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     By Gary L. Cole AIA, ALA, Esq.

     [The following is for informational purposes only and should never be constructed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.]

     The following is Part 2 of a two-part series dealing with new professional services for architects.  Part 1 can be found at http://www.lawarkbuilding.com/?p=742.  Both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects.

     A White Paper containing both Parts 1 and 2 can be viewed by clicking on this sentence.

3.         The Secretary of the Interior’s Standards for Rehabilitation – What They Mean and What They Really Mean

     Central to any project’s approval for Historic Rehab Incentives is its compliance with The Secretary of the Interior’s Standards for Rehabilitation (the “Standards”), which are published by the National Park Service (NPS) as a set of guiding concepts to ensure that properties retain their essential historic character during rehabilitation.  While complying with the Standards can mean qualifying for incentives, failing to comply almost always means denial.  In addition to denied Historic Rehab Incentives, locally landmarked projects that fail to meet the Standards may also fail to obtain permit approval from local historic preservation commissions.

     But despite the importance of a historic rehab project’s compliance with the Standards, and, despite some of the Standard’s interpretations having become a little calcified over the decades, they most definitely aren’t carved in stone.  The Standards are not prescriptive specifications; they’re performance guidelines that require interpretation on a case-by-case basis. 

     The NPS describes the Standards as follows: 

     “The Standards are a series of concepts about maintaining, repairing and replacing historic materials, as well as designing new additions or making alterations. They cannot, in and of themselves, be used to make decisions about which features of a historic property should be preserved and which might be changed. But once an appropriate treatment is selected, the Standards provide philosophical consistency to the work.” 

     “The Standards are to be applied to specific rehabilitation projects in a reasonable manner, taking into consideration economic and technical feasibility.” Read the rest of this entry »

     By Gary L. Cole AIA, ALA, Esq.

     This article will be posted in two parts and a version of both parts will appear in the September 2010 issue of “Licensed Architect,” published in print and online by the Association of Licensed Architects.  The following is for informational purposes only and should never be constructed as legal or business advice – architects should seek advice only from own their legal counsel and business advisors in advance when considering whether to undertake any of the services discussed in this article.

PART 1 – Historic Rehab Financial Incentives and Working with Governmental Entities

     Ask a roomful of architects what each thinks is the most important element of a successful project and you’ll likely receive as many different answers as there are architects answering.  But nearly everyone will agree that the single most indispensable element of any project is financing – no money, no project.  Real estate developers are always searching for two things:  quality projects and ways to pay for them.  For purposes of this article, the latter is where architects come in.

     Though helping developers find ways to finance projects isn’t typically defined in their scope of services, architects involved in historic rehab may be able to expand their services and enhance their marketability by helping clients obtain Historic Rehabilitation Financial Incentives (Historic Rehab Incentives).  In these challenging economic times of reduced demand for traditional architectural services, architects who retool their skill sets and embrace new practice opportunities may gain a competitive edge in the market by providing services with unique economic value which, unlike their traditional design and construction services, can be easily quantified and are always in demand.

1.         Historic Rehabilitation Financial Incentives – Benefits and Availability

What are Historic Rehabilitation Financial Incentives?

     Historic Rehab Incentives are financial incentives offered by local, state or Federal governmental entities for rehabilitating properties that are either locally landmarked and/or listed on the National Register of Historic Places, and are intended to encourage reinvestment in historic properties.   

     While in some ways these incentives represent found money to developers, found money isn’t exactly the same as free money – as in a pot of gold – and in this case the gold is often guarded by one or more local, state or Federal governmental entities.  But for all the administrative hoops and hurdles government sometimes imposes, the potential bump to a qualifying project’s proforma can make the difference between a successful historic rehab project, or – no project at all. Read the rest of this entry »

     By Gary L. Cole AIA, Esq.

     On July 8, 2010 at 12:00 p.m., Gary L. Cole AIA, Esq. will present before the Chicago Chapter of the American Institute of Architects Historic Resources Committee at 35 E. Wacker Dr., Suite 250 Chicago, IL “Expanding Your Services:  Become an Historic Rehabilitation Economic Incentives Consultant.”  See http://www.aiachicago.org/events.asp for the AIA Chicago’s announcement.

     The intent of the presentation is to expose architects to new ways of expanding their services by building on their core skills while acquiring new ones, based on Mr. Cole’s experiences in historic preservation as both an architect and an attorney.  Architects involved in historic rehabilitation projects may be missing out on significant opportunities to enhance their practices and boost their fees by assisting developers in obtaining historic development incentives.

     Many historic rehabilitation projects succeed or fail depending on their ability to maximize available development incentives, like the historic tax credits.  Yet, despite being integral to the process of obtaining those incentives, many architects shy away from helping clients qualify for them, often referring that work to “consultants” who lack their detailed understanding of these projects.  But the good news is that there’s no great mystery in obtaining the skills and knowledge necessary to become an expert in historic development incentives – most architects already have or can easily acquire them. 

     Architects who assist their clients in obtaining historic development incentives to pay for projects may expand their range of professional services, increase project compensation and enhance their reputations in the development community, thereby gaining a competitive edge over their competition.

     The Learning Objectives for the presentation are:

     1.  Understand what historic development incentives are and how they impact project economics.

     2.  Learn how to research and combine available historic development incentives for any project. 

     3.  Learn the basics of dealing with local, state and federal preservation agencies when applying for historic development incentives, including interpreting the Secretary of the Interior’s Standards correctly and in a project’s best interest.

     4.  Learn how to correctly describe the scope of these new professional services, structure fees, limit professional liability and identify other professionals and consultants who may be needed.

     Gary L. Cole AIA, Esq. is an historic preservation architect and an attorney, a former Visiting Associate Professor of Architecture at the University of Illinois, an expert in historic preservation law and has worked with many types of historic development incentives for the past eighteen years.  He publishes timely articles about a wide range of design, construction, historic preservation, green building and accessibility issues at www.lawarkbuilding.com.

      By Gary L. Cole AIA, Esq.

     ConsensusDOCS, the construction industry’s leading standardized construction contracts and general analogue to the American Institute of Architect’s Contract Documents, recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.”  The two most interesting things about the new document are:  (1) that it exists at all; and, (2) that ConsensusDOCS has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire green building movement:  that in any useful design, construction or legal sense, the term “green” has no reliably consistent meaning at all.  That the new ConsensusDocs 310 Green Building Addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.

     “Green Building” – “Green Living” – “We’ve gone Green!”  In any real design, construction or legal sense, exactly what does “green” mean?  And what does “green building” mean?  Ask a hundred people at the next green building conference you attend to define “green building” and I promise that the answers will range somewhere between “energy and resource-efficient humanistic  design and construction” to “a sacred calling to protect Gaia from rapacious bottom-dwelling Industrial-Capitalists.” 

     Don’t get me wrong – it’s not as if green building advocates don’t attempt to define “green” or “green building” – they do, with varying degrees of success.  And I’m not suggesting that a perfect combination of words and sentences that would satisfy everyone’s requirements ever could, or even should exist.  Flexibility can be a good thing and sometimes just stating a set of principles that are intended to achieve substance through actions is enough.  Sort of like the Ten Commandments, or the slightly lesser – to some – Secretary of the Interior’s Standards for Rehabilitation – it’s what you do with them that counts.

     Which is great when you’re preaching to the already-converted, but not so great when trying to convince everyone else, like say, a court of law, where skepticism and burdens of proof tend to run a little higher.  Sure, thanks to aggressive marketing, the term “green” has evolved enough general meaning in the public mind to be used on bumper stickers and t-shirts with reasonable definiteness – if by “definite” we mean “less vague.”  But for legal contracts involving the transfer of massive amounts construction-related capital, and all the legal liabilities that attach like barnacles to everyone involved – a slightly higher standard of clarity is probably in order.  

     Enter the new ConsensusDocs 310 Green Building Addendum, which doesn’t even attempt to define uncertain terms like “green” or “green building” with mere words – it does so through the actions of a project’s parties.  And as much as lawyers like words, when constructing contractual bulwarks for our clients, we like actions a lot too.  The new ConsensusDOCS addendum allocates the responsibility for defining what “green,” and therefore what “green building” means on any given project to the parties who should be responsible for defining it – the owner, its architect/engineering team and a third party referred to as the “Green Building Facilitator” (the “GBF” – who may, or may not be the contractor or construction manager).  After all, unless a contractor is part of a design/build team and/or intends to assume the role of the GBF, then absent shoddy construction, why should it be dragged under when green turns to brown and the finger pointing starts?   Its job is to build, not design.  And it’s certainly not to save Gaia.

     ConsensusDOCS was kind enough to provide me with a copy of the new addendum to review.  There are no less than ten (10) defined terms that use the word “green” – which at first made me wonder why they didn’t just define “green” for any particular project in the usual way, such as: “ . . . For purposes of this Addendum, the term “green” shall mean and refer to, etc., etc . . . .”  But a little closer look made that clear.  The 310 Green Building Addendum’s real purpose is to identify the roles of relevant parties and to define the methodology they’ll use to plan and implement a project’s sustainability goals.  It also serves to clarify that unless a contractor has specifically accepted the role of Green Building Facilitator, their job is to build – planet saving’s outside their scope of work – and an extra.

     Here’s a snapshot of how the ConsensusDOCS 310 Green Building Addendum goes about that:

     First, the GBF, working with the architect/engineering team, advises the owner on alternatives for achieving a project’s desired “Green Status” – such as a LEED designation goal;

     Second, how a project achieves its Green Status is defined by its “Elected Green Measures” (comprised of the “Elected Physical Green Measures” + “Elected Procedural Green Measures”) which arises from reports and discussions between the owner, its A/E team and the GBF; and

     Third, the details of the first two steps are incorporated with specificity into a project’s plans and specifications – again, not something for which a contractor is usually responsible.

     Of course, the above simplifies a fairly complex procedure, but unless a contractor wants to step into the center of the green action – such as becoming the Green Building Facilitator, or if the project is design-build – by using the ConsensusDOCS 310 Green Building Addendum, it may avoid being directly in the green legal liability line of fire by requiring a project’s greenness to be defined by the decisions, work product and actions of other parties.  And if that weren’t clear enough, the addendum wraps it all up with an entire final section on risk allocation.

     So, when a green roof leaks, or an HVAC system underperforms, or a project’s new, imported and unvetted “sustainable” materials off-gas toxic chemicals killing every parakeet within a square mile, or a project doesn’t achieve its LEED designation and the owner doesn’t obtain its proforma-required tax benefits and starts looking around for someone to blame – the contractor has something of a defense. 

     Will it provide absolute protection when the plaintiff’s attorney lets loose with both barrels of 12 gauge, no. 10 buckshot and names everyone who ever glanced at a project in a lawsuit?  Probably not – but the 310 Green Building Addendum, along with the many other documents produced during discovery that support it by substantiating the relative roles of a project’s parties, might make for a very nice place to start crafting a defense.

     The ConsensusDOCS 310 Green Building Addendum is an admirable end-run around the green building movement’s obvious shortcomings – defining what “green” really means.  But perhaps it’s time for green building advocates to convene their own Council of Nicaea and hammer out the canons and doctrinal orthodoxy of green building – take it to the next level – the one that recognizes the inherent legal dangers of vagueness.  It won’t be pretty or easy.  Or, here’s a thought – ditch the marketing slogans and just start calling green building what it is – maybe:  “energy and resource-efficient humanistic design and construction.”   Or something like that.

     Sure, it’s not as snappy as “green” and might not fit as well on a Prius’s bumper  – but what more do you really need to say?  Green Building has enjoyed a good run of public support over the past decade, but anyone with their ear to the ground lately has heard the approaching hoof beats of the inevitable pushback.  The time may be fast approaching when words and actions – not to mention results – must merge into one for green building to sustain its credibility as a valid design and building ethic.   

     Is it possible that’s what ConsensusDOCS recognized when it created its new 310 Green Building Addendum?

Gary L. Cole AIA, Esq. is a Chicago-based Illinois and Florida-licensed attorney and an Illinois-licensed architect with over twenty years experience in design and construction, real estate development, historic preservation and accessibility matters.  He’s worked for two of Chicago’s largest law firms - Winston & Strawn LLP and Seyfarth Shaw LLP,  and was in-house counsel for one of the largest retail developers in the southeast – The Sembler Company.  He earned his law degree at Loyola University Chicago and holds both Bachelor of Architecture and Master of Architecture degrees from the University of Illinois, where he was a Visiting Associate Professor of Architecture for over a decade.  Mr. Cole regularly publishes timely articles about design, construction and real estate development issues on his website “LawArk” at www.lawarkbuilding.com, and can be contacted by email at garycole@lawarkbuilding.com.

     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 »

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 »