Ahlers & Cressman Lawyers

Clark County "clean water charge" ruled constitutional

Brett Hill — Wed, 02 Apr 2008 00:00:00 GMT

In Storedahl Properties, LLC v. Clark County, a property owner argued that Clark County's clean water charge that was being levied against property owners in the county was a property tax that was issued without proper authority was therefore unconstitutional.� The Court of Appeals disagreed, finding that the charge was a regulatory fee that was not bound by the constitutionality requirements of property taxes.�

The clean water charge assesed by Clark County arose out of the requirements placed upon the County by the Washington State Department of Ecology.� Ecology required the County to engage in various activities to reduce storm water runoff�within the County.� Clark County passed the costs of Ecology's requirements onto its residents in the form of the clean water charge.�

Owners Owe Implied Obligations During Construction of the Project in Addition to Express Contract Obligations

John P. Ahlers — Mon, 25 Feb 2008 12:36:27 GMT

Owners and contractors should keep in mind that in addition to the obligations the construction owners assume is part of the express contract terms, there are certain implied obligations that arise during the design and construction of a project.� In many instances, contractors and owners are unaware of these implied obligations: (1)� the duty to disclose material information to prospective bidders; (2) the duty to provide accurate plans and specifications; (3) the duty to provide accurate site information; (4) the duty to perform necessary regulatory approvals, permits and easements; (5) the duty to provide access to the work; (6) duties relating to owner/furnished products, materials or equipment; (7) the duty to timely review contractor submittals and requests; (8) the duty to approve valid requests for extension of time; (9) the duty to make timely inspections; (10) the duty to maintain the project site in a reasonably safe condition; (11) the duty not to hinder, delay or interfere with the timely completion of the work; and (12) the duty to coordinate the work of multiple prime contractors.�

Many of these implied obligations derive from the "Implied Covenant of Good Faith and Fair Dealing" that is imposed on every construction contract.� The Implied Covenant provides: "That neither party will do anything which will injury the right of the other to receive benefits of the agreement."

Both contractors and owners must be mindful of these implied obligations on construction projects.

Though the Contractor Conducted a Survey of Hazardous Materials and There Were No Objective Standards to Determine the Adequacy of the Survey, L&I Found as a Matter of Law That the Survey Was Not Performed in Good Faith and the Contractor Was Cited

John P. Ahlers — Mon, 25 Feb 2008 19:50:37 GMT

Seattle Pacific University ("SPU") engaged Prezant Associates, Inc. ("Prezant") to identify all asbestos containing materials for abatement on the Miller Science Building.� The contractor, in its bid, agreed to perform the inspection in accordance with the Washington Administrative Code (WAC) and certain federal regulations (CFRs).� The contractor performed the survey and sampled vinyl flooring materials from the first floor of the two story project and determined which portions of the project contained asbestos. The Contractors believed the vinyl floor on the second floor was the same as the first floor.� After issuance of the report, a subcontractor began work on the site and during demolition, discovered asbestos containing vinyl floor tile on the second floor.� The contractor was cited by L&I, who concluded that the contractor's investigation and survey had not been performed adequately.� The contractor appealed to the Board of Industrial Insurance Appeals (BIIA).� BIIA ruled as a matter of law that that contractor committed a serious violation and confirmed the Department's citation.� The contractor then appealed to the Court of Appeals of the State of Washington, asserting that the sampling protocol followed by the contractor was appropriate.� The WAC referred to 40 CFR 763.83, which defined vinyl floors as "miscellaneous material", which required that samples from each homogeneous area be collected in "a manner sufficient" to determine whether the material contains asbestos.

The contractor argued that since there were no objective standards to determine the adequacy of a good faith survey, the citation should be dismissed.� The inspector, based on his mistaken belief that the vinyl flooring from the first two floors was the same, took only a single sample.� As it turned out, the first floor vinyl was not the same color or texture as the vinyl on the second floor and the court concluded that the contractor had violated the WAC by not performing a good faith survey.

Prezant Associates, Inc. v. Washington State Depart. of Labor & Industries, 141 Wn. App. 1, 165 P.3d 12 (2007)