It’s a Bird, It’s a Plane . . . No, It’s a Drone. Long Awaited FAA Drone Regulations Finally Take Flight
September 22, 2016 —
Garret Murai – California Construction Law BlogIt’s a bird.
It’s a plane.
No, it’s a drone. Also known as an unmanned aerial vehicle (UAV) or unmanned aircraft (UA).
And, technically, they’ve been around a long time, since at least 1849 when the Australians attacked Italy with unmanned balloons loaded with explosives. Even a young Marilyn Monroe, when she was known simply as “Norma Jean,” worked at a company called Radioplane making unmanned aircrafts during World War II.
Since then, as technology has advanced, which, in turn, has made the cost of older technology go down, what was once old, is now new again. Drones are making regular appearances in the movies (think the Divergent Series: Allegiant). The paparazzi (who are apparently tired of getting punched in the face) are using them. And some day, perhaps very soon, they may just be delivering your packages (think Amazon Prime Air).
One of the earliest adopters of drones outside the military, however, has been the construction industry which has used drones to track the progress of construction projects and conduct site surveys such as this one showing the progress of Apple’s new campus in Cupertino[.]
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Garret Murai, Wendel, Rosen, Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
KF-103 v. American Family Mutual Insurance: An Exception to the Four Corners Rule
October 29, 2014 —
Zach McLeroy – Colorado Construction LitigationIn Colorado, the “complaint rule,” also known as the “four corners rule,” requires an insurer to provide a defense when an underlying complaint alleges any set of facts that may fall within an insurance policy. This can result in a situation where an insurer has a duty to defend although the underlying facts ultimately do not fall within the policy.
In KF-103 v. American Family Mutual Insurance, 2014 WL 4409876, District Court Judge Richard P. Matsch recognized an exception to the complaint rule. In doing so, Judge Matsch determined that a court may look beyond the complaint to judicial orders preceding the filing of the complaint to determine whether an insurer has a duty to defend. Therefore, a party may not be able to assert unsupported facts in a complaint for the sole purpose of triggering an insurance policy.
KF 103 v. American Family arose out of an underlying easement dispute. In the underlying case, KF 103-CV, LLC (“KF 103”) purchased a piece of property from the Infinity Group. As a condition of the purchase agreement, Infinity Group was required to complete improvements to boundary streets and the intersection of Ski Lane and Sorpresa Lane. Several adjoining property owners (the “neighbors”) objected to the modification of the intersection because it violated an express easement (the “easement”) that provided access to their properties.
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Zach McLeroy, Higgins, Hopkins, McLain & Roswell, LLCMr. McLeroy may be contacted at
McLeroy@hhmrlaw.com
Construction Contract Clauses Which Go Bump in the Night – Part 1
November 10, 2016 —
Garret Murai – California Construction Law BlogScope, time and cost provisions may be the most important clauses in your construction contract but they’re not the only ones which can impact your bottom line. The first in a multi-part series, here are some other important construction contract clauses you may (or may not realize you should) be losing sleep over.
Provision: Incorporation and Flow-Down Provisions
- Typical Provision: “The term ‘Contract Documents’ shall include, without limitation, the Prime Contract, drawings, specifications and other agreements between Contractor and Owner, insofar as they relate in any way, directly or indirectly, to Subcontractor’s Work under this Agreement, and are hereby incorporated by reference. Subcontractor agrees to be bound to Contractor in the same manner and to the same extent as Contractor is bound to Owner under the Contract Documents. Where, in the Contract Documents, reference is made to Contractor, and the work and specifications therein pertain to Subcontractor’s trade, craft, or type of work, such work or specifications shall be interpreted to apply to Subcontractor rather than Contractor.”
- What it Means: An incorporation provision literally “incorporates” another document or documents into a contract by merely referring to them by title or description and it is not uncommon for a lower-tiered contractor to never see those documents.
A flow-down provision requires a lower-tiered contractor to comply with all obligations which a higher-tiered contractor, typically a direct contractor, owes to a higher-tiered party, typically, the owner. The intent of the provision to ensure that a lower-tiered subcontractor has no greater rights against a direct contractor has against the owner.
- What You Can Do: Lower-tiered contractors should obtain a copy of all documents to be incorporated into their contract and review them to ensure that they understand the obligations and any limitations to their rights.
Lower-tiered contractors should also seek to include language requiring that a higher-tiered contractor assume toward the lower-tiered contractor all obligations and limitations on their rights that the owner assumes toward or is subject to with respect of the general contractor.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
FDOT Races to Re-Open Storm-Damaged Pensacola Bridge
April 12, 2021 —
Jim Parsons - Engineering News-RecordBuffeted by hurricanes, northwest Florida’s largest-ever infrastructure effort is finally seeing the light at the end of the storm. The three-mile-long bridge across Pensacola Bay is expected to reopen to traffic this spring after an ongoing replacement effort abruptly became an emergency repair job as well.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at ENR.com@bnpmedia.com
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San Diego: Compromise Reached in Fee Increases for Affordable Housing
October 01, 2014 —
Beverley BevenFlorez-CDJ STAFFA San Diego City Council committee has forwarded a revised plan to increase affordable housing in the city, which reduces the linkage fees increases, reported the U-T San Diego. The first proposal would have increased linkage fees by five times, while this new plan doubles current fees.
The Times of San Diego reported that “[t]he fee had been halved in 1996 as an economic stimulus and was supposed to be reviewed annually, but wasn't.” However, Andrea Tevlin, the city of San Diego’s Independent Budget Analyst, estimated that “costs on developers would have jumped 400 percent to more than 700 percent, depending on the type of project.”
The new proposal also contains exemptions for “developers of manufacturing facilities, warehouses and nonprofit hospitals from paying any fees at all,” according to U-T San Diego. “Developers of research and science-related projects would still have to pay fees, but they would be exempt from the proposed increase.”
However, not everyone is satisfied by the compromise. “While the November 2013 proposal went too far, this new proposal doesn’t go far enough,” Tevlin told U-T San Diego. The vote had been deadlocked, 2-2, but will be forwarded to the main council because Republican Lori Zapf, committee chair, could break the tie.
The new plan “created jointly by the San Diego Housing Commission and a group of business leaders called the Jobs Coalition, would increase the linkage fees’ annual yield from $2.2 million to an estimated $3.7 million and allow construction of 37 affordable housing units per year instead of 22,” U-T San Diego reported.
Read the full story, U-T San Diego...
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L.A. Mixes Grit With Glitz in Downtown Revamp: Cities
May 13, 2014 —
James Nash and Nadja Brandt – BloombergNear streets so gritty they were used as the backdrop for a shootout in the next “Fast & Furious” movie, million-dollar condos and $38 racks of lamb beckon the urban pioneers of Los Angeles.
The rehab of warehouses and factories in the Arts District is the latest wave in a revival transforming the core of the second-largest U.S. city. Since 2011, about $7 billion has been poured into downtown. A decade ago its most prominent residents were the homeless. Now condos sell for a median of $523.36 a square foot -- more than in Beverly Hills. Alma, Bon Appetit magazine’s best new U.S. restaurant in 2013, is a few blocks from the convention center the city plans to renovate.
“All of a sudden, overnight, you have more cranes going up in downtown L.A. than any other neighborhood in Southern California, by far,” said Lew Horne, head of the regional CBRE Real Estate Group Inc. (CBG) office.
Mr. Nash may be contacted at jnash24@bloomberg.net; Ms. Brandt may be contacted at nbrandt@bloomberg.net
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James Nash and Nadja Brandt, Bloomberg
President Trump Nullifies “Volks Rule” Regarding Occupational Safety and Health Administration (OSHA) Recordkeeping Requirements
April 13, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPOSHA requires employers to maintain safety records for a period of five years. The Occupational Safety and Health Act contains a six month statute of limitations for OSHA to issue citations to employers for violations. In an effort to close the gap between the five years employers are required to keep records and the six month citation window, the Obama Administration implemented the “Volks Rule,” making recordkeeping requirements a “continuing obligation” for employers and effectively extending the statute of limitations for violations of recordkeeping requirements from six months to five years.
On March 22, 2017, the Senate approved a House Joint Resolution (H.J. Res. 83) nullifying the “Volks Rule” and limiting the statute of limitations to six months for recordkeeping violations. President Trump signed the resolution nullifying the “Volks Rule” on April 3, 2017. The nullification appears to be in line with President Trump’s stated goal of generally eliminating governmental regulations.
What Does This Mean for California Employers?
California manages its own OSHA program, which generally follows the federal program, but is not always in lock-step with Federal OSHA. Cal/OSHA, under its current rules, may only cite employers for recordkeeping violations that occurred during the six months preceding an inspection or review of those records. To date, there has been no indication that California’s Division of Occupational Safety and Health (DOSH) has plans to adopt the “Volks Rule.” Barring a change, California employers will continue to operate under the status quo and be required to maintain safety records for five years, but will only be exposed to citations for recordkeeping violations occurring within the last six months.
Current Cal/OSHA Recordkeeping Requirements
Cal/OSHA form 300 (also known as the “OSHA Log 300”) is used to record information about every work-related death and most work-related injuries that cannot be treated with onsite first aid (specific requirements can be found in the California Code of Regulations, Title 8, Sections 14300 through 14300.48). Currently, California Code of Regulations, Title 8, Section 14300.33 requires employers to retain OSHA Log 300 for a period of five years following the end of the calendar year during which the record was created, despite the fact that Cal/OSHA can only cite employers for failing to maintain such records for up to six months preceding an inspection.
Looking to the Future
Cal/OSHA is working on regulations that would require electronic submission of OSHA Log 300 records in California. This would bring Cal/OSHA more in line with Federal OSHA, which already requires electronic submission.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Louis "Dutch" Schotemeyer, Newmeyer & Dillion LLPMr. Schotemeyer may be contacted at
dutch.schotemeyer@ndlf.com
Construction Litigation Roundup: “D’Oh!”
August 12, 2024 —
Daniel Lund III - LexologyThe U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act.
The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023.
After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:
“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
