On July 26, 2018, the Oregon Supreme Court affirmed the Court of Appeals in its affirmance of a Department of State Lands’ (DSL) final order granting a permit to the Port of Coos Bay that allows the Port to dredge 1.75 million cubic yards of material from the bay for a deep water marine terminal. Coos Waterkeeper v. Port of Coos Bay, 363 Or 354 (2018). DSL issued the permit under ORS 196.825, which contains a number of approval criteria applicable to the applicant’s “project.” Petitioners argued that the “project” is the “construction, existence, and operation” of the terminal and that DSL erred in failing to consider negative effects of the operation of the terminal when it reviewed the Port’s application. The Court disagreed, and held instead that ORS 196.825 in this case was limited to the impacts of removal and fill activity, and the construction of the proposed development. The Court reached that conclusion by analyzing ORS 196.825 according to the standard rules of statutory interpretation, and determined that the text and legislative history of the statutory provisions were not consistent with a requirement that DSL analyze ongoing operations.
We had a great turnout at our Seattle Breakfast Roundtable earlier this week, which was attended by in-house counsel, representatives from a diverse group of companies across the industry, and attorneys in our Construction team. Our conversation covered a range of topics, including contract terms and requirements, project communications, and documentation. In particular, we discussed the importance of making sure contracts match what happens in the field and ensuring that the onsite team has knowledge and understanding of the contract. The group also discussed new technologies (e.g., BIM, PlanGrid, text messages, etc.) and how they can solve or complicate claims.
Based on the early feedback we have received, the biggest benefit to our attendees was the opportunity to hear the perspective from representatives across the industry. We had a lively discussion about the industry and business constraints on various groups, legal solutions to common pitfalls, and opportunities for more effective and efficient project delivery. Below are the seven habits of highly effective contractors/owners that we covered at the event.
For those who missed this roundtable, we will be holding another on this topic in our Portland office on June 5th. In addition, we will be holding another roundtable in Seattle this fall. Please keep an eye out for more details in the coming months. Thank you to those who joined us. If you were not able to attend, but would like more information on these topics, contact Tara O’Hanlon or Brian Esler.
Click here for our printable handout, which includes the seven habits of highly effective contractors/owners.
Chances are that if you live in or have visited California, you have seen conspicuously placed “WARNING” signs notifying you that a product you are consuming or a location you are entering “contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
Now, following a March 30, 2018, proposed statement of decision in the Los Angeles Superior Court case Council for Education & Research on Toxins v. Starbucks Corp., cancer-warning labels may need to be added to coffee under Proposition 65, California Health & Safety Code section 25249.6 et seq. Continue Reading
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.
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.
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.
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
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
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.
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.