Unlocking the Hidden Power of Zoning, for Good or Bad
October 21, 2024 —
David Zipper - BloombergNo longer dismissed as an insomnia-curing corner of local governance, zoning is having a moment. It’s at the heart of the pro-housing Yes In My Backyard — or YIMBY — movement, which seeks to reform the rules that mandate the construction of single-family homes across much of the US, and the arcane details of land use policy are being debated in national outlets and city councils across the US. In much of this discourse, zoning is the clear villain, blamed for feeding societal ills ranging from housing costs to racial discrimination to greenhouse gas emissions.
In her new book Key to the City, Sara Bronin examines zoning with a critical but sympathetic eye. Bronin brings deep experience to the topic, having studied zoning as an architect and lawyer before overhauling the land use regulations of Hartford, Connecticut. A professor of architecture and planning at Cornell University (and an occasional Bloomberg CityLab contributor), she is currently on leave to chair the federal Advisory Council on Historic Preservation.
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David Zipper, Bloomberg
Agree First or it May Cost You Later
May 08, 2023 —
Bill Wilson - Construction Law ZoneBusiness relationships often begin before parties execute a written agreement containing the terms and conditions by which the relationship will be governed. With little more than a Letter of Intent (“LOI”) or Letter of Award (“LOA”) one party is typically pressured to begin investing time and money to start preliminary work on a project. If such LOI or LOA contains nothing more than an agreement to agree later, the performing party should minimize its investment until the later agreement is executed. A recent court decision in New York confirmed the danger to the performing party under “agreement to agree” provisions.
In Permasteelia North America Corp. v. JDS Const. Group, LLC, 2022 WL 2954131 (N.Y. Sup. CT. 7/22/22), the plaintiff subcontractor allegedly performed $1.9 million worth of preliminary work under nothing more than a LOA with an agreement to agree provision. Issues arose, and the parties never entered any later written agreement. The general contractor refused to pay the plaintiff anything for its preliminary work. In response, the plaintiff filed suit against the general contractor asserting four counts: foreclosure of its lien, breach of contract, unjust enrichment, and account stated. All four counts were based on an alleged oral “handshake deal” for subcontract work for the project. The general contractor’s LOA stated that neither party would be bound “unless and until the parties actually execute a subcontract.” During discovery, the plaintiff admitted that neither party intended to enter into any contract until its potential terms were negotiated, reduced to writing, and signed. Moreover, the plaintiff only offered one set of meeting minutes and a few project agendas to support its alleged “handshake deal.” Once these necessary undisputed facts were confirmed, the defendant moved for summary judgment on all four counts.
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
SFAA and Coalition of Partners Encourage Lawmakers to Require Essential Surety Bonding Protections on All Federally-Financed Projects Receiving WIFIA Funds
February 21, 2022 —
The Surety & Fidelity Association of AmericaFebruary 17, 2022 (WASHINGTON, DC) – The Surety & Fidelity Association of America (SFAA) in collaboration with 15 trade associations, sent a letter strongly encouraging members of the Senate Environment and Public Works Committee, led by Chairman Tom Carper (D-DE) and Ranking Member Shelly Moore Capito (R-WV), to require payment and performance protections on federally-financed infrastructure projects receiving Water Infrastructure Finance and Innovation Act (WIFIA) loans, including public-private projects (P3s).
“As the Environment and Public Works Committee looks at legislation in the second session of the 117th Congress to continue the important work of addressing our nation’s water infrastructure, we urge the Committee to amend the Water Infrastructure Finance and Innovation Act (WIFIA) program to help protect taxpayer funds, workers, subcontractors and suppliers, including Small and Disadvantaged Business Enterprise (DBE) Program participants and subcontractors, who build water infrastructure especially in at-risk low income communities,” said Lee Covington, president and CEO, SFAA.
The coalition of partners includes:
American Property and Casualty Association
American Subcontractor Association
Business Coalition for Fair Competition
Council of Insurance Agents and Brokers
Finishing Contractors Association International
International Union of Operating Engineers
Mechanical Contractors Association of America
National Association of Electrical Contractor
National Association of Minority Contractors
National Association of Mutual Insurance Companies
National Association of Surety Bond Producers
Sheet Metal and Air Conditioning Contractors’ National Association
The Association of Union Constructors
The Construction Employers of America
Women Construction Owners and Executives
The Surety & Fidelity Association of America (SFAA) is a nonprofit, nonpartisan trade association representing all segments of the surety and fidelity industry. Based in Washington, D.C., SFAA works to promote the value of surety and fidelity bonding by proactively advocating on behalf of its members and stakeholders. The association’s more than 450 member companies write 98 percent of surety and fidelity bonds in the U.S. For more information visit www.surety.org.
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Insurer's Judgment on the Pleadings Based Upon Expected Injury Exclusion Reversed
October 30, 2018 —
Tred R. Eyerly - Insurance Law HawaiiThe appellate court reversed the trial court's granting of a judgment on the pleadings based upon the expected injury exclusion in a homeowner's policy. Allstate Indemn. Co. v. Contreras, 2018 Ill. App. LEXIS 170964 (Ill. Ct. App. July 20, 2018).
Alejandra Contreras owned Jasmine's Day Care. Her husband, Adan Contreras, was not an employee of the Day Care. Alejandra and Adan had a homeowner's policy which provided day care liability coverage through an endorsement.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
Florida Court of Appeals Holds Underlying Tort Case Must Resolve Before Third-Party Spoliation Action Can Be Litigated
December 04, 2018 —
Lian Skaf - The Subrogation StrategistIn Amerisure Ins. Co. v. Rodriguez, 43 Fla. L. Weekly 2225 (Fla. Dist. Ct. App., Sept. 26, 2018), the Third District Court of Appeals of Florida addressed whether a third-party spoliation claim should be litigated and tried at the same time as the plaintiff’s underlying tort case. The court held that since the third-party spoliation claim did not accrue until the underlying claim was resolved, the spoliation cause of action could not proceed until the plaintiff resolved his underlying claim.
The underlying matter in Amerisure involved a personal injury claim by plaintiff Lazaro Rodriguez. While working as an employee for BV Oil, Inc. (BV), Mr. Rodriguez was knocked from the top of a gasoline tanker he was fueling at a gasoline storage warehouse owned by Cosme Investment (Cosme). Mr. Rodriguez filed a personal injury lawsuit against Cosme. He also collected worker’s compensation benefits from Amerisure Insurance Company (Amerisure), BV’s worker’s compensation carrier, while his lawsuit was pending.
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Lian Skaf, White & Williams LLPMr. Skaf may be contacted at
skafl@whiteandwilliams.com
Risk Management and Contracting after Hurricane Irma: Suggestions to Avoid a Second Disaster
September 14, 2017 —
Stephen H. Reisman, Gary M. Stein & Adam P. Handfinger – Peckar & Abramson, P.C.Peckar & Abramson attorneys have assisted contractors in the immediate aftermath of several Hurricanes, including Andrew in 1992, Wilma in 2005, Ike in 2008, and Sandy in 2012. Based on this experience, we offer some post-storm strategies for contracting and risk management in three situations:
- Ongoing projects in the area directly impacted by the storm;
- Projects remote from the storm-impacted areas, but which may be affected by material or labor shortages; and
- Requests for assistance in recovery/clean-up/rebuild eff orts, which would be new projects.
Projects Directly Impacted By Hurricane Irma:
1. Immediately review each Owner contract to determine what notices are required for delays and/or extra costs arising from the storm. Contract notice requirements and time limits vary, whether for force majeure or other similar time and compensation rights. There is no effective one-size-fits-all solution. While the initial notice letters will likely look very similar, you should make sure that each is sent as required by the contract. Check each contract’s requirements for particulars regarding content, the form of delivery, and parties and individuals designated to receive the letters as well as carbon copy recipients like the architect. Follow-up notices and time periods differ from contract to contract and should be tracked so that if, for example, a follow-up notice is required in a week per the contract terms, it is tracked to ensure compliance.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
Stephen H. Reisman,
Gary M. Stein and
Adam P. Handfinger
Mr. Reisman may be contacted at sreisman@pecklaw.com
Mr. Stein may be contacted at gstein@pecklaw.com
Mr. Handfinger may be contacted at ahandfinger@pecklaw.com
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COVID-19 Likely No Longer Covered Under Force Majeure
February 01, 2023 —
Rachel E. Pelovitz - Construction ExecutiveA recent decision by the U.S. Government Accountability Office (GAO) has shaken up construction contracts. While companies could claim “force majeure” to exempt themselves from contractual obligations during much of the pandemic, this decision challenges ongoing validity of those claims.
The decision was based on the Army Corps of Engineers deeming a bid from Boulder, Colorado–based American Mine Services (AMS) as nonresponsive because it included a COVID-19 force majeure clause. In reviewing the Corps’ decision, GAO—referencing the Federal Acquisition Regulation—found that “epidemics” and “quarantine restrictions” were already included in the contract between the Corps and AMS. Although AMS claimed that “COVID-19 is considered a force majeure event along with any other similar disease, epidemic or pandemic event,” the GAO concluded that this interpretation limited the rights of the government too much.
Reprinted courtesy of
Rachel E. Pelovitz, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Pelovitz may be contacted at
pelovitz@abc.org
If Passed, New Bill AB 2320 Will Mandate Cyber Insurance For State Government Contractors
September 07, 2020 —
Makenna Miller & Jeffrey Dennis - Newmeyer DillionEarlier this year, Assemblyman Edwin Chau (D-Monterey Park) introduced Assembly Bill 2320. AB 2320, if passed, would require any business that contracts with the state and has access to records containing personal information protected under the state’s Information Practices Act (IPA) to maintain cyber insurance coverage. Information covered under the IPA includes names, social security numbers, physical descriptions, home addresses, home telephone numbers, education, financial matters, and medical or employment history. Requiring contractors to maintain cyber insurance will likely both shift the costs of cyberattacks from taxpayers to the private sector, while also encouraging robust cyber security practices among businesses of all sizes. While the bill has not yet passed, businesses will be best served by implementing and improving cybersecurity practices now in order to attain lowest premium rates in the future.
Incentivizing Best Practices
With the adoption of AB 2320, businesses will be incentivized to increase their security posture in order to receive lower premiums from insurers. Simultaneously, insurers will be incentivized to mandate best practices from their insureds in order to mitigate their risk of having to pay out on cyber insurance policies. Thus, cyber insurance will work as a vehicle to increase best practices in businesses and subsequently decrease vulnerabilities to cyberattacks.
Reprinted courtesy of
Makenna Miller, Newmeyer Dillion and
Jeffrey Dennis, Newmeyer Dillion
Ms. Miller may be contacted at makenna.miller@ndlf.com
Mr. Dennis may be contacted at jeff.dennis@ndlf.com
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