Friday Favorites--Pet-Friendly Design: Whose House is it Anyway?

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Today's post is for anyone who has ever looked around their house and imagined how much more fun it could be made for their pet with just a little time, money, and effort. Yes, today's post is for me, I admit it.

Beginning with perhaps the least extravagant and easiest do-it-yourself project, from Ilana DeBare at Berkeleyside, we have the "catio", an outdoor enclosure designed to let cats enjoy being outside while keeping the cats (and the neighborhood birds) safe. Lest you think this is just another Berkeley phenomenon, check out "Catios offer cats a secure way to enjoy the outdoors" from Michelle Spitzer at the Associated Press.

Laura Moss over at mother nature network has some great photos of tiny homes for feral cats designed by New York architects (including a time machine!).

Giving dogs their due, Janet Eastman's article at the Oregonian on "unleashing pet designs," includes some creative ideas for dog owners. Dogwash tunnel anyone? No? Then Beth J. Harpaz of the Associated Press has some more down-to-earth tips on pet-friendly furniture here at "Pet-owner challenge: buying new furniture."

And finally, check out the amazing house in Margot Peppers' Daily Mail article about a "purr-fect paradise." My favorite part is the shark-mouth hideaway in the bathroom.

From everybody here at G2G, have a great weekend!

Calling All Sacramento Soccer Fans

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UPDATE: The Sacramento Bee, Five questions to ponder as Republic FC begins its inaugural season (Mar. 28, 2014); Sacramento Business Journal, Work begins on soccer stadium (Mar. 18, 2014); 2014 Season Tickets Deposits

It was recently confirmed that the Cal Expo Board of Directors voted unanimously for the agreement between Ovations Fanfare LLC (Ovations), a food service company that is a subsidiary of national sports and entertainment giant Comcast Spectacor, soccer ball.jpgand Cal Expo to construct an 8,000-seat multi-use sports facility. Sacramento Republic FC, the recently formed professional soccer team, will be one of the groups hosting its home matches at the facility.

The facility will be located on the California State Fair grounds, approximately 2 miles from downtown Sacramento. It "will feature a soccer-specific full pitch or field with dimensions for international soccer (120 x 80 yards), and serve as the home pitch for the Sacramento Republic FC soccer club. Plans include using it for other events such as concerts as well.

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English Contract Law: Your Word May Still be Your Bond

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorney Ray Sweigart posted his advisory titled English Contract Law: Your Word May Still be Your Bond. The advisory discusses English law on oral contracts and the English courts' willingness to find that binding contracts have been made despite the lack of a final writing and signature.

Building Around Nature - Literally

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Construction is set to begin in April on a highway bypass south of College Station, Texas. But a group of ancient oak trees sits near the site where the road will run. The Texas Department of Transportation ("TxDOT") intended to remove four of the trees, each 200 to 300 years old, which stood in the way of the planned bypass. And the safety of the nearby trees, including a massive 500 year-old oak tree thought to be one of the oldest trees in Texas, could not be guaranteed.

But community outcry has forced the TxDOT to reassess. For nearly 150 years, Regina McCurdy and her family have owned the land on which the ancient oak trees sit. The last 7 of those years, she and her family have been fighting with the TxDOT to save the trees.

It appears their pleas in favor of nature were finally heard. Last week, the TxDOT decided to redesign the road. The new design will use a narrower median to allow the road to be built around the oak trees. According to John Barton, TxDOT Deputy Director, it is an "urban design in a rural setting." Additionally, an arborist will monitor the trees during the construction process to ensure their survival.

Now THAT is sustainable design.

Are You Immune To A Cyber-Attack Or Data Breach?

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Not surprisingly, after the cyber-attacks that occurred at a couple (or perhaps few) large retailers over the holidays there has been much discussion about the need to ramp up efforts to protect against such attacks. According to a Guide entitled Cybersecurity in the Golden State that was recently issued by California Attorney General Kamala D. Harris, "[i]n just the first three months of 2013, there were more than one billion Cyberattacks," and "[i]n 2012, 50 percent of all targeted attacks were aimed at businesses with fewer than 2,500 employees." It might surprise you, but according to the Guide, "[s]ecurity threats can be broadly categorized in to the following categories:

1. Social Engineering Scams
2. Network Braches
3. Physical Breaches
4. Mobile Breaches
The Guide is directed at small businesses to assist them in protecting against cyber-attacks and data breaches. It outlines recommendations for "businesses to help protect against and respond to the increasing threat of malware, data breaches and other cyber risks." More specifically, a "cyber-attack" (aka "cyber-warfare" or "cyber-terrorism") is generally understood to include "any type of offensive maneuver employed by individuals or whole organizations that targets computer information systems, infrastructures, computer networks, and/or personal computer devices by various means of malicious acts usually originating from an anonymous source that either steals, alters, or destroys a specified target by hacking into a susceptible system." Examples of cyber-attacks include installing spyware on a personal computer or mobile device.

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Friday Favorites - New TV Show Catches Contractors Off Guard

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Not only is the government out to sting contractors (as noted by G2G's Amy Pierce here), now Hollywood is too. Rima Suqi's New York Times interview, "Getting Contractors to Man Up" (subscription required if you've used up your free articles) notes that SpikeTV has a new show about bad apple contractors. Hosted by Adam Carolla (who you may remember from "Loveline" and "The Man Show"), the show is geared toward helping homeowners who have hired contractors whose work has been sub-par. The show lures unsuspecting contractors to a decoy house on the premise of providing a bid, and then surprises them with a camera crew. The contractors are then offered a choice--fix the work under the show's supervision, return the money they were paid by the homeowner, or face a court battle with the homeowner in which the show will assist the homeowner. Not surprisingly, according to the interview, most contractors choose to finish the job.

"To Catch a Contractor" premieres this Sunday, March 9, at 10 p.m./9 p.m. Central. You can find out more about the show at Spike TV's site here. Am I the only one hoping at least one contractor will choose the court option?

Dial back that hyperbole, or it could really hurt you

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One of the first tactical lessons most litigators learn is not to overstate your position. Another lesson is to always remain civil, even in the face of an un-civil opponent. These lessons are sometimes difficult for young lawyers, brimming with aggression, to digest. Most of the time when one of those lawyers inserts unfortunate language in a brief--say, openly mocking the opponent's argument--cooler heads prevail and a sage senior lawyer excises the offending language.

Most of the time. But not all of the time. This short Sixth Circuit opinion, Bennett v. State Farm Mutual Insurance is a good lesson to young lawyers. I can't deliver a judicial bench slap any better than the court, so let me just quote Judge Kethledge:

"There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." Big Dipper Entm't, L.L.C. v. City of Warren, 641 F.3d 715, 719 (6th Cir.2011). But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct."

Ouch. Whatever feeling of satisfaction that lawyer had when he wrote "ridiculous" in his brief must have felt worlds away when he read that opinion.

There's another lesson here: Always carefully review defined terms in your insurance policy. In Bennett, "The question presented is whether Bennett was an "occupant" of the Fusion--as that term is defined by State Farm's policy--at the time she was on the vehicle's hood. If she was, then she is entitled to coverage for the injuries she sustained there; if not, then not." The policy defined "occupying" as "in, on, entering or alighting from." Since Mrs. Bennett was "on" the car, she was "occupying" it as defined by the policy.

One last lesson for insureds: Don't give up too easily. It would have been very easy for Mrs. Bennett to hang her head when State Farm denied her claim because she was on the hood, and wasn't an "occupant" of the car. But she stuck with it and pressed her case. Good for her.

The Five P's -- Prior Planning Prevents Poor Performance

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You'd be surprised at how often we find mistakes at the beginning of projects that, if not caught, would put most of a client's insurance coverage at risk. Clients frequently ask us to review their controlled insurance programs (often referred to as "CIPs" or "Wrap-Ups") before implementing them. Brokers do much of the heavy lifting in structuring these programs, but many of our clients like to have coverage attorneys review them for some nuances that lawyers who litigate coverage issues will pick out. The issues get pretty esoteric, but some esoteric issues can be worth a lot of money. Lately, I've been seeing one particular type of exclusion in Wrap-Ups that, if it remained and were enforced, could jeopardize much of the coverage the client thought they were buying in the Wrap-Up: a "Cross-Suits" exclusion.

Under a Wrap-Up, the owner (under an "Owner Controlled Insurance Program or "OCIP") or general contractor (under a Contractor Controlled Insurance Program or "CCIP") and all contractors and subcontractors of every tier are named insureds under certain project insurance, typically general liability and workers compensation. When properly administered, a Wrap-Up program can increase project savings, reduce litigation, provide more complete coverage for completed operations, increase Minority and Women Business Enterprise participation, among other benefits.

But Cross-Suits Exclusions are children of a different type of insurance set-up, a more traditional program where individual contractors and subcontractors buy their own insurance and some are required to make others additional insureds. This exclusion precludes coverage for claims brought by one insured against another insured. A typical Cross Suits Exclusion provides: "This insurance does not apply to: . . . Suits brought by one insured against another insured." These would, for example, avoid the "moral hazard" of a parent company suing its own subsidiary to trigger liability coverage.

But in a Wrap-Up, this doesn't make any sense. Remember, in a Wrap-Up, the owner, general contractor and all subcontractors are all named insureds. So a Cross-Suits exclusion would bar coverage for any liability the general contractor may have to the owner for losses arising from it or its subcontractors negligence. That's a significant part of the coverage that an owner would want its contractor to have on a GL policy. If a Cross-Suits exclusion remained and were enforced, the only liabilities covered would be to third parties--parties that have nothing to do with the project.

A similar limitation is created when a Cross Suits Exclusion is included in a CCIP. Although in that circumstance there may be coverage for a contractor's liability to the owner (if the owner is not a named insured), contractors will not be able to trigger coverage for their own losses arising from the negligence of another contractor/subcontractor on the project. For example, the general contractor will not be able to trigger the Wrap-Up program for losses it incurs as a result of its subcontractors' negligence.

This is just an example of an exclusion that plainly doesn't belong in a Wrap-Up program, but that we've seen almost inserted in them recently. Make sure to have a reputable broker review your programs before implementing them and consider investing a small amount to have a coverage attorney review it. Prior planning prevents poor performance.

Court Affirms City's Discretion to Waive Bid Defect, Clarifying the Meaning of Inconsequential Deviation

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Recently a California Court of Appeal affirmed a superior court's judgment and order confirming that the City of San Leandro (City) had not abused its discretion by waiving a bid defect and awarding the public project contract to that bidder. The court, in Bay Cities Paving & Grading, Inc. v. City of San Leandro, Case No. A137971 (Jan. 28, 2014), rejected Bay Cities Paving & Grading, Inc.'s (Bay Cities) contention that the City improperly awarded the contract to Oliver Desilva, Inc. dba Gallagher & Burk (hereafter G&B) because G&B inadvertently omitted the first page of its bid bond, a bond required by the contract specifications. The court found that the City had before it the information needed to determine that G&B had satisfied the bid bond requirement when it concluded that G&B was the lowest responsible bidder.

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Subcontractors Are Victorious, Iowa State Agency Required To Cover General Contractor's Payment Shortfalls

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Star Equipment, Ltd., Manatt's, Inc., and Short's Concrete Cutting Co. recently secured a victory in the Iowa Supreme Court when the Court, Iowa Supreme Court.jpgin Star Equipment, Ltd., v. State of Iowa, Iowa Department of Transportation, Case No. 12-1378 (Jan. 31, 2014), reversed the district court's ruling on the scope of remedies available to subcontractors under Iowa Code ยง 573.2 for unpaid work. For the state projects, the Iowa Department of Transportation (IDOT) had waived the requirement of a construction surety bond because the general contractor qualified as a Targeted Small Business (TSB). Ruling in favor of the subcontractors, the Court construed Section 573.2 "as a waiver of sovereign immunity that allows subcontractors to recover from IDOT the unpaid balances TSBs owe for work on public improvements." It went on to rule that the subcontractors, as prevailing parties, are eligible, in the district court's discretion, to recover their reasonable attorneys' fees from IDOT.

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70 Days and Counting: Clock Is Ticking to Claim Embedded Software Tax Exemption

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Lawrence L. Hoenig, Craig A. Becker, Richard E. Nielsen, Dianne L. Sweeney, Matthew F. Burke and Breann Robowski posted their advisory titled 70 Days and Counting: Clock Is Ticking to Claim Embedded Software Tax Exemption. The advisory encourages companies to review California's embedded software exemption, an established (but underutilized) exemption that may enable companies to enjoy substantial property tax savings in this and future tax years on their personal property assets. Most businesses have until May 7, 2014 to file their annual Business Property Tax Statements (Forms 571-L) with California counties. The advisory recommends that companies act now so they that may claim the benefit of such exemption in preparing these filings, and thereby seek to reduce the amount of their property taxes due this tax year.

What is the Construction Industry's "Bliss Score"?

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Recently I've come across a number of articles reporting on what I will refer to as the "bliss" factor for employees, measuring, for example, happiness with their current career path, with the city in which they work, etc. happy.jpgCareerBliss has published a number of bliss lists, evaluating what it considers to be the "key factors" which affect work happiness, including, for example: "one's relationship with their boss and co-workers, their work environment, job resources, compensation, growth opportunities, company culture, company reputation, their daily tasks, and job control over the work that they do on a daily basis" to come up with an overall "bliss rating" or "bliss score." A number of you with careers in the construction industry have reported that you are blissfully happy.

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2014 Project Finance - United States

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By Pillsbury Winthrop Shaw Pittman

Co-head of Pillsbury's Energy Industry team Rob James and project finance partner Philip Tendler recently published 2014 Project Finance - United States. In it, they discuss collateral, how security interests are perfected and prioritized, liens, and enforcement of collateral. In addition, they touch on bankruptcy, foreign exchange, remittances, repatriation, offshore and foreign currency accounts, foreign investment and ownership restrictions, insurance, and natural resources. They conclude with a section on financing of recent public-private partnership (PPP) transactions in the United States.

Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through - Project Finance 2014 (published in August 2013; contributing editor Phillip Fletcher, Milbank, Tweed, Hadley & McCloy LLP).

For further information, please visit Getting The Deal Through

U.S. Solar Decathlon 2015: Teams Announced

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The U.S. Department of Energy recently announced that the following 20 collegiate teams have been selected to compete in the U.S. Solar Decathlon 2015 that will be held at the Orange County Great Park, located between Los Angeles and San Diego, in Irvine, California:Great Park.jpg

  • California Polytechnic State University

  • California State University, Sacramento

  • Clemson University (South Carolina)

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World's Largest CSP Plant Opened February 13

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The Ivanpah Solar Electric Generating System -- the largest concentrating solar power (CSP) plant in the world -- officially opened on February 13, 2014. Ivanpah.jpgAccording to its website, "[l]ocated in the Mojave Desert, Ivanpah has 347,000 garage door-sized mirrors distributed across 173,500 heliostats. The heliostats track with the sun so that the mirrors can efficiently reflect its rays up to boilers that sit on top of the facility's three towers." In turn, the U.S. Department of Energy Department (DOE) boasts that Ivanpah has the ability to generate 392 MWs of electricity -- enough to power 94,400 average American homes -- most of which will be sold under long-term power purchase agreements to Pacific Gas & Electric Company and Southern California Edison Company. The project is a joint effort between NRG Energy Inc., Google, and BrightSource Energy, Inc.

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