Highways/BridgesHighways/Bridges American Bar Association Forum on the Construction Industry American Bar Association Forum on the Construction Industry

Highways/BridgesHighways/BridgesHighways/BridgesHighways/Bridges

American Bar AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

American Bar AssociationAmerican Bar Association

Forum on the Construction IndustryForum on the Construction Industry

Presented By:Presented By:John Adams, PSPJohn Adams, PSP

Demand Construction Demand Construction Services, Inc.Services, Inc.

Rick Kerr, PERick Kerr, PESage Consulting GroupSage Consulting Group

Stephen A. HessStephen A. HessSherman and Howard Sherman and Howard

LLCLLC

InfrastructureCivil Works Projects for Lawyers

From Local City From Local City streets…streets…

… … to Interstate to Interstate HighwaysHighways

The Primary GoalThe Primary GoalProvide safe transportation facilities to Provide safe transportation facilities to

effectively move people and goodseffectively move people and goods

The Primary GoalThe Primary GoalProvide Provide safesafe transportation facilities to transportation facilities to

effectively moveeffectively move people and goodspeople and goods

““10 Commandment” 10 Commandment” For a Good RoadFor a Good Road

1. Get Water Away from the Road

2. Build on a Firm Foundation

3. Use the Best Soils Available

4. Place & Compact the Soils Well

5. Design for Winter Maintenance

6. Build for Traffic Loads & Traffic Volumes

7. Pave only those Roads that are Ready

8. Build it from the Bottom Up

9. Maintain to Protect Your Investment

10. Keep Good Records

Roadway ClassificationRoadway Classification

Expressway

Arterial

Collector

Local

Design ControlDesign Control

▪ Speed

▪ Vehicle Type

▪ Traffic Volume

▪ Traffic Capacity

▪ Transit Activity

▪ Pedestrian Usage

▪ Parking Needs

▪ Access

▪ Intersections

▪ Drainage

Analyze/Identify the purpose and need of the roadway

Plans

Follow the Direction

SpecificationsSpecifications

Follow the Instructions:

They tell you how to build it

They tell you what to build it with

They tell you when to build it

They tell you how to get paid for building it

They tell you what to do when something fails

They tell you when your done

Site SafetyKeeping the Site Safe

Keeps your Company Working

Surveying & StakingMake sure you put it where it belongs…

…at the proper elevation

Clearing & Grubbing

Demolition

Complete Partial

Sometimes you have to

get rid of the old first

Earthwork

Sometimes the Earthworkis in the Dirt…

Earthwork

…and Sometimes the Earthwork is in the Rock

Base CourseStabilizing the grade with a layer crushed

untreated or treated gravel provides increased integrity for the surfacing

Surface CourseAsphalt Surfacing

▪ Well Graded Aggregates

▪ Bituminous Asphalt Binder

▪ Hot Placed & Compacted

▪ Flexible Pavement

Concrete Surfacing

▪ Well Graded Aggregates

▪ Portland Cement Binder

▪ Slipped or Formed

▪ Rigid Pavement

Asphalt Paving

Cement Concrete Paving

Bridging the Gap

Bridge Objective Connecting Point A with Point B

Keeps the feet dry and the tires out of the water


Saves us from the long journey


Provide safe passage


Clear the obstacle

Basic Bridge Types

Beam Bridges

Cantilever Bridges

Arch Bridges

Suspension Bridges

Cable Stayed Bridges

Truss Bridges

Build it SafeIt’s not what it used to be

It’s much better

Surveying & StakingMake sure you align it…

…at the proper elevation

Demolition

Complete Partial

Sometimes you have to

get rid of the old first

Foundation

Pile Driven, Drilled Shaftand Spread Footing are

Just some types but, withouta solid foundation you

won’t have a bridge for long

Pier Structures

What’s the hold up?

Abutments

Where the Bridge meets the Road

Common Concrete Bridge Types

▪ Reinforced Concrete

▪ Cast-in-Place Post-Tensioned

▪ Precast Pre-tensioned

▪ Hybrid (Combinations)

▪ Spliced Girder

▪ Cast in Place-Tensioned Segmental

Bridge Beams & Boxes

More Beams & Boxes

Common Steel Bridge Types

▪ Multi-Girder

▪ Stringer/Floor Beam System

▪ Trusses

▪ Cable Supported

▪ Moveable Spans

Decking the Bridge

Safety Features

• Keep them on the bridge

• Groove the deck for traction

• Bridge Rail

• Pedestrian Rail

Legal Issues Presented by Legal Issues Presented by Highway ConstructionHighway Construction

Liquidated Damages for Liquidated Damages for DelayDelay

▪ General Rule: As a matter of blackletter law, General Rule: As a matter of blackletter law, punitive damages cannot be awarded for punitive damages cannot be awarded for breach of a contract.breach of a contract.

▪ Liquidated (stipulated) damage clauses are a Liquidated (stipulated) damage clauses are a permissible means of specifying damages for permissible means of specifying damages for delay so long as they do not create delay so long as they do not create unenforceable penalties unenforceable penalties


▪ Elements of an enforceable liquidated damages clause (they Elements of an enforceable liquidated damages clause (they vary somewhat among jurisdictions):vary somewhat among jurisdictions):– The parties intend the clause to liquidate damages and not The parties intend the clause to liquidate damages and not

as a penalty to compel performanceas a penalty to compel performance– At the time of contracting, the damages specified are a At the time of contracting, the damages specified are a

reasonable approximation of the damages envisioned reasonable approximation of the damages envisioned from delay in completionfrom delay in completion

– It would be difficult or impossible for the injured party to It would be difficult or impossible for the injured party to quantify actual damages to a reasonable degreequantify actual damages to a reasonable degree


▪ Application of liquidated damagesApplication of liquidated damages– Liquidated damages are ordinarily stated as daily charges Liquidated damages are ordinarily stated as daily charges

for each day beyond contracted date of substantial for each day beyond contracted date of substantial completioncompletion

– ““Substantial completion” is usually the date on which the Substantial completion” is usually the date on which the Owner can accept delivery for beneficial useOwner can accept delivery for beneficial use

– Because an owner may accept a project for beneficial use Because an owner may accept a project for beneficial use before “final” (as opposed to substantial) completion, before “final” (as opposed to substantial) completion, some contract have two levels of liquidated damages. For some contract have two levels of liquidated damages. For example, the Contractor may be responsible for $3,000 example, the Contractor may be responsible for $3,000 until substantial completion, and then $1,500 until final until substantial completion, and then $1,500 until final completion. completion.


▪ Procedural issuesProcedural issues– A party charging application of liquidated damages bears A party charging application of liquidated damages bears

the burden of proving it is an uneneforceable penalty. the burden of proving it is an uneneforceable penalty. – In the context of construction projects, liquidated damage In the context of construction projects, liquidated damage

clauses enjoy widespread approval and enforcement.clauses enjoy widespread approval and enforcement.


▪ Contracting issuesContracting issues– Enforceability of a liquidated damage clause is enhanced Enforceability of a liquidated damage clause is enhanced

by reciting the three elements stated above in the clause . by reciting the three elements stated above in the clause . – A general contractor may pass-though liquidated damages A general contractor may pass-though liquidated damages

to its subcontractors when a subcontractor’s work causes to its subcontractors when a subcontractor’s work causes delay in substantial completiondelay in substantial completion

– In addition to passing through damages a contractor may In addition to passing through damages a contractor may owe to an owner for liquidated damages, a contractor may owe to an owner for liquidated damages, a contractor may also add its own liquidated damages for losses it suffers also add its own liquidated damages for losses it suffers (extended overhead, for example) due to a subcontractor’s (extended overhead, for example) due to a subcontractor’s delay. delay.


▪ Other issuesOther issues– Liquidated damages for delay are a remedy only for those Liquidated damages for delay are a remedy only for those

delay delay damages that arise from a breach unless otherwise damages that arise from a breach unless otherwise characterized.characterized.

– When a liquidated damage clause is held to be an When a liquidated damage clause is held to be an unenforceable penalty, it does not mean that the party unenforceable penalty, it does not mean that the party protected by the clause has no remedy – it merely means protected by the clause has no remedy – it merely means the injured party must prove actual damages. the injured party must prove actual damages.

Legal Issues Presented by Legal Issues Presented by Bridge ConstructionBridge Construction

Delays and Ownership of Delays and Ownership of FloatFloat

▪ In Critical Path Method (CPM) scheduling, a In Critical Path Method (CPM) scheduling, a task is critical if a delay to that task will task is critical if a delay to that task will create an identical delay to the completion of create an identical delay to the completion of the project.the project.– If a critical task is delayed by two days, the If a critical task is delayed by two days, the

completion of the project is delayed by two days.completion of the project is delayed by two days.


▪ Non-critical tasks have “float”Non-critical tasks have “float”– Float is the measure of time between the anticipated Float is the measure of time between the anticipated

completion of a task, and the time when the task, if completion of a task, and the time when the task, if uncompleted, would become critical.uncompleted, would become critical.

– A task with 10 days of float is scheduled to be completed A task with 10 days of float is scheduled to be completed 10 days before it would become critical. If delayed for 10 10 days before it would become critical. If delayed for 10 days, the task would become critical but not delay the days, the task would become critical but not delay the completion of the project. If delayed for 11 days, the task completion of the project. If delayed for 11 days, the task would become critical and delay the completion of the would become critical and delay the completion of the project by 1 day.project by 1 day.


▪ A project may also have float as a whole.A project may also have float as a whole.– The project may be scheduled to end prior to the The project may be scheduled to end prior to the

deadline for completion. If so, the project has deadline for completion. If so, the project has float equal to that difference.float equal to that difference.

– This float is consumed as critical path tasks are This float is consumed as critical path tasks are delayed.delayed.

▪ Because delays to both critical and non-critical Because delays to both critical and non-critical tasks are common in bridge construction, the tasks are common in bridge construction, the question of ownership of float is important.question of ownership of float is important.


▪ Project has 20 days of overall float.Project has 20 days of overall float.– On project day 50, owner delays the project by 10 days, On project day 50, owner delays the project by 10 days,

consuming 10 days of float.consuming 10 days of float.– On project day 70, owner delays the project by 10 more On project day 70, owner delays the project by 10 more

days, consuming the remaining 10 days of float.days, consuming the remaining 10 days of float.– On project day 90, contractor delays the project by 10 On project day 90, contractor delays the project by 10

more days, delaying completion by 10 days.more days, delaying completion by 10 days.– On project day 110, contractor delays the project by 10 On project day 110, contractor delays the project by 10

more days, delaying completion by 10 more days.more days, delaying completion by 10 more days.

▪ Is the contractor liable for liquidated damages, and if Is the contractor liable for liquidated damages, and if so, how many?so, how many?


▪ If the owner owns the float, the contractor is liable for If the owner owns the float, the contractor is liable for 20 days of LDs.20 days of LDs.

▪ If the contractor owns the float, the contractor is not If the contractor owns the float, the contractor is not liable for any LDs.liable for any LDs.

▪ If the float is shared, the contractor is liable for 20 days If the float is shared, the contractor is liable for 20 days of LDs.of LDs.– The owner consumed the float prior to the contractor’s first The owner consumed the float prior to the contractor’s first

delay.delay.

– Most contracts that share the float make it a first-come, first-Most contracts that share the float make it a first-come, first-served proposition.served proposition.

Any Questions?

Thank YouThank You

Documents

Highways/BridgesHighways/Bridges American Bar Association Forum on the Construction Industry American Bar Association Forum on the Construction Industry