Differing Site Conditions

images In my last blog post, I promised to discuss issues surrounding differing site conditions as they related to the Forest City opinion handed down by the Colorado Court of Appeals.  Since that post, another case out of California further eroded the concept of privity in the context of differing site conditions.

AIA contract documents generally include a differing site condition provision which provides that if the contractor encounters concealed physical conditions that differ materially from those indicated in the contract documents, or that differ materially from those ordinarily found to exist the contractor is entitled to some equitable adjustment in the contract.

Many presume that such a clause protects the contractor from liability because the parties can merely request a change order if differing conditions are encountered.  However, as illustrated in Apex Directional Drilling LLC v. SHN Consulting Engineers & Geologists, Inc. change orders for differing site conditions may not be easy to come by – and the designer may not be able to assert lack of privity as a defense to claims of misrepresentation.

The city of Eureka, California solicited bids for the installation of a new wastewater pipeline.  Bids relied on and engineer’s study based on the results of a single test bore, which was drilled outside the path of the planned pipeline.  Immediately after beginning work, the contractor with the winning bid encountered severe adverse soil conditions.  The contractor struggled to complete the project and brought claims against the project engineer for furnishing misleading information in the geotechnical study.  Despite the fact that the contractor had no contractual relationship with the engineer the court allowed the lawsuit to proceed.

Design professionals and contractors alike should look at project site conditions before they enter into a contract.  Utilize a contract with a well-drafted differing conditions clause to insulate yourself from the risk of assuming liability for unexpected conditions that may be encountered – and from third party claims for misrepresentation claims arising from conditions which you could not have been aware during the design phase.     Some owners try to get the best of both worlds by including detailed site information yet disclaiming the reliability of such information in hopes of avoiding claims.  Make your own assessment of the adequacy of information provided and fact check as you are able.  Document the information that was made available to you, or the limitations of the information provided as the case may be.

If your design, as in Forest City, is developed to be used on a generic lot or in multiple locations, it would be prudent to include additional contractual provisions stating the limitations of the designer’s knowledge of site conditions.

Yes We YAAG

One of the most cliché statements out there is “take things one step at a time”. If you turn on any post-game interview right now for the NBA playoffs, you will hear someone talk about how they are taking each seven game series “one game at a time” and how they are focused “on just trying to get a little better at each practice”. We get it. If you get out ahead of yourself, the task at hand can come up and bite you. That all being said, I completely subscribe to the “achieve incremental steps en route to a larger goal” philosophy.

Recently, I returned from a vacation that I had been looking forward to for months. It was the first long and relaxing vacation that my wife and I had had in almost two years, so to say we were looking forward to it would be an understatement. However, coming back to work from vacation is right up there with scheduling your next dentist appointment. Once you reach the thing that you have been working towards it becomes very difficult to see what happens next. What do you do when the thing that had been the “light at the end of the tunnel” for so many months is over and you need to find something else to work towards? How do you force yourself to slog through ARE study materials and long hours at work? For me, I NEEDED something, if only to ease myself back into regular life.

Luckily, YAAG is coming up on June 3. This event has yet to disappoint and, since it is in the part of the year that lacks major holidays, it is perfectly timed to be the thing that helps me get through the next month or so. As a quick background, YAAG is an annual event hosted by AIA Colorado where we gather to celebrate the work of emerging professionals and students at a rotating venue. This year, the event will be held at the new Gensler office in downtown Denver where we will have multiple levels of displayed work, indoor and outdoor mingling areas, food trucks, beer and wine, and honors to bestow.

If you are anything like me, I leave architecture events more inspired than when I walked into them. Often, the work displayed by emerging professionals is some of the most energetic work currently being done. On top of that, the care that is put into crafting a coherent presentation that is judged by a group of some of the most well respected architects in the state alone is enough to pique ones interest for a good portion of the evening. Think of  YAAG as a live action ArchDaily, but with the addition of top notch food, beer, wine, and the suspense of finding out who the judges tapped as the winners.

That said, this event is serving to help get me through the post-vacation hangover. Attending an event with over 140 quality submissions for awards and with great food, drinks, and friends is enough to keep anyone going and something that I and many others look forward to all year. After YAAG, well I guess I’ll just have to find something else to look forward to. See you on June 3rd!

Remembering DeVon Carlson, FAIA

DeVon Carlson, FAIA was a great mentor to Emerging Professionals in Colorado throughout his career. Sadly, we have lost a meaningful member of the architecture community in Colorado, but his legacy lives on. 

Feel free to watch AIA Colorado History Committee’s video of DeVon Carlson here. 

A memorial service will be held on Saturday, May 14, 1:30 p.m. at the University Memorial Center, CU Boulder, on Broadway and Euclid.


DeVon M. Carlson, FAIA by Stephen K. Loos, FAIA

A stroke took DeVon (Dev) M. Carlson, FAIA, from us during the night of April 9, 2016. He was 98.

Writing in 1972 in the Colorado Fellows’ Book, Dev said that life’s great adventure began for him when, as a 24-year old, newly-minted architecture graduate, he left the “wooded, rolling plains of Eastern Kansas,” and headed to what would become his lifelong home, Boulder, Colorado.

Responding to a great influx of Navy students seeking engineering degrees, Dev began to look at his adopted “sleepy little community” as an opportunity to pursue a career as an educator.

Seeking suitable credentials, Dev turned to New York City and Columbia University for post- graduate study. Upon completion, he returned to Boulder and “uncovered” the earlier existence of a program in architectural engineering that had gone dormant during the war years. Along with Robert Rathburn, a graduate of the former program, Dev fostered the development of an accredited curriculum in architecture. In 1962, the University of Colorado took the School of Architecture out of the College of Engineering and made it an established, independent school with Dev as its first Dean. As the school’s Dean, Dev helped it find its ”voice” moving away from the historic tradition of the Beaux Arts architectural education and helping establish other influences on design such as historic context, climate, topography, materials, and structural innovation. After serving as Dean for nine years, he returned to full-time teaching in 1971 – ultimately retiring from teaching in 1981.

Following his retirement, Dev continued to stay active in the Collegiate Schools of Architecture, the National Architectural Accrediting Board, the National Trust for Historic Preservation, and the American Institute of Architects continuing a life-long focus on young architects and architectural history by serving on the AIA Scholarship and Historic Resources Committees.

Dev continued his devotion to young professionals by serving on the NCARB Examination writing Committee and the Colorado State Board of Examiners. While I never had the good fortune to have Dean Carlson as a teacher, I did have the opportunity to take his “Introduction to Architecture” course in my first year as an undergraduate.

I remember his course as a gentle and compelling presentation of the elegance, importance, and potential contribution of a career in architecture. Clearly evident was his enthusiasm and the energy he committed “to trying to prepare neophytes for entry into the profession of architecture.” I came away from his introductory semester convinced that my uninformed idea of wanting to become an architect was absolutely the right choice.

DeVon M. Carlson, FAIA, was a very effective mentor of young professionals, an incredible educator, and a wonderful contributor to the architectural community in Colorado. He will be sorely missed.

At this writing, no arrangements have been finalized for funeral or memorial services.

Stephen K. Loos, FAIA, April 14, 2016

Colorado Architecture Month: What’s Your Impact?

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It’s that time of the year again. Opening Day for the Rockies, at-capacity patios downtown, and Colorado Architecture Month! You might be familiar with some of the events that occur during April around the state, but do you know why Architecture Month exists?

Architecture month has the potential to serve as one of the greatest public outreach campaigns we do. A series of public events are set up all around the state to highlight the importance of architecture in our everyday lives and ensure the community also understands that design matters.

You can find a series of events on the AIA Calendar throughout the month. While the events are great, what are you doing to share the value of architecture? Does your firm have a blog? Are you able to share images via social media? AIA Colorado has put together a series of blog tips and ideas to encourage you to get out there and write.  Personally, I have found one of the best ways to share what we do as architects and why it is so vitally important to our communities is to just talk about it. The other day I took a Lyft and the driver asked what I do. As soon as I said architecture there was a sense of awe from the driver. I then took this as an opportunity to explain how our projects impact the community and why it is so important to have an architect. I don’t know if I converted a community member into an architect-believer but having these conversations with as many people as possible is the best way to engage the public and our neighbors.

As seen with this Lyft Driver, there is an aura of respect around the words architecture and architect. But we have a difficult time communicating why everyone and every community are deserving of good, well-designed architecture. In my opinion, good architecture doesn’t solely need to be the construction of a beautiful museum or new music hall. Good architecture should have an impact, whether big or small.

In October of last year, the Emerging Professionals of the AIA Western Mountain Region an afternoon and visited the 4th and 5th grade students of Silverthorne Elementary School in Silverthorne, Colorado. We took a few hours to explain to them the basics of architecture and why it is so important. We then took them through the process of design by designing Little Libraries, which will be installed in their communities. A few of our EP members, Max McCloskey, Assoc. AIA and Jim Hillard, AIAS UC Denver President led an effort to actually construct these little libraries. I have to say, the community of Silverthorne is quite lucky to have these well-designed, albeit little, libraries in their community. Our EP team is taking the rest of Architecture Month to finish these up and will then deliver them to the school for installation in the Silverthorne Community.

We all have the ability to impact our communities. Use Colorado Architecture Month as an opportunity to share your impact.

Forest City

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This fall, the Colorado Court of Appeals issued an opinion in Rogers v. Forest City Stapleton, Inc. (2015COA167) that may significantly impact developers and construction professionals in Colorado.

The lawsuit involves a dispute between a homeowner in the Stapleton neighborhood and the master developer of the community (Forest City).  Before any new structures were built, Forest City subdivided the former Stapleton International Airport land into individual lots to create a new residential development.  Undeveloped lots were sold to a professional homebuilder (Infinity Home Collection at Stapleton, LLC).  Infinity improved and finished the lot, constructed a house on it, and sold the lot to Rogers.

Rogers claims that an undisclosed high water table beneath his house, coupled with calcite leaching from nearby roads, infiltrated his basement.  Rogers’ claim against Forest City included breach of implied warranty.  His theory was that by allowing Infinity to construct a home with a basement on the lot, Forest City had implied that the lot was suitable for that purpose.

Forest City argued that it did not have any role in the builder’s or homeowner’s decision to build a basement on the lot because it had provide the builder with all of the information available respecting the lot’s subsurface and groundwater condition.

Before the Court of Appeals decision, no Colorado appellate court had recognized an implied warranty running from a lot developer to a subsequent home buyer where the developer is not involved in construction of the house.

Although the opinion attempted to carve a narrow exception for implied warranty claims against a developer, developers, builders, contractors, and designers may now be exposed to more frequent and successful claims for breach of implied warranty.

I have two particular concerns:  the lack of a relationship between the homeowner and the developer; and the lack of control by the developer did not seem to dissuade the Court from imposing liability.  Extending this to a “worst case” scenario as it might apply to architects – merely designing a home for a particular location could create an implied warranty that the home is suitable for the conditions on the lot.  The implied warranty claim is also not limited to the first purchaser of the home.

Forest City Stapleton, Inc. has petitioned the Colorado Supreme Court for review of the opinion.  As of the writing of this article, the Colorado Supreme Court has not decided whether it will review the case.

Because Forest City raises implications regarding site conditions, my next article will cover issues surrounding differing site conditions.