Construction Contract Damages

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Construction Contract Damages Original Program Date: June 10, 2016 Available Media Types: Video and Audio MP3 Go to www.wsbacle.org and search code 16811 to purchase.

1 Construction Contract Damages Original Program Date: June 10, 2016 Available Media Types: Video and Audio MP3 Go to and search code to purchase. REPORTING YOUR CREDIT This recorded seminar was originally presented as the live seminar and webcast, Construction Contract Damages, recorded on June 10, 2016, in Seattle, WA. If you attended the live seminar or webcast and reported CLE credits, you cannot also report credits from watching or listening to this recording. DESCRIPTION Stay up-to-date with the 2016 Construction Law section seminar which focuses on contract damages. Faculty cover matters such as the use of standardized construction contracts, public agencies that detail the recovery of damages, as well as consequential damages waivers, no damage for delay clauses and costs to delays and inefficiencies. Also covered are practical issues in inefficiency claims including ownercaused barriers to settlements and ethics in context of construction contract damages. AGENDA 1 Case Law Update Recent cases of interest: termination for convenience, differing site conditions, implied warranty that plans and specifications are workable and sufficient, lien and bond claims, insurance, construction defects, releases, and more. Paul R. Cressman Jr Ahlers & Cressman PLLC, Seattle 2 Legislative Update WSDOT performance and shake-up, hospital district public works, electrical specialties, employee vehicles, fire sprinkler systems, disability retrofitting, digital assets, power of attorney, and more. Steven M. Goldblatt Resolve Disputes, Seattle 3 State Contract Changes and Claims Clauses Public agencies typically use standardized construction contract forms which detail the conditions for recovery of damages in a wide range of circumstances. Learn about provisions addressing changes in both time and costs, express limitations on amounts of recovery, and claims and dispute resolution procedures. Ronald J. English Retired General Counsel, Seattle Public Schools, Seattle 4 Damage Limitation Clauses This session covers: waivers of consequential damages, No damage for delay clauses, clauses limiting remedy for force majeure events to a time extension, capping total liability exposure at a fixed dollar amount, limits on change order markups, clauses asserting that delay/impact/inefficiency costs are included in standard change order markups Douglas S. Oles Oles Morrison Rinker & Baker LLP, Seattle Agenda continued on next page.

2 5 Practical Issues in Inefficiency Claims This presentation discusses common impediments to Contractor recovery and Owner-caused barriers to settlement in the context of inefficiency and lost productivity claims. This presentation also offers a simple approach to understanding the most commonly accepted methods of calculating lost productivity. Jesse O. Franklin K&L Gates LLP, Seattle Bradley C. Lewis K&L Gates LLP, Seattle 6 Quantifying Damages for Delay The presentation focuses on legal and factual requirements for proving the amount of damages recoverable for delay (after entitlement has been established), including the controversy surrounding proper use of the Eichleay formula. Terry R. Marston Marston Legal PLLC, Kirkland 7 Audit Clauses and Obtaining Documentation to Quantify and Analyze Damages. This presentation discusses the benefits of contractual audit clauses and compares audit clauses across several sources. In addition, the benefits and pitfalls of conducting a project audit is discussed. Megan Wells Navigant Consulting, Seattle 8 Panel Discussion of a Hypothetical Claim Jesse O. Franklin K&L Gates LLP, Seattle Terry R. Marston Marston Legal PLLC, Kirkland Megan Wells Navigant Consulting, Seattle Moderator: Ronald J. English Retired General Counsel, Seattle Public Schools, Seattle 9 Overview of Construction Section s Residential Contract Forms The Construction Law Section has prepared a new form the Owner/Design Professional Agreement to go along with the existing forms available on the Section s website. This presentation briefly covers the key terms of this new agreement, including limitations of liability, ownership of documents, and payment terms, along with a reminder of the existing contracts available for download on the website. Brett M. Hill Ahlers & Cressman PLLC, Seattle 10 Judicial Perspective on Construction Litigation A panel of distinguished jurists discuss the judicial perspective on construction litigation, including presentation of evidence, particularly damages evidence, use of experts, and "Do's and Don'ts" Hon. Judge Beth Andrus King County Superior Court, Seattle Hon. Judge Jim Rogers King County Superior Court, Seattle Hon. Judge Judith Ramseyer King County Superior Court, Seattle 11 Ethics in Construction Law Christopher J. Soelling Attorney at Law, Seattle Faculty biographies on the next page.

3 FACULTY BIOGRAPHIES JUDGE BETH M. ANDRUS is the Chief Civil Judge with King County Superior Court. She has presided over bench and jury criminal and civil trials for six years. In 2015, Judge Andrus served as the Assistant Presiding Judge. Before her appointment to the bench in 2010, Judge Andrus practiced commercial, construction, employment, and intellectual property litigation in state and federal court with the law firm of Skellenger Bender, where she held the position of managing partner. Judge Andrus obtained a B.A. in French and Speech Communications from Wayne State University in 1985 and received her J.D. from the University of Minnesota Law School in She clerked for the Hon. Gerald W. Heaney, United States Court of Appeals for the Eighth Circuit in Minnesota after graduating from law school. Judge Andrus is currently working toward a Masters of Judicial Studies through the University of Nevada, Reno. PAUL R. CRESSMAN, JR, is a member of the Seattle law firm of AHLERS & CRESSMAN PLLC, where he co-chairs the firm s Construction Industry Practice Group. He has practiced Construction Law more than 35 years, and his practice involves the representation of general contractors, subcontractors, suppliers, owners, and design professionals involved in both public and private construction projects. He is a former board member of the AGC of Washington s Board of Directors, past-chairperson of the AGC of Washington s Legal Affairs Committee, recipient of both the AGC of Washington s and the Puget Sound Chapter of NECA s Affiliate and Associate of the Year Awards, past-chairperson of the Washington State Bar Association s Construction Law Section. Mr. Cressman has been named a Washington Super Lawyer in the category of Construction Litigation by Washington Law & Politics magazine for the years , was selected as a Best Lawyer in America in Litigation Construction by Best Lawyers for the years , was listed as one of Seattle s Top Lawyers in Construction Law by Seattle Met magazine in 2010, one of the Top 40 Real Estate Law Super Lawyers in the Winter 2008 edition of Washington Law & Politics magazine, and one of Seattle s 115 Top Lawyers by Seattle magazine in its January / February 2003 edition. He routinely participates in continuing legal education programs on construction law topics, and also regularly addresses various construction trade organizations on construction law issues. RONALD J. ENGLISH retired as General Counsel of Seattle Public Schools, where his practice focused on construction and public contracts, municipal, school law, employment and real estate issues. He holds degrees in Electrical Engineering from the University of Washington and law from the University of San Francisco, and is a past Chair of the WSBA Construction Section and past President of the Washington Council of School Attorneys. In 40 years of practice he has represented a variety government and private clients and is a regular seminar presenter on a broad range of construction topics. JESSE O. FRANKLIN IV is a Partner at K&L Gates LLP. His practice focuses on construction law consulting and litigation, as well as general commercial litigation. Despite his emphasis on owner representation principally public entities, private owners and developers Mr. Franklin has also represented architects, engineers, general contractors and subcontractors in construction disputes. The disputes have involved data centers, public facilities, commercial buildings, bridges, landslides, docks, underground utilities, condominiums, private homes and an Aker H-3 semi-submersible drilling rig. He has developed and prepared project-specific and master form contracts for, and assisted in the negotiation of, hundreds of contracts and agreements between owners, contractors, architects, engineers and consultants for projects located in the United States, Canada, Europe, South America and Asia. STEVE GOLDBLATT is associate professor emeritus and former chair of the Department of Construction Management and former associate dean for external affairs in the College of Built Environments at the University of Washington. He is a member of the ABA and its Construction Industry Forum, California State Bar, Dispute Resolution Board Foundation, and Seattle SD Building Excellence Programs Oversight Committee. Steve has served as president of the Associated Schools of Construction, contributing author to the State s general conditions for public works and the original RCW 39.10, first chair of Sound Transit s Citizen Oversight Panel, co-chair of King County s Commission on Governance, mediator and arbitrator, and chair or member of dozens of DRBs in Washington. He has presented the Section s legislative updates regularly since Biographies continued on the next page.

4 BRETT M. HILL is a Partner with the firm Ahlers & Cressman PLLC. He represents owners, lenders, developers, general contractors, subcontractors, and suppliers in mediations, arbitrations, trials, and appeals. He handles multi-million dollar construction disputes for national general contractors but also regularly represents local family owned construction companies in litigation. He also assists clients with drafting and reviewing construction related contracts. He is admitted to practice in Washington, Oregon and Alaska. He is a current committee member for the WSBA Construction Law Section, is Co-Chair of the Judiciary and Litigation Section of the King County Bar Association. He was named a Rising Star in Construction Litigation by Washington Law & Politics/Superlawyers Magazine from and was named a Superlawyer for He graduated from Seattle University School of Law, magna cum laude. BRADLEY C. LEWIS is an Associate at K&L Gates LLP. His practice focuses primarily on construction dispute resolution, where he has experience in a wide variety of claims, including delay, impact and inefficiency, design defect, construction defect and breach of warranty. Mr. Lewis also advises construction-industry clients with regard to public works procurement, contract drafting and negotiation, contract administration, risk assessment and regulatory compliance. Prior to becoming a lawyer, Mr. Lewis worked in construction project management, where he assisted in the management of several commercial and public works projects, including office buildings, hotels, churches, retail centers and a new public high school. TERRY R. MARSTON is an attorney with the Kirkland, Washington law firm of Marston Legal, PLLC where he specializes in construction law. He was admitted to the Washington State Bar in 1984 and has practiced in the State and Federal courts in Washington and Alaska and the Court of Federal Claims in Washington D.C. DOUGLAS S. OLES is an arbitrator, mediator and lawyer in private practice who has devoted more than 30 years to helping avoid and resolve disputes on complex construction and supply contracts. He is a board member of the Global Engineering & Construction panel at JAMS and a senior partner in Oles Morrison Rinker & Baker LLP (Seattle, Anchorage & Oakland). His activities include: ABA Forum on the Construction Industry, National chair ( ) and past Chair of International Division American College of Construction Lawyers: national secretary Best Lawyers in America: selected Canadian College of Construction Lawyers: Honourary Fellow Chartered Institute of Arbitrators: Fellow International Bar Association: Panel speaker at SEERIL Conference (Berlin 2014) and IBA Annual Meeting (Vienna 2015) Society of Construction Law: Program co-chair at international programs in 2008 (London), 2010 (Hong Kong), 2012 (Melbourne) and 2014 (Kuala Lumpur) In addition to his services as a mediator and arbitrator, Mr. Oles has worked as a litigator and as a drafter and negotiator of commercial contracts. His work includes energy facilities, airports, major highways, bridges, foundations, universities, hospitals, and numerous other projects. He also has extensive experience with federal contracts. Mr. Oles has written or contributed to numerous books and article on construction law. The most recent include: Construction Damages and Remedies, 2d edition (ABA 2013) (chapters on Theories of Recovery, Elements of Damages, and Proof of Damages) Construction ADR (ABA 2014) (chapter on international Choice of Law and Venue). Mr. Oles received his undergraduate degree (with distinction) in history from Stanford University (Phi Beta Kappa). He was Executive Editor of the Washington Law Review and received his juris doctor (with honors) from the University of Washington. Mr. Oles also edited and completed Cities of the Classical World (2011), a gazetteer of Roman cities, for a division of Penguin Books. Biographies continued on the next page.

JUDGE JUDITH H. RAMSEYER joined the King County Superior Court bench on November 1, 2012.

5 JUDGE JUDITH H. RAMSEYER joined the King County Superior Court bench on November 1, A litigation attorney for 25 years, Judge Ramseyer has broad legal experience in complex civil litigation, including class action, securities, product liability, civil rights/death penalty, and family law. While on the court, Judge Ramseyer has presided over the Unified Family Court and civil trial dockets, as well as conducting sentencings and criminal, juvenile, and involuntary treatment proceedings. Judge Ramseyer co-chairs the Court s budget committee, and is a King County trustee to the Board of the Washington Superior Court Judges Association. JUDGE JAMES E. (JIM) ROGERS serves on the King County Superior Court in Seattle, Washington, where he has presided over many trials since 2005, including construction defect and insurance coverage cases. He has been a party in a construction defect case (Seattle Heights). Judge Rogers graduated from the University of Washington and Georgetown University Law Center. He also served as a Peace Corps volunteer. He was a law clerk for Federal District Court Judge Robert J. Bryan, practiced law at the Riddell Williams firm in Seattle, and worked as a deputy prosecutor in the Special Assault and homicide divisions for the King County Prosecutor s Office. CHRISTOPHER J. SOELLING is a full-time mediator and arbitrator. For the past 25 years he has arbitrated and mediated more than 2,000 cases in the construction, commercial, real estate, and business areas. Chris uses a varied approach so disputes are resolved as quickly and economically as possible. At the same time, participants report a high degree of satisfaction with both the process and the outcome. He is a member of the construction, commercial, and complex case panels of the American Arbitration Association and is the former chair of the Alternate Dispute Resolution Section of the King County Bar Association. Chris practiced law in Seattle from He can be reached at (206) , chris@soellinglaw.com, or through his website, MEGAN WELLS is a Director with Navigant s Global Construction Practice. Ms. Wells has more than 20 years of experience related to forensic accounting and auditing of construction contract costs, construction claims and other damages. She has been retained by owners, contractors, architects, engineers, real estate developers, and in-house real estate and capital departments and their counsel to analyze complex issues on major construction projects and to assist in the resolution of disputes as they arise as well as participating in settlement negotiations, mediations, arbitrations and trial. Megan is a graduate of the University of Washington and holds a Certified Management Accountant certificate. WSBA-CLE is a leader in presenting timely and topical continuing legal education seminars taught by experienced Washington practitioners. As of Jan. 1, 2016, there is no longer a requirement of live credits; all of the 45 CLE credits Washington attorneys must report every three years may come from recorded seminars. Go to to choose from hundreds of seminars, sortable by practice area. Available as streaming video or in downloadable audio MP3 format, all include a PDF of the written course materials.

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