AGC Houston CLC Board Attends 2022 Leadership Development Conference 

Last week, the AGC Houston Construction Leadership Council (CLC) board attended the 2022 AGC Leadership Development Conference in Point Clear, Alabama. The annual two day event brought emerging leaders together from across the construction industry to learn, network and connect around topics of technology, professional development and industry trends.

About the CLC

The Construction Leadership Council (CLC) is a national AGC initiative designed to address the needs of young professionals in the industry. To date, more than 95 chapters have established a CLC.

Through educational programs and events that focus on the professional development and leadership skills of the industry’s future leaders, the CLC offers members the opportunity to exchange ideas and to learn from experts about issues facing construction professionals.

Besides socializing at monthly events, CLC members network, exchange ideas about work and the industry, and gain continuing education which includes both professional development and leadership skills.

Individuals who are interested in personal growth, in their company growth and in the construction industry are encouraged to apply.

Want to know how to get involved with the CLC? Contact Charlene Anthony at charlene.a@agchouston.org. 

EDUCATION & PROFESSIONAL DEVELOPMENT PROGRAMS

You're not going to want to miss out on AGC Houston's professional development programs! These courses are intended for the following construction professionals: Superintendents, Project Engineers, Project Managers, Accounting Staff, Project Support Staff, Project Executives, Business Development, Technology Support Staff and more! Please click here for more information.

Gain Your Competitive Edge with AGC's Live Virtual Training Programs

Introducing AGC’s Live Virtual Training. The same high-quality learning experience and expert instruction you expect from AGC in-person classroom training from the comfort of your home or work computer. Please click here for more information. 

OCTOBER

18 - November 3: AGC Edge Construction Supervision Fundamentals - Virtual Training

19 - November 16: AGC Edge Building Information Modeling - Virtual Training

21: Texas Lien Laws

21: Advanced Texas Lien Laws

NOVEMBER

2 - 18: AGC Edge Project Manager Development Program - Virtual Training

7 - 18: AGC Edge Construction Supervision Fundamentals - Virtual Training

7 - December 5: Introduction to Construction Plan Reading & Specification Documents

15 - December 20: AGC Edge Lean Construction Education Program - Virtual Training

28 - December 1: Supervisory Training Program Unit 2: Communication

DECEMBER

5 - 9: AGC Edge Project Manager Development Program - Virtual Training

5 - 13: AGC Edge Lean Construction Education Program - Virtual Training

5 - 16: AGC Edge Construction Supervision Fundamentals - Virtual Training

5 - 20: AGC Edge Building Information Modeling - Virtual Training

6: Fundamentals of Building Trades - MEP Systems

AGC Education and Research Foundation Undergraduate and Graduate Scholarship is Now Open

Each year, the AGC Education and Research Foundation offers undergraduate and graduate level scholarships to students enrolled in ABET or ACCE accredited construction management or construction related engineering programs. The application closes November 1, 2022.

Over $10 million in scholarships have been awarded to more than 4,000 students attending colleges and universities across the country. Through endowments made by AGC members and supporters, as well as AGC Chapters, the Education and Research Foundation awards over 100 scholarships each year to students dedicated to pursuing a career in the construction industry.

Students can click here to apply.

If you have any questions, please contact Paige Packard, Program Director, AGC Education and Research Foundation, paige.packard@agc.org.

Applications for AGC's Construction Safety Excellence Awards (CSEA) Are Now Open

2023 Nominations Deadline: December 15, 2022

 
The purpose of the CSEA is to recognize those construction companies who excel at safety performance. The CSEA closely examines each candidate's commitment to safety and occupational health management and risk control. Unlike other safety award programs that limit the criteria to frequency rates, the CSEA selection process is considerably more comprehensive.

Each application will be reviewed for evidence of:

• Company management commitment
• Active employee participation
• Safety training
• Worksite hazard identification and control
• Safety program innovation

The 2023 Construction Safety Excellence Awards competition is now open and available through the AGC of America Website. You are not required to apply through the AGC Houston chapter. Click here to access the application; you will be directed to Formsite, the application platform. Applicants must create an account to view/complete the application. You will also see an option to download a PDF of the application.

If you have any questions about the application process, please contact Nazia Shah at nazia.shah@agc.org or (703) 837-5409.

Upcoming Safety Classes

AGC Houston is proud to partner with the The Region VI OSHA Education Center at The University of Texas at Arlington. The OSHA Education Center at The University of Texas at Arlington is the top-ranked OSHA Training Institute Education Center in the country. AGC Houston is not an OSHA Training Institute Education Center, but serves as a Host-Training Organization for The University of Texas at Arlington OSHA Training Institute Education Center.

View the full list of OSHA UT-A courses here.

OCTOBER

17 - 20: OSHA #501 TRAINER COURSE IN OSHA STANDARDS FOR GENERAL INDUSTRY

17 - 19: OSHA #502 UPDATE FOR CONSTRUCTION INDUSTRY OUTREACH TRAINERS

19 - 21: OSHA #503 UPDATE FOR GENERAL INDUSTRY OUTREACH TRAINERS

24 - 27: OSHA #510 OCCUPATIONAL SAFETY & HEALTH STANDARDS FOR CONSTRUCTION

24 - 28: SH #702 ACCIDENT INVESTIGATION CERTIFICATE PROGRAM

25 - 27: OSHA #3115 FALL PROTECTION

31 - November 3: OSHA #511 OCCUPATIONAL SAFETY AND HEALTH STANDARDS FOR GENERAL INDUSTRY

Take Advantage of ACG of America's Upcoming Webinars

AGC of America offers web based education throughout the year on various topics related to the construction industry. These topics range from newly released industry regulations to innovative processes and technology that can benefit your company. AGC’s WebEd program will deliver the information you need to the comfort of your home or office. 

October 26, 2022: WebEd: Value of Telling a Story - Construction Marketing for Business Growth

Mark Your Calendar!

NOVEMBER

3: Construction Leadership Council Cornhole Tournament

You're Invited! American Bar Association 2022 Regional Meeting

On December 2, 2022, in four convenient locations across the country, the ABA Forum on Construction Law will present “Must Know Provisions of Industry Form Construction Contracts.” Hear from industry experts such as Ben Westcott, Andrews Myers; Vijay D ‘Cruz, Vitol; Jeff Brannen, Balfour Beatty; Nick Brooks, Beck Group; Chris Littell, Scott + Reid; Kristen Sherwin, Winstead; Colbie Campbell, Slates Harwell; Jessica Haddad, Construction Management Services; Kimber Davison, Griffith Davison; and Cathy Altman, Carrington Coleman. 

For more information, please reach out to Cynthia Birdwell at cbirdwell@andrewsmyers.com.

Multiple Policies, Multiple Parties:

Basic Indemnity and Insurance Considerations in the Construction Context

By Julia Edwards and Brian Waters

Construction companies spend countless hours drafting agreements requiring indemnification and insurance for their projects. These obligations are prevalent for all tiers of construction industry members—from subcontractors and suppliers, to project owners. The purpose of this article is to address some considerations in anticipation of a claim being made after an incident on a construction project.

The starting point.

When a claim is made against you, or an incident occurs that is likely to generate a claim, you should immediately review the insurance and indemnity provisions in both your upstream and downstream construction contracts. As soon as possible, you must determine to whom you agreed to provide indemnity and/or insurance coverage, and conversely, who owes you indemnity and/or insurance coverage for such claims. For example, a general contractor often—if not always—will have agreed to indemnify the owner of the project for claims and to include them as an additional insured on the general contractor’s policy. Likewise, a subcontractor likely will have agreed to indemnify the general contractor and make it an additional insured on the subcontractor’s policy. 

Putting all parties on notice.

If a claim is made against you — that is, you receive a demand letter or are named in a lawsuit based on an incident occurring on your project — immediately notify both your carrier and any parties who may owe you defense and indemnity. In the notice letter to parties who owe you indemnity, you should demand a defense and refer to the provisions in the construction contract that require the other party to provide defense and indemnity. You should also include in the letter a specific reference to any insurance that the party may have and request that the party immediately put its insurance carrier on notice and provide you with a copy of the policy or contact information for its insurance carrier.

Sending timely notice of the claim to your carrier is particularly important if your insurance policy is “claims-made” — meaning there is only coverage for incidents that happen during the policy period and are reported to the insurance carrier during the policy period (or a stated time after the policy period). Failing to put your carrier on notice in a timely manner may mean you lose coverage for that claim.

Conversely, if a claim (demand or lawsuit) is made against someone else — e.g. upstream contracting party — who demands indemnity from you, you should likewise place your carrier on notice. Your commercial general liability policy may cover the indemnity claim against you as an exception to the Contractual Liability Exclusion. The claim for indemnity is an indirect route to coverage for your indemnitee (that is, the person you agreed to indemnify) under your policy, separate and apart from that party’s own potential claim as an additional insured on your policy.

Coverage for an additional insured.

Whether you are trying to get coverage as an additional insured on another’s policy, or another party is trying to get coverage as an additional insured on your policy, there are two differences in additional insured endorsements that may change an insurer’s coverage analysis. For example, one standard version of an additional insured endorsement provides that an additional insured is only covered “with respect to liability arising out” of the named insured’s work. Another version of an additional insured endorsement provides that an additional insured is only insured where the damage is “caused, in whole or in part, by ‘[the named insured’s] acts or omissions.’” Courts interpret the language of each differently, which should be considered when drafting contractual insurance requirements and when procuring coverage.

The “arising out of” coverage language is broad. Typically, any claim resulting from an injury to the named insured’s employee is said to “arise out of” the named insured’s work if the employee was present on the jobsite by virtue of the named insured’s work on the project, whether or not the named insured’s work proximately caused the injury. On the other hand, the “caused . . . by” language requires that the named insured’s work proximately cause the injury. These differences often affect whether an insurer will undertake the duty to defend or ultimately provide any coverage.  

 Who’s paying defense costs?

Insurers are generally obligated to defend their insureds in a lawsuit by paying for legal counsel. However, insurers usually only have the duty to do so when the allegations in the lawsuit fit within a basis for coverage under the policy. And, as discussed above, the specific policy language will determine when that duty arises. This is Texas’s so called “Eight-Corners Rule.” It requires the insurer to provide a defense based on the policy language and the facts stated in the lawsuit, regardless of whether such facts are true and without looking at outside evidence or facts.

Which facts are alleged can have serious impacts on the coverage provided. In a recent Texas Supreme Court case, Monroe v. BITCO, the Court expanded the Eight-Corners Rule and held that Texas courts may consider outside evidence, “if the underlying petition states a claim that could trigger the duty to defend, and the application of the eight-corners rule, due to a gap in the plaintiff’s pleading, is not determinative of whether coverage exists, . . . provided the evidence (1) goes solely to an issue of coverage and does not overlap with the merits of liability, (2) does not contradict facts alleged in the pleading, and (3) conclusively establishes the coverage fact to be proved.” 640 S.W.3d 195  (Tex. Feb. 11, 2022). In theory, the Monroe Exception may be used to both create or avoid the insurer’s duty to pay for its insured’s legal defense where the underlying pleadings lack key coverage facts.  

Remember, if the carrier does not pick up defense costs — whoever owes that party indemnity may have to pay those costs as part of their indemnity obligations.

Why it matters: expanding the available funds.

Insurance policies have limits. If a general contractor and owner are both sued for $2M as a result of an incident during construction, and both make claims on the general contractor’s policy with a limit of $1M, either or both parties may not be covered for the full value of their potential liability if the policy has a limit “per occurrence.” If the general contractor also owes the owner indemnity for that claim, the general contractor is then at risk to pay out of pocket for both its and the owner’s liability over policy limits. However, if the general contractor has coverage available to it under another policy — such as a subcontractor’s — then the general contractor does not necessarily have to expend its own funds or insurance coverage, and can utilize a separate bucket of available funds. It is important to spread the loss across policies where exposure is high.

In summary, there are many moving pieces to determine who has what financial responsibility for a claim following an incident. It is important to keep these notions in mind during both contract negotiations and after a claim arises.

ABOUT THE AUTHORS

Julia Edwards focuses her commercial litigation practice primarily in the construction and insurance industries. Julia assists her construction clients with payment disputes, lien and bond claims, delays and defect claims. Julia also assists her construction clients on the front end of projects with contract drafting and negotiating on their behalf. Her client list includes all players in the industry, including suppliers, subcontractors, general contractors and project owners. She also counsels clients on insurance coverage issues.  Julia is based in Gray Reed’s Houston office and can be reached at jedwards@grayreed.com.

Experienced at both the trial and appellate court levels, Brian Waters has handled many real estate litigation and construction matters including claims for construction defects, breach of contract, fraud in a real estate transaction, misrepresentation, DTPA violations and negligence as well as a variety of commercial lease disputes. He also helps carriers and policy holders resolve insurance coverage disputes in state court, federal court, and arbitration. Brian is based in Gray Reed’s Houston office and can be reached at bwaters@grayreed.com.

INVITATION TO BID

NOTICE TO BIDDER: Covenant House Texas will be accepting competitive bid/proposals for all qualified
General Contractors for construction of the Covenant House Texas Campus real property located at
1111 Lovett Boulevard, Houston, Texas 77006.

Submit Lump Sum Sealed Bids no later than 2 p.m. on November 11, 2022 to Covenant House Texas,
Project Manager, Rick Conley (www.rconley@pinoakinterests.com).

A pre-bid meeting will be held on October 19, 2022 at 9 a.m. at 1111 Lovett Boulevard, Houston,
Texas 77006. All bidders are encouraged to attend. Please direct any questions to the Project Manager,
Rick Conley, by phone; 713-664-1255, or by email ( www.rconley@pinoakinterests.com ).
The Questions and Answers period will end as of 12:00 p.m. on October 27, 2022.

CERTIFIED CHECK or acceptable BID BOND of not less than five percent (5%) shall accompany each bid.
Successful awardee will be required to submit acceptable Payment and Performance Bonds all three
required to be submitted to Covenant House Texas.

Plans and specifications will be available for download starting at 9 a.m. on October 3, 2022, here, by
contacting the Project Manager by phone:713-664-1255, or by email: ( rconley@pinoakinterests.com)

The Owner reserves the right to reject any and all proposals, waive informalities in the Bids,
accepting the Bid which best serves the interest of the Owner, subject to the bids meeting all HUD
and Texas General Land Office (GLO) procurement requirements. The rational for Owner's selection
is provided with the bid form.

This project will be federally funded by the U.S. Housing and Urban Development (HUD) Department
through the Texas General Land Office (GLO), and administered by the Harris County Community
Services Department (HCCSD). Bidders shall comply with regulations governing the CDBG Disaster
Recovery Program (Regulation 24 CFR 570).

Applicable requirements include, but are not limited to compliance with the Da- vis-Bacon and Related
Acts, Fair Labor Standards, Equal Opportunity, Affirmative Action, Section 3 of the HUD Act of 1968, and
contracting with small, minority, and disadvantaged firms, as detailed in the project manual. General
Contractor Bid

Specifications for Community Development Block Grant Supplemental Disaster Recovery (CDBG-DR),
CDBG-D Program Project shall apply.

Joseph Chris Partners
4501 Magnolia Cove Drive, Suite 201
Houston, TX 77345
Phone: (281) 359-2103
Website: https://www.josephchris.com/

Lloyd Engineering, Inc.
6565 West Loop South, Suite 708
Bellaire, TX 77401
Phone: (832) 426 4656
Website: http://lloydeng.com/

TNT Equipment
6921 Homestead Rd 
Houston, TX 77028
Phone: (346) 571-3142
Website: https://www.tntequip.com/