Why Are Developers Still Pouring Billions Into Waterlogged Miami?
November 30, 2016 —
James Tarmy – BloombergOn Sunday, an ebullient procession of artists, performers, and city residents filled Collins Avenue between Miami Beach’s 32nd and 36th streets to inaugurate the Faena Forum, a 43,000--square-foot, $150 million, performing- and visual-arts space that’s the cultural centerpiece of the Faena District, a $1 billion development comprising luxury hotels, restaurants, and real estate. The complex is the brainchild of Alan Faena, an Argentinian fashion designer-cum-developer known for his all-white outfits, and Len Blavatnik, a Ukrainian born, New York-based billionaire whose net worth is estimated by Bloomberg Billionaires to be $18.6 billion.
The parade/carnival/performance was was titled “Side by Tide,” which might be an overly optimistic assessment of Miami Beach's sea level. With "king tides" flooding parking garages and a University of Miami study reporting that Miami Beach has seen a 200 percent increase in flooding in the last decade, the tide isn’t on anyone’s side. It’s already beneath the city, seeping upward, often as not, through the ground’s porous limestone and into buildings’ backlogged storm drains. Aside from ruining the undercarriages of residents’ Porsches, this ground-up flooding has a second, perhaps more deleterious effect on the long-term feasibility of Miami Beach: Normal defenses against a rising ocean—such as sea walls or dykes—are useless.
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James Tarmy, BloombergMr. Tarmy may be followed on Twitter @jstarmy
Burden to Prove Exception to Exclusion Falls on Insured
April 19, 2022 —
Tred R. Eyerly - Insurance Law HawaiiIn a dispute between two insurers, the Ninth Circuit relied upon Nevada law in finding that the burden of proving that an exception to the exclusion applies was on the insured. Zurich Am. Ins. Co. v. Ironshore Specialty Ins. Co., 2022 U.S. App. LEXIS 1626 (9th Cir. Jan. 20, 2022).
Ironshore insured seven subcontractors. The policy included an exclusion providing there was no coverage for any property damage for the subcontractors' for "work performed prior to the policy inception." An exception to the exclusion provided that the exclusion did not apply to property damage that was "sudden and accidental and takes place within the policy period."
The seven subcontractors were sued for work they had performed. Zurich defended and indemnified the subcontractors. Zurich then sued Ironshore seeking contribution and indemnification for defense and settlement costs. The parties stipulated that all construction work at issue had been completed before the inception of Ironshore's policy and that none of the complaints against the subcontractors alleged that sudden and accidental damage had occurred after the inception of Ironshore's policy.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
The Washington Supreme Court Rules that a Holder of a Certificate of Insurance Is Entitled to Coverage
March 09, 2020 —
Sally Kim & Kyle Silk-Eglit - Gordon & Rees Insurance Coverage Law BlogThe Washington courts have historically found that the purpose of a certificate of insurance is to advise others as to the existence of insurance, but that a certificate is not the equivalent of an insurance policy. However, the Washington State Supreme Court recently held that, under certain circumstances, an insurer may be bound by the representations that its insurance agent makes in a certificate of insurance as to the additional insured (“AI”) status of a third party. Specifically, in T-Mobile USA, Inc. v. Selective Ins. Co. of America, the Supreme Court found that where an insurance agent had erroneously indicated in a certificate of insurance that an entity was an AI under a liability policy, that entity would be considered as an AI based upon the agent’s apparent authority, despite boilerplate disclaimer language contained in the certificate. T-Mobile USA, Inc. v. Selective Ins. Co. of America, Slip. Op. No. 96500-5, 2019 WL 5076647 (Wash. Oct. 10, 2019).
In this case, Selective Insurance Company of America (“Selective”) issued a liability policy to a contractor who had been retained by T-Mobile Northeast (“T-Mobile NE”) to construct a cell tower. The policy conferred AI status to a third party if the insured-contractor had agreed in a written contract to add the third party as an AI to the policy. Under the terms of the subject construction contract, the contractor was required to name T-Mobile NE as an AI under the policy. T-Mobile NE was therefore properly considered as an AI because the contractor was required to provide AI coverage to T-Mobile NE under the terms of their contract.
However, over the course of approximately seven years, Selective’s own insurance agent issued a series of certificates of insurance that erroneously identified a different company, “T-Mobile USA”, as an AI under the policy. This was in error because there was no contractual requirement that T-Mobile USA be added as an AI. Nonetheless, the certificates stated that T-Mobile USA was an AI, and they were signed by the agent as Selective’s “authorized representative.”
Reprinted courtesy of
Sally S. Kim, Gordon & Rees and
Kyle J. Silk-Eglit, Gordon & Rees
Ms. Kim may be contacted at sallykim@grsm.com
Mr. Silk-Eglit may be contacted at ksilkeglit@grsm.com
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OSHA Reinforces COVID Guidelines for the Workplace
March 08, 2021 —
Joseph P. Paranac Jr. & Robert M. Pettigrew - White and Williams LLPOn January 29, 2021, the Occupational Safety and Health Administration (OSHA) updated its existing guidelines concerning coronavirus protection measures for the workplace. Focusing on the implementation of workplace protection programs, OSHA’s updated advisory guidance seeks to reinforce the benefits of implementing workplace policies along with the critical role employees have in combatting workplace spread. These guidelines are “intended to inform employers and workers in most workplace settings outside of healthcare to help them identify risks of being exposed to and/or contracting COVID-19 at work and to help them determine appropriate control measures to implement.”
OSHA maintains that the implementation of a strong coronavirus protection program is the most effective way to combat virus spread in the workplace. OSHA has identified 16 categories or elements that an effective coronavirus protection program should address, which include appointing a workplace coordinator and conducting a workplace specific hazard assessment. This assessment should begin by identifying risks in the workplace and developing control measures to mitigate them. The guidance stresses that workers are often the most valuable source of information relating to conditions that contribute to the risk of spread.
Reprinted courtesy of
Joseph P. Paranac Jr., White and Williams LLP and
Robert M. Pettigrew, White and Williams LLP
Mr. Paranac may be contacted at paranacj@whiteandwilliams.com
Mr. Pettigrew may be contacted at pettigrewr@whiteandwilliams.com
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Landlords, Brace Yourselves: New Law Now Limits Your Rental Increases & Terminations
March 02, 2020 —
Kyle Janecek – Newmeyer DillionCalifornia can be an especially expensive place to live. While this is the common wisdom, residents of the state are also painfully aware that location is an equally important factor. Yet, to curb unscrupulous actions in certain areas and expansive rental increases, Governor Gavin Newsom has signed AB-1482, which is a state-wide limitation on yearly rental increases, prompting potential additions to leases, and additional notices that landlords are required to give to tenants. Failure to do so may cost landlords unnecessary costs and unforeseen complications around the termination of a tenancy.
How Does the Rental Cap Work?
The law sets forth three ways that rental increases may be limited: (1) a cap of 5% plus the percent change in the cost of living; (2) a cap of 10%; or (3) where local rent or price control that restricts annual increases in the rental rate to an amount less than the state law. The cap that applies is the one that is the most restrictive on the landlord. For example, if the cost of living has gone up by 6%, and there is a local law that restricts rental increases by 15%, then the state law would cap the landlord to a rental increase of 10%.
Notably, this doesn't count any discounts or incentives that are applied to the rent, if they are (a) listed separately and (b) clearly stated within the residential lease agreement. Thus, even if the effective increase would be beyond the applicable cap, the landlord is not obligated to cap rent using the discounted rental fees.
Finally, this does not prohibit the landlord from freely setting a rent for new tenants. The cap only applies to existing tenants.
Exempt Properties from the Law
Certain properties are also exempt from the rental cap law, allowing landlords to increase rents without limitation for the residential properties below:
- Housing restricted by deed for purposes of affordable housing.
- New housing with a certificate of occupancy that has been granted within the previous 15 years.
- Condominiums or townhouses provided that the owner is not (a) a real estate investment trust; (b) a corporation, or (c) a limited liability trust.
- A duplex in which one of the units is owner-occupied as the owner's primary residence.
'Just Cause' for Terminations Is a Necessity
Notably, AB-1482 is not limited to rent restrictions. AB-1482 also restricts the ability of a landlord to evict tenants after the tenant has been occupying the property for over 12 months without just cause. Just cause includes items typical to an ordinary eviction action, such as a failure to pay rent or a default of a material term of the lease, or nuisance actions. Importantly, the legislature provided "no-fault just cause" such as the intent to occupy the real property by the owner or one of their family members, withdrawal of the property from the rental market, compliance with a government agency or an intent to substantially remodel the property.
In the event that the just cause is "no-fault," then the owner must either (a) assist the tenant in relocating by providing a direct payment of a full month's rent to the tenant within 15 calendar days of the notice; or (b) waive the payment of the last month's rent. Effectively, this puts a cost on the landlord to terminate a tenancy. Importantly, an owner's failure to do either of those actions will render the termination of tenancy void, and cannot be contractually waived.
This does not apply to any of the housing types exempt under the rental cap provision, or (a) transient and tourist hotel occupancy; (b) housing accommodations in a nonprofit hospital, religious facility, extended care facility, licensed residential care facility for the elderly, or in an adult residential facility; (c) housing accommodations in which the tenant shares bathroom or kitchen facilities with the owner; (d) single-family owner-occupied residences where the owner leases no more than two units or bedrooms; or (e) student housing for kindergartens or grades 1 to 12.
Notwithstanding, landlords must also provide additional language within their lease giving notice of the rental cap law and the tenant's rights regarding termination. This language is stated within the law, and must be given in 12 point font.
What Landlords Must Do Right Now
Ultimately, landlords will have to show more care towards termination processes and rental increases moving forward.
At a bare minimum, landlords will have to revise their form leases for new tenants and prepare addendums for any tenancies continuing in 2020. While the bare minimum is the new, state-mandated language to inform tenants of their rights, other language may be required if the landlord wishes to reserve a right to terminate in order to take occupancy for themselves.
Furthermore, for any leases going forward, any landlord that wants to provide a temporary discount or incentive to rent their units will have to include language outlining and specifically stating the presence of the discount or incentive, or chance that a tenant may contest the increase in rent as a violation of the rental cap portion of the law. Similarly, the changes above will have to be implemented as an addendum to any leases being renewed.
A failure to do any of these actions risks that a tenant may contest either the termination for being improper or an increase in rent, as an excessive rent hike.
Kyle Janecek is an associate on the firm's Transactional team, and has experience with drafting leases for landlords and tenants, real estate purchase and sale agreements, and loans secured by real estate. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
About Newmeyer Dillion
For 35 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 70 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, privacy & data security and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's success and bottom line. 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 Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
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New Orleans Drainage System Recognized as Historic Civil Engineering Landmark
May 29, 2023 —
The American Society of Civil EngineersNEW ORLEANS, La. – The
American Society of Civil Engineers (ASCE) today recognized the New Orleans Drainage System in New Orleans, Louisiana as a
Historic Civil Engineering Landmark. The project was innovative and largely unprecedented for its time, and the first portions came online in the year 1900. The system now consists of 22 drainage pumping stations and 1,200 miles of network drains, as well as green infrastructure elements to manage stormwater runoff. The infrastructure is largely credited for making the existence of New Orleans possible, and the improved drainage and reduction in standing water contributed to better public health and reduced the number of malaria and typhoid deaths in the early 20th century.
New Orleans' position near the mouth of the Mississippi River made it a vital city for trade and commerce in the U.S. economy since the early 1800s, despite its problematic natural environment. The city was perched along the banks of the Mississippi River and next to Lake Pontchartrain, surrounded by swamps. Improvements to levee systems prevented the city from being inundated with flooding from the river, but rainfall became a pervasive issue as the city's population grew in the 1870s.
The drainage system was first proposed in 1876 to replace primitive "drainage machines," steam-powered paddle wheels that moved water runoff into canals that led to Lake Pontchartrain. The existing system was inefficient and could not handle the frequent, heavy tropical rain New Orleans experiences and could not lift water sufficiently to drain the city. After several proposals, construction on the current drainage system started in 1897, and the first portions of the system came online in 1900. The system drains stormwater through pipes and canals to reach drainage pump stations which expel the water into several bodies of water surrounding the city. Engineers have repeatedly expanded and enlarged the drainage system, including a massive investment in the drainage system authorized by the Southeast Louisiana Urban Flood Control Project and approved by Congress in 1996. The Sewerage and Water Board's green infrastructure plan is a critical partner and complement to the drainage system today.
The New Orleans Drainage System's design has inspired water management system design in communities around America and worldwide. In Southeastern Florida, water management systems using pumps and canals divert excess water away from heavily populated areas during heavy rain, including tropical storms and hurricanes. Engineers in Kolkata, India and Shanghai, China have also used drainage and pumping systems like the ones in New Orleans to assist with water management.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
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Be Careful with Continuous Breach and Statute of Limitations
January 21, 2019 —
Christopher G. Hill - Construction Law MusingsIf you are a construction attorney like me (or anyone that takes cases to court), you deal with statutes of limitation on a daily basis. These statutes seem pretty simple. A party has “X” amount of time in which to file its lawsuit after accural of the cause of action. In a breach of contract suit, the accrual is the date of breach. Easy, right? Wrong, at least in some circumstances.
Take for example, the case of Fluor Fed. Sols., LLC v. PAE Applied Techs., LLC out of the 4th Circuit Court of Appeals. In this unpublished opinion the Court looked at “continuous breach” versus “series of separate breaches.” The basic facts are that in 2000 Flour entered into a contract with PAE whereby PAE requested and claims to have received consent from Flour to a 2.3% administrative cost cap on Flour’s work on an Air Force contract. Flour claimed that it did not agree to this cap. In 2002, Flour begain billing PAE for its costs plus the 2.3% administrative markup and billed in this fashion for the first full year. However, in subsequent years and for the next 11 years, Flour billed PAE at a higher markup rate than the 2.3%. PAE disputed the increased markup and paid Flour at the 2.3% rate. Flour periodically protested but made no move to court until it filed suit in March of 2016. After a bench trial, the district court found that Flour had agreed to the cap and found for PAE.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Trends and Issues which Can Affect Workers' Compensation Coverage for Construction Companies
December 26, 2022 —
Saxe Doernberger & Vita, P.C.Recent trends in workers’ compensation coverage suggest that the number of claims are likely to continue to increase, specifically for high-risk industries, like the construction industry. This article explores multiple trends and issues which are likely to impact workers’ compensation insurance for construction companies. Several of these trends and issues reflect demographic, labor, and technological shifts, which have important implications for contractors and construction companies.
1. Technological Innovation and Worker Safety
New wearable technologies and other data-collecting products such as helmets which warn of employee fatigue and sensors which help with ergonomic corrections have emerged in the markets to support safety measures in the construction industry. Although devices such as these tools can help business owners to demonstrate the implementation of safety programs to their insurance carriers, they can also distract the workers who are wearing them or go through a product malfunction, which could lead to injuries in the workplace and could also result in higher workers’ compensation premiums. While these new technological devices are intended to support worker safety on construction sites, it is also important for business owners to evaluate the potential risks of new technologies on a project site.
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Saxe Doernberger & Vita, P.C.
