Proposed rule expands Clean Water Act jurisdiction

March 31st, 2014 by Jerry

AGC of America reports that the Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) proposed their new rule aimed at clarifying the definition of “waters of the U.S.” and which bodies of water fall under federal jurisdiction. This definition is critical to many of the Clean Water Act programs affecting how contractors perform their work, such as the Section 404 Dredge and Fill Permits, Section 402 Stormwater programs, and Section 311 Spill Prevention, Control, and Countermeasures plans.

At this point, the proposed rule appears substantially similar to a previously leaked version, a massive – and unnecessary – expansion in Clean Water Act jurisdiction. Ditches, ephemeral and intermittent streams, tributaries, and isolated waters located in a floodplain or riparian area (which have no defined limit in the rule) are all now potentially jurisdictional.

The rule is expected to be published in the Federal Register soon, with a 90-day comment period in effect after publication.

IMCO shows students construction in action

March 24th, 2014 by Jerry

imcoOur thanks to IMCO General Construction, Superintendent Joe Lupo and his outstanding crew for hosting a group of Bellingham High School students at Imco’s Lynden Wasterwater Treatment Plant expansion project today.

AGC’s Northern District provided lunch for the whole gang, and Joe had their attention every step of the way on his site tour. Thanks again, Joe!

Bad roads cost you nearly $2000 annually

March 20th, 2014 by Jerry

Driving on deficient roads costs each Seattle area driver $1,845 per year and Spokane area drivers $1,423 per year in the form of extra vehicle operating costs as a result of driving on roads in need of repair, lost time and fuel due to congestion-related delays, and the cost of traffic crashes in which roadway features likely were a contributing factor.

This is one of the alarming findings in a new report,Washington State Transportation by the Numbers: Meeting the State’s Need for Safe and Efficient Mobility,” by TRIP, a national transportation research firm.

The report notes that throughout Washington, nearly half of major roads and highways are in poor or mediocre condition. A total of 27 percent of Washington bridges show significant deterioration or do not meet current design standards. The state’s major urban roads are becoming increasingly congested, with drivers wasting increasing amounts of time and fuel. And Washington’s rural non-interstate traffic fatality rate is significantly higher than the fatality rate on all other roads in the state.

Of course, increased investment in transportation improvements at the local, state and federal levels could relieve traffic congestion, improve road and bridge conditions, boost safety, and support long-term economic growth.  But the 2014 State Legislature recently adjourned without passing a comprehensive transportation funding package.  Hopefully the TRIP report will spur renewed attempts.

General contractor needed for CPAR Board

March 5th, 2014 by Ben

The state has an opening for a general contractor representative on its Capital Projects Advisory Review Board. Applications are due by March 14.

The board evaluates public capital project construction processes and advises the Legislature on policies related to public works delivery methods. There are 23 members on the board, including four legislators and five political subdivision representatives.

Board members must be knowledgeable about public works contracting. They serve four-year terms and can be reappointed once.

Applications can be found at Questions can be directed to Molly Keenan, or (360) 902-4110.

State Senate considering public works funding bill

February 20th, 2014 by Jerry

The Public Works Assistance Account (PWAA) is a mechanism to provide low interest loans to local governments to help them build major infrastructure projects that they would not otherwise be able to afford.

Between 1985 and 2013, the PWAA was used to make loans totaling $2.84 billion for approximately 1,975 local government public works projects. These include the acquisition, construction, repair, replacement or improvement of bridges, streets and roads; water systems; storm and sanitary sewage systems; and solid waste facilities, including recycling.

However, last year the Legislature redirected the Public Works Assistance Account’s funding streams away from capital projects and into the general budget, until 2019.  The unintended consequences of this action are now becoming clear:  Several local infrastructure construction projects have been put on hold because market interest rates for loans for these projects have added millions of dollars to the costs, making them unaffordable for many local governments.

The State House of Representatives recently passed a bill, SHB 2244, which would restore funding to the PWAA in 2015.  This bill passed the House with a strong bipartisan vote of 87-11. By making local infrastructure construction projects feasible, the bill helps spur private economic development which, in turn, boosts state funding for education and other needs.  In addition, this bill will create jobs. Employment in the construction industry in Washington State grew by only 0.2% in 2013, one of the slowest rates in the nation.  This bill will help the industry in its recovery.

Now, attention turns to the Senate.  With the legislative session set to conclude March 13, there isn’t much time for the Senate to act. Everyone is encouraged to contact their State Senators and urge them to support SHB 2244.

Seattle pins the tail on the Donkeys in fundraiser

February 5th, 2014 by Ben
Donkeys_menMcKinstry President Doug Moore, left, and CEO Dean Allen try out orange and blue.

Another competition was held between Seattle and Denver; this one for bragging rights between McKinstry offices.

The offices challenged each other to see who could raise the most money for charity in the two weeks leading up to the Super Bowl. Seattle came out on top — again — by raising $8,440 to Denver’s $3,215 in the “Cheers for Charity” event.

Donkeys_flag  The Bronco flag flew half-mast for a day at McKinstry’s Seattle office.

The real winners were the organizations receiving the money, including 826 Seattle, Washington Business Week and Safe Crossings.

But the competition also came with a few strings attached: Each contribution milestone reached by either office triggered a requirement for the other office to meet.

Denver beat the $2,000 threshold, which meant the Seattle execs had to wear Donkey, I mean Bronco, jerseys at work for a day and fly the Donkey, I mean Bronco, flag on the corporate flagpole for a day.

Fortunately, there were no stipulations on how the flag was to be flown (see picture).

In Denver, the operations manager had to wear a Seahawks jersey and put Seahawks magnets on his truck until opening day of next football season. They also had to fly the 12th Man flag over their office.


Blind Acceptance of Evidence of Insurance is Asking for Trouble

February 3rd, 2014 by Todd

Last year, I wrote an article published in Engineering News Record entitled “Understanding Insurance: A ‘Must” for Every Construction Professional.” In that article, I discussed how my thinking about construction insurance issues has been forced to evolve from my days in the 1980s as a construction project engineer and project manager, up to an including my role today advising clients on construction issues. My theme was that contractor’s insurance is no longer a “one size fits all” item, and that construction professionals, in addition to understanding labor, materials, equipment and scheduling, have to now be passably fluent in insurance, too.

Illustrative of my point is Delean’s Tile & Marble v. American States Insurance, approved for publication last week by Division I of the Washington Supreme Court. In that case, a general contractor was engaged to perform repairs on a condo project after the original developer settled with the Homeowner’s Association over claims for defects in the original construction. The general, in turn, hired a subcontractor to perform some of the repair work, which it apparently did not do well. When the subcontractor refused to fix its allegedly flawed work, the general hired a replacement subcontractor and made a claim against the original sub under the terms of their subcontract that required the sub to indemnify the general. The dispute resulted in a lawsuit.

The insurer provided a defense to the subcontractor, and represented the sub throughout the proceedings, up to and including the time that the sub settled with the general for something north of $150,000. However, the insurer refused to pay the settlement amount, and began a declaratory action, seeking a ruling from the court that no coverage for the settlement amount was available, even though the general was an “additional insured” under the requirements of the subcontract.

The general also filed a claim with the sub’s comprehensive general liability insurance carrier, asserting that it has been named an “additional insured” under that policy pursuant to the requirements of the subcontract. Obviously, if unable to obtain indemnity for its damages from the original subcontractor, the general contractor was expecting the insurer to pick up the tab for the defects in the sub’s work. However, the insurer denied the claim, asserting that the multifamily exclusion in the sub’s policy precluded coverage.

The general had the defective work repaired at a total cost (including attorney’s fees) of more than $170,000, and sued the sub. Eventually, the general obtained a judgment against the sub (presumably under the indemnity provision of the subcontract) in that action. The sub was defended by its insurer under a reservation of rights in that action.

However, before the judgment was entered against the sub, the insurer began a suit of its own—a declaratory action asking the court to determine that there was no insurance coverage under its policy from which the general (or the homeowners) could recover. Each party filed a motion for summary judgment in the declaratory action, and the court ruled that the multi-family exclusion barred a recovery from the insurer for the damages associated with the sub’s work, and that the general was entitled to no defense against the homeowner’s actions against it., And, all because of the multi-family exclusion.

On appeal the Court of Appeals affirmed, rejecting the general’s attempts to parse the definitions in the policy upon which the insurer relied, repeatedly holding that those attempts “lacked merit.” Marching through the general’s assertions one by one, the Court of Appeals provided either definitions from the policy itself or common usage of the terms on which the general (unsuccessfully) relied to attempt to avoid the multi-family exclusion.

Gone are the days when receiving the Accord form “evidence of insurance” was enough to check off that requirement from a subcontractor. The enormous condominium litigation industry that has evolved over the past 15 or so years has prompted nearly every CGL carrier to exclude multi-family construction from its contractor policies. In fact, these exclusions are what has given rise to the “wrap up” and “Owner Controlled Insurance Plans” (OCIP) we see on nearly every condo project built over the last several years.

We now all expect that original condo or apartment construction will have some version of an OCIP these days. What’s interesting about Delean’s, however, is that it is not about the original construction of a condo, it’s about the second-tier repair construction to a condo. Yet, the same lessons with regard to the availability of multi-family insurance apply. Moreover, it’s highly possible that whichever sub repaired the Delean’s sub’s bad work had a similar exclusion in its policy, and the specter exists that the pattern of no coverage for defects might just continue.

Insurance literacy then involves more than just getting an Accord form in the mail, seeing that your company has been named as an “additional insured,” and filing that piece of paper. Literacy today requires not only an understanding that the insurance exists, but of what it consists, and perhaps more importantly, what is excluded from it. General contractors who work on any aspect of multi-family projects, including in particular the repairs being made after the first round of litigation, would do well to include a requirement in the insurance portion of their subcontracts that the sub must provide insurance for the type of project on which it’s working, either by providing a policy with no multi-family exclusion, or by paying for a rider to the base policy that covers all aspects of the project in question.

Watch Super Bowl stadium get built in 50 seconds

January 24th, 2014 by Ben

With the big game between the Seattle Seahawks and Denver Donkeys about a week away, EarthCam is sharing a time-lapse video of MetLife Stadium under construction. The clip compresses about 2½ years of construction into 50 seconds.

The $1.6 billion stadium was filmed from August 2007 to March 2010.

Go Hawks!

L&I doing the home show circuit

January 24th, 2014 by Ben

The Department of Labor & Industries will have a booth at 18 home shows this winter/spring throughout the state to inform homeowners about hiring the right construction contractors.

L&I says home show attendees in search of a contractor should arrive with a plan that includes:

• Know what you want. Whether planning to update your bathroom or build a fence, write a list of the features you must have versus the features you’d like to have. Bring magazine pictures of desired features.
• Talk to a variety of vendors and contractors. Bring a list of questions about your project and ask contractors about their experience.
• Confirm prospective contractors are registered with the state at Registered contractors must have a business license and a current certificate of liability insurance and a bond on file with L&I, providing some recourse if the project goes bad. Just because contractors have a booth doesn’t mean they’re registered.

The first event, the Tacoma Home & Garden Show, is running until Sunday inside the Tacoma Dome. Admission is $12.

Ritchie Bros. auctioning die-cast models for charity

December 18th, 2013 by Ben

Ritchie Bros. Auctioneers on Thursday will sell two dozen die-cast models of construction equipment at its yard in Chehalis, giving the proceeds to Toys for Tots and Big Brothers and Big Sisters of Southwest Washington.

The 1:50- and 1:32-scale models are of rock trucks, dump trucks, truck tractors, bulldozers and other heavy equipment under the brands Caterpillar, Kenworth, John Deere, Freightliner, New Holland, Volvo and Komatsu.

“The items that will be sold as part of the charity auction have been generously donated by our customers from across the Pacific Northwest, and we believe we will receive bids on these items from far and wide, quite possibly from outside our region,” said Ritchie regional sales manager Brad Maas in a release. “This truly is a community effort and our customers are always very generous. We look forward to being able to bring some families in need a little more holiday cheer this season.”

The models will be auctioned along with more than 1,100 pieces of full-size heavy equipment. The charity part of the auction will include an ax signed by Mike Phil from the History Channel’s Ax Men.

Bids can be made in person at the Chehalis auction site, online at and by proxy. Charity items (lot numbers 5474T to 5495T) will begin closing at 12:30 p.m. PST in 30-second intervals and will be part of a timed auction, which takes place over several days with online bids prior to the live auction.

UPDATE: A Ritchie spokesman says the auction raised $2,500 and Ritchie kicked in $3,500 for a total of $6,000 that was split between Toys for Tots and Big Brothers. Mike’s ax fetched $375, the highest of any of the charity items.
Good work Ritchie and those who donated!