2012 Continuing Construction Education

Does The Responsible Developer take advantage of construction industry opportunities for continuing education?  Absolutely!

Here are some great local and national seminars to attend that provide the most current news and information on public and private development and construction:

1.   For the developer or contractor interested in public schools, here is a great opportunity, on two dates in two cities:

The Washington Association of School Business Officials
Capital Project & Facilities Workshop
March 14, 2012 in Yakima and March 20, 2012 in Renton:

  • Bidder Responsibility Criteria and GC/CM & Design Bid Build
  • Legal Tools for Effective School Construction Contracting
  • Construction Budgeting & Accounting and State Match 

Foster Pepper's own Greg Guedel will be speaking on the first topic. 

2.   For the developer or contractor involved in bidding government projects, there is the Seminar Group's Construction Bidding on March 15, 2012 in Seattle: 

  • The Bidding Process
  • Alternative Public Project Procurement Process
  • Insurance Considerations in the Bidding Process
  • Contractor and Municipality Perspectives on Bidding Construction Projects
  • Strategies for Bidding Claims

 Foster Pepper's own Tom Ahearne will be speaking on the third topic. 

3.   For the developer or contractor looking for a comprehensive national construction seminar on both public and private projects, this annual event is not to be missed:

The ABA Forum on the Construction Industry Midwinter Meeting on February 2-3, 2012 in Houston:

  • Design Control and Delegation
  • Current Issues Facing Complex Project Funding
  • Open Book Accounting in Cost Reimbursable Contracts
  • A Study of Issues Posed by Schedules on Complex Cases
  • A Review of Good and Bad Assurance/Quality Contract Case Studies
  • Practical Tips in Navigating Project Labor Disputes
  • Others 

This Editor looks forward to seeing you there. 

 

How to Know When Claims Are Time Barred

What does the Responsible Developer do first with regard to a notice of claim arising out of a completed project?

She does the math to see whether or not the claim is time barred.

Whether you are making a claim or defending against one, a first good step is to quickly gather the information to figure out whether the claims at issue are time barred. If the claims are barred, then it could be a waste of time and money to pursue them.  Yet time barred claims are made all the time, most are later dismissed.  In some cases the defending party is also awarded their fees and costs. Sometimes these claimants found out too late but some just failed to do the analysis. 

In order to know when a claim is time barred you need to do some project research. Most of the time the claims at issue for a typical real estate developer will arise out of a contract dispute based on written documents, such as a construction contract, purchase sale agreement, or a lease. Yet there are also times when a “contract” is really just an invoice or some other writing that may not meet the legal test to be a “written contract.” So quickly find and read those contracts and agreements.

A second step is to figure out what events start the clock running on your contract claim. These events generally can be when a contract was fully executed, when the scope of work under a construction contract was completed and when the claim event at issue was discovered. 

The third step is the hard part, you need to do the analysis and apply the math. The analysis is to determine what statute of limitations applies and the math is to determine how many years have expired since the contract was performed, and how much time you have left until the claim is time barred. Generally, the statutory claim time periods are three years for oral contracts (which includes writings that do not meet the legal test for a written contract) and six years for a formal written contract. Both the three and six year periods may be subject to what is called the “discovery rule” which can extend either statute. In case this analysis is not already complex enough, there is another statute, called the statute of repose, that acts as a bar to claims even if the discovery rule were to otherwise apply.

At about this point in the analysis many clients roll their eyes and call their lawyer to help them figure it out. This is a natural reaction given that this analysis can be tough even if you have a legal background. So to help with the analysis here, below is handy bar chart for construction claims.

The first red line is the three year statute of limitations for oral contracts (may be written but lack  essential terms). The second is the six year statute of limitations for written contracts (typical formal contract). The third red line is the six year statute of repose which bars claims that have not timely accrued. If the claims on your project are based, even in part, on a breach of performance by third parties (like designers or subcontractors), your contract may require those third parties to defend and indemnify you, so you need to know what events give rise to duty to defend and indemnity claims.

Again, expect your analysis to require modification as you gather more information.  If it's really complex and you think the claim is close to being time barred, call your lawyer, now, and good luck! 

Before Contracting, Review Your Contractors' Insurance Policies and Don't Rely Upon the Insurance Certificate/Accord.

Part of being a responsible developer is ensuring you are insured. Many developers are familiar with the term “additional insured,” because their form contract drafted years ago requires that the general contractor (the “named insured") identify the developer as an additional insured under the contractor policy. Developer’s rarely look at the actual policy, relying upon the general contractor’s Certificate/Accord and, therefore, believing they have the same coverage as the general contractor. This is a mistake.

More and more insurance policies now provide different coverage for the additional insured than the named insured, depending on what the underlying construction contract provides. For example, even though the named insured may have insurance for post-construction property damage resulting from defective work, the additional insured will not have such coverage unless “the written contract or written agreement requires you [the named insured] to provide the additional insured such coverage.” Without this coverage, the developer could be denied the benefit of a defense (lawyers paid for by the insurance company) and indemnification (insurance company pays judgment or settlement up to policy limits) in an action against the developer by purchasers for construction defects and property damage.

Therefore, for developers building condominiums or any project that may have risk associated with “tail litigation” related to property damage (such as water intrusion), the best practice is to obtain and review your contractors’ policies prior to execution, so that the construction contract can be modified to trigger as much coverage as possible.

 

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Snohomish Developers Forum - Tuesday, November 15

The City of Snohomish and the Cascade Land Conservancy invite you to a Developers Forum for Snohomish’s Pilchuck District, a special redevelopment area in the heart of Snohomish, Washington. This innovative redevelopment strategy recently was recognized with a 2011 VISION 2040 Award from the Puget Sound Regional Council. We hope you will appreciate the legislative changes already enacted for this area, and that you will provide feedback regarding the practical realities of land development.

The forum will take place on Tuesday, November 15, 2011, 7:30-10:30 am at CCR Restaurant, 215 Cypress Avenue, Snohomish, WA 98290. A hearty, complimentary breakfast will be served.

The Pilchuck District is located in between the Pilchuck River and the nationally registered historic downtown district. The District is bringing change to an area that has a desirable location for residential and retail opportunities. The District would also be suitable for a destination lodging and conference facility to complement the tourism and the casual and competitive sports recreation industry that historic Snohomish currently has and continues to develop. Snohomish plans to revitalize The Pilchuck District neighborhood into a vibrant community using several innovative programs, including transfer of development rights (TDR), complete streets, design standards that make use of the river front, and market-based land use planning. The City will share what has already been done in the area to assist development.

The forum will be interactive in that you will be invited to share the realities of development in today’s economy and to make recommendations to the City and CLC staff on what it will really take to implement the District plan and kick off active development.

We look forward to your participation as we continue to create land development policies that reflect the suggestions of experienced builders. If you are able to join us please RSVP to the City's Economic Development Manager Debbie Emge at emge@ci.snohomish.wa.us or 360-282-3197 by November 9, 2011.

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Public Works Seminar / Webinar - November 2, 2011

Join Foster Pepper attorneys and special guest speakers for this informative discussion on how municipal agencies can make the most of their public works project dollars.

Public Works Contracting: How to Get the Best Value from a Weak Economy

Wednesday, November 2, 2011 | 10:30 am – 2:30 pm
Foster Pepper PLLC | 30th Floor Conference Center
1111 Third Avenue | Seattle, Washington

Please respond by: Friday, October 28, 2011

REGISTER HERE

Questions?
Registration and other questions (ADA Accommodations, special meal requests, etc.) should be directed to events@foster.com.

More information can be found HERE.


TOPICS

CLE (Attorney) credits pending | Certificates of Completion available for other organizations

Schedule:
10:15 am                          Registration
10:30 am - 2:30 pm        Program/Q&A (Lunch provided)

For more information, visit Foster Pepper's EVENTS page or REGISTER.

The Big Green Pay Off

Is investment in green sustainable buildings still paying off?

Absolutely, according to a study of properties managed by CBRE Group Inc. ("CBRE").

Sustainable buildings generate stronger investment returns than traditional managed properties, according to the ongoing study of a national office portfolio managed by CBRE.  The study found that there is a higher value and an increased demand for green, and in particular for LEED® certified buildings, which is demonstrated by increased occupancy and rental rates in comparison with the general market.

The study, which surveys approximately 150 CBRE-managed office buildings and more than 2,500 building occupants, shows how green building performance continues to trend higher than the general market, establishing a clear economic case for the value of green in existing buildings, with mid-sized markets leading the trend.  In particular, aggregated data on LEED certified buildings over three years shows an average 3.1% improvement in both rental rates and building occupancy in comparison to the general market. The 2011 phase reinforces earlier findings that demonstrate sub metering of utilities for tenant space reduces energy costs by 21% on average.

This report should not surprise anyone.  It is the building equivalent of purchasing an electric or hybrid automobile for all the same reasons, it saves energy, costs less to operate and is better for the environment.  Why not build, buy, or invest in one. 

The CBRE report also noted that economic uncertainty can cause downward pressure on an any organization's continuing commitment to sustainability.  Still, survey respondents consider green features important when selecting office space, with a healthy indoor environment as the leading factor. This finding supports other results of the study in which 19% of tenant respondents reported increased productivity and 94% of tenant managers registered higher employee satisfaction in green office space.  The study also shows a growing general awareness of green.

CBRE was ranked #30 among Newsweek's greenest companies in America in 2010, and #1 among the financial services sector.

Recall also that earlier in 2011 the Green Building Opportunity Index came out with the first office market assessment tool to provide weighted comparisons of top U.S. office markets on the basis of both real estate fundamentals and green development considerations.  The Index focuses on the primary factors that influence successful development, retrofitting, leasing and sales of investment grade green office buildings in the largest U.S. Central Business Districts.  It compares a market's relative position to its peers in six categories: Office Market Conditions, Investment Outlook, Green Adoption & Implementation, Local Mandates & Incentives, State Energy Initiatives and Green Culture.  For 2011, the Index has been enhanced by adding five new markets and refining the methodology and data inputs - yielding a more comprehensive view into market influences that determine where sustainable development brings competitive advantages.

As a tool to examine the overall climate for green building, the Index assists a broad spectrum of professionals to determine where the favorable conditions exist.  Investment/pension fund managers and developers can use this data to consider where to put their money and why.  City policy makers, utility staff and planners can examine the data to understand what new policies and incentives might be useful to accelerate green building activity.  Building owners, architects and green building consultants can determine where green development brings competitive advantages, or where it is simply an emerging standard.

According to Cushman & Wakefield the 2011 Green Building Opportunity Index's top 10 markets overall shows that five cities on the West Coast are on that prestigious list:  (1. San Francisco; 5. Los Angeles; 8. Portland; 9. Seattle; and 10. Oakland).  One very recent entry into the green sustainable office market in Portland is making news.   

Portland’s city council approved plans for the Oregon Sustainability Center last week (see image above). The city and its project partners hope the Center will be the world’s first and tallest mixed-use office building to achieve Living Building status.  The decision to support the Center represents the city’s commitment to build (and pay for) a sustainable building.  With a construction budget of $62 million, the 150,000 square foot tower will cost 15 to 20 percent more than comparable buildings in Portland’s downtown area.  The city’s fiscal pledge to green building recognizes a return on investment bigger than rental income.

The project is jointly supported by the Oregon University system, the Portland Development Commission, the City of Portland Bureau of Planning and Sustainability, and an assortment of for-profit and non-profit groups with interests in sustainability and social equity.  In June of 2011, the Oregon state legislature held their approval for funds on the conditions that private sector tenants were found and signed to leases, and that the city of Portland foot the costs of architecture and engineering services.  Ultimately the Center will be owned by the city and the Oregon University system.

Sustainable buildings at the commercial and institutional scale are relatively expensive to build. Innovations, especially in the early stages, often come at a premium.  Some of the Center’s premium technologies include triple-glazed glass, solar panels, a high capacity underground water tank, and a geothermal well system that will provide heating and cooling.  The energy saving and energy generating materials make up a heavy, but worthwhile expense. 

Targeted for a 2012 groundbreaking, the Oregon Sustainability Center is an example of the importance of total buy-in for sustainable building.  Mayor Sam Adams understands the value of the experience: “We’re never going to be the biggest city, but I want us to be the scrappiest, most successful international city.  To do that you’ve got to invest in innovation.”

So not only is the market for green sustainable buildings currently viable, the City of Portland is betting $62 million that the trend will continue into 2013.  

 

Seattle Bites the Green Bullitt

 

At the end of last month, the City of Seattle broke ground on The Bullitt Center, located at 1501 East Madison Street, which is touted to be the greenest commercial building...in the world. 

Seattle Mayor Mike McGinn claimed the $30 million Bullitt Center project will create green jobs on every level, the 94 jobs for the construction workers who will receive green building training on-site, the future 141 permanent jobs for employees in the building and the people in the green building industry who will teach classes and receive green building certificates at the project’s Center for Energy and Urban Ecology.

So Seattle voters, in recession, new jobs are good but is this project just another green monument that may prove to be a drain on taxpayers?  

No, says the Mayor and the Bullitt Foundation.  The new Bullitt Center will be taking net zero building trends to new heights.  This six story tall, 52,000 square-foot office building is designed to be both a net-zero energy building and a net-zero water building while managing all of its own waste needs.  It will produce as much energy as it consumes, provide all of its own water, and process all of its own sewage.  It will also use only 1/3 as much energy as an average, similar-sized building – or half as much as a certified LEED platinum building!
 
Achieving these goals may not be an easy feat but if successful, will make the building much more affordable to operate.  Some of the green technologies used in the building include: 
  • A triple-glazed curtain wall system
  • Windows that open and close automatically depending on outside conditions
  • A closed-loop geothermal system
  • Radiant floor heating and cooling
  • Extensive daylighting thanks, in part, to taller than average ceilings and windows
  • Rooftop solar system designed to generate 100 percent of the building’s energy needs
The green tax dollar savings allegedly won't stop after construction is complete.  Tenants in the building will be required to use electronics that are extremely energy efficient and are designed to automatically shut down at night.  Although this sounds like a Machiavellian requirement for tenants to meet, four of the six floors have already been rented out.
 
If the project delivers the expected performance ratings, then kudos will be in the offing to the design and construction team behind this premier green building project, the Miller Hull Partnership, Point32, Schuchart Construction and PAE Consulting Engineers.
 
The project's success would probably be good for the Mayor's performance rating too! 

Can Design Professionals in Washington Effectively Limit Their Liability Anymore?

With the evolution of the Independent Duty Doctrine comes more uncertainty for design professionals and, arguably, the entire construction community in general. Until recently, claims for damages resulting from delay or construction defects were typically considered breach of contract claims and were limited by and subject to any liquidated damages provisions or liability limitations in that contract. Whether that is now the law in Washington is uncertain.

As commented on by other bloggers, the Washington State Supreme Court abolished what was called the “Economic Loss Doctrine.” The doctrine acted to bar parties from suing others under tort theories and limited who they could sue (that being the party they contracted with), when their damages were “economic” and derived from breaches of contract. Much litigation ensued over what that actually meant. For instance, confusion arose as to whether property damage caused by defective construction should be considered “economic” damages or not. To help clarify the law, in a very split opinion, Justice Fairhurst announced the Independent Duty Doctrine. Affiliated FM Ins. Co. v. LTK Consulting Serv., Inc., 170 Wn.2d 442, 453 (2010). Under the new doctrine, in short, if the complained damage was caused by a breach of an independent tort duty, a duty owed whether a contract existed or not, the injured party may have the right to sue in tort. Why is this important? Arguably, a waiver of consequential damages provision or a limitation of liability provision may not act to bar those damages when they are claimed under a tort theory. And now this issue is already working its way through the courts.

In Donatelli v. D.R. Strong Consulting Engineers, Inc. 2011 WL 3056564 (Wash.App. Div. 1, 2011) (unpublished), the Court of Appeals upheld a trial court decision refusing to summarily dismiss claims of negligence and misrepresentation against an engineer (both tort claims). The plaintiff alleged the engineer allegedly breached its duty "to complete the Project in a timely, competent, and cost effective manner" and misrepresented the duration of the work and its cost. The engineer's delays caused the owners to miss the market and their project was ultimately foreclosed. Under prior law, these "economic damages" would likely have been summarily dismissed. Now, the plaintiff may continue with the claims in the trial court.

This case is particularly interesting because the contract limited the engineer's damages to the contract price or the fee charged, whichever is greater. However, since the tort claims remain viable, the plaintiff may be able to skirt that contract provision by successfully prevailing upon the tort claims, depending on the language in the limitation. If the parties don't settle, this issue may go to the Supremes, with amicus coming from the engineer associations.

 

How Green Is My City?

Does the Responsible Municipal Developer and its citizens aspire to be the "Greenest?" 

Absolutely and the competition is fierce, as it should be, after all it's a matter of civic pride!

 

Our blog has showcased the many laudable efforts of local and state governments, citizens and private developers to implement green and sustainable development practices (the preservation of open spaces; control and capture of storm and rain water; energy savings; green electric highways; reclamation of brown fields and the construction of passive homes).

    

So how does our Emerald City compare to other great cities?  Well that depends on the source. 

We looked for objectivity and think we found it in Siemens Global's US and Canada Green City Index  (which was also cited by Time.com).  Siemens' rating was based on some fairly broad comprehensive objectives and methodology.

 

The objective criteria was to measure and compare the performance of 27 major US and Canadian cities, based on their commitment to reduce their future environmental impacts.  The goal of the index was to allow a comparison of cities against their peers and to study innovative projects which other cities may want to follow.

 

The methodology was based on the work of other Green City index sites (global) and included 31 quantitative and qualitative indicators in nine categories: CO2; energy; land use; buildings; transport; water; waste; air and environmental governance.

 

Based on the criteria and the fact the study included Canada, we should be proud that Seattle was #4 with a score of 79.10.  Our score was heavily based on the fact Seattle had set, and met, many environmental goals over the last 10 years and Seattle ranked #1 in the buildings category because it was among the first cities to mandate LEED-certification for municipal building projects.

 

The City of Seattle has done a fantastic job of setting goals and obtaining the necessary commitments from its citizens to create green and sustainable projects and communities.  Seattle's ranking was no accident but was a result of a great vision and a lot of hard work and expense.

 

Seattle is a great place to live and work and we can all be proud of this ranking.  

 

Project Insurance Risks

 

Does the Responsible Developer maintain adequate liability insurance on each project?

Yes, absolutely!  A major underinsured or uninsured loss can devastate your project. 

The last decade saw construction project insurance premiums for commercial general liability skyrocket to the point where many developers joked that the insurance premiums were only slightly less than the actual policy limits!  

This meteoric rise in premiums was due to extensive litigation where policy limits were routinely paid out during the 1990s and early 2000s for defect and water intrusion damage claims.  You remember, many insurers either left the WA market or would only insure lower risk builders.  As the 2007 recession deepened some developers, depending on the type of project,  opted to reduce coverage or worse, to go bare on the completed operations side.

In the last decade some other insurers have entered the WA market and the premiums for many types of liability insurance have decreased.  But are you still at risk of being underinsured? 

Yes.

Because in some egregious cases the reason the premiums are less, is that if you held that policy up to the sun, it would not block the light due to all the "holes" in it.  Those holes represent policy exclusions that drastically limit or eliminate some of the most critical coverages.  Here's an example.  One insurer from Oregon now sells reasonably priced liability policies to developers and contractors.  The policy limits appear to be the typical $1 million per occurrence and $2 million aggregate.  So the insured feels adequately insured.  There is, however, an exclusion buried deep in the policy for water intrusion damage (a very common occurrence in the PNW) and the policy caps that coverage at only $15,000. 00.  No that is not a misprint, a $1,000,000 policy with a maximum coverage limitation of only $15,000 for water damage.  Imagine that exclusion in the event of an extensive roof leak or other water related damage.

Another example is a well known insurer from Nebraska that decided to place certain requirements on policy holders in order to obtain the benefit of coverage (yes more than just paying the premium).  The policy requirements demand that if you are the developer or general contractor, that you will only get the benefit of your policy coverage and limits if you have all of your subcontractors and suppliers name you as additional insureds and must have them sign indemnity agreements.  While that is always a good practice, if  you have 20 trades on a job or turnover during the work, it can be tough to be named by all the trades and have all of them sign indemnity agreements.  If, however, you fail to obtain all the required additional insured endorsements and agreements, you may find you have limited coverage or none at all.

So what is the Responsible Developer supposed to do?  A great start is to work with a reliable insurance broker and get sample policies with the current exclusions and actually read them all. 

Even better is to work with a lawyer that knows insurance coverage and related litigation and have them advise you before place the policy.  Between the two, you should be able to discern whether you are really adequately insured or if you are unnecessarily exposing yourself and your project to significant underinsured or uninsured risks.

Lastly, even if you are the consummate do-it-yourselfer, please, read the policy....before you buy it and put it in the file drawer.