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Nevada To Regulate Tax Preparers, Require Bonds

Nevada tax preparers have been required to comply with a number of new requirements as of July of last year. These requirements include the necessity to pay application and renewal fees to become registered as a document preparation service, as well as to obtain and maintain a surety bond. Requirements of Assembly Bill No. 324 AB 324 introduced a series of new registration requirements for document preparation services in the state of Nevada. To begin with, the bill expanded the definition of such service to also include: Anyone who receives payment to assist other persons in preparing all or most of their federal or state tax returns as well as claims for tax refunds (i.e. tax preparers) Paralegals who perform such services, unless they work under the direction and supervision of an authorized attorney Bankruptcy petition preparers Enrolled agents authorized to practice before the IRS Along with the expanded definition, the Bill also amends the requirements for being allowed to practice as document preparation service in the state. Previously, licensees were not required to pay application or renewal fees which has now changed. Beginning July 2017, applicants for a document preparation service registration are required to pay a $50 nonrefundable application fee and a $25 renewal fee. Registrations expire on a yearly basis, and must be renewed prior to running out. Bond Requirement for Tax Preparers Since AB 324 includes tax preparers in the definition of document preparation service, they are required to post and maintain a $50,000 surety bond with the Secretary of State as part of their registration. This makes Nevada the fifth state to have introduced regulations and a bond requirement for tax preparers. The Nevada Revised Statutes (NRS) Chapter 240A specifies the conditions of the bond and its purpose. The bond is required in order to provide compensation to any person who suffers a loss or damage due to a tax preparer’s actions, as they are specified in the Chapter. Such actions include fraud, dishonesty, and negligence. But they also include any acts or omissions that violate any other provision of the chapter, but also federal and state law. In any of the above instances, if a complaint is brought against a tax preparer by a customer to request indemnification, a claim can be filed against the bond. When a claim is filed against a surety bond, the surety usually extends compensation to claimants which can be as high as the full amount of the bond. In return, the bonded tax preparer must then reimburse the surety for any such compensation in full. An important point here is that the cost of the bond is not the same as the bond amount! Cost of Your Bond First-time applicants for a bond often wonder if they need to pay the full bond amount to get bonded. Bond amount and bond cost are different! The amount of your bond, also known as the penal sum, is the full amount of compensation that can be made available by the surety in case of one or several claims. The cost of your bond, or the premium, is the sum you need to pay to obtain the bond from the surety company. This cost is typically a small fraction of the full bond amount. It is determined by the surety when you apply. In determining the cost of your bond, the surety will review your personal credit score and possibly a number of other items, such as your financial statements, your assets, and even your industry experience. Applicants with high credit scores are typically offered low rates on their bond, which can be as low as 1% of the whole bond amount or lower. The exact rate is determined once you apply for your bond. http://www.cpapracticeadvisor.com/news/12400338/nevada-to-regulate-tax-preparers-require-bonds

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California Offers First Cannabis Surety Bond to Protect Nascent U.S. Industry

The state’s budding cannabis industry gets a push in the right direction via a new surety bond issuance. The cannabis industry continues to struggle for recognition in the U.S., even as more enlightened policies in Canada have tilted the competitive advantage in that country’s favor. But a new surety bond approval from the California Department of Insurance is giving the state’s cannabis industry a push in the right regulatory direction. The department approved a surety bond issuance from Continental Heritage Insurance Co. Continental is also offering surety bonds to licensed cannabis businesses in Ohio. Surety bonds provide cannabis industry players of a way to make sure they can can comply with relevant regulations. For instance, if a company’s product was contaminated, the bond would allow the company to cover costs of destroying or otherwise disposing of the product. Such material could not just be thrown in the trash. In the case of California, the insurance regulator department appears aggressive in its support for the cannabis industry — and making sure it’s properly insured. When it comes to U.S. cannabis businesses, Canada has a competitive edge as medical marijuana is legal at the federal level, and recreational use will likely be legalized this year. Consequently, institutional capital is flowing into Canadian cannabis businesses. Last year liquor company Constellation Brands (STZ – Get Report) invested more than $200 million in a cannabis company, and another company set its self up for the $1 billion acquisition of CanniMed Therapeutics Inc. that was funded partially by a large PIPE transaction. California’s position may create a conflict with the federal’s government’s hostile policy changes on cannabis as delineated by attorney general Jeff Sessions, but that may not be a problem at the moment in the Golden State. The federal government in the U.S. has been known to alternate between passive and aggressive policies on cannabis enforcement. This regulatory uncertainty is one of the factors that makes institutional investment in the industry highly problematic. “Californians voted to legalize the adult-use of cannabis in 2016 and the medical use of cannabis in 1996,” a California Department of Insurance spokesperson told the TheStreet. “The department will continue to encourage insurers to write cannabis insurance products for the cannabis industry.” They added, “Moreover, as long as the Rohrabacher-Blumenauer amendment is in effect, which it is until March 23, the federal government cannot use federal funds to prosecute state-compliant medical cannabis businesses.” The insurance department has its own goals. “Cannabis businesses should have insurance coverage available to them just like any other California business,” Insurance Commissioner Dave Jones said in a Feb. 21 news statement. “As Insurance Commissioner, my mission is insurance protection for all Californians, which includes insurance for California’s legalized cannabis businesses. I encourage more insurance companies to file cannabis business insurance products with the department to meet the needs of this emerging market.” It remains to be seen how much of a conflict will develop between California and the U.S. federal government. https://www.thestreet.com/story/14501469/1/cannabis-surety-bond-hits-the-market.html

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The rough seas of the offshore surety bond market

The insurance industry was not the first thought John Hohlt had when he was studying Finance at Fordham University. During the summer months of 2012, he sought opportunities in the real estate industry and eventually served as a licensed real estate agent for DSA Realty Services. After graduating, he got a leasing intern post at Weingarten Realty Investors in Houston, Texas. It was only when one of his close friends brought up the idea of insurance that Hohlt decided to jump aboard and explore the surety bond industry. He got an underwriting position at Argo Group International Holdings and, after two years, Hohlt joined Wortham Insurance & Risk Management as a surety bond broker. Since joining Wortham, Hohlt has been vital in securing more than $1 billion in unsecured surety credit for the firm’s clients, thanks to his extensive knowledge of both contract and commercial surety underwriting obligations. With his grasp of Bureau of Ocean Energy Management regulations, he has helped Wortham target clients with offshore surety bond needs. In this exclusive interview with Insurance Business, Hohlt shares how Wortham differentiates itself in the industry. He also gives insights on the most pressing issues facing the offshore surety bond market. John Hohlt: Eric Feighl, a Partner at Wortham and close friend of mine, advised that I become a surety bond underwriter given my financial background and the lack of young personnel in the surety industry. After a few years as an underwriter, I became a broker when Wortham offered me a position. I cannot stress enough the importance of the knowledge and analytical skills I obtained as an underwriter and being able to view deals from both the client’s and the insurer’s standpoint. Read More… https://www.insurancebusinessmag.com/us/people/the-rough-seas-of-the-offshore-surety-bond-market-93316.aspx

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Surety providers’ argument [Guarantee] rejected by Supreme Court of Canada

An argument from a group of insurers and brokers – that construction contractors should not have a duty to inform subcontractors of the existence of a surety bond – has been rejected by the Supreme Court of Canada. In Valard Construction Ltd. v. Bird Construction Co., released Thursday, Canada’s highest court overturned an Alberta court of Appeal ruling, released in 2016, in favour of Bird, a general contractor on a Suncor oilsands construction project in 2009. One of Bird’s subcontractors – Langford Electric Ltd. – failed to pay Valard (one of Langford’s subcontractors) in full. Langford had a labour and material payment bond, worth nearly $660,000, written by The Guarantee Company of North America, naming Bird as an obligee. Essentially, The Guarantee was insuring Bird’s risk that Langford would fail to pay one of its contractors. Valard tried to make a claim on that surety bond but failed to provide notice within 120 days of not being paid, as stipulated by the wording of the bond. Valard did not learn of the bond’s existence until about seven months after the 120-day notice period expired. Valard sued Bird, arguing Bird had an obligation to tell Valard that the bond existed, without being prompted to do so. Bird argued it would have told Valard about the bond if Bird had been asked. An Alberta Court of Queen’s Bench ruling in favour of Bird was initially upheld on appeal but overturned – in the Feb. 15, 2018 ruling – by the Supreme Court of Canada. The Surety Association of Canada – who members include a number of brokers, claims professionals and insurers – had intervenor status in favour of Bird. The Surety Association of Canada argued that an obligee should not have a duty to notify claimants about the existence of a payment bond, unless it is asked. A payment bond “in a sense protects subcontractors because it assures that they will be paid,” but claimants do not pay premiums for payment bonds and ultimately the obligee is the “intended beneficiary,” SAC contended. Making general contractors legally obligated to tell all potential claimants that a payment bond exists could discourage them “from requiring a payment bond on construction projects in order to avoid a potential liability arising from the duty to notify,” lawyers for SAC argued. “A reduction in the use of payment bonds would consequently reduce the possible recoveries by unpaid claimants. The Supreme Court of Canada had a different take. “Labour and material payment bonds serve the purpose of protecting owners and general contractors such as Bird from the risk of work stoppages, liens and litigation over payment,” Justice Russell Brown wrote on behalf of the majority. “For that purpose to be properly realized, however, a beneficiary such as Valard must be capable of enforcing the bond by claiming against the surety to recover for unpaid invoices. Put another way, where a beneficiary is unaware of its right to claim under the bond within the notice period, the bond’s trustee is susceptible to the very risks which Bird says the bond was intended to avoid.” Concurring with Justice Brown were Justices Rosalie Silberman Abella, Michael Moldaver, Malcolm Rowe and Beverly McLachlin (Chief Justice of Canada at the time that Valard’s appeal was heard). Justice Suzanne Côté wrote separate concurring reasons while Justice Andromache Karakatsanis dissented. https://www.canadianunderwriter.ca/insurance/surety-providers-argument-rejected-supreme-court-canada-1004127516/

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Portals are dead. Brokers have moved on to real-time

As insurers move away from their legacy systems and onto more flexible platforms such as Guidewire and Duck Creek, the days appear numbered for portal solutions. Real-time data exchange is now front and center as a priority for the Insurance Broker Association of Canada (IBAC), the national broker association announced Tuesday. The current work towards real-time data exchange is possible because insurance companies have spent a lot of time and “hundreds of millions” of dollars updating their legacy systems, says Michael Loeters, co-chair of IBAC’s technology committee. “What [the insurers’ platform updates] have allowed us to do is move away from portals, which insurance companies have spent a lot of time and money building over last number of years,” Loeters said. “The reason why they were limited to portals was because they didn’t have the technology platforms behind those portals that could easily or cost-effectively with a broker management system. “As those legacy systems move away, and as you replace the back of those portals with modern, flexible platforms, now you have created the enablement for real-time integration with brokers.” Portals were a necessary bridge to real-time data exchange, Loeters pointed out. He likened the evolution of broker tech to the evolution of GPS technology since the 1990s. “There are a lot of technologies out there that people talked about for a long time before they became a reality,” Loeters said, referring to broker discussions about real-time data exchange. “For example, if you bought a GPS unit in the early 2000s, it didn’t work well. A lot of times, it took you to the wrong place. It took a lot of time to evolve to the point where it was ready for prime time.” Now upon us is the era of real-time data exchange, which features heavily in IBAC’s three tech priorities moving forward. IBAC’s three major tech priorities are: First, IBAC has launched its “IBAC D/X Action Plan” to ensure the national adoption of its Data Exchange (D/X) Model as the method for real-time technology integration between insurance brokers, insurance carriers and partners. This will include plans to develop an assessment of the readiness of insurers and broker management system (BMS) vendors across Canada, and the creation of a D/X Certification process. Second, IBAC is urging identification of “off-the-shelf” technologies that can be adopted by the industry to enable faster and easier real-time technology integration between brokers and industry partners using the D/X Model. Examples might include Duck Creek’s ‘Agent Connect,’ essentially a translator that allows Canada’s major broker management systems to connect with the Duck Creek platform. Similar, translator-style offerings are available from Brovada and Willis Towers Watson. “As brokers we need to strongly encourage insurers to make those kinds of investments [in off-the-shelf technologies] to move away from portals top real-time integration, and then we both win,” said Loeters. Third, IBAC will be conducting a National Broker Technology Survey. https://insurtechnews.com/aggregator/portals-are-dead-brokers-have-moved-on-to-realtime

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Peabody’s mine rehab bonds an Australian first

Peabody’s use of third-party surety bonds aims to to help liberate the cash it has tied up in bank guarantees. Big insurance companies will provide Australian governments with financial guarantees linked to the rehabilitation of coal mines run by Peabody Energy, under a third-party surety bond issuance that Peabody believes is a first for the Australian mining industry. Read more … http://www.afr.com/business/mining/peabodys-mine-rehab-bonds-an-australian-first-20180213-h0w0tp

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Infrastructure Boom Would Aid Many Smaller Surety Writers, Say A.M. Best Senior Analysts

LDWICK, N.J.–(Business Wire)–In this A.M.BestTV episode, A.M. Best’s Senior Financial Analyst Robert Valenta and Senior Research Analyst David Blades review a new report that examines the growth of the U.S. surety insurance segment and the forces shaping it. Click on http://www.ambest.com/v.asp?v=surety218 to view the entire program. Bolstered by strong construction activity, surety underwriters continue to benefit from consistent premium growth and strong levels of underwriting income. “Underwriters of surety coverage have been producing favorable results over the past decade,” said Blades. “Not only has premium growth been achieved, but despite pretty heavy market competition, underwriting income also has consistently been produced during the same time frame. The post-recession economic recovery, which has positively impacted the construction industry, has been a driver of the premium growth for the surety market in that the construction industry is the main source of business for surety writers,” continued Blades. The report states that the 2017 premium level is on track to surpass the $6 billion mark for the first time this decade. Valenta believes that competition has played a role in creating this premium level. “Profitability within the sector has added a lot of new entrants, which has really increased the capacity as well as heightened the level of competitiveness and created a continuation of soft market conditions. Generally, profitability within the top carriers is better than the entire industry, and this is mainly due to increased scale, niche market expertise and strong relationships with agents and brokers,” said Valenta. http://www.digitaljournal.com/pr/3648359

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Are PPPs The Answer To The U.S.’S $1.5 Trillion Dollar Infrastructure Plan?

In the State of the Union address, President Donald Trump called for $1.5 trillion in infrastructure spending from a combination of federal, state, and local government sources working along with the private sector. The funds are much-needed: America’s crumbling roads and threadbare broadband coverage have been well documented—as has the impact of this lack of investment on economic development and urbanization. A unique part of the framework of the U.S. infrastructure plan is that it will likely encourage increased use of the public-private partnerships (PPP or P3) model—a formal arrangement between a government body and private-sector organization to design, finance, build, and operate projects. PPPs have been used in the past, especially in privately operated toll roads, but they have also been responsible for some high-profile US infrastructure projects such as the $4 billion renovation of LaGuardia International Airport and the $852 million Presidio Parkway in California. The U.S. lags behind Canada and Europe when it comes to the use of PPPs to rehabilitate and upgrade its infrastructure. This is due to a number of factors, including: a lack of enabling legislation in certain states, a shortfall in government expertise in managing PPPs, and the prolific use of municipal bonds to fund local infrastructure. What’s more, there are big disagreements over the benefits and drawbacks of PPPs. Depending on whom you talk to, PPPs are either a miracle cure for the country’s ailing infrastructure or a potentially thorny arrangement that can leave governments and taxpayers on the hook for decades. As governments look to mobilize their resources to repair existing infrastructure or take on new projects, they need to understand how PPPs have been used in the past, and how they could be beneficial in the future. We’ll take a look at five considerations government officials and other stakeholders should keep in mind as they weigh whether or not to use PPPs for that next big infrastructure project. To date, PPPs have accounted for a small portion of all infrastructure projects executed in the U.S. This arrangement has been used more frequently for toll roads, but, according to the Congressional Budget Office, PPPs made up just 1 percent of total spending in this category from 1989 to 2011. And while 37 states had passed PPP-enabling legislation as of January 2017, to date, the entire U.S. has a total of only 42 surface transportation projects procured as PPPs. Indeed, 35 states have never undertaken a single public-private transportation project. o benefit from the increased spending in the proposed federal infrastructure plan, state and local governments must become more familiar with how to use PPPs and manage their complexities. Tariq Taherbhai, Chief Operating Officer, Global Construction and Infrastructure, Aon, offers five considerations to keep in mind when evaluating PPPs as an option. Clearly define the immediate and long-term risks and rewards of PPPs While PPPs are often praised for the way they mobilize resources to undertake ambitious projects that would otherwise have remained on the drawing board, determining their total costs and benefits can be difficult. Complicating factors include: Duration of contracts Financing terms Responsibility for construction and maintenance Usage volumes Guaranteed margins For example, in the $1.4 billion Goethals Bridge replacement, the Port Authority of New York and New Jersey will collect toll revenues, but has committed to pay the private developers more than $56 million a year for 40 years, contingent on the performance of the bridge. Such arrangements, in which local governments promise substantial payments, are common, but they run the risk of diverting much-needed funds from public coffers. Governments can structure PPPs to shift the risk for construction, maintenance, and even revenue to private entities. For example, in Indiana, a private consortium in 2006 purchased a 75-year lease on a 157-mile toll road for a $3.8 billion upfront payment. When the global financial crisis and low traffic volumes pushed the consortium into bankruptcy, Indiana got to keep the money from the purchase while the toll road continued operations. Build PPP management capabilities One of the reasons that relatively few PPP deals have closed is that many government entities do not have the capacity or capabilities to negotiate and manage them. Taherbhai explains: these agreements can be complex and include terms for everything from maintenance standards, fee setting, and other risk sharing elements. Further, negotiations can often stretch on for months, putting significant burden on agencies whose staff is already stretched thin. Some government agencies have formed dedicated units tasked with procuring, negotiating, and managing PPPs. Such teams can handle quality control, policy formulation and coordination, and selection and negotiation with the private entities interested in entering into PPPs. For example, the state of Virginia, an early adopter of PPPs, has governmental units dedicated to managing these projects. Look beyond just financing Low interest rates and the robust U.S. municipal bond market mean that public financing of infrastructure projects can be cheaper up front than private sources, meaning PPPs are often promoted as a key funding source for infrastructure projects if public capital is not readily available for that project. However, Taherbhai advises that viewing these arrangements purely through a monetary lens can overlook other potential benefits. Instead, government officials should also be aware of the other benefits PPPs can offer, namely expertise in sourcing, procurement and project delivery. For example, many public infrastructure projects suffer from delays and cost overruns—issues that the private sector, with its focus on efficiencies and cost-savings, can help mitigate. Factor in total cost of ownership Governments should be taking into account the total cost of ownership of the infrastructure project through the entire life of the asset, rather than focusing purely on the initial cost of construction. “PPPs can be used to build new infrastructure, but one of the key benefits is bringing certainty to the public sector of the cost and quality of infrastructure throughout its life,” explains Taherbhai. For example, Pennsylvania’s recent decision to use a PPP to replace over 550 structurally deficient bridges means the state will only pay

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State ups oversight on project (Travelers)

Final payment being withheld until completion State officials are withholding millions of dollars in payment from the contractor of the new Broughton Hospital until the project is completed. The amount of the final payment will be around $6 million, said Mark Benton, North Carolina deputy secretary of health services for the Department of Health and Human Services. The state has paid out $119,728,812 of the $130.8 million project to the contractor, Archer Western Contractors, according to information from the state. The balance on the project is $11.07 million. On Tuesday, Benton said the projected completion date is still May. He said when everything is done and the state has made sure things are working properly, such as heating, security and the security doors are locking correctly, then the state will make its final payment to AWC. Benton said DHHS is committed to getting the new Broughton Hospital open as quickly as possible and staying within budget, and that it will hold the contractor responsible until it is done. The new Broughton Hospital has been plagued with problems and delays. Construction was started in early 2012 and had a projected completion date of September 2014. The completion date has since been revised six times, according to the state. The state fired AWC in April, citing the delays and saying it had lost trust in the contractor. The project needed a contractor to complete the work. Read More… http://www.morganton.com/news/state-ups-oversight-on-project/article_25ee6212-fe30-11e7-b562-6fc66e0fc7c1.html

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Louisiana First Circuit Holds that Private Works Act Surety Cannot Raise Pay-if-Paid Defense (Hanover)

The Louisiana First Circuit recently held that a Private Works Act payment bond surety cannot raise a pay-if-paid provision in its principal’s contract as a defense to a claim against the bond. Bear Industries, Inc. v. Hanover Insurance Co. involved the construction of a Wal-Mart Supercenter in New Roads, Louisiana. The plaintiff, Bear Industries, Inc. (Bear), supplied materials for the project to a subcontractor, Amtek of Louisiana, Inc. (Amtek). Bear, Amtek, and Hudson Construction Company of Tennessee (Hudson), the prime contractor, entered into a joint check agreement under which Hudson issued all payments to Bear by joint check to Amtek and Bear. Because of a dispute between Amtek and Hudson, Hudson stopped making payments, and Bear filed a Louisiana Private Works Act statement of claim and privilege. Bear later filed suit against Amtek and Hanover Insurance Company (Hanover), the surety that furnished the payment bond for the project on behalf of its principal, Hudson. The trial court ruled in favor of Bear and against Hanover and Amtek and held that Hanover could not rely on a pay-if-paid clause in Hudson’s contract with Amtek as a defense to Bear’s claims. The trial court reasoned that “Hanover’s liability under the Private Works Act differs from conventional surety principles.” Specifically, the trial court found that a Private Works Act bond is statutory, and, “[a]s such, safeguards required for the bond by the Act would be read into the bond, and provisions in the bond, not required by the Act, would be read out of the bond.” In support of its conclusion, the trial court cited Glencoe Education Foundation, Inc. v. Clerk of Court & Recorder of Mortgages for the Parish of St. Mary, a Public Works Act case holding that “because the [pay-if-paid] contractual provision on which the surety relied was contrary to the purpose of the Public Works Act, the surety, which had issued a statutory bond, could not assert a ‘pay-if-paid’ clause in a principal’s subcontract as a defense to payment of sums owed to subcontractors who have performed work and supplied materials on a public construction project.” On appeal, the First Circuit affirmed the trial court’s ruling and held “that the ‘pay-if-paid’ defense is not available to Hanover under the Private Works Act.” The court reasoned that “[a]llowing a surety to assert a ‘pay-if-paid’ clause to defeat payment to a subcontractor on the basis that the contractor has not received full payment from the owner, where the owner has escaped liability to the subcontractors by relying on the payment bond, would render the protections afforded to laborers and suppliers on private works projects set forth in the Private Works Act meaningless.” https://www.bakerdonelson.com/louisiana-first-circuit-holds-that-private-works-act-surety-cannot-raise-pay-if-paid-defense

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