Fwd: Porter Law Group Bulletin

Porter Law Seminar on Indemnity & Defense Construction Law Changes for 2013. 

If this email doesn't display correctly, view the online version

Porter Law Group Home	Archives	Construction Forms

California Indemnity and Defense Construction Law Changes for 2013 Death of "Type 1" Indemnity in California Construction For many years the prevalence of the "Type 1" indemnity clause has been the subject of fierce debate within the construction industry.  Subcontractors have complained that they are saddled with indemnity obligations that require them to indemnify contractors from construction-related claims for which these subcontractors are truly not responsible.  In defense, contractors have argued that they must be entitled to the freedom to set contractual terms to best protect themselves and they point out that subcontractors are certainly free to negotiate better terms or turn down work. Understanding and Negotiating Your Construction Contract Speakers: William L. Porter, Esq. and Conor H. McElroy, Esq. June 11 & Oct. 22 SRBX, Sacramento Construction Collections Speakers: William L. Porter, Esq. Apr. 9 & Aug. 13 SRBX, Sacramento Cost: $25 SRBX members, $45 non-members To register, contact Erin Lynch at 916-442-8991 ext. 105 or erin@sacregionbx.com See all seminars After many years of debate and small legislative inroads in prohibiting Type 1 indemnity in residential projects and where it concerns the "sole negligence", "willful misconduct" or the "design defects" of others, the California legislature has finally spoken broadly and definitively on the issue of Type 1 indemnity clauses in construction contracts.  Under new Civil Code section 2782, beginning with contracts entered into on or after January 1, 2013, broad "Type 1" indemnity clauses shall be void and unenforceable in the context of both private and public construction projects in California.  Civil Code section 2782 now makes it clear that subcontractors can no longer be required to indemnify against another's active negligence in connection with construction contracts, whether public or private.  Specifically, note the following: What the New Indemnity Law Does Do: No Shifting Public Owner Active Negligence to Subcontractors: Under prior law, indemnity provisions in public works contracts were unenforceable when the provision purported to shift liability for the active negligence of a public entity to the contractor.  Under the new law, this same protection is extended to subcontractors.  Contract provisions where the contractor purports to shift the liability for the public entity's active negligence to subcontractors are no longer enforceable. Civil Code section 2782(b)(2). No Shifting of Private Owner Active Negligence: The same protections noted above are also extended to Private Construction Projects.  Under the new law, except as to a homeowner performing a project on a single family dwelling, owners of Private Projects cannot enforce contract provisions which purport to relieve the private owner for its own active negligence or shift liability for such active negligence to contractors or subcontractors. Civil Code section 2782(c). No Shifting of Contractor Active Negligence: The new provisions noted above apply specifically to the active negligence of both the public and private owner. New Civil Code section 2782 also prohibits the shifting of liability for the active negligence of general contractors or construction managers to subcontractors or the shifting the liability for the active negligence of one subcontractor to another subcontractor.  This includes a prohibition of requiring subcontractors to indemnify contractors for claims that "do not arise out of the scope of work of the subcontractor pursuant to the construction contract". Civil Code section 2782.05(a).  Changes to Defense Obligations: As to the obligation to provide a legal "defense" to construction claims, the customary past practice was for construction contracts to require subcontractors to secure legal counsel immediately on receipt of a claim that falls under the indemnity clause.  Under the new law such provisions are unenforceable.  Instead, a subcontractor will have no defense and indemnity obligation unless the contractor first provides a written tender of the claim that follows the requirements of the new statute.  These requirements include providing specific information provided by the original claimant relating to that part of the claim caused by the subcontractor's work.  In addition, contractors can no longer require that subcontractors be required to pay for the defense of those parts of the overall claim that do not relate to the subcontractor's actual work on the project.  Civil Code section 2782.05(a), (e). No "Choice of Law" Option: The new law prohibits efforts to incorporate into construction contract "choice of law" clauses which attempt to apply the laws of other states to avoid the above provisions.  Civil Code section 2782.05(c), (d).  What the New Indemnity Law Does NOT Do: No Impact on "Wrap" Insurance Policies or Surety Agreements: The new law does not apply to obligations set forth under the terms of "Wrap" insurance policies or indemnity agreements required by sureties. No Relief for Design Professionals: The new law does not apply to contracts with design professionals. No Relief on Immediate Defense Obligation of Direct Contractors: The new law does not relieve the direct or "prime" contractor from any contractual obligation to provide a complete and immediate legal defense to owners for claims brought by third parties relating to the work of contractor and subcontractors on a project.  This is despite the fact that the new law does not always allow a contractor to pass such obligations on to subcontractors. No Change in "Additional Insured" Obligations: The new law does not prohibit contractual provisions that require subcontractors to name contractors and/or owners as "additional insureds" under insurance policies required under the terms of the contract.  Nor does the new law change the obligation of an insurer to provide an immediate defense to claims if required by the terms of the contract. Problems on the Horizon: "Active" vs. "Passive" Negligence: While owners and contractors are now prohibited from passing liability for "active negligence" to lower tier contractors and subcontractors, they are not prohibited from passing down their liability for "passive negligence".  The distinction between active and passive negligence is not entirely clear or subject to ready determination and in most circumstances must be decided on a case by case basis at considerable expense to both contractor and subcontractor. Cumbersome Claims Procedure Under Civil Code Section 2782.05: The new law provides a claims procedure for contractors making indemnity and defense demands on subcontractors.  Contractors now must be very specific in describing the claims, including providing "a written statement regarding how the reasonable allocated share of fees and costs was determined".  Subcontractors may defend using their own counsel or by paying "no more than a reasonable allocated share of the general contractor's … defense fees and costs".  How this will work in practice and what challenges might be posed as contractors and subcontractors attempt to apply these laws and procedures remains to be seen. Impact on Insurance Rates: The prevailing view seems to be that insurance rates for general contractors will increase and insurance rates for subcontractors will decrease as a result of the law.  Most speculate that the increase or decrease will be slight.  We shall see. In Conclusion: With the advent of the new law, owners, contractors and subcontractors alike should review their written contracts and their "indemnity and defense" clauses in particular to insure that they maintain all protections available to them under the new law.  They should insure that lower tier contractors and subcontractors provide adequate insurance and additional insured certificates are provided and maintained.  As to those contractual indemnity and defense clauses containing terms which are clearly prohibited under the new law, the clauses should be amended so that they comply with the law to the greatest extent possible, lest the entire indemnity clause be stricken by a court as unenforceable.   Article written by William L. Porter, Esq. in 2013. Mr. Porter is a principal in The Porter Law Group, Inc. in Sacramento, California. He can be reached by phone at (916) 381-7868.

info@porterlaw.com Tel 916-381-7868    Fax 916-381-7880 7801 Folsom Boulevard, Suite 101    Sacramento, California 95826 Copyright ©2013 Porter Law Group, Inc. | Privacy Policy | Terms of Use | Unsubscribe

 

 

---

CSLB Issues Warrant For Cunningham the Repair Man

James Cunningham
Unlicensed Contractor

VIOLATIONS:
Fraudulent use of a Contractors License not issued to him, Contracting without a license, no workers' compensation insurance, illegal advertising

KNOWN LOCATIONS:
Visalia Area (Tulare County)

BUSINESS NAME(S):
Cunningham The Repair Man

OTHER:
Cunningham used a licensed contractor's license number to provide a contract to paint and repair the interior of a house being flipped by a funding company.

Due to a prior criminal history, Cunningham was issued a $100,000 arrest warrant on January 15, 2013.

Attempts have been made to locate Cunningham, but his current address is unknown.

The Waterproofing Song

I am in the midst of uploading all my CD's to Google's Play Music...(try it, store 20,000 songs free) and I found a compilation album I picked up while down in Wilmington/Southport NC area some years ago. 

The CD is called Live at the Ice House and on it one track is called "The Waterproof Song". 

So waterproofers have their own tune to sing along with...Give a listen or download it here. https://www.dropbox.com/s/m5x1uotiphpyuag/10%20-%20The%20Waterproff%20Song.mp3

From Santa Clarita Signal -Vandals Who Put Paint in Pool Caused Over 300K in Damages

OUCH! How much damage can paint do? $300,000+ to pipes and boilers. 

Vandals who hopped a North Valencia HOA pool fence last summer and dumped seven gallons of paint into the pool and hot tub, causing more than $300,000 damage, are still at large.

A $5,000 reward for information leading to the arrest and/or conviction of the vandals who demolished the pool at Grandview Drive and Fairview Drive, remains unclaimed seven months after they ruined a summer for neighborhood kids wanting to swim.

The good news — the only good news, according to an HOA spokesman — is that the pool is now under renovation and is expected to be open by summer.

"It's frustrating," said Wolfgang Costello, president of the Northbridge Homeowners Association.

"There's been no arrest, no charge, nothing," he told The Signal on Monday.

"But, we'll be ready by summer."

Read the Rest at Santa Clarita Valley Signal's website http://www.signalscv.com/section/36/article/89470/

I got an email from an architect...I mean seriously, architects should f$%*ing know better.

I feel lile Seth and Amy on SNL...really? Really? Really? 

They want to know if...well here you read it...the name is left out to protect their identity. 

"I came across your website while I was doing research for my apartment terrace.  I live on the 5th floor in a small building, and each unit has a terrace directly outside its living space with ceramic tile flooring (concrete slab bldg).  Most residents have experienced some water infiltration (from their upstairs neighbors into the ceiling of their own terrace).  Based on my assessment (I am an architect), there are several different weak areas that are contributing to the infiltration, and one of them is likely the absence of (or damage to) a waterproofing membrane under the tiles. 

 

I have used (for a commercial project) a product called Armor Top (by Dur-a-Flex) directly over an interior concrete slab floor to waterproof it.  Both layers of Armor Top were clear, so the concrete showed through, which was the look we were going for.  The top layer also had some frit to it for slip resistance. 

 

I am wondering if you are familiar with this type of material and if so, have you ever used it directly on ceramic tiles for waterproofing?  I would still like to keep the existing ceramic tiles and don't want to go to the expense of tearing them up, re-waterproofing and flashing, etc.  If I could apply this product directly over the existing tiles, I can maintain the look, but essentially create a waterproof layer on top of everything.  It's also going to make regular maintenance and cleanin/sweeping much easier for me.

 

Thanks for any information you can provide!

and my answer was...

There are two ways to fix it. 

Right way is tear everything up and redo. 
The other way is any other method.

From NFPA Keep Your Deck Functional Not Flammable

Saw this article at NFPA 

Excerpt-

Q. What are the standards

for building a Firewise Deck?

A. Steve Quarles: Decks can be made from noncombustible

or combustible materials. An example of a noncombustible

deck is one that uses steel members or structural support and

a light-weight concrete and flag stone walking surface. An example

of a combustible deck is one that uses wood timbers and

joists for structural support and wood or wood-plastic composite

boards for the walking surface. As I'll explain, not all combustible

materials are created equal when it comes to performance

when exposed to fire. Decks built using combustible

components are more common than decks that use noncombustible

components. Although building codes and standards

exist with provisions to reduce vulnerability of decks to wildfire,

these provisions have not been adopted statewide outside of

California.

Read the rest Here http://wildfire.blog.nfpa.org/2013/02/keep-your-deck-functional-not-flammable.html

Local Santa Maria "Company" Using Someone Else's License on their Website

I found a new website from a "company" called Nor Cal Deck Waterproofing advertising deck coatings in Santa Maria, serving San Luis Obispo county among others. The license they advertise is a license belonging to West Coast Deck Waterproofing of Los Angeles. 

This company is not licensed from what i could see on CSLB's website and they don't even have a license application pending either. The link above shows the license listing info. 

Watch out for fraudulent license usage and protect yourself by always checking the license out and calling CSLB if you have questions on the validity of a license. 

This person probably won't have insurance or workers comp either-putting you at serious risk of financial liability of a worker got hurt at your home or business. 

What kind of work can you expect from someone using a license number that belongs to someone else as their own? Can you really trust them? You decide...

TV Show Looking For "Hot" "Contractors" in Their 20's for New Show

What a hoot...they want hot looking guys to sell sex on a new TV show...

don't they know that most "contractors" in their 20's are called "laborer's or sometimes "journeymen". 

This is from an email list I get daily for Help A Reporter, so sign up if you want to be on TV and are "hot"   Good luck.

16) Summary: Major cable network now casting hot Hollywood male actors for a new home improvement type show. 

Category: Entertainment and Media 

Email: query-2sxr@helpareporter.net 

Media Outlet: Anonymous

Deadline: 5:00 PM EST - 7 February 

Query: 

Major cable network is now casting hot male actors in Hollywood,
CA area for a new home improvement type show. 

Looking for good looking male contractors in their 20's that are
not yet working on the million dollar contracting project but
whose aspiration is to be on the big screen. 

If this sounds like you, please submit your name, age, location,
phone, email, photo and a brief description of the contracting
jobs you've done for LA's quirky, high-end clientele. 

Requirements: 

Looking for good looking male contractors in their 20's that are
not yet working on the million dollar contracting project but
whose aspiration is to be on the big screen. 

An Open Letter to DeckTech-Nevada Coating System Granite Deck fire test report request

Dear Ron,

As per your invite on your blog, and on behalf of our readers at DeckExpert.com and CentralCoastWaterproofing.com, I would like to request a copy of any UL or other certified lab's reports verifying that Granite Deck is Class A rated in accordance with ASTM E-108 or UL 790 as required by CA Building code for decks acting as roofs. Please forward copies to me at the email address or by mail to our business located at Central Coast Waterproofing 405 E Branch St Ste O Arroyo Grande CA 93420.  

I'm the only "self proclaimed expert and company that is calling out the lies your telling. If there's something I said that's not true, you and ole Dave Krubinski would have sued me by now...but he knows and so do you, that what I've stated is fact and fact is an absolute defense against libel. So I pray, please list what I've said that is wrong about NCS Granite Deck. 

Granite Deck has no listing at ICC-ES Div 7 Pedestrian Traffic Coatings. Hasn't been tested under Acceptance Criteria 39. 

According to two court cases I've seen about Krubinksi, he's a liar under oath. (Krubinski vs Schmutzer "A plain reading of the declaration and Krubinski's deposition testimony reflects that contrary to what was stated in his declartion, Krubinski did not witness the breaking of the locks on the storage facility. Accordingly, Schmutzers comment that Krubinski signed a false declaration under penalty of perjury is true....

and REFCO-"Krubinski was a witness in this proceeding, one the Court finds to have testified in a generally incredible manner.")

 I'd love to subpoena his documents and depose him if he ever decides to sue me...and hit him with another anti-SLAPP. 

BTW, I have never applied to be an applicator of NCS. Ever. I don't deal with shady people. 

Oh, your buddy Dave, he has a D-12 license. 

6990 Stellar Drive Rancho Mirage looks like it's quite the manufacturing facility doesn't it? In an HOA of all things. Does the HOA know that Dave is making NCS in the garage??? Oh that's right, he buys Carboline and repackages it to say NCS. What a hoot. 

C'mon by 405 E Branch St in AG anytime you want, see our displays out front of our showroom. But make an appt first if you'd like to view our interior flooring gallery.

Bill Leys 

The Deck Expert 

Bill Leys-The Deck Expert

NEW PAPERLESS FAX # 805-856-1528 (by Hello Fax)

805-545-8300 Central California

424-235-3196 S California

831-244-0874 N California

www.centralcoastwaterproofing.com Lic 890269

www.concretefloorstore.com  gallery of concrete flooring, installed by CCW

 Learn more about deck waterproofing at  www.deckexpert.com

 

 Feeling Social?

 Follow Me On Twitter   Like Central Coast Waterproofing On Facebook 

International Roof Expo Presents-Content Is King: Evaluating Decks for Waterproofing Applications

Very good seminar coming up on waterproofing concrete decks...

Waterproofing is like playing on the offensive line in football: If you do your job right, no one notices you. If you fail, the result is usually disaster.

At the upcoming International Roofing Expo (IRE) in San Antonio, waterproofing will be the subject of a seminar led by three principals at WJE Engineers and Architects, P.C.: Christopher Giffin, Richard Koziol and Douglas Stieve. Titled "Evaluation of New and Existing Decks for Plaza and Green Roof Waterproofing Systems," the seminar will be held Thursday, Feb, 7,from7:45 a.m. - 9:15 a.m.

Douglas Stieve gave me a preview of the session and answered some of my questions aboutthe importance of the substrate in the performance of a waterproofing system.

"The substrate or deck of a waterproofing system can be likened to the foundation for a building. It should be robust and stable," Stieve said. "Most waterproofing systems are intended to last the life of the structure to which they are installed. It is not a system that will be recovered or replaced in 15 to 20 years, like a roofing system might be. Therefore, the substrate needs to be matched with and conducive to the intended service life of the membrane."

Here's a portion of the interview:

 

RC: How can contractors evaluate the suitability of a concrete deck prior to application of the waterproofing system?

DS:The structural components of the deck should be evaluated by a qualified and competent person knowledgeable in structural systems. For new buildings, the deck needs to be dry, sound, and have the proper surface profile for the selected waterproofing system. 

READ THE REST HERE http://www.roofingcontractor.com/blogs/16-roofing-contractor-blog/post/89278-content-is-king-evaluating-decks-for-waterproofing-applications

Regenesis Report February 2013 Out Now

Good stuff for HOA's to know...

The Regenesis Report (National Edition) February 2013 is now available.  Go to www.Regenesis.net then Subscriber Login.

IN THIS EDITION

The Status Woe. Is it time to reboot?
Ask the HOA Expert. Another compelling Q&A.
What is a Reserve Study?  Outline of the essential HOA board planning tool.
Minutes Minutiae.  What makes the minutes tick.
Delegation Celebration. Share the work and share the love.
New Dog Breeds. Great Pyrenees + Dachshund = Pyradachs, a puzzling breed.

ADVERTISERS  
The Regenesis Report reaches over 10,000 homeowner association boards and managers nationwide each month.  
For advertiser information, see www.regenesis.net/advertise.htm

DO YOU BELONG TO A SELF MANAGED HOA? 
Regenesis.net is specifically designed to assist self managed HOAs with complex management issues.   
Besides the personalized Ask the HOA Expert™ service, there is a vast number of self-help resources…all for only $99/year.   
For details, see www.Regenesis.net/SubscriberInformation.htm

Please share The Regenesis Report with someone that you love.

Richard L. Thompson
The HOA Expert™
www.Regenesis.net