Tag Archives: subcontractors


Court decision changes subcontractor, supplier practice on public projects

D. Kim Lough is a construction law and litigation partner with Jennings, Haug & Cunningham. He can be contacted at DKL@JHC-Law.com.

D. Kim Lough is a construction law and litigation partner with Jennings, Haug & Cunningham. He can be contacted at DKL@JHC-Law.com.

By D. Kim Lough, Special to AZ Big Media

Sub-subcontractors and suppliers working on public projects in Arizona are now required to serve preliminary 20-day notices for asserting a bond claim by registered or certified mail. A recent Arizona Court of Appeals (Division 2) opinion changed the requirement of this common practice, which previously assumed that service by first-class mail with a certificate was sufficient under the Arizona Little Miller Act.

In Cemex v. Falcone Brothers & Associates, Inc., general contractor Falcone was working on a city of Tucson public works improvement project. Falcone provided a statutory payment bond to protect unpaid subcontractors and vendors who perfected their bond claims. Cemex was acting a material supplier for J&S Commercial Concrete Contractors, a subcontractor to Falcone, on the project. Cemex alleged that it was unpaid for the materials and sued both Falcone and its bonding company.

Falcone claimed that it had not received any of the four preliminary 20-day lien notices which Cemex claimed to have served.  Cemex served its preliminary 20-day notices by first-class mail and received a Certificate of Mailing from the post office. State lien law allows a service of a preliminary 20-day notice by first class mail with a certificate of mailing. The Court found that the method of service of a preliminary 20 day notice for lien purposes had not been incorporated in to the Little Miller Act provisions when the Act was last amended.

Falcone’s argument that the provisions of the state law require service be made by registered or certified mail was adopted by the Court and it was determined that the practice of service by first class mail with a certificate of mailing was insufficient to protect a bond claim under the Arizona Little Miller Act for claimants that did not have a direct contract with the general contractor.

The court acknowledged that its opinion “may have a negative impact on an apparently long-standing industry practice.” While sub-subcontractors and suppliers on public works projects now should modify this business practice, non-bonded private construction projects do not have this same new requirement.

D. Kim Lough is a construction law and litigation partner with Jennings, Haug & Cunningham. He can be contacted at DKL@JHC-Law.com.

Phoenix Children's Hospital, Kitchell

Kitchell Delivers PCH Transformation 4 Months Early and $48M Under Budget

Wednesday, June 1, marked a milestone for Kitchell as the $538M patient tower opened at Phoenix Children’s Hospital.

The hospital is Kitchell’s largest project in the firm’s 60-plus year history. Kitchell broke ground on the 11-story facility in May 2008. With hundreds of new beds and new clinics, PCH will now treat children who need outpatient care in a variety of specialties, including dermatology, endocrinology, pulmonology, gastroenterology and orthopedics.

Modeled on a night-blooming desert flower and visible from throughout the Valley, PCH is visually striking but it is the inner workings of the hospital that are most remarkable.

“Working on Phoenix Children’s Hospital has not only been a career highlight for all of us on the team, but it has been personally fulfilling, as well,” says Kitchell senior vice president Dan Pierce. “PCH has touched each of us at some point, whether directly with our own families or with our friends’ families.

“Being a part of this monumental hospital transformation, right down the road from Kitchell headquarters, was gratifying, exciting and even humbling. At different times during construction, we had more than a thousand workers, including subcontractors, on the job site. It was simply amazing.”

“Kitchell has done a great job. The company exemplifies collaboration, integrity and excellence, says David Cottle, executive director of planning, design and construction for PCH.

I have been particularly impressed with the attention to the tiniest details to ensure the best possible quality. This has been a large project wedged into a residential neighborhood. Kitchell made it a top priority to plan and phase the work so that construction congestion had only a limited impact on the surrounding community.”

In addition to more than 1,000 workers on the site at one time, other noteworthy numbers of the PCH tower construction:

•               Number of days from ground breaking to grand opening: 1,107 calendar days

•               Construction man-hours worked:  3,206,803 through mid-May 2011

•               Wire (power): 7,500,000 feet

•               Concrete: 35,496 cubic yards

•               Rebar – 3,267,379 pounds

•               Dirt removed for the Tower basement: 75,000 cubic yards

•               Structural steel: 6,500 tons

•               Lobby/elevator mosaic:  450,000 1”x1” tiles