Design-Assist, an Ambiguous Term Causing Conflict in the Construction Industry[1]
December 02, 2019 —
John P. Ahlers - Ahlers Cressman & Sleight PLLC“Design-Assist” is one of the recent cost-saving trends being touted for construction projects and, in particular, construction projects utilizing alternative procurement methods. If an internet search for the term, “design-assist” is made, the result will be numerous construction industry articles and white papers lauding “design-assist” as a recent cost-saving trend in construction procurement. From a legal perspective, however, the term “design-assist” is notably absent from court opinions and most state licensing laws. With the exception of the ConsensusDocs, few standard form contracts even include the term “design-assist” in their text.
The ConsensusDocs agreement provides examples of the Constructor’s obligations to perform “assisting activities” (the term “design-assist” is not used) and states that, notwithstanding the performance of such “assisting activities” by the Constructor, the responsibility of the design remains with the Designer unless otherwise stated in the Contract:
- Article 4.5 DESIGN PROFESSIONAL’S RESPONSIBIITIES The Designer shall furnish or provide all design and engineering services necessary to design the Project in accordance with the Owner’s objectives … the Designer shall draw upon the assistance of Constructor and others in developing the design, but the Designer shall retain overall responsibility for all design decisions….
- Article 4.6 CONSTRUCTOR’S RESPONSIBILITIES [T]he Constructor shall assist the Designer in the development of the Project Plan and Project Design but shall not provide professional services which constitute the practice of architecture or engineering unless the Constructor needs to provide such services in order to carry out its responsibilities … or unless specifically called for by the Contract Documents.
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John P. Ahlers, Ahlers Cressman & Sleight PLLCMr. Ahlers may be contacted at
john.ahlers@acslawyers.com
An Obligation to Provide Notice and an Opportunity to Cure May not End after Termination, and Why an Early Offer of Settlement Should Be Considered on Public Works Contracts
August 17, 2020 —
Jeff Kaatz - Ahlers Cressman & SleightIn 2015, the City of Puyallup (“City”) and Conway Construction Company (“Conway”) executed a public works contract for road improvements (“Project”). On March 9, 2016, approximately four months after work started on the Project, the City issued Conway a notice of suspension and breach of contract and identified nine defective and uncorrected work and safety concerns. Conway denied any wrongdoing, and on March 25, 2016, the City issued a notice of termination for default and withheld payments due to Conway.
Conway subsequently filed suit in Pierce County Superior Court and alleged the City’s termination for default breached the contract and sought a determination that the City’s termination for default was improper and should be deemed a termination for convenience. Conway sought approximately $1.25 million in damages and recovery of its attorney fees and costs. Following a bench trial, the Trial Court found the City breached the contract and awarded Conway damages, attorney fees, and costs. The City appealed.[1]
On appeal, after affirming the trial court’s determination that the City improperly terminated Conway, the Court of Appeals considered two other issues raised by the City. First, whether the City was entitled to a set-off for replacing defective work discovered after Conway was terminated. Second, whether Conway is entitled to attorney fees if it did not make the statutorily required offer of settlement per RCW 39.04.240.
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Jeff Kaatz, Ahlers Cressman & SleightMr. Kaatz may be contacted at
Jeff.Kaatz@acslawyers.com
Construction May Begin with Documents, but It Shouldn’t End That Way
March 02, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday here at Musings, we welcome back Rob Mathewson. In his role as CEO, Rob handles strategy and partnerships for Geedra in addition to overseeing technology architecture and implementation. He has spent twenty years in sales and marketing management roles with experience in industrial, consumer and construction markets. Rob believes the construction industry is ripe for innovation, based on its massive size, yet low productivity. Even with such inefficiencies, a building still rises from the ground. Rob’s goal with Geedra is to leverage technology to increase transparency and communication so that projects can be completed with less risk, effort and cost. Prior to founding Geedra, Rob was the Chief Marketing Officer for Construction Documentation Services, where he was responsible for sales, marketing and business development. He spent 15 years in the chemical distribution business, including eleven years as the Northwest Branch Manager of a $50 million distributor. Rob was the founder and CEO for On The Spot Games, a board game startup. He is currently in the midst of a streak of over 2,900 consecutive days without a bad hair day.
An avid mentor himself, his own business inspirations come from problem solvers like Dean Kamon, innovative communicators like Seth Godin, fierce competitors like Lance Armstrong and global gurus like Thomas Friedman. When he’s not creating innovations in the construction industry, his passions include bike riding, throwing the ball around with his kids, and cooking. He is an accomplished public speaker and is a past president of Emerald City Toastmasters. Rob holds a B.S. in Manufacturing Engineering from Boston University and a MBA from Seattle University.
Construction folks are a focused bunch. Once a contractor signs a deal for a project, its team will immediately get to work generating and then executing a construction document set. For the entire duration of the schedule to follow, the construction team eats, sleeps and dreams about those documents. Their monomaniacal efforts continue until a building rises up from a patch of dirt in a matter of months.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Winners Announced in Seattle’s Office-to-Residential Call for Ideas Contest
July 10, 2023 —
Ryanne Mathisen - Ahlers Cressman & Sleight PLLCOn June 7, 2023, the City of Seattle announced three winners of its Office to Residential: Call for Ideas contest for which it received a total of 13 submissions. Hybrid Architecture, LLC, took first place; Gensler, Seattle Office Project Team took second; and the Miller Hull Partnership took third. Seattle’s Department of Construction and Inspections will study the submissions and determine what legislative and regulatory modifications would be necessary to support and further these proposals and other future office-to-residential conversion projects.
Seattle will also be holding a series of exhibitions over the coming weeks where project submissions will be available to the public. On June 14, 2023, from 5:30 PM to 7:30 PM, a reception will be hosted by the Seattle Architecture Foundation and the City at the American Institute of Architects. The gallery will also be open to the public from 10:00 AM to 5:00 PM on June 21, 28, and July 5. After June 14, 2023, those interested can access contest submissions at the
project website.
Seattle’s primary goal with this contest was to provide a vision for the future of downtown and begin charting a concrete path to getting there. Since working from home has become more common following the COVID-19 pandemic, vacancy rates in many office buildings have risen sharply, while housing availability and affordability remain ongoing issues. If Seattle can show a realistic—and profitable—path to converting commercial office spaces into residences, it would be addressing both problems, killing two birds with one stone.
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Ryanne Mathisen, Ahlers Cressman & Sleight PLLCMs. Mathisen may be contacted at
ryanne.mathisen@acslawyers.com
Blue Gold: Critical Water for Critical Energy Materials
October 24, 2022 —
Robert A. James & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law BlogAs demand increases for low-carbon technologies to power the energy transition, the acquisition of critical materials—so-called given their integral role in the transition of energy activities—is becoming increasingly important. As described in our previous post, such critical materials include rare earth elements (REE), lithium, nickel and platinum group metals. In short, the transition endeavors to reduce use of one non-renewable resource—fossil fuel—by significantly ramping up our use of other non-renewable resources. While critical material discussions have largely centered on the availability and economic extractability of the minerals themselves, Pillsbury is also counseling on the other resources needed to bring the materials to market at the scales required for our decarbonization goals.
Chief among these resources is water. The extraction, processing and manufacture of critical materials into low-carbon technologies all require significant volumes of water. For example, up to 5,000 gallons of water are needed to produce one ton of lithium. Critical materials are often found in arid climates that are already experiencing water stress (such as the “lithium triangle” of Argentina, Bolivia and Chile, and copper in Chile), or in areas experiencing conflict and challenges to water development (such as cobalt production in the Democratic Republic of the Congo). In the U.S., development potential resides largely in the water-constrained western and southwestern states, such as Arizona (copper), California (REE), New Mexico (copper, REE), Texas (REE), Utah (magnesium, lithium, platinum, palladium, vanadium, copper), and Wyoming (REE, platinum, titanium, vanadium).
Reprinted courtesy of
Robert A. James, Pillsbury and
Ashleigh Myers, Pillsbury
Mr. James may be contacted at rob.james@pillsburylaw.com
Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
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Hirers Must Affirmatively Exercise Retained Control to be Liable Under Hooker Exception to Privette Doctrine
September 12, 2023 —
Garret Murai - California Construction Law BlogDon’t drink and drive people. I mean seriously. It’s been over 40 years since California native Candace Lightner formed
Mothers Against Drunk Driving in 1980 after her 13-year-old daughter, Candace, was killed by a drunk driver who later served just 9 months in jail before getting out and getting into his sixth (yes, sixth) drunk driving accident. It hurts the victims and their families, makes a mess for the offender (and their family), and, as the next case,
Marin v. Department of Transportation, 88 Cal.App.5th 529 (2023), illustrates, can needlessly draw out the pain as the victim’s family seeks financial recourse for their emotional loss from others.
Miguel Angel Rodriguez De La Cruz, a highway construction worker, was killed by a drunk driver. I’m not sure what his family did on the legal front after his death – perhaps sued the drunk driver – but among possible others they sued the California Department of Transportation. And they lost. Although there is no such thing as “winning” and “losing” in these types cases. It’s just losing and losing.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Motion to Dismiss COVID Claim Granted in Part, Denied in Part
February 06, 2023 —
Tred R. Eyerly - Insurance Law HawaiiThe insurer's motion to dismiss the insured's claim for business losses due to COVID-19 was granted in part, denied in part. SRL v Zurich Am. Ins Co., 2022 U.S. Dist. LEXIS 210058 (N.D. Ill. Nov. 21, 2022).
Excelsior owned and managed the Westin Excelsior Rome, a luxury hotel in Rome. The hotel suffered business income losses with the onset of the pandemic.While the hotel was not forced to close, its bookings decreased to virtually nothing. The Excelsior's complaint alleged that the COVID-19 virus was present in and around the hotel as multiple guests and at least six employees tested positive for COVID-19. It further alleged that the virus attached to interior property and was in the air.
Excelsior was insured under a commercial property policy issued by Zurich. The court agreed there was no direct physical loss because no structure suffered damage. Among the coverages under the policy, however, was a "Cancellation of Bookings" provision. Zurich agreed there was coverage under this provision, but argued that Excelsior had already reached its annual limit for Cancellation of Bookings claims.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Appraiser Declarations Inadmissible When Offered to Challenge the Merits of an Appraisal Award
March 14, 2018 —
Valerie Moore and Christopher Kendrick - Publications & InsightsIn
Khorsand v. Liberty Mutual Fire Ins. Co. (No. B280273, filed 2/27/18), a California appeals court affirmed an appraisal award favorable to a homeowners insurer, ruling that it was improper to admit as evidence in opposition to a petition to confirm the award a declaration from the policyholders’ appraiser, except for the limited purpose of showing improprieties in the appraisal, bias, partiality or other improper conduct.
The homeowners had a pipe leak and submitted a claim. The insurer responded to an estimate from the owners’ adjuster by retaining an expert and paying an undisputed amount that was significantly less. Eleven months later the owners had upper deck damage and submitted another claim. Relying on the same expert, the insurer paid another undisputed amount significantly less than the owner’s estimate. The owners requested appraisal but the insurer denied the request, contending that the dispute was over coverage and outside the scope of appraisal.
The owners’ petition for appraisal was granted, with the court ordering separate listing of items the insurer disputed regarding coverage or causation. The appraisal panel issued an award stating that total damage was $132,293, of which $96,530 was contested by the insurer. The insurer filed a petition to confirm the award, which was granted despite the fact that the owners’ appraiser had refused to sign it.
Reprinted courtesy of
Valerie Moore, Haight Brown & Bonesteel LLP and
Christopher Kendrick, Haight Brown & Bonesteel LLP
Ms. Moore may be contacted at vmoore@hbblaw.com
Mr. Kendrick may be contacted at ckendrick@hbblaw.com
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