LawArk

     By Gary L. Cole AIA, Esq.

     The following article was originally published in LawArk on January 18, 2009, and recently some writers have expressed an interest in seeing more of this sort of article.  To that end, I’m republishing this article and will follow with similar ones.

     From January 18, 2009:

     The January 16, 2009 edition of AIArchitect – the American Institute of Architects’ weekly e-newsletter – C. Douglas Barnes penned a response to the January 9, 2009 edition’s article by Michael Stroghoff, AIA’s “Negotiating With a Client’s Representative Requires Different Tactics.” Mr. Barnes’s response “When the Client Insists on Its Own Contract, Then What,” and comments from other architects expressed some frustration with purportedly one-sided owner-supplied contracts.

     As first a licensed architect and now, for the past decade, a construction attorney, I understand the frustration expressed in these responses. In my experience, many “construction attorneys” have too little understanding of the complexities of the design and construction process to craft equitable contracts. But in most cases, the intent of transactional attorneys is not to force one-sided contracts on their opponents and grind them into the dust – though it may seem that way sometimes. They’re seeking to protect and serve their clients – as are architects. But if I can offer my fellow architects a few general insights into dealing with my fellow attorneys, it might make your next interaction with the legal community more palatable

     And, as a general disclaimer, the following is just for general educational purposes – none of it is intended as legal advice to any reader or writer. You should always seek legal advice about your specific situation only from your own attorney.

     First – to an attorney, almost everything is a negotiation until the second before the deal is inked – unless they’ve been instructed by their client not to negotiate. But if not, and an architect wants to negotiate certain terms of a contract, he shouldn’t ask to discuss those terms on the grounds that the proposed contract isn’t “fair”. Instead, give the attorney reasons why doing so is in the best interest of his client and the success of the project – which translates into being good for the attorney as well. That may help at least open the door. Show that because you’re both representing the owner, you’re really both on the same team and want the same outcome.

     Second – attorneys, even transactional ones, play to win. Be persuasive, but pick your battles. You won’t accomplish much by showing up with a list of thirty-three items of contention. Most attorneys can tap into a special organ they’ve evolved that gives them the energy to tirelessly negotiate the terms of any contract, so you probably won’t win with that approach. Pick a few issues that really matter and focus on those points. You just might impress the probably overworked attorney with your consideration and they may be much more amendable to negotiating future contracts with you.

     Third – attorneys appreciate clarity of thought and speech. The written word is both their home and their battleground. If you’re having a meeting to discuss a contract, take the time to organize your thoughts and your argument – maybe rehearse beforehand. If you’re writing a letter or email – keep it concise and on point. Consider tone – very important to attorneys. Believe it or not, most correspondence between opposing attorneys is exceptionally polite – mostly – and they expect other professionals to communicate with them the same way.

     Most attorneys really just want the same thing as architects – to serve their clients well. If some attorneys are a bit overzealous due to inexperience, remember that as an architect you have a much greater understanding of the design and construction process. Consider that as an opportunity to elevate the attorney’s understanding of the overall process – which allows them to serve their client better – and you may find yourself with a valuable ally.

© Copyright Gary L. Cole 2009

By Gary L. Cole AIA, Esq.

      [Disclaimer:  Nothing in the following article should be construed as legal or accounting advice, nor endorsements of any parties referenced within – the contents are entirely the opinion of the author.  Parties interested in learning more should always consult their tax, legal and other professionals for specific advice and information.]  

      Architects, engineers, contractors and other designers of energy-efficient public projects may be eligible for substantial tax benefits under the Energy Policy Act of 2005 – though it appears than many are unaware of this opportunity to effectively increase their project compensation.

     Under Section 179D of the Internal Revenue Code (the “IRC”) – created as a part of the Energy Policy Act of 2005 – owners of energy-efficient commercial buildings, which generally includes federal, state and local properties, may take a tax deduction of up to $1.80/SF square foot of qualifying construction.  The $1.80/SF maximum deduction is allocated at $.60/SF for each of the three following improvements: (1) the interior lighting system; (2) the heating, cooling, ventilating, and hot waters systems; and, (3) the building envelope.

     While that’s great for owners of income-producing commercial properties – how does it help architects, engineers, contractors and other designers increase their compensation on such projects? Read the rest of this entry »

By Gary L. Cole AIA, Esq.

Retail Marketing in Taipei

     Shopping and retail development should be fun, right?  That’s what a client who approached me some months ago about a new retail concept believed.  It was based on a very simple premise:  that in the U. S. shopping – a most ancient of human activities – had become over the past couple decades dull, mass-produced, uninspired and cut off from its social foundation.  Understaffed with bored clerks, no energy and no fun.  I agreed – who really looks forward to shopping at the local power center anymore? 

     As we developed the concept’s business model, its legal structure and its architectural design concept – with me wearing both architect’s and attorney’s hats – I suggested we put together a travel blog to chronicle his upcoming two-month trip throughout Asia, India and Europe where he’s meeting with agents and manufacturers to promote his ideas.  That travel blog, launched in late January 2010, can be found at http://www.globalshoppingblog.com/

     Read the rest of this entry »

The American Association of Insurance Services recently published “Assessing the Impact of Green Construction on Commercial General Liability Exposures,” by Joseph Harrington, which follows two prior articles dealing with the impact of sustainable building practices on property insurance and builders risk coverage. 

The current article contains links to the earlier green insurance-related articles as well as quotes from LawArk’s author, Gary L. Cole AIA, Esq.

By Gary L. Cole AIA, Esq.

          Online virtual worlds, also called metaverses, have been around for some time now, all the while growing in complexity and sophistication, first in gaming and then as online 3D social networking sites.  But the majority of these are fantasy worlds – like the well-known role-playing game World of Warcraft  for sword-swinging gamers, and Second Life  (SL) – a metaverse where social interaction between avatars, not troll bashing, is the primary objective.  

          Freed of annoyances like structural engineering and material specifications, building and zoning codes, weather and oh, yes – gravity – anyone willing to shell out a few Second Life Lindens (SL’s virtual currency), can purchase virtual real estate on Second Life and build a house, a commercial building, a Harvard lecture hall, a floating museum – just about anything.  And businesses are taking note as quite a few corporations and educational institutions have opened virtual operations in Second Life and extended their marketing to the virtual world.

          But as imaginative constructs, fantasy virtual worlds will probably be limited to pretty much what they are now – fun, a little business and education maybe, but mostly a pleasant distraction.  Not that there’s anything wrong with that. 

          Enter now the mirror world – a virtual replication of an actual world – not a fantasy world.  While Second Life members have reproduced certain real world buildings within its servers, mirror worlds take it even further and replicate actual cities.  And these cities are populated with avatars – 3D virtual representations of their users (or who their users want to be) who walk, talk and fly about with other avatars, any one of whom might be a real person sitting at their keyboard on the other side of the world, or your neighbor next door.

          One of the best of these mirror worlds is Berlin-based Metaversum GmbH’s Twinity which currently features mirror versions of Singapore, London and Berlin – with more cities in the works.  After creating an account and downloading their software, Twinity members can beam their avatars to just outside Berlin’s Brandenburg Gate as it looks today – or, back to 1989 as it looked before the fall of the Berlin Wall.  Or teleport to London and stroll around Piccadilly Circus or Trafalgar Square (no virtual pigeons that I could see).  The visuals are very good and the sense of place real within the limitations of today’s computer technology – and we all know how long that stands still.   Read the rest of this entry »

By Gary L. Cole AIA, Esq.

            Note:  Despite its title, this article in no way advocates scrapping the current practice of local landmarking, though it does propose that serious upgrades are not only desirable, but probably unavoidable. 

            Part 1 of this two-part series argues that a combination of possible changes in the historic preservation legal landscape and the certainty of a dwindling supply of properties worthy of landmarking may force the current practice of government-controlled local landmarking to evolve. 

            Part 2 of this series proposes modifying the current practice of local landmarking in a way that addresses both problems raised in Part 1 by shifting landmarking from a government-only practice to one that shares responsibilities with the private business and investment sectors, i.e., those with the capital and the appetite for risk needed to invest in historic rehabilitation – a plan I’m calling here Local Landmarking v2.0.

Part 1 – Possibly –  Maybe – Depends.

“If, one day, for some mysterious reason, all the buildings, settlements, suburbs and structures built after 1945 – especially those commonly called “modern” – vanished from the face of the earth, would we mourn their loss?   Would the disappearance of  the prefabricated tower blocks, mass housing estates, commercial strips, business parks, modular production halls, university campuses, schools and new towns, damage the identity of our favorite cities and landscapes?

If, on the other hand, some parallel phenomenon destroyed in one fell swoop the whole of out pre-World War II architectural heritage, namely all “historic” buildings, hamlets, villages, bridges, and cities, what would be the significance of such an event?  What would be a greater loss?  Replacing all pre-1945 buildings with post-war buildings, or the reverse?”

Leon Krier – Introduction to “The Architecture of Community”

            Since the enactment of the National Historic Preservation Act in 1966, preservationists, including local, state and federal agencies, have been busy promoting the preservation of our nation’s built environment through a number of means, including, legally designating both individual properties and districts as historic via local preservation ordinances, sometimes state landmarking programs, and by listing on the federal National Register of Historic Places. 

            Initially created as a response to the widespread destruction the country’s pre-WW II built environment during the mid-century halcyon days of urban renewal, government-run landmarking has become one of preservation’s most effective tools for achieving its goals.  However, four decades and more into it, historic preservation as a movement is roughly middle-aged and changes generally unnoticed by the preservation community are starting to manifest that could mark the winding down of an era of largely unfettered government-controlled landmarking. 

            The usual justification for local governments to convey landmark status on privately owned property is for the “protection” of the property for the “public good” via restrictive ordinances which, in a broader legislative scheme, are somewhat balanced by various financial incentives for private investment – private investment being the only truly sustainable method of preserving historic properties.  The incentives are tagged, of course, with the usual government oversight and controls during their term.

             But does a recent Illinois case herald the twilight of changes in the public’s taste for government-enforced “protection” of private property, and will this condition become more dire as the ready supply of good candidates for landmarking begins to dry up, forcing preservationists to nominate less-worthy properties, which, of course, would make government-controlled landmarking more vulnerable to successful legal challenges as well as undermine the credibility of local landmarking? Read the rest of this entry »

By Gary L. Cole AIA, Esq.

The Chicago-Midwest Chapter of the Institute of Classical Architecture & Classical America (full disclosure: I am a Board member and its General Counsel) is hosting a lecture and book signing by renowned architect Léon Krier on October 28, 2009, 6:00 p.m., at the Richard H. Driehaus Museum in Chicago.

Mr. Krier will be discussing his latest book – The Architecture of Community.

More information about the event can be found at The Chicago-Midwest Chapter of the Institute of Classical Architecture & Classical America’s website at: http://www.classicistchicago.org/events

[NOTE]: The voice employed in Law/Ark posts is intentionally non-legal. Herein, you will find no wherefores. And, while I welcome and warmly appreciate the readership and comments of my fellow attorneys, these posts are written mostly with Law/Ark’s other readers in mind – those of you out there responding to your passions and answering your callings by designing, building and developing green projects.

And, despite the sometimes playfully polemical tenor of these posts, they’re not intended to discourage you from that pursuit, but, rather, to encourage you to pursue them with the proper forewarning and forearming.

Part 2.1 (Part 1 was posted May 18, 2009)

This is Part 2.1 of the “Green Goblin” Series, of which Parts 2.2 and 2.3 will follow shortly. The series will wind it all up with Part 3, which will address specific legal and design/construction practice approaches for avoiding the pitfalls discussed in the series.

The Green Goblin series can be summarized in one statement: “unsupportable claims about the performance of “green” design and construction may inspire a new understanding of the American legal system by those who make such claims – as defendants.”

 Part 1 of this series touched on something I called “unfulfilled expectations” in green design and construction – essentially, what was expected did not occur, and/or what occurred was unexpected. Unfulfilled expectations is a simplified way of referring to some manifestation of a “breach of contract.” Breaches of contract can arise by violations of express terms – as in writings, or, even by implied terms. Either way, someone’s not happy with an outcome – in this context, most likely a client who believes they were deliberately mislead by the representations of their design and construction professionals about the performance and/or value of their new green project.

But wait! – some readers are thinking indignantly – I would never misrepresent a design! And, as an architect, I agree, you would probably never do that intentionally. Architects and other designers are many things, but charlatans only very rarely – it’s just not in their DNA. But, as this series of posts explores, green design and construction is particularly vulnerable to claim-making on a whole new level –a global level. And, as an attorney, I also know that when the finger pointing starts, what was done intentionally or unintentionally can sometimes matter only slightly under the hairy eyeball of the law. Or, it’s the crux of everything, depending on the facts. But what is deeply encoded in the double helix of most architects and other designers is a yearning to create something wonderful – a longing to make something from nothing and delight the world. And therein lurks the slumbering danger for green design and construction professionals – the desire to please an authority higher than the client and the project’s program – which higher authority may, or may not exist.

It starts in school. Design schools have their shortcomings – most notably in business education – but failing to imbue their acolytes with a sense of unbridled idealism and religious certainty and then cursing them with cynicism isn’t generally among them. That comes later – when rosy idealism runs headlong into the hard, sharp corners of business reality. And when that happens, designers have a choice: retreat into the warm and cathartic refuge of imagination (and blissfully ignore the risk), or, accept that the design profession is like many things – pleasant enough if done right, but always subject to the tedious business of balancing idealism and risk. And, at least as far as construction law is generally concerned – also subject to the requirements of the client and the project first, and other callings second, if at all.

And this is the dilemma for some green design and construction professionals – the ones who are most vulnerable to legal liability – how to achieve a balance between serving the client and the project, while still serving a higher, even global calling?

The problem is in the creative process itself – a way of thinking utterly alien to most in the legal profession – but key to understanding both the problem and its solution.

By necessity, design is often conceived in the haze of the half-waking dream – the fertile ground between mythology and science where nearly anything is possible and the realities of engineering, building codes and especially the law, stand pale and ghostlike in the background, patiently waiting to be acknowledged. By virtue of their academic and professional training, those who enter the design professions have been culled from the many applicants who found this Phantom Zone a bit too, well – ephemeral, for their way of thinking. In over-simplified terms, conceptual building design is a right brain activity, with just enough of the left brain kicking in to make sure that designs can be built, stand up and preferably not kill anyone along the way. All of this, of course, ignores the long-simmering civil war within the design professions – especially in architecture – between the pure designer and the others – those who have sought peace between their warring cranial hemispheres and achieved a sort of balance and détente between the rational and romantic synaptic impulses crackling away in their melons like a tree full of blackbirds. Or, less metaphorically, the conflict between those who regard architecture as merely a poetic thought exercise that sometimes results in buildings, and those who see architecture as a building art necessarily expressed by, you know – real buildings. For purposes of green design and construction legal liability, it’s the former who are most at risk, but in the current state of the green building industry, even the latter need to navigate with caution.

At the same time, speeding along in their different, but often intersecting orbits, and generally unconcerned with romantic sentiments, design theories and ideology – are the lawyers. Much-maligned and often underappreciated, they suffer from a long history of popular distain as evidenced in movies and books populated by two-dimensional stereotypes that only someone who’d never set foot in a court room or who’d maybe spent their first year out of law school as a litigation whipping boy at some hard-charging mega-firm – before fleeing to a less stressful career hauling crab pots in the Bering Sea – would think bore any resemblance to real lawyers and the real practice of law. But, for this series’ purpose, lawyers are just like other people and hardly any fit any of the popular stereotypes – except, of course, in one very important way.

By necessity, the law requires a full-on, highly caffeinated, linear way of thinking by individuals who, from cradle (or law school anyway) to grave are culled from society’s broader and less focused thinkers, and trained to apply their powers of unemotive logical reasoning with the precision of an excimer laser and a rigor that could bring a tear to even Mr. Spock’s stoic eyes. The beautifully creative and impressionistic notions of designers are as incomprehensible to most lawyers’ fast-firing, sixteen-cylinder minds as a description of the aurora borealis would be to someone unsighted from birth. And when, as discussed in Part 1 of this series, that green roof turns from a much-lauded butterfly refuge to a sopping mess in the offices below, any green design or construction professional whose defense is proudly based on idealistic and heroic notions of saving the planet instead of tedious due diligence and observance of a standard of care, may abruptly find themselves in a new line of work. Measuring the Cheshire Cat grin of the plaintiff’s attorney who hears that defense in a deposition or at trial would be done in feet, not inches – as beautiful in its expression of victory as the defense counsel’s involuntary gagging is sudden and violent.

This then, is the essential conflict that can lead to career-ending legal liability: unfulfilled expectations which arise because green design and construction professionals, in their desire to imbue their work with more then mere programmatic compliance, choose – unwisely – to advocate questionable solutions to uncertain problems in a quest for the salvation of the planet – all of which runs headlong into the snapping jaws of a legal system which is generally unimpressed with messianic notions and world-saving idealism, and more concerned with whether proper professional duties and standards of care were observed. In this way, the popular stereotypes of lawyers and the legal profession are not the amusing stuff of popular entertainment – but of a reality that green design and construction professionals either willingly appreciate at the beginning of their projects – or may unwillingly at the end.

[END PART 2.1, PART 2.2 TO FOLLOW SOON]

NEXT: For green design and construction professionals – and green building advocates in general – the following parts of this series may sting a little. But fully addressing the root causes of emerging green legal liability isn’t done through a typical, dry legal discussion about traditional causes of action and contract defenses. It’s done by understanding – really understanding – the reasons why green design and construction professionals passionately (though, perhaps unwittingly) risk their practices to advocate a theory of design and building that relies as much on a currently legally indefensible ideology of global salvation as it does on traditional notions of high-efficiency building design.

But is green design and construction really based just on ideology, theology or even superstition as some have claimed? Or, is energy efficient and human-centered design just the most sensible way for a technologically advanced civilization to design buildings and cities in the 21st century? Have humanistic values finally returned to our way of thinking, living and designing our communities? Do traditional legal causes and effects even apply here or are we into new territory that will require attorneys to reach deep into their right brains and create new defenses to address a new way of designing and building, rather than simply relying on traditional, possibly outdated and even ineffective approaches developed for a different design/construction/law paradigm? Is it time for everyone to bring their A-game to develop a whole new way of thinking about how our values are reflected in the way we design and build and the law’s response to those changes?

Maybe – or not. Maybe green design and construction is just the same old – with a new paint job to match a new vernacular.

But the answers to these questions will not be found by cringing behind delicately minced words and the occasional grand jeté between half-truths – but will be found tackling the issues head on with an unapologetic and sometimes polemical directness that brings the matter into full light for a much-needed objective rational discussion. Even so, it’s likely, as is often said in the law, that reasonable people may disagree – and probably will.

© Copyright Gary L. Cole AIA, Esq. 2009

Law/Ark appreciates the inquiries about Part 2 of the Green Goblin series and humbly apologizes for the unintended delay. Thanks for your patience.

Also, Law/Ark will soon be undergoing significant upgrading and expansion – including web hosting – to address other areas of the law concerning architects and other designers, engineers, contractors, commercial and residential real estate developers, historic preservation (advocates and critics), accessibility (advocates and critics), and, of course – green building and alternative energy (advocates and critics).

Upcoming Series – Architects in Real Estate Development – New Practice Opportunities

Architects especially (and others generally), may find an upcoming Law/Ark series of interest: Architects in Real Estate Development – New Practice Opportunities

Part 1 will discuss how architects (and other construction professionals), can stop waiting for the phone to ring, tap into the right resources, find potential development projects on their own, and prepare the proper feasibility/market studies to select the right developer to partner with and become part of the deal and not just a facilitator of the project.

Part 2 takes it the rest of the way – including how architects form the right legal entities, navigate property acquisition issues, find investors and financing, deal with political and anti-development issues all for greater control over deals and to see their visions completed and greater financial gains realized. Architects can become developers – and even contractors.

The series is intended as a primer for a much more detailed two-day, continuation education-accredited, soup-to-nuts seminar that will leave attendees sweaty, drained, and panting from brain fatigue – but mostly – with the confidence – to take their careers in new directions. No fluff involved and plenty of caffeine will be provided. And, attendees will have follow-up access to online resources and industries that will help them continue their journey to greater self-sufficiency and career satisfaction.

Yes, architects, you can do it. You already have much of the knowledge – you just need the rest delivered in a language you already speak.

The articles and the seminar are being prepared now and Law/Ark reader content comments are always welcome – this is for you and your practice – the time is ripe for change!

© Copyright Gary L. Cole AIA, Esq. 2009