Hands_background_CMYKCincinnati City Council recently enacted an anti-wage theft and payroll fraud ordinance designed to protect workers and insure that those doing business with the City pay their legal share of taxes and other financial obligations. The Ordinance is also designed to protect law-abiding employers from unfair competition from businesses that are willing to break the law to make a profit.

Cincinnati’s new Ordinance incorporates rules for reporting theft, a wage recovery policy and debarment penalties prohibiting companies found guilty of wage theft from doing future business with the City. As defined in the Ordinance, wage theft means not properly paying workers for all work performed – most commonly by paying less than minimum wage, not paying for all hours worked, or failing to pay overtime, in violation of existing local, state or federal law. Payroll fraud is described as concealing a business’ true tax or financial liability through tax evasion or fraud, misclassification of workers as independent contractors when they are actually employees, unreported or underreported payment of wages, or paying for a business transaction in cash without appropriate records.

Authored by Vice Mayor David Mann, the Ordinance (22-2016) is the first of its kind in Ohio. Similar ordinances have been enacted by cities across the country that determined wage and hour laws were not being adequately enforced by State and Federal governments.


As a result of the Protecting Americans from Tax Hikes Act (PATH) passed by Congress and signed into law in December, 2015 effective on the 16th of February, 2016 changes to the FIRPTA (Foreign Investment in Real Property Tax Act) go into effect. The withholding tax on foreign sellers will increase from 10% to 15% of the sale price of real estate. As with all real estate transactions “buyer beware.” If a buyer fails to determine if a seller is foreign or domestic the buyer could be held liable for any tax owed by a foreign seller. Check your purchase and sale agreement representations and warranties!

-a39c602538327c8aFirst of all, Ted Jones is an economist who presents his economic forecast to the clients of NorthStar Title every January. Secondly, Doug Forbes is my brother who lives outside of Philadelphia. My brother had not been to Cleveland for 8 years when he came in for a short visit after Christmas. I took my brother on a quick tour of downtown Cleveland, Ohio City, Tremont and Gordon Square. I showed him all the new development that I have worked on (mostly historic conversion into apartments) but also the new Convention Center, the surrounding new hotels and, of course, the world’s largest outdoor chandelier in Playhouse Square. He was dumbfounded and could not stop talking about Cleveland’s comeback (which I had been telling him about for the last several years.) He started texting his wife and family back east. He sent them pictures. He emailed me when he got home and said WOW, maybe I should move back to Cleveland.

Last week, I went to listen to Ted Jones’ yearly presentation. He said that this was the first time in the 10 years that he had been coming to Cleveland that he could say that Cleveland is doing great economically. He cited our connection to the auto industry as one of the primary reasons. He also said that the retail boom is just starting and entry level homebuyers are returning to the market. But he also talked about our redevelopment and the strength of the housing market, in particular rental housing. He was high on Cleveland. Although Ted is from Texas and Doug is from Pennsylvania they are both now Cleveland fans. They finally see what I have seen for a long time. Cleveland is truly a renaissance city and I feel fortunate to be a part of its redevelopment.

Main Entrance
Main Entrance

We have been watching a wonderful adaptive reuse of an old machine shop in Cincinnati as it is transformed into the new home of the The Children’s Theater of Cincinnati. Peter Horton of Terrex Development & Construction is managing the construction and design of the new facility. Pete gave us a tour of the facility just prior to Thanksgiving when the improvements were still pretty raw. Today, three weeks later we walked through the facility and the progress on the improvements are astonishing.

Welcome Desk
Welcome Desk

First of all this facility is a state of the art theater studio and teaching facility for Cincinnati youth interested in the theater arts. The sound insulation, use of dry paint to paint ceilings black, main theater seating, electronics and many other impressive improvements have been installed to make the facility state of the art.

Even more impressive is that the facility will be LEED certified when completed. In that regard, Terrex designed a grey water recycling system which collects rain water off of the roof and holds it for use in the commodes.

Grey Water Recovery System
Grey Water Recovery System

Not only is the new facility going to train young thespians in theater arts, it is going to serve as an example that with a little effort we can all do our part to reduce our impact on the environment.

Administrative Offices
Administrative Offices
Costume Storage System
Costume Storage System
Welcome Desk as Improved
Welcome Desk as Improved


Administration Area
Administration Area
Main Stage Seating Risers
Main Stage Seating Risers

Well done Terrex and The Cincinnati Children’s Theater!




thU2E8KRAHAs 2015 comes to a close, it’s time to make resolutions and to consider what is trending.

My resolution is to eat better – more of a plant based diet with less processed foods. It’s either that or buy a new wardrobe. I just need someone to invent a plant based donut (that still tastes like a donut).

Here is my personal list of what’s trending for 2016 (disclaimer: it does not represent the views of Ulmer & Berne or any client).

HOT: Chef inspired fast casual restaurants  |  NOT: E-coli at fast food restaurants

HOT: Uber  |  NOT: Driving under the influence

HOT: Pop Ups  |  NOT: Bankruptcies

HOT: Pop Tarts  |  NOT: Hot Pockets

HOT: Kendra Scott  |  NOT: Rubber charity bracelets

HOT: Urban living  |  NOT: Urban grocery stores

HOT: Dollar Shave Club  | NOT: Facial hair

HOT: Netflix  | NOT: Red Box

HOT: Immigration reform  | NOT: Bigotry

HOT: Sea to table dining options (true catch of the day)  |  NOT: Easy Cheese (Cheese Whiz)

HOT: Orin Swift Location Wines  | NOT: White Zinfandel

HOT: Protein shakes  |  NOT: Buffets

HOT: Local retailers  |  NOT: Retail mergers

HOT: Boston Red Sox  |  NOT: Cincinnati Reds

permeable pavementHow do you make the rain water from those twice a year “100 year” storms disappear at a rate of 3-5 gallons of water per minute? Clean pollutants in the process and send the water directly into the municipal storm water system, but at a rate determined by your engineers? WATER PERMEABLE CONCRETE, that’s how! Watch the videos below to see how this material works:

Techno-Bloc Permeable Pavement

Tarmac Topmix Permeable Pavement



I just attended a CREW presentation which was entitled “New Retail Trends and Addressing Consumer Demands.” However, the presentation was actually about three high profile retail projects all located in Cincinnati, Ohio, and, it included three high profile developers, at least one of whom (depending upon who you asked) is also extremely talented.

Mark Fallon of Jeffrey R. Anderson Real Estate, discussed the continuing expansion of Rookwood. Mark explained how Rookwood was the antithesis of all the other retail developments in and around Cincinnati and joked that other than Kenwood, Rookwood is the only one really worth going to. I never realized how thoughtful the merchandising was and how mixed the use is until I saw his graphic presentation of the project. I also came to the realization that it’s a good idea to be nice to Mark because he is involved somehow in every significant restaurant or retail deal in Cincinnati.

David Birdsall, head of PECO Real Estate Partners, discussed the new Kenwood Collection. Besides wearing a really swanky suit, David explained that the office space was fully leased and retail would be open by Christmas 2016-remarkable progress given the history of this project. David also explained they are designing a huge urban park as public space in the project. Including open public spaces seems to be a new trend in retail developments.

Justin Leyda of Steiner + Associates discussed the new Liberty Center which opened in October. Justin said he first started working on this project in 2008. He commented their whole program is to create an experience and sense of place for the consumer to provide an alternative to online shopping. So Liberty Center also has large public spaces, including a chapel that doubles as a yoga studio, a twirling garden walk way, and lots of parks. They also program public events like the upcoming Holiday tree lighting spectacular. Justin looks young enough to be in high school – think Doogie Houser – but his skills belie his youthful appearance.

One interesting part of the presentation was their discussion of the significant challenges they have faced. David Birdsall talked about how they signed an LOI with Saks, but then Saks got sold and decided not to go forward. The Landlord had to redesign the whole project and find new tenants. Mark Fallon had a similar story where they designed the building for a cinema and then decided it did not make sense to go forward with that use, and had to re-fit the building. (Mark said his office is now in Cinema 2.) Justin Leyda talked about the cynicism he faced in building a multi-million square feet mixed use center in what was essentially a corn field.

The common thread for these three talented men is the secret to success for us all. Each of these guys is tremendously creative and hard-working and refuses to take no for an answer. It is never “if.” It is always “how.”

In terms of adding to the quality of life in Cincinnati, all of these projects are wildly successful. There are new restaurants, stores, offices, apartments and public spaces – all nationally recognized and all in Cincinnati. And I haven’t even started talking about downtown Cincinnati with The Banks and Over the Rhine.

Photo Courtesy of Liberty Center

I recently attended our client’s, Steiner + Associates, grand-opening ceremony for Liberty Center, a $350 million mixed-use development featuring, shopping, dining, luxury residential apartments, offices, a state-of-the-art movie theater and a new to market AC Hotel by Marriott located in the middle of the growing Cincinnati-Dayton metroplex along Interstate 75.

As I toured Liberty Center, the features that I thought that made this development stand out from competing suburban shopping centers were the attention and focus to making it a community-centered destination. It’s a place where people would want to gather and linger rather than just making a transaction. And being more than just a place where shopping transactions are made is important with the ever-growing competition from online shopping forums as well as changing consumer tastes. The inclusion of squares, parks, rooftop gardens, community center, a living room area in the Foundry building, public art and a multi-denominational chapel all contribute to creating an urban town center rather than just a suburban mall. In fact, the public sentiment is that Liberty Center was a “downtown that fell from the sky” in Liberty Township. Though these features do not directly contribute to the profitability or bottom-line of Liberty Center’s merchants and businesses, there is an indirect benefit. People will want to visit, and stay, for a variety of reasons and they’ll be able to do so by accomplishing multiple tasks or events with a trip to Liberty Center. This makes a visit more convenient, enjoyable and compelling. And thus, a community that will support the center’s businesses will be formed.

Though the idea of designing shopping centers as town squares is not a new concept, it is becoming a necessity to make centers, particularly those in suburban locations, more relevant to today’s shopper. The convenience of online shopping and the preference of the millennial and empty nester demographics to have walkable and inviting places to live, work and play has been driving demand for design concepts that respond to these needs for convenience and a sense of place.

I think there are a lot of good lessons to be learned from utilizing these design concepts in mixed-use developments to create a competitive advantage and other developers will certainly be taking cues from Liberty Center as future centers are being designed and planned.

thFQN0S1DOCombining HUD-insured multifamily construction financing (like Section 221(d)(4) loans) with historic tax credits (“HTC”) can seem like an impossible feat given their respective mazes of rules and requirements. Notwithstanding, each are valuable sources of capital for developing multifamily projects, and, if you can manage through those mazes, HUD financing and HTCs can be successfully combined. So, if you’re sizing up a combined HUD-HTC deal, here are points to consider:

  1. Team. No matter what side of the deal you’re on – developer, investor, HUD lender – having team members that have closed combined HUD-HTC deals makes a big difference. It’s particularly helpful if the HUD lender’s counsel and the HTC investor’s counsel have worked on twinned HUD-HTC deals. This experience eliminates the steep learning curve for each about the other’s various program requirements. You’ll find significantly more guidance from HUD on combining low income tax credits with HUD financing.
  2. Bridge Loans. If your project will need a bridge loan, work to shore up that source of funding as soon as you are able. HUD’s general policy is the borrower on the bridge loan cannot be the HUD borrower. It is important to understand early on how the bridge lender will be repaid and to make sure that source of repayment and flow of monies is acceptable to both investor and HUD counsel. For example, on the HUD side, you want to make sure the source of funds aren’t from HUD “project assets” – or else those monies will become subject to surplus cash rules which could inhibit the timing of repayment.
  3. Master Lease Structures. If the HTC investment will be structured using a master lease pass through, then the investor must be prepared for two tough pills to swallow: First, the master tenant entity (the entity into which the federal HTC investor invests) will be required to sign HUD’s form of Subordination, Non-Disturbance and Attornment Agreement (“SNDA”) which HUD generally does not negotiate. This SNDA gives HUD broad latitude to terminate the master lease in the event of default and foreclosure – this is opposite of the investor’s desired outcome to preserve the master lease in these situations. As a result, it is important for the investor and investor’s counsel to review and understand this SNDA as soon as possible in a transaction (before the investor’s term sheet is signed, if possible). Second, HUD requires the master tenant to execute its own Regulatory Agreement (see form HUD-92466M (06/14)). Again, this is something the HTC investor will need to be comfortable with and should be reviewed as early on in the transaction as possible.
  4. Logistics. Finally, logistics of closing… HTC deals seem to get negotiated right down to the last minute with closing emails zooming in cyberspace to meet wire deadlines. HUD wants none of that last minute drama! Rather, HUD has a very methodical closing process. HUD requires review of a “HUD package” (e.g. HUD and bridge loan documents, organizational documents, final construction invoices, projections) generally three to four weeks before closing. HUD lender’s counsel should make sure the deal team understands the HUD closing process early on in the deal so parties can accommodate and prepare.

Its-the-law-cover-az1I have been told this is a Real Estate Law Blog and that it might be time to blog about real estate law for a change. I know wine and grilled cheese donuts may be more interesting, so bear with me while I transgress.

I just attended and spoke at the International Council of Shopping Centers (ICSC) Law Conference. I highly recommend this conference for anyone involved in retail real estate. The presentations are always informative and cause me to double check my lease forms and change my approach to certain issues. I always learn a thing or two at each conference and this year was no exception.

I presented along with Robert DiVita of Urban Edge Properties on Casualty and Eminent Domain. Not sure if this changed anyone’s life, or that anyone actually called it “riveting”, but I did hear positive feedback from those in attendance. I must admit that I heard from several people who have actually been through a casualty that the business folks decided what to do and never even consulted the Lease. Nonetheless, as attorneys we still have an obligation to make sure the Lease is correct and we tried to at least emphasize that the rent abatement and restoration obligation should mirror the insurance obligation.

The keynote speech this year was by Commander Rorke Denver, the author, actor and Navy Seal. He spoke about leadership, and provided great advice about working under stress. He said “Calm is contagious.” Panic is too – so you need to watch out how you are relating to your team members. He also demonstrated how we all can find an extra inch in everything we do if we simply try to do it.

The other benefit of this conference is the chance to meet in person the attorneys you have been working against. I often like the attorney on the other side once I meet them in person. I hope they feel the same way, because it is hard to be unreasonable or difficult after you have met them face to face and developed a relationship with them. At this conference, I connected or re-connected with several folks. I am already looking forward to next year when it returns to the East Coast.

Hopefully, this pacifies your yearnings for the law so I can turn my attention to pork bellies. I don’t mean commodities future trading, but the boneless cut of fatty meat from the belly of a pig. Sounds kind of disgusting, right? But it seems like every decent restaurant I go to these days has pork belly on the menu, and it is incredibly tasty! If you take nothing else from this blog, commit to trying pork bellies. It won’t change your life (like the first time you had béarnaise sauce on a filet mignon), but you will thank me.