Mike M. Johnson, Inc. v. Spokane County

Madsen, J. The trial court below granted summary judgment dismissal of Mike M. Johnson, Inc.’s (hereinafter MMJ) claims for additional compensation arising out of two separate sewer installation contracts with Spokane County. The Court of Appeals reversed, finding that issues of material fact exist regarding whether Spokane County’s “actual notice” of MMJ’s claims excused MMJ from complying with the contractual claim procedures, as well as whether the county waived compliance as evidenced by its conduct. We hold that “actual notice” is not an exception to compliance with mandatory contractual protest and claim provisions. Further, since the record does not contain any conduct by Spokane County evidencing its intent to waive MMJ’s compliance with the protest and claim procedures, — 378 — we hold that no question of material fact exists regarding waiver. We reverse the Court of Appeals. FACTS In April 1998, Spokane County awarded MMJ bids to construct two sewer projects for the county: the Apple Valley Sewer project and the Wolfland project. MMJ and Spokane County entered into contracts for both projects, which incorporated the Washington State Department of Transportation’s 1996 Standard Specification for Road, Bridge, and Municipal Construction, as modified by the special provisions contained in the project manuals for each project. Both the county and MMJ anticipated that MMJ would perform the projects in sequence. Construction on Apple Valley was to begin on May 27, 1998, and be completed in 88 working days; construction on Wolfland was to begin on June 29, 1998, and last 70 working days. MMJ planned to utilize two crews, moving one crew to the Wolfland project once construction was underway on Apple Valley. At the preconstruction conference on April 23, 1998, the county informed MMJ that a road improvement district project was in progress to redesign Seventh Avenue — a roadway in the Apple Valley project. The redesign would not affect the sewer installation but would widen the road and revise the storm drain system. MMJ began construction on the Apple Valley project, starting on Fourth Avenue with a plan to follow with Sixth Avenue and then Seventh Avenue. The contracts authorized the county to change MMJ’s work within the general scope of the contract at any time through a change order. On June 4, 1998, the county submitted the revised design of Seventh Avenue to MMJ and issued proposed change order number 3. Change order number 3 required MMJ to widen Seventh Avenue and change the elevation and grade, and the order included a proposal to increase MMJ’s compensation by $69,319 and — 379 — add eight working days to the project.1 MMJ made no objection or protest to the design change, proposed compensation, or altered schedule, and began the work under change order number 3. Thereafter, it encountered buried US West telephone lines during construction on Seventh Avenue.2 MMJ’s work on Seventh Avenue came to a halt while the county and US West worked out the utility conflict. Both the Apple Valley and Wolfland contracts required MMJ to use mandatory notice, protest, and formal claim procedures for claims of additional compensation, time extensions, and changed conditions. Specifically, the contracts required MMJ to give a signed written notice of protest of work required by a change order, other written order, or oral order from the engineer before doing any work. Clerk’s Papers (CP) at 116-17 (Standard Specification Section 1-04.5). The contracts required MMJ thereafter to: Supplement the written protest within 15 calendar days with a written statement providing the following: a. The date of the protested order; b. The nature and circumstances which caused the protest; c. The contract provisions that support the protest; d. The estimated dollar cost, if any, of the protested work and how that estimate was determined; and — 380 — e. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. Id. at 116. The contracts further provided that MMJ accept all requirements of a change order by endorsing it, writing a separate acceptance, or not protesting it as required by section 1-04.5. Id. MMJ’s failure to protest constituted “full payment and final settlement of all claims for contract time and for all costs of any kind, including costs of delays, related to any work either covered or affected by the change.” Id. Additionally, the contracts stated that “[b]y failing to follow the procedures of this section and Section 1-09.11, the Contractor completely waives any claims for protested work.” Id. at 117. Section 1-09.11 provided a mandatory formal claim procedure if the protest procedures of section 1-04.5 failed to provide MMJ with a satisfactory resolution. CP at 119-22 (Standard Specification Section 1-09.11). The formal claim procedures required MMJ to submit a claim to the project engineer in sufficient detail to enable the engineer to ascertain the basis and amount of the claim. CP at 119. At a minimum, MMJ was required to submit 10 items of specific information to support a claim, including a notarized statement to the project engineer swearing to the truth and veracity of the submitted claim (the “Final Contract Voucher Certification”). Id. Under the contracts, MMJ’s failure to submit the required information with a final contract voucher certification was “a waiver of the claims by the Contractor.” Id. Furthermore, the contracts explicitly stated that “[f]ull compliance by the Contractor with the provisions of this section is a contractual condition precedent to the Contractor’s right to seek judicial relief.” CP at 122. Instead of following the contract requirements, MMJ sent the county a letter on June 26, 1998, addressing seven concerns in bullet point form, only one of which discussed the Seventh Avenue delay: Our work on 7th Avenue is being delayed by US West. Their phone lines are too shallow and must be relocated to — 381 — accomodate [sic] the revised Change Order No. 3 plan. Their impacts are causing additional delays and costs to our work, and we are finding it increasingly difficult to accommodate their deficiencies. CP at 226. MMJ did not file a written protest statement as required under section 1-04.5 at this time or anytime thereafter. In response to MMJ’s letter, on July 16,1998, the county advised MMJ by letter that “if you believe that you have a claim for additional compensation within this contract please submit this claim per section 1-09.11(2) of the standard specifications (a copy of this section is enclosed) and it will be evaluated.” CP at 124-28. On July 24, 1998, MMJ responded by summarizing various project delays and their impacts. The entire reference to MMJ’s concerns with Seventh Avenue stated, “US West disrupted our work on 7th Ave. when they had to relocate all their shallow and/or unknown services.” CP at 236. In closure, MMJ informed the county that it was developing “a detailed progress schedule” which would “identity the major impacts to costs, time, and sequence” and “summarize the delays and additional costs” for which it expected to be compensated. CP at 237. The record, however, reveals that a “detailed progress schedule” was never prepared or sent to the county. On August 3, 1998, the county notified MMJ that it believed the utility conflicts should not impact the overall schedule of the projects. The county’s position was based on contract language placing the risks associated with mislocated or unknown utilities on the contractor3 and on the contractor’s obligation to locate utilities before digging, pursuant to RCW 19.122.030. On August 7, 1998, the county directly responded to MMJ’s July 24 letter, stating: To the extent that [MMJ] may consider that letter any sort of formal notification of a claim pursuant to the contract, a request for additional time, a request for a change order, or a request for any other remedy allowed by the contract, the letter — 382 — is rejected because it is too general and nonspecific regarding any relief or remedy which may have been requested. In this regard, you are referred to the applicable contract specifications. All requests for additional time to complete the contract, additional compensation or change order must be submitted within the time permitted and in the form specified in the contract documents. Spokane County simply cannot accept a letter, such as the July 24, 1998 letter, as anything other than an attempt to cause Spokane County to acquiesce in what might be later claimed to be some sort of attempt to modify our contract. As we have repeatedly advised you, Spokane County must insist that you follow the terms and conditions of our contract in every respect on both of these projects. CP at 589-92. On August 14, 1998, MMJ notified the county that it returned to work on Seventh Avenue and again encountered existing utilities, putting work on standby. The letter simply noted that “we expect to be compensated for all costs and time associated with maintaining this road while waiting for others to complete their work.” CP at 240. On August 25,1998, MMJ’s attorney, Patrick Sullivan, submitted requests for $98,000 and a time extension of 50 days to the county’s attorney, Jerry Cartwright. CP at 252-54. He included a spreadsheet entitled “Cost Time Impacts,” which contained 29 line items of dates occurring three and a half months earlier without supporting explanations and without any reference to the contract or to whether responsibility under the contract laid with MMJ or the county. Id. The Seventh Avenue entry stated, “phone lines too shallow, line F” and noted 120 hours of time at an hourly rate of $188.91, amounting to a total cost of $22,669.20. Id. at 254. On September 1, 1998, Mr. Cartwright wrote Mr. Sullivan, stating that the purpose of the letter was to provide “an effort to facilitate a means of timely completion of the project and settlement of the parties’ claims to date” and should not “be taken as a formal response to or recognition of the claims” in Mr. Sullivan’s memo. CP at 257. Additionally, he explicitly stated that the county did not “intend [a] waiver of any claim or defense which the — 383 — county might currently have against [MMJ]Id. Thereafter, MMJ submitted several letters claiming that the county owed it additional compensation but never submitted a formal claim as required by section 1-09.11 of the contract. On December 22, 1998, Mr. Sullivan provided Mr. Cartwright with a letter summarizing MMJ’s claims, stating “[t]his letter is being provided under Rule of Evidence 408 and is intended for settlement purposes only.” CP at 300. Thus, the letter on its face was not intended as a formal claim under contract section 1-09.11(2), and even if it were, it did not comply with section 1-09.11 because it failed to include the requisite information and final contract voucher certification. The county answered MMJ’s settlement attempts by letter on December 23, 1998 and January 27, 1999. On December 23, Mr. Cartwright stated that it was the county’s position that MMJ “has failed to perfect any claims in this claim and has repeatedly failed and/or refused to follow the procedure set forth in the contract for submitting claims.” CP at 386. He emphasized that “[a]ll through this process of trying to get these jobs finished ... we have made it very clear that the County would not be waiving any of its contractual rights, claims or defenses.” Id. Mr. Cartwright, however, agreed to forward MMJ’s claims to the county but notified MMJ that “if this is an attempt to submit claims pursuant to the terms of the contract, please take notice that it is the county’s position that the claims submitted are not timely.” Id. On January 27, 1999, Mr. Cartwright delivered a letter to Mr. Sullivan containing information for their January 29 meeting. CP at 594-95. He reiterated: In agreeing to meet with you ... it should be understood that the County wishes to negotiate with you and your clients but does not intend to waive any claim or defense which it might have, under the contract documents or at law, including. . . failure by [MMJ] to follow the contract requirements regarding claims/notice/disputes. — 384 — Id. The letter stated that the information was submitted for purposes of discussing settlement and “in an attempt to avoid litigation.” Id. Throughout this lengthy period of correspondence, MMJ failed to comply with the contractual protest procedures required under section 1-04.5 and, additionally, failed to follow the formal claim procedures under section 1-09.11, which were a “contractual condition precedent to [MMJ’s] right to seek judicial relief.” CP at 122. The record establishes that MMJ’s president, Mike Johnson, admitted he knew of the protest and claim provisions but could not say whether he actually complied. CP at 626-32. MMJ’s contract administrator, Ben Price, testified by affidavit that he discussed the contract provisions with Mr. Johnson, but Mr. Johnson did not care to comply because compliance was too time consuming. CP at 633-34. Instead, Mr. Johnson’s tactic was to “complain D by letter stating generally that MMJ expected to be paid for extra work, and then to sort through the mess at the end of the contract.” Id. at 634. Contemporaneously with these discussions, MMJ and the county discussed many other issues unrelated to change order number 3. For example, the county removed a portion of the Wolfland project from MMJ, and the parties were in negotiations over the county’s purchase of supplies already procured for the project by MMJ. MMJ and Spokane County were unable to work out their disputes, and on February 19, 1999, MMJ filed a complaint for damages against the county. MMJ alleged claims for additional compensation arising out of the contract, as well as claims for unpaid contract balances on both projects. The county filed an answer, asserting affirmative defenses and counterclaims against MMJ. In regard to MMJ’s claims for additional compensation, the county argued that MMJ failed to comply with mandatory contractual protest and claim provisions, barring it from seeking judicial relief at this time. The county moved for summary judgment on MMJ’s claim for additional compensation, and MMJ filed a cross-motion for partial summary judgment. On June 19, 2000, — 385 — the trial court granted the county’s motion and dismissed with prejudice MMJ’s claim. On October 30, 2000, the court issued a supplemental order clarifying its order granting summary judgment and also denied MMJ’s motion for reconsideration. The court clarified that no genuine issue of material fact exists as to whether MMJ failed to comply with the contractual protest and claim procedures, which were mandatory for seeking additional compensation; thus, as a matter of law, the court dismissed with prejudice MMJ’s claims for additional compensation. The court stated that it did not make any specific findings of fact or conclusions of law as to the related issues of actual notice, prejudice, equity, substantial compliance, or reservation of rights. The issues which remain for trial include MMJ’s claims for unpaid contract balances on both projects, the county’s counterclaims for liquidated damages and other back charges, as well as the county’s third-party claims against US West. The trial court’s supplemental order notes that the dismissal of MMJ’s claims does not prejudice or impair MMJ’s right to assert affirmative defenses arising under the contract in response to the county’s counterclaims. On June 21, 2001, the trial court issued a stipulation and order certifying the summary judgment order for appeal and staying the remaining action pending appellate review. MMJ appealed. The Court of Appeals determined that the trial court improperly granted summary judgment on MMJ’s claims for additional compensation. Mike M. Johnson, Inc. v. Spokane County, noted at 111 Wn. App. 1051, slip op. at 2, 2002 WL 1038808. The court held dismissal improper because issues of material fact exist regarding whether the county’s “actual notice” of MMJ’s claims excuses MMJ from complying with the mandatory contractual protest and claim procedures and whether the county’s conduct of negotiating a settlement with MMJ implied its waiver of enforcement of the procedures. Id. at 4-5. Initially, the court did not publish the opinion, but on July 2, 2002, it granted motions to publish. Mike M. — 386 — Johnson, Inc. v. Spokane County, 112 Wn. App. 462, 49 P.3d 916 (2002). We granted review. ANALYSIS This case presents two issues for the court’s resolution: (1) whether Spokane County’s “actual notice” of MMJ’s protests and claims acts as an exception to MMJ’s compliance with the mandatory protest and claim procedures under the contract and (2) whether summary judgment dismissal was inappropriate because an issue of material fact exists regarding whether the county’s conduct implied a waiver of the contractual protest and claim procedures.4 Actual Notice Washington law generally requires contractors to follow contractual notice provisions unless those procedures are waived. Absher Constr. Co. v. Kent Sch. Dist. No. 415, 77 Wn. App. 137, 142, 890 P.2d 1071 (1995). A party to a contract may waive a contract provision, which is meant for its benefit, and may imply waiver through its conduct. Reynolds Metals Co. v. Elec. Smith Constr. & Equip. Co., 4 Wn. App. 695, 700, 483 P.2d 880 (1971). Waiver by conduct, however, “requires unequivocal acts of conduct evidencing an intent to waive.” Absher, 77 Wn. App. at 143 (citing Birkeland v. Corbett, 51 Wn.2d 554, 565, 320 P.2d 635 (1958)). This court, as well as the state appellate courts, has historically upheld the principle that procedural contract — 387 — requirements must be enforced absent either a waiver by the benefiting party or an agreement between the parties to modify the contract. See Bjerkeseth v. Lysnes, 173 Wash. 229, 22 P.2d 660 (1933) (affirming dismissal of contractor’s claim for extra work where there was no written order as required by contract and no waiver of the requirement); Ellis-Mylroie Lumber Co. v. Bratt, 119 Wash. 142, 153, 205 P. 398 (1922) (where no required written order of architect exists, “[t]he only theory upon which the contractors would be able to recover would be that of a waiver”); Wiley v. Hart, 74 Wash. 142, 146-48, 132 P. 1015 (1913) (where owner has not waived the required written order of architect, owner could not be liable for extra costs); Sime Constr. Co. v. Wash. Pub. Power Supply Sys., 28 Wn. App. 10, 621 P.2d 1299 (1980) (affirming dismissal of contractor’s claim where contractor failed to comply with contractual notice procedures); Swenson v. Lowe, 5 Wn. App. 186, 188, 486 P.2d 1120 (1971) ("A building contract provision requiring a written order for alterations or extras will be enforced. However, the requirement of a writing is for the benefit of the owner, and the owner, either expressly or by conduct, may waive such a requirement.” (Citation omitted.)) MMJ argued to the Court of Appeals, and maintains before this court, that when an owner has actual notice of a contractor’s protest or claim, that notice, in and of itself, excuses the contractor from complying with mandatory contractual protest and claim procedures. MMJ contends that the decision of Bignold v. King County, 65 Wn.2d 817, 822, 399 P.2d 611 (1965) establishes an “actual notice” exception. the [owner] became immediately aware of the changed conditions as soon as they developed and ordered the contractor to perform the changes and extra work involved . . . [u]nder such conditions, the county cannot defeat recovery by a contractor even if no written notice was given. Id. at 822. Contrary to MMJ’s contention, the Court of Appeals in Bignold did not hold that the owner’s actual notice of the — 388 — changed condition in and of itself excused the contractor from complying with the contractual notice provisions. Rather it was the owner’s knowledge of the changed conditions coupled with its subsequent direction to proceed with the extra work that evidenced its intent to waive enforcement of the written notice requirements under the contract. Bignold does not establish an “actual notice” exception and actually reaffirms the long-established rule requiring contractors to follow contractual notice provisions unless those procedures are waived by the owner. In addition to the Bignold decision, MMJ contends that other Washington cases establish an “actual notice” exception to contractual compliance. However, as with Bignold, the authorities MMJ cites do not establish such a rule but rather hold that a contractor must comply unless those provisions are waived by the benefiting party. See Lindbrook Constr., Inc. v. Mukilteo Sch. Dist. No. 6, 76 Wn.2d 539, 542-44, 458 P.2d 1 (1969) (failure to comply with contractual notice requirement did not bar contractor’s right to recover additional compensation where “squarely notice in writing had been waived” by the agent’s conduct). See also Am. Sheet Metal Works, Inc. v. Haynes, 67 Wn.2d 153, 159, 407 P.2d 429 (1965) (“There is evidence in the instant case indicating that appellant authorized, permitted, and directed respondent to perform the work in question.. .. The trial court did not err in considering the condition waived.”); Morango v. Phillips, 33 Wn.2d 351, 357-58, 205 P.2d 892 (1949) (“If any extras were furnished at the express request of the respondent, recovery can be had therefor, as such request would amount to waiver of the contractual provision.”); Barbo v. Norris, 138 Wash. 627, 635-36, 245 P. 414 (1926) (actions of parties amounted to waiver); A. Gehri & Co. v. Dawson, 64 Wash. 240, 243, 116 P. 673 (1911) (approving jury instructions stating “the contract means that unless the other party waives, by his conduct and acts, the right to demand such writing, there shall be no recovery”); Crowley v. United States Fid. & Guar. Co., 29 Wash. 268, 274, 69 P. 784 (1902) (contractual requirement for writing waived by actions of owner). — 389 — The county contends that the precise issue in this case, whether a contractor’s failure to comply with mandatory contractual claim procedures precludes later recovery, has been addressed before, and the courts consistently hold that, absent waiver, failure to comply bars relief. See Clevco, Inc. v. Mun. of Metro. Seattle, 59 Wn. App. 536, 542, 799 P.2d 1183 (1990) (“failure to comply with the requirements of the change order provision is fatal to a later claim for compensation based on extra work”); Sime Constr. Co., 28 Wn. App. at 16 (claim for additional compensation due to change order not timely as required by contract). The county specifically points to Absher, 77 Wn. App. at 142, as directly analogous to this case. In Absher, a subcontractor claimed that the district had provided “overwhelmingly defective plans,” causing it additional expenses. Id. at 141. The contract, however, contained mandatory dispute procedures, requiring the contractor “to give the District prompt and detailed written notice of any claims 14 days after events giving rise to the claims . . . before any lawsuit could be commenced.” Id. at 139. The requirement could not be waived except by written waiver signed by the owner, and the contractor’s failure to comply with the written notification requirement was “an absolute waiver of any claims arising from or caused by delay.” Id. at 140. Furthermore, acceptance of final payment constituted a waiver of all unidentified claims as well. Id. After the contractor accepted final payment, it attempted to submit the subcontractor’s claim to the district. Id. at 140-41. The district contended that the contractor waived all claims because it failed to follow the mandatory claim procedures under the contract. The trial court granted summary judgment for the district, and the contractor appealed, arguing that material issues of fact remained regarding notice, waiver, and prejudice. Id. at 141. The Court of Appeals affirmed. Addressing the contractor’s argument that the district’s notice of the claims excused the subcontractor’s noncompliance with the claim procedures, the court found that the subcontractor had — 390 — submitted “forms, comments, concerns and objections” that did not include the amount of the claim or length of delay, as required by the contract. Id. at 143. The court held that these “were not sufficient to meet the contract written notice requirements.” Id. While the court recognized that the district did not actually have notice of these concerns and claims, it noted that “[e]ven if the District had known of the concerns, those concerns were not claims under the contract.” Id. Accordingly, the court held that the owner’s actual notice of concerns did not excuse the contractor from complying with the contractual claim procedures. Id. The court next considered the contractor’s argument that the architect and subconsultant, acting as agents of the district, had waived compliance with the claim procedures. Id. at 143-44. The court noted that any waiver would have to be by conduct, since the district had not submitted a written waiver as required by the contract. Id. at 143. The court, however, found that the contractor “cites no specific conduct by the District evidencing an intent to waive the contract provisions explicitly denying the authority of the architect and its subconsultant to act as its agent.” Id. at 144. Because the district did not waive the notice requirements or designate the architect as its agent who could waive the requirements, the contractor was required to comply with the notice provisions. Id. In this case, MMJ submitted letters to the county indicating its concern over change order number 3 and that it expected additional compensation for its work under the order. However, as in Absher, these letters did not provide the information required by the contract to support a protest or a formal claim. The county, furthermore, told MMJ throughout this lengthy period of correspondence that MMJ’s vague references to problems were insufficient for the county to deal with as claims. MMJ’s general notice to the county that it expected additional compensation did not amount to claims under the contract, nor did it excuse MMJ from complying with the contractual claim procedures. — 391 — MMJ argues, though, that the Court of Appeals correctly found that “an unresolved question exists regarding whether the county’s actual notice of [MMJ’s] claims should act as a waiver to [MMJ’s] strict compliance with the contract terms.” Johnson, slip op. at 4. MMJ is incorrect. A waiver of a contract provision must be made by the party benefiting from the provision. Here, the county stood to benefit from the mandatory protest and claim procedures; thus, only the county could waive MMJ’s compliance with the procedures. MMJ simply could not waive enforcement of the provisions for the county, and MMJ’s notifying the county that it had concerns does not in any way evidence the count/s intent to waive the contract’s requirements. Moreover, to hold that a contractor’s notice of protest to the owner serves to excuse the contractor from complying with mandatory claim procedures would render contractual claim requirements meaningless. There would be no reason for compliance, as the contractor could merely assert general grievances in order to secure a later claim. We hold that “actual notice” is not an exception to contract compliance. Waiver MMJ alternatively argues that a genuine issue of material fact exists regarding whether the county waived MMJ’s compliance with the contractual protest and claim provisions through its conduct. As stated, a party to a contract may waive a contract provision meant for its benefit, but waiver by conduct “requires unequivocal acts of conduct evidencing an intent to waive.” Absher, 77 Wn. App. at 143 (citing Birkeland, 51 Wn.2d at 565). The county argues that the record unequivocally indicates that it intended no waiver of any rights under the contract or of MMJ’s compliance with the mandatory protest and claim provisions. — 392 — The county is correct. In correspondence between the county and MMJ, the county repeatedly asserted that it did not intend a “waiver of any claim or defense” or “of any other remedy or contract provision.” CP at 257 (letter dated Sept. 1, 1998); CP at 386 (letter dated Dec. 23, 1998); CP at 594 (letter dated Jan. 27, 1999). Moreover, as late as December 23, 1998, the county notified MMJ that it “has failed to perfect any claims in this claim and has repeatedly failed and/or refused to follow the procedure set forth in the contract for submitting claims.” CP at 386. In the same correspondence, the county stated that “[a]ll through this process . .. we have made it very clear that the County would not be waiving any of its contractual rights, claims or defenses.” Id. MMJ also urges that the county’s continued negotiations may evidence its intent to waive MMJ’s compliance. The parties were not only discussing concerns over change order number 3, however, but were discussing numerous issues and protests throughout this period of time. Adopting MMJ’s view would have the county unrealistically halt all discussions for fear of evidencing its intent to waive mandatory claim provisions under the contract. We decline to reach such a result, as it would detrimentally impact all concerned. We find no question of material fact as to whether the county waived contractual compliance. CONCLUSION MMJ’s notice to the county concerning its grievances did not excuse MMJ from complying with the contractual requirements. Furthermore, the evidence does not establish a question of whether the county waived enforcement of the claim procedures through its conduct, including its continued negotiations with MMJ. — 393 — Accordingly, we reverse the Court of Appeals and hold summary judgment dismissal of MMJ’s contractual claims proper. Alexander, C.J., and Bridge, Owens, and Fairhurst, JJ., concur. Footnotes [1] The County increased the compensation to $75,467 in September 1998. [2] Section 1-07.17 of the contracts provides: The existence and location of all utilities are shown on the plans based upon information available to Owner at the time of design. It is to be expected that the actual location of utilities will at times vary, sometimes substantially, from the locations indicated on the plans. ALL RISKS OF UTILITES MISLOCATED ON THE PLANS, OR OF UTILITY CONFLICTS NOT SHOWN ON THE PLANS SHALL BE CONTRACTOR’S. If the Engineer determines that the project requires work to relocate or provide other adjustments to utilities that are either mislocated on the plans or that entail utility conflicts, the work (labor and equipment) shall be performed by Contractor at no additional cost to Owner. Any net additional costs for materials . . . will be reimbursed by Owner. Contract time may be extended as provided in Section 1-08.8, Extension of Time. Ex. B, Clerk’s Papers (CP) at 46. [3] See supra note 2. [4] The standard of review on summary judgment is well settled. Trimble v. Wash. State Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000). The appellate court engages in the same inquiries as the trial court, determining whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. The court considers all facts and reasonable inferences from them in the light most favorable to the nonmoving party, and “ ‘[t]he motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion.’ ” Id. (quoting Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993)). Bare assertions that a genuine material issue exists, however, will not defeat a summary judgment motion in the absence of actual evidence. Id.