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

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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.

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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