinhead v. W. Atlas Int’l, Inc., 894 P.2d 1126 (Okla. Civ. App. 1993)	Exculpatory clauses are generally disfavored by Oregon courts. Also, Or. Rev. Stat. § 279C.315 prohibits no-damage-for-delay clauses in public contracts (although such clauses are generally enforceable in private contracts).	Exculpatory clauses in construction contracts are generally enforceable under Pennsylvania law. James Corp. v. N. Allegheny Sch. Dist., 938 A.2d 474 (Pa. Commw. Ct. 2007).	No damages for delay clauses are enforceable on private and public projects in Rhode Island unless there is some showing of bad faith or other tortious intent. Psaty & Fuhrman Inc., 68 A.2D 32 (R.I. 1949). Rhode Island has limited the economic loss doctrine to contracts between commercial parties.	Contract clauses that seek to exculpate or limit a party from liability for that party’s own negligence are not favored by the law. Pride v. Southern Bell, 138 S.E.2d 155 (S.C. 1964). Contracts limiting liability are enforceable only where the contract contains express language clearly indicating that such was the intent of the parties.
XII. Legislation Affecting Dispute Resolution
A. Venue
B. Arbitration	Arbitration agreements are favored in Oklahoma, and Oklahoma has adopted the Uniform Arbitration Act. Okla. Stat. tit. 12, §§ 1851-1881.	Oregon has adopted a version of the Uniform Arbitration Act. Or. Rev. Stat. §§ 36.600-740. Generally, arbitration agreements are valid, enforceable and irrevocable except when grounds exist for revocation.	Arbitration agreements are presumed to be enforceable and irrevocable, except when grounds for revocation exist. 42 Pa. Cons. Stat. Ann. § 7301 et seq.	The Rhode Island Arbitration Act, R.I. Gen. Laws § 10-3-1 et seq., which does not adopt the Uniform Arbitration Act, provides that any clearly written and expressed agreement to arbitrate will be enforced by the courts of Rhode Island.	The South Carolina Uniform Arbitration Act governs arbitration provisions that are controlled by South Carolina law. A written agreement to settle disputes in arbitration is valid and enforceable. Notice that a contract is subject to arbitration must be displayed prominently on the first page of a contract. S.C. Code Ann. § 15-48-10 et seq.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	Oklahoma statutes title 27A address environmental concerns and regulations (such as lead paint requirements and abatement).	Oregon has statutes regulating the generation, transportation and disposal of hazardous waste, underground storage tank leaks, and lead, radon and PCB contamination. Or. Rev. Stat. §§ 340, 437, 465-466.	Pennsylvania has statutes that regulate asbestos, radon, lead contamination, as well as hazardous site regulation. 63 Pa. Cons. Stat. Ann. §§ 2101 et seq., 2001-2014; 35 Pa. Cons. Stat. Ann. §§ 5901 et seq., 6020.101 et seq.	The Rhode Island Department of Environmental Management (“DEM”) is the administrative body that enacts environmental regulations and implements programs to improve the environmental conditions of Rhode Island. The regulations and programs instituted by DEM, which regulate water, waste, air, etc., should be consulted before commencing work on a project that may have an environmental impact. DEM’s website, which contains these regulations, can be found at http://www.dem.ri. gov.html.
B. Green Building and Sustainable Construction Initiatives	Okla. Stat. tit. 61, § 213 et seq. requires new building construction and renovation to meet the LEED “Silver Standard” for energy and environmental design.	Throughout Oregon, certain counties, municipalities, and other governmental agencies are requiring all new construction to meet certification under the LEED program.	The Green Government Council is charged with assembling annual plans from all commonwealth agencies that outline the actions they will take to incorporate environmentally sustainable practices into their operations. See Executive Order No. 1998-1.	Rhode Island has not passed a green building initiative following that of or similar to the Unites States Green Building Council’s Leadership in Energy & Environmental Design (“LEED”).
C. Transfer of Contaminated Property			The Hazardous Site Cleanup Act requires a property seller to disclose that hazardous waste has been or is being disposed of on the property. 35 Pa. Cons. Stat. Ann. § 3020.101 et seq.

50 State Survey: Tennessee – Vermont

	South Dakota	Tennessee	Texas	Utah	Vermont
II. Legislation Affecting Project Delivery Systems
A. Design Build	Special considerations apply to use of design-build contracts for public improvements, and special procedures are noted in S.D. Codified Laws § 5-18-26. The public corporation must, prior to issuing any request for proposals, establish and publish procedures for the solicitation and award of design-build contracts according to the minimum requirements set forth in Id. § 5-18-26(1).	There is neither statutory nor specific case law directly addressing issues peculiar to alternative project delivery systems such as design-bid-build, design-build, multiple prime, etc. Consequently, a design-build contractor must hold both a license as a contractor for the classification of work being performed and a registration for each design professional requiring registration.	Public works construction is awarded on the “best value” for the project. The governmental entity may consider purchase price, vendor’s reputation, the quality of the goods and services and the vendor’s past relationships with the governmental entity. Tex. Loc. Gov’t Code Ann. § 271.113(a)-(b).	There is no statutory or case law in Utah regarding the licensure of design build projects.	The Vermont statutes, building codes, regulations and case law do not deal separately and explicitly with design-build, construction management or similar hybrid delivery systems.
B. Construction Management	See Section II.A.	See Section II.A.	See Section II.A.	See Section II.A.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	South Dakota has a 6 year statute of limitation for any cause of action based on a contract, obligation or liability, express or implied. S.D. Codified Laws § 15-2-13(1). South Dakota also has a 3 year statute of limitation for personal injury claims. Id. § 15-2-14(3).	Actions for injury to the person must be commenced within 1 year after the cause of action accrued. Tenn. Code Ann. § 28-3-104. Actions for injuries to personal or real property must be commenced within 3 years after the cause of action accrued. Id.§ 28-3-105. Further, actions for breach of contract must be commenced within 6 years after the cause of action accrued. Id. § 28-3-109. The statute of limitation period generally begins running in the defendant’s favor when the plaintiff discovers, or should have discovered, a cause of action exists.	In Texas, actions for personal injury and most other tort claims are governed by a 2 year limitations period. Other causes of action, including breach of contract, fall under a 4 year limitation period. Tex. Civ. Prac. & Rem. Code Ann. §§ 16.003, 16.004.	An action against a provider (i.e., all persons involved in the design and construction process) based in contract or warranty is subject to a 6 year limitation period. All other actions by or against a provider are subject to a 2 year limitation period. Utah Code Ann. § 78B-2-225. The foregoing limitations periods do not apply to actions for economic loss. An action based on economic loss is subject to a 6 year limitations period for a written contract, and a 4 year limitation period for an unwritten contract. Utah Code Ann. § 78B-2-309(2), 78B-2-307.	The general statute of limitations in Vermont is 6 years. Vt. Stat. Ann. 12 §511. The limitations period for tort claims including negligence is 3 years. Id. §512. Absent concealment, the applicable limitations period for negligence or contract claims against an architect is 6 years. The 6 year limitation period also applies to claims against contractors in construction defect cases, and to claims against professional engineers.
B. Licensing and Regulation	Persons engaged in the practice of professional engineering, architecture, land surveying or landscape architecture must comply with S.D. Codified Laws § 36-18A. General contractors are not regulated under South Dakota law, except to the extent that prime contractors and subcontractors are subject to a 2% excise tax on gross receipts under S.D. Codified Laws §§ 10-46A, 10-46B.	Architects, engineers, and landscape architects are subject to the provisions of Tenn. Code Ann. § 62-2-101 et seq.; the Contractors Licensing Act of 1994 regulates contractor licensing generally. Id. § 62-6-101, et seq. Home improvement contracting is regulated by Id. § 62-6-501 et seq. Further, land surveying is regulated by Id. §62-18-101 et seq.	Texas requires licensing for architects and engineers. Tex. Occ. Code Ann. § 1051.701, 1001.301. Residential builders must be registered, while a general contractor on a commercial construction project need not be. Tex. Prop. Code Ann. § 416.001. Work in other fields is subject to regulation, including: fire-related systems, boiler-related work, plumbers, electricians, contractors, mold remediation contractors, asbestos abatement, underground storage tanks, and elevators and lifts. Id.	Utah has established an architect’s licensing board which provides for the promulgation of rules, and sets forth qualifications for licensure. Utah Code Ann. § 58-3a-201, 58-3a-302. Further, construction trades including general building, general engineering, residential and small commercial, electrical, plumbing, and specialty contractors are also regulated. See generally Utah Code Ann. § 58-55-102.	Persons desiring to practice architecture in Vermont must obtain a license from the Board of Architects. Vt. Stat. Ann. 26 §204. Further, the practice of engineering also requires a license. Id.§1162. Moreover, to practice land surveying, a person must obtain a license. Id. § 2503. Vermont requires that persons designing potable water supply and wastewater systems be licensed. Vt. Stat. Ann. 10 § 1975(b). Also, electrical installations must be performed or supervised by a master electrician. Vt. Stat. Ann. 26 § 902. Finally, plumbing work must be performed under the supervision of a licensed master plumber. Id. § 2198(a).
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts		Tennessee has adopted a contractor’s Prompt Pay Act. Tenn. Code Ann. § 66-34-101 et seq. With the exception of one- to four-unit residential structures and payments required to be made by certain regulated financial institutions and insurance companies, the Act applies to both public and private contracts and cannot be waived. Id. § 66-34-701. Payments not made in accordance with the Act accrue interest. Id.§ 66-34-601.	The Private Prompt Pay Act obligates the owner to pay the contractor, less any “statutory offsets,” not later than the 35^th day after the owner receives the payment request. Contractors and subcontractors are obligated to pay their subcontractors within seven days after receiving payment. Tex. Prop. Code Ann. § 28.001-28.010. Texas also has a Public Prompt Pay Act that applies to construction projects owned by Texas Government entities including agencies and political subdivisions. Tex. Gov’t. Code Ann. § 2251.001-2251.055.	The Utah Prompt Payment Act provides for prompt payment to contractors and subcontractors on projects for agencies of the state of Utah not involving disbursement of federal funds. Utah Code Ann. § 15-6-1 et. seq.	Vermont regulates payments under construction contracts, except for federal contracts, Vt. Stat. Ann. 9 § 4008, or contracts for the purchase of materials by a natural person performing work on his or her own real property, Id. § 4009.
B. Retainage		Retainage on construction contracts in an amount of over $500,000 is required to be held in escrow, and, upon deposit, such escrow becomes the property of the prime contractor or remote contractor to whom it is owed. Escrowed amounts must be deposited in a separate interest bearing account with a third party. Tenn. Code Ann. § 66-11-144. All construction contracts entered into after July 1, 2007 are limited to withholding retainage in an amount that may not exceed 5% of the amount of the contract. This is applicable to all construction projects, both public and private. Id. § 66-34-103.		Utah law governing “nonresidential” construction projects limits retention to 5% except that (i) if the contractor or subcontractor is in default or breach the owner may withhold an amount necessary to cure the default or breach, and (ii) if a project is substantially complete, the owner may withhold up to twice the fair market value of any work not completed. Utah Code Ann. § 13-8-5(3), 13-8-5(2)(b).	Retainage must be paid within 30 days of final acceptance of the work. Vt. Stat. Ann. § 4005(a). Retainage must be paid to subcontractors and suppliers within seven days after receipt by the general contractor from the owner, Id. § 4005(c), or within 30 days if the retainage has been held by the general contractor under agreement, Id. § 4005(b).
C. Trust Fund Statutes			Texas has a “Trust Fund Statute” which provides that construction payments made to a contractor or subcontractor under a construction contract for the construction or repair of improvements on real property, shall be deemed to be “trust funds” held for the benefit of a contractor or subcontractor who labors or furnishes labor or material for the construction or repair of the improvement. Tex. Prop. Code Ann. § 162.001-162.033.
D. Penalties for Failure to Make Payments	Absent an express contract in writing fixing a different rate of interest or an interest rate clearly appearing on the bill, statement, or invoice, interest is payable on all monies at the rate of 15% per year on any settlement of accounts. Any interest rate appearing on a bill, statement, or invoice may not exceed 18% per annum. S.D. Codified Laws §§ 54-3-5 to -16.			See Section IV.A.	Chapter 102 does not prohibit prepayments or withholding of payment due to a bona fide dispute. In the event of arbitration or litigation, the substantially prevailing party shall be awarded reasonable interest on the wrongfully withheld amount, together with attorneys’ fees and expenses, even if the contract provides otherwise. Vt. Stat. Ann. 9 §§ 4006-7.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	South Dakota law implies a warranty of workmanlike performance and habitability in new construction.	In every contract for the sale of a recently completed dwelling or a dwelling under construction, the builder vendor is held to impliedly warrant that the dwelling is sufficiently free from major structural defects and is constructed in a workman-like manner, so as to meet the standard of workman-like quality then prevailing at the time and in the place of construction. This warranty is commonly known as the implied warranty of habitability. See Dixon v. Mountain City Const. Co., 632 S.W.2d 538 (Tenn. 1982). However, where an express warranty and the implied warranty of habitability are inconsistent, the express warranty controls. Tenn. Code Ann. § 47-2-317.	A contractor impliedly warrants to the owner that construction, repairs and modifications will be performed in a good and workmanlike manner. Engineers are also bound by this implied warranty to perform in a good and workmanlike manner. Most often owners are not held to impliedly warrant that plans and specifications are free from defects. Further, a contractor impliedly warrants that it will comply with all relevant building codes. Also, Texas does not recognize an implied warranty on professional services.	Under most form contracts, the owner is responsible for the correctness of the plans and specifications, and the contractor and subcontractors are not responsible for damages resulting from errors, omissions or inconsistencies in the contract documents of which they are unaware, but are responsible for the work they performed that they know is based upon error. Leininger v. Stearns-Roger Mfg. Co., 404 P.2d 33 (Utah 1965).	The general rules of professional negligence are applicable to architects, professional engineers and land surveyors. There is implied a warranty against structural defects in new residential housing built by a person in the business of building homes. Rothberg v. Olenik, 262 A.2d 461, 467 (Vt. 1970).
B. New Home Warranties	See Section V.A.	Tennessee has adopted a residential property disclosure law. Tenn. Code Ann. §§ 66-5-201 et seq. Although not a warranty, the law requires the disclosure of information about one- to four-unit residential structures. Id. Sales of new structures are exempt if the builder offers a written warranty on the structure. Id.§ 66-5-209.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	S.D. Codified Laws § 56-3-18 sets forth limitations for indemnification agreements in construction contracts.	For contracts relating to construction, alteration, repair or maintenance of a building, structure, appurtenance or appliance, including moving, demolition and excavating connected therewith, indemnity and hold-harmless agreements relating to liability for damages caused by the sole negligence of the indemnitee, or his agents or employers, are declared to be against public policy, void, and unenforceable. Tenn. Code Ann. § 62-6-123.	Texas makes void any provision of a construction contract which requires the contractor to indemnify architects, engineers or their employees from liability for personal injury and death or property damage resulting from defects in plans, designs or specifications prepared, approved or used by the architect or engineer, or from negligence in performance of their professional duties under the contract. Tex. Civ. Prac. & Rem. § 130.002. Texas also has an Oilfield Anti-Indemnity Statute. Id. § 127.001-.007.	Utah provides that in any agreement relative to: design or construction between a construction manager, contractor or supplier, a provision requiring the promisor to insure, hold harmless, indemnify or defend the promisee against liability for damages caused by or resulting from the fault of the promisee, indemnitee, others, or their agents or employees is against public policy and void and unenforceable, except when such an indemnification provision is included in a contract. Utah Code Ann. § 13-8-1.	Vermont’s Statute of Frauds requires a written, signed memorandum in order for a “special promise to answer for the debt, default or misdoings of another” to be enforceable. Vt. Stat. Ann. 12 §181.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	All employers, including contractors and subcontractors, are bound by statutory workers’ compensation provisions. S.D. Codified Laws § 62-3-3.	Contractors and subcontractors must maintain statutory workers’ compensation coverage regardless of the number of persons they employ. Tenn. Code Ann. § 50-6-113; also see generally Tenn. Code Ann. § 50-6-101, et seq.	Texas statutes do not impose specific requirements for insurance coverage with regard to private construction projects. Texas has no mandatory requirement for an employer to carry worker’s compensation insurance. Tex. Lab. Code Ann. § 406.002.	All licensed contractors must maintain public liability insurance coverage of at least $100,000 for each incident and $300,000 in total and statutory workers’ compensation coverage. Utah Code Ann. § 58-55-302(2), Utah Admin. Code § R156-55a-302d.	All employers, including architects, professional engineers, land surveyors, contractors, subcontractors and suppliers, must carry worker’s compensation insurance. See Vt. Stat. Ann. 21 § 9, et seq. There are no statutory provisions that impose additional coverage requirements for private construction projects.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Chapter 21 of Title 5 of the South Dakota Codified Laws sets forth the general requirements applicable to performance bonds in the context of public improvement contracts. Further, S.D. Codified Laws § 5-22 governs liens relating to public improvement projects.	For public projects in an amount exceeding $10,000, all contractors must provide a bond, with adequate surety, to ensure the payment of suppliers, taxes, licenses and other similar amounts due to the state government or any city or county government in the state. Tenn. Code Ann. § 12-4-207. All public contracts in excess of $100,000 are required to have bonds for labor and materials. Tenn. Code Ann. §12-4-201.		Before awarding any contract exceeding $50,000 for construction, alteration or repair, the owner must obtain from the contractor a payment bond in a sum equal to the contract price. Utah Code Ann. § 14-2-1. A person has a right of action on a payment bond for any unpaid amount due him for which the payment bond is furnished if he has not been paid in full within 90 days after which he performed the labor or service. Utah Code Ann. § 14-2-1(4).
B. Mandatory Payment on Public Projects			Although an insurer in Texas owes a common-law duty of good faith and fair dealing to its insured, that duty has not been extended to sureties. In Texas, a surety does not owe a duty of good faith and fair dealing to an obligee under a performance bond. Great Am. Ins. Co. v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415 (Tex. 1995).		Aside from the Statute of Frauds, there is no legislation in Vermont concerning or requiring construction bonds or sureties. General principles of contract, and particularly suretyship, apply.
C. Statute of Limitations for Filing Suit on Bond				An action to recover on this liability must be commenced within one year after the day on which the last of the labor or service was performed. Utah Code Ann. § 14-2-2(1)
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	South Dakota has adopted S.D. Codified Laws § 37-24, “Deceptive Trade Practices and Consumer Protection.” While no cases have specifically applied this Act to construction or design contracts, the statute does define “merchandise” to include both intangibles and services. Id. § 37-24-1(7).	The Tennessee Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq. (TCPA) prohibits, among other things, deceptive or unfair acts and practices by any person in connection with a consumer transaction.		The Utah Consumer Sales Practices Act prohibits deceptive or unconscionable acts and practices by any supplier in connection with a consumer transaction. See Utah Code Ann. § 13-11-4.	The Vermont Consumer Fraud Act, Vt. Stat. Ann. 9 §§ 2451 to 2480, applies to many consumer transactions, including real estate and construction transactions. Moreover, the Act authorizes both private rights of action and governmental enforcement. Id. §§ 2458 to 2461.
B. Residential Construction Acts		The TCPA applies to many consumer transactions, including real estate transactions. Klotz v. Underwood, 563 F. Supp. 335 (E.D. Tenn. 1982).	Texas handles residential construction disputes through the Texas Residential Construction Commission Act. Tex. Prop. Code Ann. § 401.001 et seq.	It is unclear whether the Act in Section IV.A. applies to the sale of a residence.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Liquidated damages provisions are void, unless the parties may agree in the contract upon an amount presumed to be the damage for breach in cases where it would be impracticable or extremely difficult to fix actual damage. S.D. Codified Laws § 53-9-5.	In Tennessee, liquidated damage provisions will be upheld if agreed damages are reasonably proportionate to actual damages, the actual damages are uncertain and difficult to prove, and the promisee cannot be placed in as good a position as if no breach of contract had occurred. V.L. Nicholson Co. v. Transcon Inv. & Fin., Ltd., 595 S.W.2d 474 (Tenn. 1980).	To be upheld, a liquidated damages provision must constitute an estimate of the damages which would actually be sustained in the event of a breach. The amount determined must be a reasonable estimate of just compensation for the harm to be caused by the breach. If it is determined that the provision is a penalty, the party’s expression of intention will not be controlling and the provision will not be enforceable. Loggins Constr. Co. v. Stephen F. Austin State Univ., 543 S.W.2d 682 (Tex. App. 1976).	Utah allows the parties to a contract to include a provision fixing the amount of damages for a breach of the contract. Such a provision will be enforced if the court determines that the provision is a reasonable estimation of uncertain damages and not a disguised forfeiture or penalty. The burden of proof is on the party seeking to avoid enforcement. Woodhaven Apts. v. Washington, 907 P.2d 271 (Utah Ct. App. 1995).	A liquidated damages clause will be enforced if the court determines that it satisfies three criteria: (1) because of the nature or subject matter of the agreement, damages arising from a breach would be difficult to calculate accurately; (2) the sum fixed as liquidated damages must reflect a reasonable estimate of likely damages; and (3) the provision must be intended solely to compensate the non-breaching party and not as a penalty for breach or as an incentive to perform. New England Educ. Training Serv., Inc. v. Silver Street P’ship, 595 A.2d 1341, 1346 (Vt. 1991).
B. Limitations on Remedies	The validity of an exculpatory agreement is set forth in S.D. Codified Laws § 36-18A-68. South Dakota has also adopted the economic loss rule.	Tennessee courts apply a six-factor test to determine whether such exculpatory clauses are void as against public policy. See Olson v. Molzen, 558 S.W.2d 429 (Tenn. 1977)	No-damage-for-delay clauses are enforceable in Texas. There have been limited exceptions recognized by the courts. City of Houston v. R.F. Ball Constr. Co., 570 S.W.2d 75 (Tex. App. 1978).	Utah courts have upheld no damages clauses that disclaim liability of owners or general contractors for their own conduct that delays the performance of other contracting parties and affords an extension of time in which to perform in lieu of money damages, and must result in the absence of concealment, misrepresentation or fraud. Western Engineers, Inc. v. State Road Commission, 437 P.2d 216 (Utah 1968).
XII. Legislation Affecting Dispute Resolution
A. Venue			Contract provisions requiring litigation or arbitration in another state are voidable. Tex. Bus. & Com. Code Ann. § 272.	Contract provisions requiring disputes be resolved in another are void and unenforcable provided one of the parties is domiciled in Utah and the project is located in the state. Utah Code Ann. §13-8-3.
B. Arbitration	South Dakota has adopted its version of the Uniform Arbitration Act. S.D. Codified Laws § 21-25A	Tennessee has adopted both a non-uniform statutory arbitration procedure (Tenn. Code Ann. §§ 29-5-101, et seq.) and the Uniform Arbitration Act (Tenn. Code Ann. §§ 29-5-301, et seq.). The non-uniform statutory arbitration procedure applies when the parties to a controversy have filed a legal action and the matter is referred to arbitration for resolution. The Uniform Arbitration Act applies when the parties have provided by contract that arbitration is the agreed method of dispute resolution.	In general, written agreements to arbitrate are enforceable under Texas law. Texas courts rely on both the Texas General Arbitration Act and the Federal Arbitration Act to enforce and/or compel arbitration agreements. The Federal Act applies when arbitration deals with interstate commerce. Tex. Civ. Prac. & Rem. Code Ann. §§ 171.021, 171.0023, 171.041, 171.088-.097.	Utah has its own arbitration act. A written agreement to use arbitration to resolve disputes that arise under a contract will generally be enforced, subject to statutorily prescribed principles of judicial review. Utah Code Ann. § 78B-11-107-108, 78B-11-129.	Vermont has adopted a version of the Uniform Arbitration Act. See Vt. Stat. Ann. 12 §§ 5651 to 5681. An agreement in a construction or design contract to arbitrate is, subject to federal preemption, enforceable. Id. § 5653(a). Further, to be enforceable, an arbitration clause in a contract must be displayed prominently. Id. § 5652(b).
C. Choice of Law			Any provision in contracts for the construction or repair of improvements to real property located in Texas requiring that the contract or conflicts arising under such contract be determined by the laws of another state, or subjecting such contract to litigation or arbitration in another state, is voidable by the contractor. Tex. Bus. & Com. Code Ann. § 272.	A provision in a construction contract requiring a dispute arising under the agreement to be resolved in an outside forum is void and unenforceable as against public policy if one of the parties to the agreement is domiciled in Utah, and work to be done and the equipment and materials to be supplied under the agreement involves a construction project in Utah. Utah Code Ann. § 13-8-3(2).
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	South Dakota has environmental statutes regulating wells and underground drinking water (S.D. Admin. R. 74:55:01:03), asbestos (Id. at 74:31:02:01 et seq.), water pollution (S.D. Codified Laws § 34A-2-36, S.D. Admin. R. 74:52:01:04), solid waste disposal (S.D. Codified Laws § 34A-6-1.4), and hazardous waste storage and disposal (S.D. Codified Laws § 34A-11-12, S.D. Admin. R. 74:28:26:01).	Contractors planning environmental works are required to be licensed in the environmental and special construction classification. See Tenn. Code Ann. § 62-6-112. Contractors performing asbestos remediation are required to be accredited by the Tennessee Commissioner of Environment and Conservation. Id. § 62-41-103.	The Solid Waste Disposal Act deals with disposal of hazardous waste. Tex. Health & Safety Code Ann. § 361.001 et seq. The Clean Air Act requires various permits regarding contaminants and emissions involving various industries and activities. Id. § 382.001 et seq. The Hazardous Substances Spill Prevention and Control Act also applies. Tex. Water Code Ann. § 26.261 et seq. Texas also has an Underground and Aboveground Storage Act, and Brownfield Legislation. Id. § 26.341, Tex. Health & Safety Code Ann. § 361.601 et seq.	Utah has many environmental laws and regulatory programs including the Hazardous Substances Mitigation Act, and the Underground Storage Tank Act. Utah Code Ann. § 19-6-3, 4.	Commercial or industrial projects developed on more than one acre, subdivisions and housing projects of ten or more lots or dwelling units, and certain other projects require prior approval under Vermont’s Land Use Act, known as Act 250. Vt. Stat. Ann. 10 §§ 6001 to 6093. Attention should also be paid to the state’s separate permitting scheme for potable water supply and wastewater systems. Id. §§ 1971 to 1980. Any water system that provides drinking water to at least 15 service connections or 25 individuals must have a permit. Id. § 56 et seq.
B. Green Building and Sustainable Construction Initiatives	South Dakota recently established high performance building design and construction standards for newly constructed or renovated state-owned buildings by requiring a majority of state buildings to meet or exceed the following criteria. S.D. Codified Laws § 5-14-32 et. seq.	As of 2008, a new law encourages the state building commission to promulgate rules and regulations requiring design, construction, and certification of state buildings with a rating of two or more Green Globes or an equivalent rating. The measure does not apply to private projects. Tenn. Code Ann. § 4-15-104(b). There are no other state-sponsored green building programs or initiatives in Tennessee.	Texas has created energy standards for local schools, and continuing educational standards for local architects in green building. Tex. Health & Safety Code Ann. § 388.005, Tex. Occ. Code Ann. § 1051.356.	Utah does not yet have any such programs or initiatives.	Energy-conserving and water-conserving construction are mandatory under Act 250. See Section XIII.A.
C. Transfer of Contaminated Property

50 State Survey: Virginia – Wyoming

	Virginia	Washington	West Virginia	Wisconsin	Wyoming
II. Legislation Affecting Project Delivery Systems
A. Design Build	The design build/construction management board has the power to review ordinances and regulations regarding design build or construction management contracts and also to oversee and evaluate contracts entered into by public bodies, other than the Commonwealth of Virginia. Va. Code Ann. § 2.2-2405.	As a general rule, Washington does not treat design build in any special manner or acknowledge its use with respect to public projects. However, under certain circumstances alternative public works contracting procedures may be in the best interest of the public. Design build may be applied where the total cost of the project is over $10 million and there is a highly specialized methodology involved. Wash. Rev. Code § 39.10.300.	The West Virginia Design Build Procurement Act allows public agencies to contract for design build. W. Va. Code §§ 5-22A-1 to 5-22A-15. A design builder must be a licensed architect, engineer, or general contractor. Id. § 5-22A-7. Further, the Act establishes a design build board required to advise public agencies pursuing a design build project, and, once approved, agencies must submit monthly reports to the board. Id. § 5-22A-5(a)-(b).	Wisconsin has no statutory barrier to the use of design build in private construction other than laws regulating the practice of architecture. In public projects, Wisconsin does not expressly permit the use of design-build contracts. Wis. Stat. § 16.87(3). Competitive bidding is normally required, but judicial interpretation of certain procurement statutes have been interpreted to allow for design build contracts and there are some specific requirements to waive competitive bidding. See id. §13.48(19); J.F. Ahern Co. v. Wis. State Bldg. Comm’n, 336 N.W.2d 679, 688 (Wis. Ct. App. 1983).	There are no special considerations in Wyoming relating to project delivery systems.
B. Construction Management	See Section II.A.	A project Advisory Review Board is required to establish a Project Review Committee to oversee projects. Wash. Rev. Code § 39.10.300, 39.10.340.	See Section II.A.	See Section II.A.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	An action based on a written contract has a 5 year limitation period, while an oral contract is limited to 3 years. Va. Code Ann. §8.01-246(2), (4). Claims for injury to personal property are limited to 5 years. Id. § 8.01-243(B). Injury to person claims are limited to 2 years. Id. § 8.01-243(A).	The general statutes of limitations applicable to design professionals and contractors are a 6 year statute of limitations for breach of a written contract and 3 years for negligence/injury to person or property. Wash. Rev. Code § 4.16.040, 4.16.080.	West Virginia has a 2 year limitations period for tort claims. W. Va. Code § 55-2-12. Claims based on written contracts must be commenced within 10 years, while the limitation period for oral contracts is 5 years. Id. § 55-2-6.	An action on contract, obligation, or liability, express or implied, including action to recover fees for professional services, except those mentioned in section 893.40, shall be barred unless commenced within 6 years. Wis. Stat. § 893.43.	An action based on written contract has a 10 year limitations period, while a breach of an oral contract claim has an 8 year statute of limitations. Wyo. Stat. Ann. § 1-3-105(a). There is a 2 year statute of limitations that applies to any cause of action arising from “an act, error or omission in the rendering of licensed or certified professional . . . services.” Id. § 1-3-107. A 4 year limitations period applies to tort claims for negligent services, claims for injury to real or personal property, or claims for breach of implied warranty. Id. § 1-3-105(a) (iv).
B. Licensing and Regulation	A person must have a license to practice architecture or engineering which involves design, consultation, evaluation or analysis and relates to improvements in real property. Va. Code Ann. § 54.1-406. Land surveyors, contractors, and tradesmen must meet similar licensing requirements. Va. Code Ann. §§ 54.1-406 et seq., 54.1-1103(A), 54.1-1128.	Architects, landscape architects, engineers-surveyors, contractors, electrician-journeyman and plumber-journeyman must meet registration and certification requirements by a board of examination. Wash. Rev. Code § 18.08 et seq., 18.96 et seq., 18.43 et seq., 18.27.020, 19.28.120(1), 18.106.010.	Architects, engineers, contractors, and persons involved in asbestos abatement require licensing with the appropriate state board. W. Va. Code §§ 30-12-1 et seq., 30-13-1 et seq., 21-11-3(c) et seq., 16-32-1 et seq.	Architects, landscape architects, engineers and land surveyors require state licensing and registration. Wis. Stat. 443.01 et seq. Contractors and electricians require state certification. Id. § 101.654, 101.87. Plumbers require state licensing and registration. Id. § 145.06. HVAC contractors require certification or registration. Wis. Admin. Code § 5.001 to -.12, 5.70.	Architects and landscape architects require state licensing. Wyo. Stat. Ann. § 33-4-105. Engineers and land surveyors are licensed §§ 33-29-115, 124. There are no licensing requirements for general, building or residential contractors in Wyoming.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	The funds that an owner pays to a general contractor, subcontractor or owner-developer must be used to pay the persons who performed labor or provided materials for the owner’s property. If the funds are used for purposes other than to pay for labor or materials, and done with intent to defraud, the contractor, subcontractor or owner-developer is guilty of larceny. Use of money for another purpose is prima facie evidence of intent to defraud. Va. Code Ann. § 43-13.	On public works projects, Washington requires the general contractor to pay every subcontractor, not later than 10 days after receipt of payment, amounts paid the contractor on account of the work performed by the subcontractor. Wash. Rev. Code §30.04.250(1).	West Virginia applies a pay when paid/if paid clause in a subcontract between sophisticated business entities. Wellington Power Corp. v. CNA Sur. Corp., 614 S.E.2d 680 (W. Va. 2005).	Wisconsin law provides for prompt payments to be made to prime contractors and subcontractors on public improvement projects. A prime contractor is entitled to payment from the public owner upon performance in accordance with the provisions of the contract or order 30 days after invoice of receipt “and acceptance” of services, whichever is later. Wis. Stat. § 16.528(2)(a).	There are no special considerations in Wyoming, apart from the lien statutes, governing payments to contractors and subcontractors on private projects.
B. Retainage	In any public construction contract that provides for progress payments, the contractor must be paid at least 95% of the earned sum when payment is due. No more than 5% of the earned sum may be retained to assure faithful performance of the contract. Va. Code Ann. § 2.2-4333.	In the event of a good faith dispute, over all or any portion of the amount due from the public entity to the contractor or from the contractor to a subcontractor, then the public entity, contractor or subcontractor may withhold no more than 150% of the disputed amount. Funds determined to be wrongfully withheld must be paid with interest and allowance for attorney’s fees. Wash. Rev. Code § 39.04.250(2), (3).		The Owner may not withhold more than 5% of the payments covering the first 50% of the project. No retainage is available for the remaining 50% of the work. Owners may retain up to 10% of the total project payment if the work is unsatisfactory. Wis. Stat. § 16.855(19).
C. Trust Fund Statutes
D. Penalties for Failure to Make Payments	See Section IV.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	A vendor building or selling new dwellings warrants that the dwelling is: (1) free from structural defects; (2) constructed in a workmanlike manner; and (3) fit for habitation. These warranties are valid for 1 year unless the vendor is in the business of building or selling such dwellings, in which case the warranty extends 5 years. These warranties are in addition to other implied and express warranties. Va. Code Ann. § 55-70.1. Virginia follows the Spearin doctrine. A contractor does not warrant that the building will be structurally sound, if the contractor follows the owner’s plans and specifications. Southgate v. Sanford, 137 S.E. 485 (Va. 1927).	The following implied warranties may be contained in a construction contract: habitability, fitness in new construction, non-interference, adequate plans and specifications, good faith and fair dealing. Implied warranties may be disclaimed so long as the disclaimers are clearly stated in writing and are the product of negotiation between the parties. Travis v. Washington Horse Breeders Ass’n., 111 Wn.2d 396 (1988).	West Virginia law implies that a purchaser of a new home, or the purchaser of a used home is entitled to an implied warranty of habitability or fitness of purpose. Also a designer or major subcontractor warrants that the plans and specifications have been prepared using professional skill, care and diligence.	Common law recognizes an implied duty in every contract for work or services, a duty to perform it skillfully, carefully, diligently and in a workmanlike manner. Hoven v. Kelbler, 79 Wis. 2d 444, 456, 256 N.W.2d 379 (1977). Wisconsin does not provide an exemption for design professionals. The Wisconsin version of the Uniform Commercial Code, Chapter 402, governs express and implied warranties as they relate goods and services in construction contracts. Wis. Stat. §§402.314-316.	Wyoming law recognizes that all construction contracts contain an implied warranty that the work will be performed in a skillful, careful, diligent and workmanlike manner. Cline v. Sawyer, 600 P.2d 725, 732 (Wyo. 1979). Wyoming also recognizes broad implied warranty rights for new home buyers. A new home sale carries with it an implied warranty that the home was built in a reasonably workmanlike manner and is fit for habitation. Tavares v. Horstman, 542 P.2d 1275, 1282 (Wyo. 1975).
B. New Home Warranties	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.	See Section V.A.
C. Anti-Disclaimer Legislation
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	Any indemnity provision contained in a contract between an architect or professional engineer and a public body which relates to the planning or design of a building or construction projects is against public policy and is void and unenforceable. Va. Code Ann. § 11.4.4.	Washington precludes a party to a construction contract from obtaining an indemnification from its own negligence. Owners and contractors are responsible for their own liability and their own share of concurrent liability. Wash. Rev. Code § 4.24.115.	West Virginia renders void and unenforceable an agreement to indemnify a party for bodily injury or property damage claims for that party’s sole negligence in a construction contract. W. Va. Code § 55-8-14. Where an indemnitee is not 100% negligent, or where the party providing indemnity is required to purchase insurance, the statute has been held not to apply.	Wisconsin law includes an anti-indemnity statute that limits parties to a construction agreement to include tort indemnity provisions in their contract. Wis. Stat. § 895.447.	Wyoming’s mining code contains an anti-indemnity statue, Wyo. Stat. Ann. §§ 30-1-131, 132, but see Union Pac. Res. Co. v. Dolenc¸ 86 P.3d 1287 (Wyo. 2004) (anti-indemnity statute does not apply where work performed away from mineral site). This provision renders the indemnity clause unenforceable only to the extent it would protect the indemnified party from its own negligence. Cites Service Co. v. Northern Production Co., 705 P.2d 321, 326 (Wyo. 1985).
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	An owner who hires a contractor to perform work which is part of the owner’s trade, business or occupation is liable for workers’ compensation to the contractor’s employees. If the work is not in the owner’s trade or business, the contractor is liable for workers’ compensation to the employees of any subcontractor the contractor has hired. Va. Code Ann. § 65.2-302(A), (B).	Washington requires insurance or proof of financial responsibility (assigned account) in the amount of $20,000 for injury to property, $50,000 for personal injury or death to one person, and $100,000 for injury or death to more than one person. A contractor must furnish this insurance at the time of registration or re-registration. Wash. Rev. Code § 18.27.050.	Contractors, subcontractors, and other employers must maintain workers’ compensation coverage. W. Va. Code § 23-2-1 et seq.	Contractors, subcontractors and other employers must maintain statutory workers’ compensation coverage if they have three or more employees. Wis. Stat. § 102.04. No statutory provisions impose other special requirements or specifications for insurance applicable to private construction projects.	Wyoming is one of the few remaining states where Worker’s Compensation is handled only through a state fund, without provision for private insurance. Wyo. Stat. Ann. § 27-14-202.
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	Virginia has adopted the Little Miller Act which requires a payment bond to protect contractors, subcontractors and materialmen for payment for work performed or materials supplied to public projects over $100,000 or $250,000 for transportation projects. Va. Code Ann. § 2.2-4337.	A contractor must furnish a surety bond on certain public projects for the protection of persons furnishing labor or materials used in the project. The bond covers all those entitled to mechanic’s liens on private projects. If a public entity fails to procure a bond, that entity is liable for amounts due the contractor for its work on the project. Wash. Rev. Code § 39.08, 39.08.015. Also, a contractor must post a bond equal to the full contract price of the project. Wash. Rev. Code § 39.08.	West Virginia requires a payment bond for the full contract price on contractor bonds for public projects. W. Va. Code § 38-2-39. Contractors who have not been actively involved in construction work in West Virginia for a period of five years must furnish a bond in a form prescribed by the Commissioner of Labor for the payment of wages and fringe benefits. This bond can be up to 115% of the contractor’s gross payroll for four weeks at full capacity. W. Va. Code § 21-5-14.	A payment bond may be substituted to eliminate lien rights on either private or public construction projects, and are required on larger public works projects. Wis. Stat. §§ 779.035, 779.14.	With regard to contracts for public improvements, the successful bidder is required to furnish a payment bond in an amount set by the public entity. Wyo. Stat. Ann. § 16-6-112(a). Further, nonresident contractors are required to file with the department of revenue a surety bond equal to 4% of the payments due under the contract or an amount determined by the department. Id § 39-15-303(b) (iii). The bond shall be conditioned upon the payment of all sales taxes which become due and payable to the state under the contract or in the real property development.
B. Mandatory Payment on Public Projects
C. Statute of Limitations for Filing Suit on Bond		There is no statutory limitation for filing a foreclosure action on the bond claim. Case law indicates that suits must be filed within four years of the notice of the claim.		Action for contracts with a payment bond shall be brought within time limit prescribed by section 779.036(4)(a) or within 6 months after completion of work of improvement, whichever is earlier. Wis. Stat. § 779.036(4)(b).
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	The Virginia Consumer Protection Act applies to “consumer transactions,” which include the “advertisement, sale, lease or offering for sale or lease of goods or services to be used primarily for personal, family or household purposes.” Va. Code Ann. § 59.1-198. Under the Act fraudulent acts and practices are prohibited, including misrepresentations about repairs, modifications, alterations, and services done or parts installed. Id. § 59.1-200.	Under the Washington Consumer Protection Act (“CPA”), a private CPA action is establish if: (1) an unfair or deceptive practice; (2) occurring in trade or commerce; (3) which has a public interest impact; (4) causes injury to plaintiff in his or her business or property; (5) and causation. Hangman v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986). The CPA does not prohibit acts or practices which are reasonable in relation to the development and preservation of business. Wash. Rev. Code § 19.86.920.	The West Virginia Consumer Credit and Protection Act applies to many consumer transactions, including real estate. W. Va. Code § 46A-1-101. It is likely that the Act does not apply to construction contracts. Elkins Manor Assocs. V. Eleanor Concrete Works, Inc., 396 S.E.2d 463 (W. Va. 1990).	The Wisconsin Consumer Act, Chapters 421-427 of the Wisconsin Statutes, applies to many consumer real or personal property transactions.	There are no consumer protection laws specifically applicable to design and construction contracts in Wyoming.
B. Residential Construction Acts	The Virginia Residential Property Disclosure Act applies to transfers of residential property consisting of at least 1 dwelling unit but not more than 4. Va. Code Ann. § 55-517.			Chapter ATCP 110 of the Wisconsin Administrative Code, otherwise known as the Home Improvement Trade Practices Code, sets forth the DATCP’s orders concerning residential home improvement practices. The Code does not apply to new construction, but it does extend to the conversion of existing commercial structures into residential property.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Parties may include a reasonable provision for liquidated damages in their contract, and the provision will be enforced by the courts. Fidelity & Casualty Co. v. Copenhaver Contracting Co., 165 S.E. 528, 531 (Va. 1932).	Generally, Washington courts uphold a liquidated damages clause if: damages from the delay are difficult to calculate, the set amount of damages is reasonable, the liquidated damages clause is not used as a penalty provision, and the damages reflect the potential for fluctuations. Rowland Constr. v. Beall Pipe, 14 Wn. App. 297 (1975).	In West Virginia, parties may stipulate in advance to the amount of damages resulting from a breach where those damages are not readily ascertainable. Awards grossly disproportionate to actual damages will be rejected. Huntington Eye Assocs., Inc. v. LoCasio, 553 S.E.2d 773 (W.Va. 2001).	Wisconsin allows the parties to a contract to stipulate to the amount of damages for a breach of contract. Such a clause will be enforced if the court determines that the clause is a reasonable estimation of uncertain damages and not a disguised penalty. Wassenaar v.Panos, 111 Wis.2d 518, 526, 331 N.W.2d 357 (1983). The reasonableness inquiry is part of Wisconsin’s version of the Uniform Commercial Code pertaining to sales contracts. Wis. Stat. §402.718.	Wyoming applies Restatement of Contracts § 339 as the criteria for enforceability of a liquidated damages provision. Ray v. Elec. Products Consol., 390 P.2d 607, 609 (Wyo. 1964). The injury from the anticipated breach must be foreseeable, the foreseeable damages must be incapable or very difficult of estimation, the agreed liquidated damages must bear a reasonable relationship to the foreseeable harm, and the party seeking to enforce the liquidated damages provision must have suffered an injury of the type foreseen by the parties in their agreement to the liquidated damages provision. Jessen v. Jessen, 810 P.2d 987, 990 (Wyo. 1991).
B. Limitations on Remedies	Any “no damage for delay” provision in a public construction contract that waives a contractor’s right to recover costs or damages for unreasonable delay in the performance of the construction contract for a delay caused by the public body, its agents or employee is against public policy, void and unenforceable. Va. Code Ann. § 2.2-4335.	Washington allows a person to contract in a manner that exculpates himself from the consequences of ordinary negligence. However, exculpatory clauses must be unambiguous and will be strictly construed against the drafter if the release from liability is to be enforced. Exculpatory clauses may be deemed void if they are against public policy, unconscionable, or in the event of gross negligence.	West Virginia avoids interpretations which would result in forfeiture where the contract language is ambiguous. Peerless Carbon Black Co. v. Gillespie, 105 S.E. 517 (W.Va. 1920).	In Wisconsin, exculpatory clauses have generally been held valid based on broad public policy principles including the freedom to contract and the idea that contract terms are purely private. Queens America Ins. Co. v. Kaiser, 135 N.W.2d 247, 248-49 (Wis. 1965). There are however, exceptions to holding these clauses valid, including where both parties are in unequal bargaining positions. College Mobile Home Park & Sales v. Hoffman, 241 N.W.2d 174 (Wis. 1976).	There are no special considerations in Wyoming relating to exculpatory clauses as they relate to damages for breach of construction contracts.
XII. Legislation Affecting Dispute Resolution
A. Venue
B. Arbitration	Virginia has enacted the Uniform Arbitration Act, which states that a written agreement or contract provision to submit any existing controversy to arbitration is valid, enforceable and irrevocable. Va. Code Ann. § 8.01-581.01.	Washington has adopted the Revised Uniform Arbitration Act. An agreement for arbitration is without effect unless it complies with the Act. Once the parties agree to binding arbitration, they invoke the statute in its entirety. Wash. Rev. Code § 7.04A.010 to 7.04A.290.	West Virginia provides for the submission of controversies to arbitration. Such submissions are irrevocable. W. Va. Code § 55-10-1, 2. A bargained for arbitration agreement is binding and enforceable in the absence of fraud or unconscionability.	Wisconsin has adopted a version of the Uniform Arbitration Act. See Wis. Stat. §§ 788.01-18.	Wyoming has adopted the Uniform Arbitration Act. Wyo. Stat. Ann. § 1-36-101, et seq. The Wyoming Supreme Court and United States District Court for the District of Wyoming have pro-arbitration policies.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	Under the Brownfield restoration and Land Renewal Act, a person who owns, operates, has a security interest in or enters into a contract to purchase contaminated property may voluntarily remediate hazardous substances on the property. Va. Code Ann. § 10.1-1232.	Development in Washington is subject to the Growth Management Act, under which the applicant for a land use permit must show that public facilities and services are in place or will be provided with development. See Wash. Rev. Code § 19.27.097, 36.70A.070(6)(e), 36.70A.070(1). Also, Washington regulates storm water permits, underground storage tanks, brownfields, shorelines/wetlands, and asbestos. 40 C.F.R. 122.26, Wash. Rev. Code § 90.76, 70.105D.040(5), 33 U.S.C. 134, Wash. Rev. Code § 49.26 et seq.	The Voluntary Remediation Act establishes requirements for eligible sites, applications, licenses for remediation specialists, public involvement and liability protection W. Va. Code §§ 22-22-4 to 22-22-8. The Act requires that licensed remediation specialists perform the work. Id. §§ 22-22-7, 22-22-11.	Chapters 280 through 299 of the Wisconsin Statutes govern environmental regulation and Chapter 254 addresses environmental health.	The Wyoming Department of Environmental Quality enforces the State’s land quality, air quality and water quality laws, and also has primacy in the enforcement of most major federal environmental programs. While contractual provisions to allocate financial responsibility among project participants are generally honored, agency enforcement can be focused on most of the actors involved. Wyo. Stat. Ann. § 35-11-901.
B. Green Building and Sustainable Construction Initiatives	There are no special provisions for green building and sustainable construction initiatives.	In Washington, all major facility projects of public agencies receiving any funding in a state capital budget or projects financed through a financing contract must be designed, constructed, and certified to at least the LEED silver standard (second level cert.). Wash. Rev. Code § 39.35D.090. If LEED silver is not practical, it must be determined if any LEED standard is practical. Id. § 39.35D.020.		There are numerous Green Building Programs and Sustainable Construction Initiatives throughout the State of Wisconsin created by both private and public entities. For example the Wisconsin Department of Natural Resources supervises the Green Tier legislation which rewards corporations and businesses for compliance with the legislation as part of the Environmental Cooperation Pilot Program.	There are no green building programs or sustainable construction initiatives under Wyoming law.
C. Transfer of Contaminated Property			Once a contaminated site has been remediated pursuant to the remediation agreement, a transferable completion certificate will be issued. W. Va. Code § 22-22-13. The certificate is revocable if further contamination occurs. Id. § 22-22-15.

50 State Survey: District of Columbia & Puerto Rico

	District of Columbia	Puerto Rico
II. Legislation Affecting Project Delivery Systems
A. Design Build	Design-bid-build, design-build, multi-prime, construction management and program management models are all systems used commonly on construction projects within the District of Columbia. There are no statutory restrictions on the forms of project delivery systems that may be utilized on private projects, nor does the D.C. Code require a separate licensing arrangement for particular project delivery systems. On public construction projects, a contracting officer generally cannot award a construction contract to either the firm that designed the project or any of its subsidiaries or affiliates. D.C. Mun. Regs. tit. 27, § 2607. However, if a proposed construction contract uses a design build or turnkey method of construction, the contracting officer may award the construction contract to an affiliate of the architect-engineer firm that designed the project. Id.	Fast track and design-build contracts present special considerations for construction in Puerto Rico. While these are acceptable project delivery methods, there is a degree of uncertainty as to whether changes in construction or additions will be timely approved by the multiple regulatory offices that deal with construction permits or agency endorsements. Also, a contractor or contracting company may not furnish the design services since these services can only be furnished by licensed individuals, partnerships or professional corporations.
B. Construction Management	See Section II.A.	See Section II.A.
III. Legislation Affecting Design and Construction Professional Liability
A. Statute of Limitations	Actions based on breach of contract, express or implied, must be brought within 3 years of accrual. D.C. Code Ann. § 12-301. Tort actions for personal injuries or injuries to real or personal property must also be brought within 3 years of the time the action accrues. See id.	There is a 1 year statute of limitations applicable to damages suits. P.R. Laws Ann. § 5298. On the other hand, claims which are exclusively contractual in nature, benefit from a 15 year statute of limitations. Id. § 5294.
B. Licensing and Regulation	Architects, engineers, asbestos workers, electricians, land surveyors, plumbers, and HVAC contractors require state licensing and registration. D.C. Code Ann. §§ 47-2886.01 et seq., 47-2853.53 to -2853.211. There are no licensing requirements for general contractors.	Architects, engineers and interior designers require licensing. P.R. Laws Ann. § 711. Electricians and plumbers must join their corresponding college to practice their trade. Id. § 2013. There are no licensing or registration requirements for general contractors.
IV. Legislation Affecting Payment Terms
A. Timing of Payment/Prompt Payment Acts	Quick Payment Provisions mandating interest payments by the D.C. government for late payments are set out in D.C. Code Ann. § 2-221 et seq.	There are no statutory provisions in Puerto Rico that specifically impose prompt payment or other special payment responsibilities on owners or contractors for payments to contractors or subcontractors, respectively, on either private or government construction projects.
B. Retainage	Retention requirements in contracts with the D.C. government are set out at D.C. Code Ann. § 2-203.1
C. Trust Fund Statutes
D. Penalties for Failure to Make Payments	See Section IV.A.
V. Legislation Affecting Contractual Warranties
A. Implied Warranties	There is currently no D.C. statute or case law that implies a warranty into a construction contract.	Puerto Rico law implies a warranty of workmanlike performance and a warranty against hidden defects or burdens. P.R. Laws Ann. § 3841.
B. New Home Warranties		See Section V.A.
C. Anti-Disclaimer Legislation		Using a disclaimer in the contract stating that no warranties are given, except for those specifically stated in the contract, has been declared to be contrary to public policy. Meléndez v. Levitt & Sons, 104 P.R. Dec. 797 (1976).
VI. Legislation Affecting Indemnification Agreements
A. Anti-Indemnity Statutes	In public contracts, the contracting officer is prohibited from including any provision in which D.C. agrees to indemnify the contractor against liability for patent or copyright infringement or misappropriation of proprietary information. See D.C. Mun. Regs. tit. 27, § 3102. Further, a contracting officer is not to require an indemnity clause when the contract is awarded using small purchase procedures or when the contract is solely for architect-engineer services. Id.	To date, no anti-indemnity statutes have been enacted in Puerto Rico.
VII. Legislation Affecting Insurance Requirements
Worker’s Compensation	Contractors and subcontractors must maintain workers’ compensation insurance coverage in accordance with the D.C. Workers’ Compensation Act. D.C. Code Ann. §§ 32-1501 to -1545.	Any person, firm, and private corporation, that employs one or more workers must maintain workers compensation coverage pursuant to Puerto Rico Act No. 45 of April 18, 1935 (11 P.R. Laws Ann. § 2 et seq.).
VIII. Legislation Affecting Suretyship and Bonds
A. Little Miller Acts	D.C. Code Ann. §§ 2-201.01 through 2-201.11 govern general bond requirements on public projects in the District of Columbia.	Puerto Rico Act No. 388 of May 9, 1951, also known as Puerto Rico’s “Little Miller Act” governs contractor’s bonds in the context of public projects.
B. Mandatory Payment on Public Projects		Provisions regarding the payment of construction workers and materialmen in public works can be found in Act No. 388 of May 9, 1951 (22 P.R. Laws Ann. § 47 et seq.)
C. Statute of Limitations for Filing Suit on Bond	D.C. Code Ann. § 2-201.02(b) requires that a suit brought against a bond company must be commenced within 1 year after the date on which the last of the labor was performed or material was supplied by the claimant.
IX. Consumer Protection Statutes
A. Unfair Trade Practices Acts	The District of Columbia Consumer Protection Procedures Act, D.C. Code Ann. §§ 28-3901 to -3909, protects "consumers" as defined by statute, and prohibits any person from “representing that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have.” D.C. Code Ann. § 28-3904(a). Goods and services includes real estate transactions and consumer services of all types, including construction contracts. Id. § 28-3901(a)(7).
B. Residential Construction Acts		Regulation for the Construction of Houses of the Department of Consumer Affairs of Puerto Rico (DACO Regulation No. 2268) covers 14 specific areas and, in general, defects of all types that may be found in a private dwelling construction project.
X. Legislation Impacting Damages Recoverable for Breach
A. Liquidated Damages	Parties to a contract may agree in advance to a certain sum to be forfeited as liquidated damages for breach of contract. See Burns v. Hanover Ins. Co., 454 A.2d 325, 327 (D.C. 1982); see also D.C. Mun. Regs. tit. 27, § 2604 (requiring the use of a liquidated damages provision in public contracts in excess of $50,000).	The parties to a contract may stipulate the amount of damages for breach of contract by including a penal clause. Puerto Rico Civil Code, Article 1106 (31 P.R. Laws Ann. § 3131).
B. Limitations on Remedies	No damages for delay clauses are enforceable in the District of Columbia. Blake Constr. Co. v. C. J. Coakley Co., 431 A.2d 569, 578-579 (D.C. App. 1981).	A court of law may modify a penal clause to temper liquidated damages to actual damages. WRC Prop’s Inc. v. Santana, 116 DPR 127 (1985); Jacks’ Beach Resort, Inc. v. Compañía de Turismo, 112 P.R. Dec. 344 (1982).
XII. Legislation Affecting Dispute Resolution
A. Venue	.
B. Arbitration	On February 27, 2008 the District of Columbia passed the Revised Uniform Arbitration Act, which supersedes the District of Columbia Uniform Arbitration Act. D.C. Code Ann. §§ 16-4401 to -4432.	The Puerto Rico Arbitration Act, Act No. 376 of May 8, 1951 (32 P.R. Laws Ann. § 3201) provides that two or more parties may agree in writing to arbitrate any controversy that could be the object of an action existing among them at the time of submitting to arbitration or they may include such a clause in an agreement in writing for the disposition by arbitration of any controversy that could occur in the future among them.
C. Choice of Law
XIII. Environmental Legislation Affecting Contracts
A. Required Environmental Review	Under Title 8 of D.C. Code there exists a multitude of Acts and corresponding statutes which have been enacted to safeguard the District’s environmental resources. See D.C. Code Ann. § 8-101 et seq., which contains statutes regulating water, waste, air, etc., and should be consulted before commencing work on a project that may have an environmental impact.	Act No. 416 of September 22, 2004, provides Puerto Rico’s public policy with regard to environmental issues. The Act created Puerto Rico’s Environmental Quality Board. Article 7, Act No. 416, supra. Several of the duties and powers delegated to the Environmental Quality Board are related and/or could have a significant impact on the field of construction law
B. Green Building and Sustainable Construction Initiatives	The District of Columbia has joined a growing number of states and cities requiring developers to meet environmental sustainability standards. See D.C. Code Ann. § 6-1451.01 et seq., codifying the “Green Building Act.” The Green Building Act’s central feature is the adoption of the Leadership in Energy and Environmental Design (LEED) Green Building Rating System of the U.S. Green Building Council for large commercial development.	Act No. 254 of November 30, 2006 (31 LPRA § 6318) provides for the creation of a Master Plan for building sustainable ecotourism projects in the Island and to propose incentives to that effect.
C. Transfer of Contaminated Property

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[1] Prepared by Richard P. Dyer, Partner, Summer Associates James J. Halligan and Richard L. Campbell and Paralegal Daniel Doran of Duane Morris LLP. The preparers relied upon source materials contained in a draft publication of the American Bar Association, entitled, A State-by-State Guide to Construction and Design Law (Carl J. Circo & Christopher Little eds., 2d ed. 2009). The authors of the 52 chapters of the survey, too numerous to mention here, are to be credited as the prime source for the within summary.