Source: https://www.marinij.com, October 5, 2018
By: Richard Halstead
The Marin Community College District has found itself enmeshed in a sort of Chinese box of lawsuits, as it sues the law firm it hired to sue the architectural firm it commissioned to help modernize the College of Marin campus.
The district last month filed suit against Dannis Woliver Kelley, the San Francisco law firm that it hired to sue Marcy Wong & Donn Logan Architects (MWDL). The Berkeley-based architects were brought on in 2007 to assist with construction of its Fine Arts Building and modernization of its Performing Arts Complex.
Events began to unfold in March 2014, when the district filed a complaint for breach of contract and professional negligence in Marin Superior Court against Marcy Wong & Donn Logan Architects.
It was the first of two suits it would eventually file against the architectural group alleging a total of about $3 million in damages. MWDL did not respond to requests for comment.
In April 2007, the district entered into a contract with MWDL for architectural design services to be provided for various construction projects at the campus. The projects were funded by Measure C, a $249.5 million bond measure approved by voters in 2004.
The district’s contract with MWDL included work on a new $13.4 million Fine Arts Building and a $10.4 million expansion and renovation of the district’s Performing Arts Complex.
In its 2014 suit, the district asserted that the design of the Fine Arts Building “did not include appropriate protective measures to shield the open-air walkways and classroom entrances from rain, wind and other weather elements.
“As a result of the (east-west) orientation of the Fine Arts Building, throughout the 2011 wet season a significant amount of rainwater was blown into the south-facing open-air walkways and classrooms,” the suit states, “causing considerable damage and disruption to the district and its students.”
The suit also alleges that MWDL failed to “properly design a roof and roof overhang, or other adequate covering, at the elevator in the Fine Arts Building to ensure adequate protection from rain and other weather elements.”
The suit provided no estimate of the cost of damages incurred due to these weatherization issues.
In addition, the suit states that in the fall of 2012 the district discovered various deficiencies in the mechanical system at the Fine Arts Building.
According to the filing, the district spent $393,169 to repair some of these deficiencies, and the suit estimated it would cost an additional $466,544 to $547,344 to make the remaining repairs.
In its answer to the suit, MWDL denied that the district had “been injured or damaged in the manner or in the amounts alleged.”
The answer also stated that other parties were negligent or at fault for the alleged damages and that the district’s suit was invalid due to the statute of limitations.
MWDL also filed a cross-complaint against three firms that worked on the project: Guttman & Blaevoet, a mechanical engineering firm based in San Francisco; Swinerton Management & Consulting, a general engineering and building contractor based in San Francisco; and Jeff Luchetti Construction, a building contractor based in Santa Rosa.
The cross complaint states that MWDL “denies any and all liability” in connection with the district’s suit. It also states, however, that if the district should establish liability then it is these other companies that should be held responsible.
In December 2015, the district filed a second complaint against MWDL in Marin Superior Court for breach of contract and professional negligence. This suit was filed for what the district alleges was defective work by the architectural firm on its Performing Arts Complex modernization project.
“Numerous errors and omissions in MWDL’s design of the project and MWDL’s failure to perform the architectural services in accordance with the contract terms resulted in continuing delays and increasing costs during the construction phase of the project,” the suit states.
As an example, the suit states that MWDL’s mechanical engineer determined that the mechanical systems had to be redesigned due to the inadequacy of the design originally prepared by MWDL.
“Correction of these errors and omissions,” the suit states, “triggered a redesign of heating, ventilating, and air-conditioning equipment and air-handling units, and additional revisions and changes to other mechanical, structural and electrical design components.”
The suit states that the project was “significantly delayed” from the original July 2012 completion date to April 30, 2013, and as a result the district “incurred delay costs for the project in excess of $200,000.”
According to the suit, change orders for the project totaled $2.3 million, amounting to a 22 percent cost overrun for the project.
The suit states that of this amount more than $1 million was incurred by the district as a result of MWDL’s “errors and omissions, delays, lack of coordination, and failure to perform the architectural services as required.”
The suit does not specify the amount of damages it is seeking.
MWDL’s answer to the second complaint dealing with the Performing Arts Complex was similar to its answer to the first complaint dealing with the Fine Arts Building. It denied that the district had suffered the alleged damages, asserted that other parties were responsible for the damages alleged and asserted that the suit was invalid due to the statute of limitations.
This answer, however, also asserted that the district’s “carelessness and negligence” contributed to its damages, “if any.”
MWDL also filed a second cross complaint; this time asserting that Guttman & Blaevoet, Swinerton Management & Consulting and Midstate Construction Corp., a general contractor based in Petaluma, should be held responsible if any liability was determined by the court for improper work on the Performing Arts Complex.
Jeff Blaevoet, a principal with Guttmann & Blaevoet, wrote in an email, “The district’s lawsuit lacks merit, and the court already dismissed many of the claims. Our firm will continue to stand by the detailed design and significant value our services added to these taxpayer-funded projects.”
Jeffrey Gee, a division manager with Swinerton, wrote in an email, “Swinerton does not comment on matters involving litigation.”
No one from Jeff Luchetti Construction or Midstate Construction responded to requests for comment.
On Sept. 21, 2018, the district filed two more complaints for breach of contract and professional negligence this time against Dannis Woliver Kelley (DWK), the firm that was in charge of suing MWDL. These complaints allege that in pursuing both suits involving MWDL, Dannis Woliver Kelley waited to file “until after the expiration of the applicable statute of limitations.”
The suits against DWK mention that in 2014 the district agreed to pay the law firm up to $480,000 for its legal services during the 2014-2015 fiscal year. The suit does not specify the amount of damages the district is seeking.
In an email, Mark Kelley, who heads the law firm’s Construction Practice Group, wrote that the suit “relates to the work a former partner of the firm performed for the College of Marin.”
Kelley also noted that the district has appealed the ruling on the statute of limitations to the Court of Appeal, First Appellate District in San Francisco.
“We are hopeful that the Court of Appeal will agree with the position of the college which should resolve this matter,” Kelley wrote.
Berding & Weil, a Walnut Creek-based law firm, has been hired by the district to replace Dannis Woliver Kelley. Randy Paul, a lawyer with Berding & Weil, said he is confident the district will prevail in its appeal on the statute of limitations question.
Paul said the Measure C bond money has been expended at this point so the cost of pursuing the suits further will have to be paid for using other district revenue sources.
Mia Robertshaw, the district’s general counsel, said she couldn’t say how much money the district has spent to date on pursuing the lawsuits.
College of Marin’s President David Wain Coon did not respond to requests for comment.
Eva Long, president of the district board, said she wasn’t sure exactly how much has been spent pursuing the litigation, but she said she was sure it has amounted to more than $1 million. Long, who has been on the board since 1999, said the board felt it had no choice but to file suit.
“We got so many complaints,” Long said, “that if we didn’t act the public probably would have held us responsible as a public entity for not responding.”