Fall 2024 Legislative Update:
October 28, 2024 —
Joshua Lane - Ahlers Cressman & Sleight PLLCReview of (a) RCW 60.30.010-020, (b) RCW 49.17.530, (c) RCW 19.95.020, (d) RCW 39.116.005, et seq., (e) RCW 36.70B.080, and (f) RCW 39.12.010 and .13
While much of the focus on the recent legislative updates has been on RCW 39.04.360, a number of other legislative changes may also have significant impacts on Washington’s construction industry. Six of these changes are summarized below.
A. RCW 60.30.010 and .020 (SSB 6108) – Concerning Retainage on Private Construction, Effective June 6, 2024
Last year, ESSB 5528 imposed restrictions and obligations related to retainage and timing of final payment on private (non-public works) projects. It capped retainage at 5%, required prompt payment on final payments, and required owners to accept a retainage bond on private construction projects, excluding single-family residential construction less than 12 units.
This year, SSB 6108 adds suppliers to the statutes (RCW 60.30.010 and 0.020) pertaining to retainage on private construction projects.
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Joshua Lane, Ahlers Cressman & Sleight PLLCMr. Lane may be contacted at
joshua.lane@acslawyers.com
Construction Law Alert: Appellate Court Rules General Contractors Can Contractually Subordinate Mechanics Lien Rights
November 26, 2014 —
Steven M. Cvitanovic, Jessica M. Lassere Ryland, & Colin T. Murphy - Haight Brown & Bonesteel LLPIn Moorefield Construction, Inc. v. Intervest-Mortgage Investment Co., 230 Cal. App. 4th 146 (4th Dist. 2014), a California appellate court upheld an agreement executed by a general contractor which subordinated its mechanic’s lien to a construction lender’s deed of trust.
In 2006, developer DBN Parkside LLC ("DBN") purchased land in San Jacinto, California (the "property") to build a medical complex (the "project"). DBN hired Moorefield Construction, Inc. (“Moorefield”) to act as general contractor and sought funding for the project from Intervest-Mortgage Investment Company (“Intervest”). Prior to the recordation of the construction loan, and unbeknownst to Intervest, Moorefield cleared and grubbed the project site. Pursuant to the construction loan agreement, Intervest required DBN to assign its rights and remedies under the construction contract to Intervest. Under its construction contract, Moorefield agreed to subordinate its lien rights to the construction loan.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Steven M. Cvitanovic,
Jessica M. Lassere Ryland and
Colin T. Murphy
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Ms. Lassere Ryland may be contacted at jlassere@hbblaw.com; and Mr. Murphy may be contacted at cmurphy@hbblaw.com
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Construction in Indian Country – What You Need To Know About Sovereign Immunity
July 22, 2019 —
Edward J. Hermes - Snell & Wilmer Under Construction BlogThere are many legal issues to consider when bidding on and building projects in American Indian Country. Which labor and employment laws apply? Are there contracting or hiring preferences that apply? Do the Prompt Pay Act and other state laws apply? Can I bring a lawsuit to enforce the contract and, if so, where would I file suit? This article addresses the final question, which is often the most important question when contracting with a tribal entity.
Many of the construction projects in American Indian Country are with tribes or entities wholly owned or by a tribe, such as housing authorities, casinos, hospitals, schools or other economic enterprises. Like the state and federal government, tribes (and their tribally—owned enterprises) enjoy sovereign immunity from any lawsuit, meaning they cannot be sued unless the tribe expressly agrees to waive its sovereign immunity. Sovereign immunity poses a unique issue for contractors that does not typically arise in other projects, but it need not be a deterrent to doing business with tribes. It is usually in the best interest of both the contractor and tribe to negotiate an acceptable waiver of sovereign immunity. Absent such a waiver, the tribe or tribal entity cannot be sued and the resulting forfeiture of remedies can be devastating for the contractor.
To waive sovereign immunity, the tribe must make it clear in the contract that it can be sued in a specific jurisdiction. Oklahoma Tax Comm'n v. Citizen Band Potawatomi tribe of Okla., 498 U.S. 505, 509 (1991). It does not matter whether the tribe is operating on or off its lands—if there is no express contractual waiver of sovereign immunity, a contractor will have no recourse in the event of non-payment or other breach of contract. See Kiowa tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).
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Edward J. Hermes, Snell & WilmerMr. Hermes may be contacted at
ehermes@swlaw.com
Should I Pull the Pin? Contractor and Subcontractor Termination for Cause
January 26, 2017 —
Patrick McNamara - Porter Law GroupAny owner or general contractor who has a few projects under his or her belt has likely had this thought: “My contractor (or subcontractor) is not performing the way I expected; should I replace him?” The other side of the termination coin is: “This project is not going the way I expected; should I get out?”
While there may be an emotional high that immediately comes from terminating a contractor or subcontractor (or leaving a project, in mid-stream), there are many factors to be weighed, before making that decision.
Project Delay. Replacing a contractor or subcontractor that has already begun performance always results in delays to the project. Assessing the work in place, interviewing replacement contractors, and negotiating the terms of the new relationship can easily consume weeks, if not months of project time.
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Patrick McNamara, Porter Law GroupMr. McNamara may be contacted at
pmcnamara@porterlaw.com
How To Fix Oroville Dam
January 04, 2018 —
Henry W. Burke - Engineering News - RecordOriginally Published by CDJ on March 22, 2017
On Sunday, Feb. 12, California officials ordered the immediate, mandatory evacuation of 188,000 residents from towns below the Oroville Dam. Two days later, when federal and state officials deemed the dam safe, the evacuation order was rescinded, and people were allowed to return to their homes. It isn't often that hundreds of thousands of people in the U.S. have to leave their homes because of worries about a catastrophic structural failure.
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Henry W. Burke, ENRMr. Burke may be contacted at
hwburke@cox.net
Traub Lieberman Senior Trial Counsel Timothy McNamara Wins Affirmation of Summary Judgment Denial
August 28, 2023 —
Timothy G. McNamara - Traub LiebermanIn this appeal brought before the State of New York Appellate Division, Second Judicial Department, the court ruled in favor of Traub Lieberman’s client, a housing complex owner, affirming the denial of co-defendant landscaping company’s summary judgment motion seeking dismissal of the cross-claims asserted by the complex owner against the co-defendant.
In the underlying case, the plaintiff was allegedly injured when she slipped and fell on ice on the exterior stairs of the housing complex where she lived. The complex owner had contracted with the co-defendant to provide snow removal services for the complex. The plaintiff commenced action against both the complex owner and the landscaping company to recover damages for personal injuries. The complex owner asserted cross-claims against the landscaping company for contribution, common-law indemnification, and contractual indemnification. The landscaping company sought summary judgment dismissing the complaint and all cross-claims asserted against it, but the branch of the motion seeking dismissal of the cross-claims was denied. In the appeal brought before the Appellate Division, the court ruled in favor of Traub Lieberman’s client, the complex owner, affirming the denial of summary judgment for the cross-claims.
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Timothy G. McNamara, Traub LiebermanMr. McNamara may be contacted at
tmcnamara@tlsslaw.com
Are Modern Buildings Silently Killing Us?
May 16, 2022 —
Michael Rubino - Construction ExecutiveConstruction, in general, is a rapidly evolving industry as contractors, architects, and engineers are tasked with keeping up with government regulations, building practices and technological innovations. While growth and evolution are pivotal components of successful projects and businesses, it’s led to a few issues, one of which involves mold.
Like the construction industry, the world of mold is evolving as more research, understanding, and awareness develops, highlighting its prevalence in buildings and the effect it can have on the health of those exposed. What industry professionals are witnessing time and again is an increasing occurrence of individuals reaching out and asking for help after experiencing exposure that led to chronic illness. The reality is that modern buildings are contributing to this rise.
The Top of the Funnel
An issue aiding in mold’s prevalence in modern-day buildings is the way in which they are built. In an effort to achieve net-zero energy-efficient buildings, construction professionals have adopted the technique of sealing buildings as tightly as possible. While this transition reduces energy costs in the building, it also introduces a few new problems that aren't always addressed in modern construction. One such issue is how the lack of airflow between the indoor and outdoor environments can lead to a buildup of contaminant particles in the building.
Reprinted courtesy of
Michael Rubino, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Multisensory Marvel: Exploring the Innovative MSG Sphere
August 14, 2023 —
Aarni Heiskanen - AEC BusinessThe U.S. entertainment industry keeps amazing me. The first Disneyland opened in 1955, and ever since the industry has created experiences that amazingly combine architecture and technology.
The latest example is the
MSG Sphere which will open its doors in Las Vegas, Nevada, on September 29, 2023. It is a large-scale immersive entertainment space hosting various events, concerts, competitions, and residencies from the world’s biggest artists.
The world’s largest spherical structure
The MSG Sphere was initially a partnership between the Madison Square Garden Company (MSG) and Las Vegas Sands Corporation, which Apollo Global Management later replaced. The project’s final construction costs were $2.3 billion.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi