Tara O’Hanlon Published in The Contractor’s Compass: How to Minimize Risks for Successful BIM-Powered Projects

Tara O’Hanlon, Miller Nash Graham & Dunn construction attorney, was recently published in The Contractor’s Compass, the official educational journal of the American Subcontractors Association.

In her article, “How to Minimize Risks for Successful BIM-Powered Projects,” Tara explores contract terms that will help to ensure that all parties adequately understand and allocate associated risks and responsibilities, while better identifying potential conflicts that can minimize adverse legal consequences.

Read the full article.

New Public-Private Partnership Authority Available for Ports

On March 22, 2018, Governor Inslee signed HB 2664, which gives port districts new authority to enter into public-private partnerships (“P3s”) to develop telecommunications services and infrastructure. Such P3 arrangements are an increasingly popular method of delivering infrastructure, and broadly are “contractual agreements between a public agency and a private entity that allow for greater private participation in the delivery of projects.”

Although it started out as a bill to provide P3 authority only to rural port districts, the legislation signed by the Governor eliminated that limitation, so there is now blanket P3 authority for all port districts in the area of telecommunications. As with many recent P3 laws, there is nothing in the act requiring (or prohibiting) application of the normal bond and retainage requirements (RCW Ch. 39.08 and 60.28) for public works projects. Time (and probably litigation) will tell whether those requirement apply to such public-private partnerships.

Oregon Construction Contractors Board Newsletter

The Oregon Construction Contractors Board’s February 2018 newsletter offers information on upcoming education opportunities for licensed contractors. Topics include getting certified to win government contracts, Spanish fall hazard awareness, and OSHA safety consultations. Also included is the 2018 schedule for in-person CCB law, regulations, and business practices courses, and Association Conferences for March and April 2018.

For more information and to read the full newsletter please click here.

Are State and Local Regulations Making the Portland Housing Affordability Crisis Worse?

Is the Portland area’s regional housing crisis being made better or worse by state and local land use regulations? Gerald Mildner, Ph.D, an associate professor of real estate and finance at Portland State University, and the academic director of the University’s Center for Real Estate, would say, “worse.” According to Dr. Mildner in his paper “Portland Housing Market and 2018 UGB,” the region’s urban growth boundary (UGB) in conjunction with other regional and local initiatives is likely exacerbating the housing crisis, and measures meant to alleviate that crisis are either making it worse or having less efficient positive effects than alternative measures. For example, Metro did not expand the UGB in 2015 because it determined that there was enough capacity within the existing UGB to accommodate the region’s housing and employment needs for the next 20 years. The problem, however, is that most of the future housing capacity relied upon lies in areas that are in eastside Portland neighborhoods that are not close to Portland’s urban core, like the Gateway and 122nd Street areas, and the assumption was that the capacity need will be met by high-rise residential projects. The reality is that high-rise projects are expensive to build and require rents that those outlying areas cannot hope to support anytime soon. So the capacity is there, but the market is not. Further, according to Dr. Mildner, there could be serious economic consequences to the region if rents in Portland actually increase to the point that high-rise residential projects can be supported in those areas.  Continue Reading

Top Five Intellectual Property Issues in Real Estate

Though your business may be real property, intellectual property issues most likely do or will play a role in your business operations. Intellectual property (IP) includes patents, trademarks, copyrights, and trade secrets. Here we provide you with the top five areas to take advantage of potential IP rights or where IP issues may arise in real estate. Continue Reading

Supreme Court Clarifies Requirements for Lawsuit on a Lien Release Bond

Bonding around mechanics liens can be an efficient way to close out a project when disputes arise, but case law and statutes created some ticklish questions about who needed to be included in any subsequent lawsuit. Now, the Washington Supreme Court has given us some clarity. In Inland Empire Dry Wall Supply Co. v. Western Surety Company, the Supreme Court held that the subcontractor could sue the surety of the release bond alone for recovery of unpaid amounts.

In this case, the subcontractor (Inland Empire) supplied drywall materials to Eastern Washington Drywall and Paint that were used at an apartment complex in Richland. EWD&P was a subcontractor of Fowler General Construction, who was the general contractor on the project. EWD&P failed to pay for the materials, Inland Empire filed a preclaim notice and then timely filed its mechanics lien under RCW 60.04.091. Before any lawsuit to foreclose the lien was filed, the general contractor Fowler obtained and recorded a lien release bond from defendant Western Surety Company for the full amount owed. Inland Empire ultimately sued Western Surety alone for the amount remaining unpaid (not Fowler, and surprisingly, not EWD&P who contractually owed the money).

Western Surety defended by claiming that the general contractor Fowler (who was identified as the “principal” on the bond) was a necessary party as it was the “owner” under RCW 60.04.141. Further, as that statute requires service of the summons and complaint upon the “owner” within 90 days, and Fowler hadn’t been served at all, Western Surety argued that the lien claim was barred by the statute of limitations. The trial court agreed with that argument and dismissed the case.  A divided Court of Appeals reversed, and the Supreme Court took review. The Supreme Court once again reiterated that the mechanics lien statute is to be construed liberally to protect persons who fall within its provisions, and indeed took it a step further by stating the mechanics lien statute’s language must always be construed in favor of the claimant in if there is any question about the statute’s meaning. Applying those principles of construction (and a large dollop of common sense), a unanimous Supreme Court held that once a lien release bond is filed, the unpaid lien claimant has the right to proceed against the surety directly without joining the party who provided the bond.

Oregon Construction Contractors Board Residential Contractor Updates

Our team felt that this information would be useful to those in the construction industry.

The Construction Contractors Board recently sent out a newsletter containing recent changes which affect residential contractors. Some areas of interest include continuing education updates, calendar of live CCB courses, how to appoint a temporary RMI, and residential building code updates.

To read the full newsletter please click here.

“Contractors Special Conditions” Exclusion Sets Traps for Policyholders and Defense Counsel

This post originally appeared on The Northwest Policyholder, Miller Nash Graham & Dunn’s insurance recovery blog. From The Ground Up editor George Kaai felt that this information would be useful to those in the construction industry.

An endorsement that has become common in general contractors’ insurance policies can function as a trap for both the policyholder and defense counsel. The “Contractors Special Conditions” endorsement requires that the policyholder must have written contracts with each subcontractor that it uses on a project, and that those agreements must meet certain requirements. If there is a loss involving those subcontractors, and if contract conditions were not met, the insurer may deny coverage. The problem, of course, is that if the policyholder does not read the policy before the loss, and didn’t get the right contracts in place, there may be no way to “cure” the problem. And defense counsel may be put in a bind as well when they are asked to report to the insurer.

To read the full article please click here.

Deadline Looms for Mandatory OregonSaves Retirement Program

This article was originally published as one of Miller Nash Graham & Dunn’s Employee Benefits Update, our occasional e-mail newsletter focusing on the latest developments in employee benefits. From The Ground Up editor George Kaai felt that this information would be useful to those in the development industry in Oregon. If you are interested in receiving periodic employment law updates, please notify us at clientservices@millernash.com.

A new era in retirement saving is dawning on Oregon employees, and if your business employs 100 or more employees in Oregon, you must take action by November 15. If your company employs workers in Oregon and does not sponsor a retirement plan, you will soon be required to enroll employees in the new OregonSaves state-run retirement program. If your company already sponsors a retirement plan for its employees, you are exempt from participation in the OregonSaves program, but you will be required to claim exemption online and renew that exemption every three years.

To view the full article please click here.

Court of Appeals Holds That “Call Before You Dig” Creates Strict Liability

As we’ve reported before, Washington strengthened its “Call Before You Dig” laws about five years ago to create a much stricter regime, with significant penalties for property owners, utility providers, and contractors that fail to comply with its requirements. And now we’ve got one of the first published decisions under the new regime, which holds that the new Call Before You Dig law creates strict liability for violations.  Continue Reading

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