Best Practices Construction Law

Aging Infrastructure: What? Why? Where? How? When?

Matt DeVries — Tue, 09 Mar 2010 09:37:49 -0500

On Thursday, I will be joining a panel of construction attorneys and consultants to address the issue of aging infrastructure in America and, in particular, how to finance all the work that needs to be done.

Our panelists include:

Christopher Montez, Thomas, Feldman & Wilshusen, LLP, Dallas, TX
Kenneth R. Baker, Hill International, Poway, CA
Sarah Biser, McCarter & English, LLP, New York, NY
Robert Rubin, McCarter & English, LLP, New York, NY
Dennis Staats, Navigant Consulting, Boston, MA

You can still register for the short webinar on the Forum's website. Here are a number of answers that our panelists will try to answer:

What is the problem? Where are the major failures?
What are the sources of funding?
How much money does the Federal Government want to pitch in?
What can contractors do to maximize their changes to win Federally funded work?
How may Public Private Partnerships help solve the problem?
What does it take for a PPP to be successful?
What can construction counsel do to help his/her clients in this arena?

If you have any questions that want answered in the webinar, it's not too late. Send me an email and I will make sure that one of the panelists addresses it.

Networking Pro Learns Some New Tricks: You Can, Too!

Matt DeVries — Wed, 03 Mar 2010 07:15:22 -0500

The construction industry is one of the hardest hit in this down economy. From the top to the bottom, from executive to business development and sales to project management, you may find that you have to dust off your resume to look for new opportunities.

An article by Joann Lubin in the Wall Street Journal yesterday highlighted a networking pro, George Landis, who had to learn some new tricks as his executive job ended last November. Landis was described as a "deft conventional networker" who once relied on the traditional handshake. Times are changing ... and Landis realized it. He agreed to learn networking in the 21st century. Here are the top tips from his informal advisors, as well as a few of my comments:

Develop a stronger online identity by revamping your resume. For Landis, this meant changing his work summary from "a seasoned executive" to "I make sick companies significantly better for owners and employees." From my perspective, it is also good to create an electronic version of your resume that contains hyperlinks to your work experience, notable projects, published articles and speaking gigs. (Here is an example of my electronic resume.)
Make better use of LinkedIn, a professional networking website. For Landis, this meant reviving his inactive LinkedIn account. You may already have hundreds of contacts in your old, dingy address book. Now's a good time to search those contacts for their online presence.
Create a more visible personal brand. For Landis, this meant finding a new way to position himself as a thought leader in business management. For the construction player, this means finding opportunities to speak and write. There are local associations like AGC of Middle Tennessee that enjoy new faces at their lunches. You are also bound to find a local educational institution like MTSU that has a concrete management program that always needs guest lecturers.
Get a bigger payoff from industry events. For Landis, this meant joining the Turnaround Management Association and offering to assist in program development. When you participate in the event organization, your start to become known as a good helper and volunteer. Your name recognition and reputation builds.

At the executive and business development level, some of these tips may be easier to do than at the project management level. But I think it comes back to identifying your passion and making that your job. Former-construction-attorney-turned-marketing-coach Cordell Parvin shares 5 Keys to Success and Fulfillment and the second one is about finding your major definite purpose. Perhaps your current circumstances allow you to look for new opportunities. And remember, you may be like Landis in your archaic networking ways, but even a pro can learn new tricks.

Green Building Reality Show? Music City Center Contractor Nabbed on Video Disposing Recyclable Materials

Matt DeVries — Wed, 24 Feb 2010 10:28:39 -0500

You don’t have to click too many times through your channels on your television set without finding a reality television show. There is one for finding the right man, losing weight to the extreme, rebuilding a destitute home in five days, and even eating spiders and beetles.

Earlier this week on the evening news I witnessed a reality show of sorts in the green building arena: an investigative report by a local news station about the construction of the new Music City Center in Nashville, Tennessee.

Location: A demolished building in downtown and a dumping site out of town.

Protagonist: Ben Hall, an investigative reporter from Channel 5.

Antagonist: A local demolition subcontractor involved in the project.

Plot: In a project committed to sustainable and green construction methods, will the subcontractor take the easy way out and simply dispose of the demolition waste rather than carefully pick through the recyclable materials?

Conclusion: See the video for yourself. [Cannot see the video, click here.]

This green building reality show illustrates one of the tensions between sustainable building practices and certified sustainable building practices. Where a project is simply committed to sustainable building practices, conceivably there is no oversight. The end product may contain energy-saving features or other green components, but the building methods may not change.

Where a project seeks LEED certification, as does the Music City Center, there should be requisite protections in place to monitor the reuse of recyclable material and the disposal of waste material. "We're going to try to keep as much out of the landfills by recycling it," said Larry Atema, Senior Project Manager for the Center. ". . . [F]or example, the steel to a steel recycler, the brick to a brick recycler."

So, where did checks and balances fail at the Music City Center? According to Atema, "It should not have happened. . . . I think what is important at least to us, when we first learned of it, we went out and less than 12 hours later we had the steel picked out of the debris." According to the article, Atema said crews will have to do a better job of sorting. He said that the crews are now looking more closely at what leaves the demolition site.

It will be interesting to follow this project through construction, as well as the LEED certification process, to see whether the Music City Center wins its green building reality show prize.

Vancouver Olympic Village Receives "Platinum LEED Medal" in Winter Olympics: Is the Price Worth It?

Matt DeVries — Wed, 17 Feb 2010 03:33:35 -0500

For the next couple of weeks, the only thing you will see on our living room television is the Winter Olympics. Luge...daring!. Freestyle moguls...awesome! Snowboard cross...cool! Figure skating...good time to surf the Internet!

Last night, while ~~watching figure skating~~ surfing the Internet, I stumbled upon this article about the Olympic and Paralympic Village in Vancouver having received the highest certification for sustainable community development from the U.S. Green Building Council. The LEED Platinum certification was announced Mayor Gregor Robertson on Tuesday morning. According to the article, the Olympic village is the second development in the world to receive Platinum certification.

Platinum certification was awarded to the $1-billion, 32 hectare South East False Creek neighbourhood development project based on a variety of factors including its proximity to the downtown core, affordable housing, green buildings and habitat restoration. . . .

“If we want to stand up and make Vancouver the greenest city in the world we are going to need some serious resources and aspirations,” said Roger Bayley, design manager for Merrick Architecture, the architects behind the project. “But I have no doubt that [the Village] is going to be profitable.”

The sustainability website inhabitat.com had a great overview of the sustainability features of the Olympic Village almost two years ago. These included: solar panels, green roofs, rain water harvesting systems, in-slab hydronic system for heating and cooling of the buildings, and all underground parking.

It is good to see that the Olympic Village attained its goal for LEED certification . . . a Platinum medal in the Olympics of green building. Local community leaders want to use the Olympic Village as model for sustainable development to help Vancouver become the "greenest city in world."

The problem? It came at a significant cost. A $700-million bailout was required from the City in order to finish the construction of the Olympic Village, generating concern for the profitability of future LEED development projects.

The answer? As with many other green building issues, only time will tell. First, we will have to wait until the end of the Olympics to see how Vancouver transitions Olympic Park into affordable housing for downtown residents. Next, we will have to watch the performance of the sustainable buildings. If private development can do it cheaper and faster with the same or comparable performance data, then there may not be the green community development anticipated by local leaders.

Thompson Research Group Says, "Public Construction: The Only Game in Town."

Matt DeVries — Fri, 12 Feb 2010 10:02:15 -0500

Earlier this week I attended the AGC of Middle Tennessee's membership lunch. Everything was right on! I love chicken ... they served chicken! I have 5 kids ... the guy next to me had 9 kids! And I like to follow construction industry trends ... and the speaker loves to follow construction industry trends.

David Wells, a senior equity analyst for Thompson Research Group, spoke about the 2010 economic outlook for the construction industry. Some key talking points:

There is no longer a drag on residential construction and we may see some improvement in the upcoming year
As to non-residential or commercial construction, we have not yet bottomed out ... which may occur mid-late 2010
Finally, as you can expect, public construction is "the only game in town"

Given the increased investment in public construction, there remains some challenges in this arena. For example, U.S. government (and other public) borrowing has replaced private borrowing. This creates a public debt crisis at the federal level, resulting in federal deficit projections of unparalleled amounts. At the state level, the budget crises stem from the same economic conditions coupled with the requirement to maintain a balanced budget.

This may be new information to some of you. It is probably old news to many others. But what does it mean practically? Here are some of David's concluding recommendations:

Take cost cuts now, if necessary. The uncertainty of work significantly impacts employee productivity. If you are going to need to make cuts, make them now, and reassure your remaining team that they are part of the team.
De-lever your balance sheets. Use the time now to analyze your debt structures in place and attempt to de-leverage your company as much as possible.
Watch out for opportunities. Weaker companies will be looking for solutions to their problems. Stronger companies should be on the watch for opportunities to build and expand through acquisition or partnership.

Question: Any recommendations for improving your 2010 economic outlook?

Graph: Council on Foreign Relations

Undercover Boss: Lessons Learned from Waste Management's President and COO

Matt DeVries — Tue, 09 Feb 2010 01:23:11 -0500

What did you watch after the Superbowl? If you are like more than 36 million other viewers, you watched the premiere episode of Undercover Boss . . . a new reality show on CBS that features high level executives who go undercover to interact and work with daily employees.

The premier episode featured Larry O'Donnell, President and Chief Operating Officer of Waste Management, as he worked alongside his employees. O'Donnell got down to the nitty gritty, cleaning porta-potties, picking up trash at a landfill, sifting cardboard at a recycling plant, and driving on a trash route. If you saw the interaction between O'Donnell and his employees, you felt the authenticity of the moment. Whether you call it "good reality television" or a case of "good scripting," there were a number of lessons that can be gleamed from O'Donnell's experience:

A company's success depends largely ( ...if not entirely... ) upon its people. While this may be common sense, many company leaders do not realize how far down the ladder this principle applies ... all the way down to the bottom man or woman. If there is a friction between your hourly employees and your middle management, that friction may never be realized by upper management.
No matter what level on the company ladder, innovation and hard work should be rewarded. O'Donnell saw this in an employee named Jaclyn, who was a paid-by-the-hour administrative assistant. Jaclyn also acted as an office manager, scale operator, and scale supervisor, and accountant for accounts payable, accounts receivable, and payroll. Ultimately, O'Donnell promoted Jaclyn to supervisor, placed her on salary status and made her position bonus eligible.
Work policies enacted by management should be reviewed for effectiveness and acceptability. Some of best decisions made from above have the best intentions for the best results. However, management decisions can achieve an opposite result if not carefully enacted. For example, O'Donnell heard complaints from an employee who was docked pay for two minutes for every one minute they were late clocking into work. Wanna know the kicker? O'Donnell was the one pushing for increased productivity from WM employees.

Question: Did you identify any other "lessons learned" from the undercover boss of Waste Management?

AGC "Rocks" Tennessee Capitol Hill on Construction-Related Bills

Matt DeVries — Wed, 03 Feb 2010 10:41:15 -0500

I wonder who that sad little scrap of paper is? Do you know? Oh, yeah, he's just a bill ... he's just a bill on capitol hill.

You knew that Nashville was the Music City, right? Reminiscent of the "Schoolhouse Rocks" days, last night I attended the kick off dinner for the AGC of Tennessee’s “Day on the Hill”… an event where AGC members attend hearings and meet with state senators and representatives about various bills relating to the construction industry in the state of Tennessee. Although there are reported to be more than 1300 bills introduced for consideration by the General Assembly in the 2010 regular session, approximately 15-20 of those impact or affect the construction industry in some manner. The top five bills for which the AGC of Tennessee has stated their position include the following:

Worker's Compensation Insurance Reform. There have been a number of bills introduced in the session of the General Assembly regarding the issue of subcontractors not having workers compensation insurance coverage. I previously blogged about Public Chapter 1041, who's implementation date was recently deferred until March 28, 2011. The law would have required all contractors to obtain workers compensation coverage, even on themselves if they were sole proprietors. Rather than taking a position on the individual bills that were introduced in this session, the AGC of Tennessee suggests that any legislation proposed on this issue consider the following recommendations:

Allow up to three officers of a company to “opt out” from being required to have coverage;

Require the filing of an affidavit with the Department of Labor that specifically names the individuals who have opted out of coverage;

Proof of at least 10% ownership;

Submission of a federal employer identification number with any filing;

An acknowledgment of a waiver of all rights of recovery, including workers compensation and tort claims, if the opt out individual is injured on the job; and

A provision that any individual who opts and files a claim would be guilty of fraud.

Drug Free Workplace. This legislation was first introduced by 2008 by the AGC of Tennessee. SB 1524 and HB 1604 make certain changes for denying workers compensation claims involving drugs or alcohol. By changing the burden of proof by the injured employee from a “preponderance of evidence” to “clear and convincing” evidence. This legal language change would make it more difficult for the employee to prove that drugs did not contribute to the cause of the accident. AGC of Tennessee strongly supports this change to the current legislation.
Listing of Masonry Contractors. SB 2722 and HB 2794 requires information concerning those bidding for masonry contractor work be included on the outside of the envelope containing a bid, in addition to those contractors currently required to be listed. AGC of Tennessee strongly opposes this legislation, consistent with the position taken by the Tennessee Board for Licensing Contractors. Currently, masonry contractors are not required to have a license in Tennessee. Adding this requirement to current legislation as suggested by the AGC, would be put an additional burden on the general contractors bidding a project.
Electronic Bidding. SB 3607 and HB 3158 revise the current requirements concerning information that must be contained on the outside of the envelope containing a bid to also require the same information be included in an electronic bid. AGC of Tennessee strongly supports this legislation because it brings the bid process into the electronic technological arena.
Local Bid Preferences. AGC of Tennessee strongly supports SB 3607 and HB 3160, which clarifies that the only bid preferences that are permissible in public construction projects of local governments are those created by the General Assembly by general law. This legislation is intended to prevent local jurisdictions and governments from creating special bidding rules for construction projects.

Although there are numerous other bills before the General Assembly, these are the main ones being discussed by AGC members this morning at the “Day on the Hill” program.

I once worked as a staff member on Capitol Hill more than 15 years ago and I truly miss being involved in the legislative process. Whether you support or oppose any of the above measures, the real lesson is to get involved to help shape the laws that can (and will) affect your business.

Cost Overruns on the Nashville Convention Center? "There Aren't Going to Be Any"

Matt DeVries — Tue, 02 Feb 2010 09:47:40 -0500

As you may know, the Nashville Metro Council recently passed the $585 million financing package for construction of the new Music City Convention Center. As reported by the Tennessean this morning, discussions have now turned to project management and how to control the costs.

When asked about what areas would incur the most cost overruns, two divergent opinions emerged:

Marty Dickens, Chairman of the Metro Convention Center Authority, said, "All of 'em."
Larry Atema, CEO of Commonwealth Development Group and the owner's representative on this project, responded: "There aren't going to be any."

Who's right? I am not sure either opinion is completely correct. Cost overruns can occur when the contractor justifies any reasonable change order, whether it is the result of an owner-directed change request, a change in available materials, a change due to design conflicts, or an unanticipated delay in the work. While there may be cost-savings built into the project's estimate, these can be rare on a sizeable project like the convention center. Add to the mix the multitude of players involved in the financing package: mortgage bankers, accountants, and cost engineers.

To say that every trade or scope of construction will incur a cost overrun simply ignores the fact that there is a contractual guaranteed maximum price. Additionally, there are a number of reputable, downright excellent contractors involved in this project who will do whatever is necessary to stay on budget. Sure, there will always be the few participants trying to make an extra buck or two through change orders. But that should not be the expectation.

On the other hand, to say that "there aren't going to be any" cost overruns may be simply a case of project management optimism. Indeed, Atema recognizes that "[d]evelopment and construction is an imperfect process." Atema continues: "The key is the ability to manage those imperfections."

Image: Music City Center

Federal Construction Contracting | Words of Wisdom from a Former Judge

Matt DeVries — Fri, 29 Jan 2010 09:27:34 -0500

Okay, so you think I went to San Francisco just to get some good eats. Not true. I also went for the program. The panel of speakers at the the mid-winter conference of the ABA's Forum on the Construction Industry was packed with some great government contracting professionals.

To me, some of the best words of wisdom came from the Honorable Steven Reed, a former judge of the Armed Services Board of Contract Appeals who now practices in the Washington, DC office of Smith, Currie & Hancock LLP.

Judge Reed's talk focused on the alternative dispute resolution process and, more specifically, "... the practical side of developing the contractor’s story in support of a claim." Some of Judge Reed's best tips:

The big picture: Contractors must anticipate the possibility (if not the probability) of disputed matters. Prevention and preparation are essential to a favorable outcome.
Documentation: "Daily reports are generally required under Federal contract. They "should contain facts ... not feelings or emotions." (Don't call the project manager a "jerk" in the project documents, even if he is one.) Rather, use the daily report as an "opportunity to create a comprehensive record of performance."
Claim proof: "Your contractor client will absolutely need its bid papers for evidence in claim against Government." It's a no-brainer, but you need a good document management process in place.
Dispute forum: Picking a forum for resolving your dispute is strategic. For example, a decision from the Board of Contract Appeals will be "predictable" and the process is more "stable" while the Court of Federal Claims will be more "rule bound." The forum is also important because the Court has certain jurisdiction over fraud claims, while the Boards do not.

Judge Reed concluded his written presentation with sound advice: "Contractors need to be educated, prepared, aware, and well-represented."

Federal Award in San Francisco: Lessons Learned About Future Construction

Matt DeVries — Wed, 27 Jan 2010 11:58:57 -0500

I am in San Francisco this week for the MidWinter Conference of the American Bar Association Forum on the Construction Industry. The topic this year is "Government Construction Contracting" and I will be tweeting under the hashtag #ABAConstruct.

In news relevant to Federal contractors, construction industry players and Californians, the San Francisco Business Times reported yesterday on the approval of a $171 billion federal loan for the construction of a new transit center in San Francisco. The loan is earmarked to pay for ramps to the Bay Bridge, a bus storage facility and the design of underground transit facility. Good for the construction industry in California. Other states are supposed to get some of the $8 billion set aside by the Obama administration for high-speed rail.

What can we learn from this report? Almost every "construction news" feed that I follow includes some news article about the sustained decline in construction jobs. There are also many reports about the stagnant hold on residential building. Here's what I think:

Federal and state projects will continue to represent the primary areas of growth within the construction industry for 2010.
As those projects are the only ones available, there will continue to be increased competition for the limited work.
There will continue to be an increase in bid protests and disputes arising out of these projects.

What do you foresee?

Nashville Convention Center Approved | One Legal Hurdle Left

Matt DeVries — Mon, 25 Jan 2010 05:01:09 -0500

My wife thinks I am nerd. She's right. I rushed the kids to bed early one night last week so that I could sit in the kitchen to watch . . . okay . . . I will say it . . . the Metro Nashville Council vote on the fanancing package of the new convention center and the ensuing aftermath. I love this stuff!

In a vote of 29-9 last week, the council approved the $585 million downtown convention center, the largest building project in the City's history
Councilmember Randy Foster opposed the measure and tweeted about the bill's passage right before it happened
As reported on the tube, there are 1,329 days between today and the first booked event at the new convention center

There remains one pending lawsuit that could affect construction, although most commentators believe a compromise will be reached. Tower Investment owns a parcel of land within the convention center's overall footprint. The dispute relates to the emminent domain proceedings by Metro to secure the land. Interestingly, a number of council members have been subpoenaed to give testimony in the case. Proceedings are set to begin in February.

Haiti, Shoddy Construction and a Helping Hand

Matt DeVries — Fri, 15 Jan 2010 08:52:57 -0500

It is hard to begin a day's work with a warm cup of coffee, a clean office and a (fairly) new computer ... knowing about the devastation in another country. I heard the death toll in Haiti could be as high as 50,000.

According to a BBC news article this morning, experts say that it is "no surprise that shoddy construction contributed to the level of destruction in Haiti following Tuesday's earthquake." The primary reason: "It's sub-standard construction . . . There aren't any building codes as we would recognise them," says London-based architect John McAslan, who has been working on a project linked to the Clinton Global Initiative in the country.

Also to blame is a lack of quality in building materials and cost-cutting measures for construction. For example, "[p]eople are skimping on cement to try to cut costs, putting a lot of water in, building too thin, and you end up with a structure that's innately weaker," said Peter Haas, head of the Appropriate Infrastructure Development Group, a US-based non-profit group that has been working in Haiti since 2006.

What should our response be to a devastation like this? First, we need to help through international aid organizations like the American Red Cross. You can find a donate link here. Second, we can start to learn that "best practices" is more than a buzz word. In the construction industry, it is our job to promote good building standards, use quality materials, and work together with those less fortunate to help build a better future.

My thoughts and prayers go out to the people and their families in Haiti.

CalGreen, Take Me Away! (California Adopts Greenest Building Code to Date)

Matt DeVries — Wed, 13 Jan 2010 13:54:59 -0500

Stressed out trying to keep up with all the local building codes? What about green building incentives in your neighborhood? Have you figured out the changes in LEED 2009? (...scream...).

"~~Calgon~~ CalGreen, take me away!"

Reminiscent of the 1970s commercial involving a certain screaming mom, a few screaming kids, and a bubble bath, you may be overwhelmed trying to figure out the status of green building initiatives in your jurisdiction. Here's another one to add to the mix:

Yesterday, the California Building Standards Commission voted unanimously to approve "the most stringent, environmentally friendly building code standards of any state in the nation," as dubbed by the San Francisco Gate. The new building code, which has been called CalGreen, takes effect January 2011. According to the new code, builders must do the following for new construction:

Install plumbing to cut water usage
Divert 50% of construction waste from landfills to recycling
Use low-pollutant paints, carpets and floorings
Install separate water meters for different uses (non-residential only)

In addition, CalGreen mandates the inspection of energy systems by local officials to ensure that HVAC systems are performing the energy-saving jobs correctly. CalGreen, a statewide code, allows local jurisdictions to implement or retain even stricter standards.

CalGreen incorporates sustainable practices into the state building code, as opposed to adopting a third-party rating system such as USGBC's LEED. That is precisely what Nashville Councilmember Mike Jameson suggested last week at a sustainability breakfast in Nashville should be done: "... I would like to see the city code mirror the [third-party version] ... to be a stand alone code."

The passage of the code was significant, particularly where six major environmental groups, including the Sierra Club, the Natural Resources Defense Council and the United States Green Building Council, opposed the measures because "some of the rules ... aren't tough enough."

You can beat that the rest of the nation, including localities such as Nashville, are keeping a close eye on state and local codes like CalGreen.

(Hat Tip to @elaineishere for the Tweet!)

How Do You Do It All: Work? Family? Blog? Answer: Google Reader

Matt DeVries — Mon, 11 Jan 2010 10:39:42 -0500

A week does not go by without a friend, colleague, or new acquaintance asking me, "How do you do it all?" The short answer: "It's tough ... very tough ... but I have some help. For home and family issues, I have my lovely wife. For unloading the dishwasher, I have my son. For getting out letters, I have my legal assistant. For researching legal issues, I have a number of associate attorneys who can help. And for blogging and staying current with the construction industry, I have Google Reader." (...Okay, so my answer was not that short...)

I use Google Reader to track and scan over 100 blogs, news sources and Twitter feeds relating to the construction industry, leadership, marketing and social media. Rather than try to explain how it works, check out the following short video:

Now, let's see how Google Reader has helped my blogging efficiency for an actual blog post. A few months ago, I read an article in my Google Reader about two tunneling machines being used on a project in Puget Sound. Since the article highlighted what I thought was an instance of a "construction project gone wild," I blogged about the incident, as well as some construction management tips.

How can Google Reader help you? The tool can be used:

To track your "go to" websites that you regularly check
To track certain terms in the mainstream media (i.e. "construction bids Tennessee" or "green incentives for developers")
To follow certain Twitter feeds for people or terms

Since words have different meanings to people, there may be problems with some of the initial feeds you set in Google Reader. It may take time to determine whether the inquiries you set are returning useful information. Overall, this is a "must use" for anyone in the construction and green building industry.

Greenest City in the South: Panel Addresses Whether Nashville Can Get There

Matt DeVries — Fri, 08 Jan 2010 10:21:14 -0500

When Nashville Mayor Karl Dean created the Green Ribbon Committee on Environmental Sustainability, he had lofty goals of making Nashville the greenest city in the Southeast. Indeed, Tennessee's Lt. Governor Ron Ramsey shared a similar commitment to be a green "LEEDer" in the South.

Fast forward to January 2010 ... Where are we on the green front? What have we learned over the past year? Where are we going in the future? Have we met any goals outlined in the Green Ribbon Committee report? How have the current real estate market conditions impacted the short-term future of green building in Nashville? Is it time to require some sort of mandate for green buildings or are incentives enough?

Yesterday morning a group of community leaders, developers, bankers, attorneys, engineers, contractors and other green players met for breakfast at Waller Lansden's sustainability breakfast series to tackle these questions. The panel included the following:

Jimmy Granbery,CEO, H. G. Hill Realty Company, LLC
Mike Jameson, Councilmember, Metro Nashville Council District 6
Bert Mathews, President, The Mathews Company
Joni Priest, Metro Nashville Planning Department
Sharon Smith, Metro Nashville Mayor's Office, Director of Office of Sustainability

The one-hour discussion was very thought-provoking and the panelist had some practical comments on the future of green building in Nashville. Here are a few:

On the progress of green building:

Jimmy Granbery applauded the development of technology and better understanding of green solutions. "For example, we can now build a green roof with only four inches of dirt rather than two feet of dirt," said Granbery. This has certainly resulted in significant cost savings in the underlying materials, as well as the building costs such as the steel needed to support a heavier roof.

On city or state-wide green building code:

Councilmember Mike Jameson discussed the problem that localities face by adopting a third-party building code such as USGBC's LEED certification, suggesting that the building code will have to change as the third-party standard changes. "Instead, I would like to see the city code mirror the [third-party version] ... to be a stand alone code," said Jameson.

On local incentives for green building:

Joni Priest highlighted some potential incentives, including bonus square footage for LEED certified buildings and building height variances. Priest said that there was significant opposition to any mandate for LEED certification on construction, joking that her phone rang off the hook when the mandate issue came up for discussion.

On general trends for green building and sustainable design:

Bert Mathews said that it really depends on the client, as some tenants of his developments have absolutely no interest in green building, while for others, "it is a standard that many have come to expect."

Question: How would you rate Nashville's commitment to green building?

I look forward to the sustainability breakfast series over the next few months. Thanks to @tenngreenlawyer for the tweet about the breakfast.

Reading Between the Lines: Construction Industry Targeted in Congressional Health Care Reform Package

Matt DeVries — Wed, 06 Jan 2010 17:09:43 -0500

On December 24, 2009, the United States Senate voted to pass its own version of the health care package. You have probably heard cries about the length of the bill (1,990 pages). You have probably heard the cries about the costs. But have you heard about an amendment that may significantly affect the construction industry?

According to a letter from the Associated General Contractors of America to Senator Mitch McConnell (pdf), the bill is non-workable and unnecessarily targets the construction industry. The AGC opposes the health care package because of the complexity of the plan, the cost-shifting (rather than the cost- reductions), and the likelihood that it will increase insurance costs for those construction businesses that provide insurance to their employees.

Even worse, according to the AGC, is an amendment drafted by Senator Jeff Merkley (D-Or) and inserted into the bill by Majority Leader Harry Reid (D-Nev.) that would exempt the construction industry from the small business exemption that was included in the original bill. According to another letter from the AGC to Senator McConnell (pdf), this would cripple small construction businesses:

For all other industries, H.R. 3590, exempts employers with fewer than 50 employees from the fines levied on those who cannot afford to provide their employees with the federal minimum standard of health insurance. However, the Manager’s Amendment alters the exemption so that it singles out small businesses in construction for special punishment by applying the exemption to only those firms with fewer than five employees in the construction industry. . . . The 50 employee threshold was meant to exempt smaller firms, [and] this amendment will unfairly punish small construction contractors.

There remains considerable debate about the effectiveness of the health care package. The introduction and consideration of the Merkley amendment is a reminder for all industries to do your homework as Congress enacts laws that may affect, both directly and indirectly, your company.

Photo: Flickr | pixelle54

Sometimes It Is Too Late to Withdraw Condemnation Proceedings

Matt DeVries — Mon, 04 Jan 2010 11:25:10 -0500

Is it too late to discuss a case from 2009? Nah. Especially if the court released the opinion within the past two months. And according to the decision in Shelby County v. Crews (pdf), there are times when it may be too late to withdraw a condemnation petition. That line in the sand appears to be the date after the public entity takes legal possession.

In Shelby County, the Court of Appeals of Tennessee recently held that the County was precluded from backing out of condemnation proceedings too late in the game. The County had possession of a small strip of land owned by the Crews. The County used the land as a parking area for a nearby penal farm and had gone as far as to pave the property. In the summer of 2004, the County filed a Petition for Condemnation of the strip of land pursuant to the condemnation statutes. The County offered approximately $40,000 as to the amount of compensation for the family land owners. The family did not contest the County’s right to acquire the property, but disputed the amount of compensation it should receive for the land. Thereafter, the trial court entered a Consent Order that granted “all property rights and ownership in fee simple” in the property to the County. The trial court scheduled a trial on the issue of compensation for a later date.

One week prior to the scheduled trial date, the County filed a Notice of Non-Suit, which is a document that gives notice of a voluntary dismissal of the condemnation proceedings. The Crews filed an objection to the non-suit order, arguing that the County was not entitled to dismiss the case because it took possession of the property. The issue before the court was whether the County was entitled to voluntarily dismiss the condemnation after it took possession of the property.

In a short five-page opinion, the court held that the County was precluded from voluntarily dismissing the condemnation proceedings after it had acquired ownership and legal right to possession, leaving only the issue of compensation to be decided.

While this issue may seem like a no-brainer to you, the case is important because it establishes a limitation on a public entity's power to condemn property. The public entity can no longer take possession of the property and later "back out" of the deal if compensation looks to fall in favor of the private owner.

Photo: Flickr | ToniVC

Best Practices: My Top Three Year-End and Year-Forward Assessments

Matt DeVries — Wed, 30 Dec 2009 11:46:48 -0500

Everyone knows that this is a slow week for work ... unless you work in retail and there is a mad, crazy 75% off sale. For me, I am using the time to clean up my legal files, assess the deadlines for the next three months, evaluate what went right in 2009, contemplate what went wrong in 2009, and plan better for 2010.

With so many ways to attack this evaluation process, I want to share with you my top sources of evaluation (in no particular order):

For career development ... Cordell Parvin is a fellow Richmond Spider (...although a few years before me...) and former construction attorney. I came across Cordell's name about 6-7 years ago when I was contemplating a move to Dallas, Texas and I reached out to fellow law school alums. While that venture did not turn out, I have kept in touch with Cordell regularly through his books, blog, and Tweets. While you can find a lot by browsing his blog, my favorite year-end posts include:

Why You Should Create a 2010 Plan ... Cordell has a webinar on this topic today.
Practical Tips on How to Do Year End Planning
And today's post about Planning at the 50,000 Foot Level

For balancing family and career and life ... sure you have your Zig Ziglar's, your John Maxwell's, and even your Rick Warren's ... but my favorite, local, "living-life-right" model is Nashville's own Michael Hyatt, CEO of Thomas Nelson Publishing. I first started following Michael's blog, Leading with Purpose, at the beginning of this year when I revved up my career planning and life assessment. Michael is a model husband-father-businessman-leader, who Tweets about leadership and life. Here are a few of my favorite posts, including the year-end assessment:

Seven Questions to Ask about Last Year ... the Year Ahead post is expected soon.
Five Characteristics of Weak Leaders, which gives you a look at how not to lead.
Two Approaches to Influencing the Family ... notice that Michael likes numbers!

For sheer motivation ... speaker and author Andy Andrew challenges you to evaluate the importance of halftime. As for me, this week is my "halftime" moment and the second half is about to begin. The year 2010 presents some great opportunities for my career, my family, my community and my church. How about you? I know. I have lived them, too. The past few years have been tough. But the best years lie ahead.

What are you going to do to make 2010 different? ... or better yet ... What are you going to do to make a difference in 2010?

TN Legislative Update: New Workers' Comp Law Affecting Construction Industry Goes Into Effect January 1, 2010

Matt DeVries — Tue, 29 Dec 2009 14:29:58 -0500

Back in November, I wrote about a Tennessee Attorney General Opinion that addressed the new workers' compensation law in Tennessee that requires sole proprietors to carry workers' compensation insurance on themselves. (Traditionally, there was an exclusion for sole proprietors.) Just after release of the AG-Opinion, the leadership in the state house and senate came to an agreement to suspend the effective date of the new law.

Over the past month, there have been a number of grass roots campaigns to address this issue. So, where does the law stand now? According to an official bulletin from the Department of Commerce and Insurance Commissioner Leslie Newman (pdf), the statute goes into effect at midnight on December 31, 2009. Although the General Assembly has reported that it will address the issue as soon as they convene on January 12, 2010, the statute as written and enacted is enforceable on January 1, 2010. The most important tip from the Bulletin is about election of coverages:

The Department interprets this change in the law to mean that a sole proprietor, partner, or limited liability company member ("LLC member") who had not previously been required to have coverage on himself must now obtain coverage on himself. . . . The Department wishes to make clear its position that failure of a sole proprietor, partner, or LLC member to obtain such coverage without having met an exemption, is in violation of [the new law] and could subject such person to penalties by the Department of Labor and Workforce Development.

The Bulletin also includes the "Certification of Election" form that must be filed with the Department. I plan on following this issue closely.

Lessons from a Bankruptcy Judge: Learn How to Write

Matt DeVries — Mon, 28 Dec 2009 06:14:27 -0500

"Pay me less before the dispute erupts ... or pay me more after the dispute erupts ..." is a phrase that many construction litigators have said to their clients. What that means, practically, is that if you invest the time and money to have your attorney review construction contracts before the job starts, you will save time, money and effort later when the dispute begins (and perhaps you may even fend it off). Despite the warnings, there are many out there who want to "go it alone" ... and that's okay. This post is for you.

The American Bar Journal posted an article two weeks ago about a federal bankruptcy judge who was fed up with "superfluous words and too much capitalization." The judge took a stand against legalese and issued some guidelines (pdf) to the practicing bankruptcy attorney. Some of my favorites include:

Lawyers apparently disfavor articles, both definite and indefinite. Use the
articles “the,” “a,” and “an” as appropriate. Write the way you would speak.
Never use and/or.
Eliminate superfluous words. They serve no purpose other than to make the
document sound more legal ... Examples of such words are: “hereby,” “herein,”
“in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,”
“immediately,” “heretofore entered in this case,” “be, and hereby is”–the list
goes on and on.
Keep plurals and possessives straight and consistent. Know when to use
debtors (plural), debtor’s (singular possessive), and debtors’ (plural
possessive). Make sure the verb matches the subject of the sentence.

You can tell by the terse language in the judge's guidelines that he likes clarity and he wants litigants (and particularly their attorneys) to follow those guidelines. If I were a construction litigator ... which I am ... I wonder what my suggested guidelines would be for construction contracts. Here are a few:

Keep the names consistent. I know this will take some searching and replacing in your form contracts, but it is important to track the parties' names correctly. Many times, I have found a "subcontractor" listed as "contractor" in one section and "subcontractor" in another section.
Identify the "contract documents" for the parties. Too many disputes arise because someone thinks the proposal or purchase order is part of the parties' agreement only to learn later that it has not been incorporated as part of the contract documents. Many form contracts have an "order of precedence" clause that ranks the precedential value of the documents in the event of a dispute. Make sure to expressly include every document that you want into the contract documents.
Evaluate and clarify the "dispute" provisions. Again, I have seen a number of lawsuits between parties spend too much time on the procedural issues such as litigation, arbitration, mediation (because the contract was not clearly written), rather than getting to the heart of the matter. Make sure your contracts clearly identify your method of dispute resolution.

Do you have any other guidelines for your construction contracts?

Photo: Flckr - LucasTheExperience