Elon University joins growing list of "greening" campuses

On May 21, Elon University, located in Elon, North Carolina, broke ground on Lindner Hall, planned to be the "greenest" facility on campus. The 30,000-square-foot building will house administrative offices and various academic departments and include high-tech classrooms, a computer lab, faculty offices and space for student-faculty mentoring. As noted in an Elon University press release, "Environmental sustainability is a key component in both the construction and operation of the building. Seventy-five percent of construction waste will be recycled, much of the building will be made of steel and tile that contain recycled material, and photovoltaic solar power cells will help generate power on site, among other features. An estimated 8-10 percent of all power consumed by the building will be generated by those solar power cells and by solar energy used to heat water." (This entry posted by Liz Riley, a member of Womble Carlyle's real estate development and construction law practice group.)

Source: Elon

Full Ninth Circuit Court of Appeals Affirms Lower Court's Holding in Garcia v. Brockway

In a case that is being closely watched in the multi-family housing industry, the Ninth Circuit Court of Appeals this week released its opinion affirming the lower court's holding that the 2-year statute of limitations for a private civil action alleging violation of the Fair Housing Act's accessibility requirements for design and construction is triggered, i.e., the violation is complete, at the conclusion of the design and construction phase, which occurs on the date the last certificate of occupancy is issued.

The plaintiffs had asserted three theories to extend the limitations period: (1) that the violation was a continuing one that did not end until the defects were corrected; (2) that the statute did not begin to run until the aggrieved person encountered the design and construction defect; and (3) that the statute did not begin to run until the aggrieved person discovered the design and construction defect.

As to the first theory, the Court said that the plaintiffs (and HUD) confused a continuing violation with the continuing effects of a past violation, and that a failure to design and construct in accordance with the FHA accessibility requirements was not an indefinitely continuing practice but instead a discrete instance of discrimination that ended when design and construction were complete.

The Court treated the second and third theories as essentially the same, and failing for the same reason --- that the FHA's limitations period does not start when a particular person encounters, discovers, or even is injured by a housing practice, but rather the limitations period starts when there is an "occurrence or termination of a discriminatory housing practice," 42 U.S.C. 3613(a)(1)(A). (This entry published by Karen Estelle Carey, member of the Construction and Real Estate Development practice team.)

"What is a BIM?"

This question is the first FAQ on the website of the Facility Information Council (FIC) describing the FIC's initiative to develop a National BIM Standard. I was intrigued because I usually hear the question asked as "What is BIM", not "What is a BIM?"

The FIC's definition of "a BIM" is elegant. It is simple and clear, and goes like this:

"Building Information Modeling (BIM) is a digital representation of physical and functional characteristics of a facility. A BIM is a shared knowledge resource for information about a facility forming a reliable basis for decisions during its life-cycle; defined as existing from earliest conception to demolition."

The concept of a "shared knowledge resource" is really the essence of BIM, it seems to me. But sometimes it is hard to describe clearly and simply what this means and why it is so important. Once again, the FIC does a good job:

"Digital representation means that computers can be used to 'build' the capital facility project virtually, view and test it, revise it as necessary, and then output various reports and views for purchasing, fabrication, assembly, and operations. In many cases paper output may be avoided altogether when the finalized digital designs are sent directly to procurement systems and/or digital fabrication equipment."

If indeed a facility can be "built" in this way, think of the errors, delays, costs and waste that can be avoided, not only in design and construction but just as important, throughout the life of the facility.

To read more about the development of a National BIM Standard, click here. (This entry published by Karen Estelle Carey, a member in the Real Estate and Construction practice area.)

Digging Up Bones: New Provisions in the AIA A201 Impose New Obligations on Contractors

Recently, neighbors of mine decided to sell the family farm that has been in their family for almost 200 years. We know that the property has been in the family for this long based on the family cemetery plot located on the last bit of acreage that has not been subsumed by the surrounding neighborhoods that have swallowed what was originally about 100 acres of farmland.

As part of my neighbor's quest to sell their family property, they know that they will be responsible to pay the costs to move the family cemetery to a nearby memorial gardens. As the owner of the property, my neighbor's obligation to move this well marked family plot seems clear. Curiously, however, in the recent revisions to the AIA Contract Documents, and in particular, the AIA A201-2007, the drafters of the new 2007 edition of the AIA Contract Documents don't take as clear a position with respect to the responsibility for remains found on an owner's property during the course of construction.

In the revised A201-2007 General Conditions of the Contract for Construction, the drafters added a new Section 3.7.5 which reads in pertinent part, "[i]f, in the course of the Work, the Contractor encounters human remains or recognizes the existence of burial markers, archeological sites or wetlands not indicated in the Contract Documents, the Contractor shall immediately suspend any operations that would affect them and shall notify the Owner and Architect." [Emphasis added]. This seems to make some sense; if a contractor discovers remains, it will stop work and allow the owner to have the remains removed in accordance with applicable law.

What isn't as clear in the new language is: 1) the extent to which the contractor must stop the Work, and 2) whether the contractor will be given an extension of the Contract Time or additional costs that it might incur (e.g., extended general conditions, etc.) during such a stoppage of the Work. This uncertainty stems from the last two sentences of the new provision which read: "[t]he Contractor shall continue to suspend such operations until otherwise instructed by the Owner but shall continue with all other operations that do not affect those remains or features. Requests for adjustments in the Contract Sum and Contract Time arising from the existence of such remains or features may be made as provided in Article 15."

Thus, under the new Section 3.7.5, the burden is shifted to the Contractor to determine what operations "do not affect those remains or features". One can imagine that disputes will invariably result in the event of any miscommunication between an owner and contractor with respect to the precise scope of operations that the contractor is to undertake while such remediation efforts are under way. Disputes are also likely to result from the Contractor's inefficiency claims resulting from delays to the Contract Time caused by the contractor working around the owner's removal or abatement contractor.

In addition, instead of indicating that both the Contract Time and Contract Sum shall be extended due to such unforeseen conditions, the drafters instead placed the burden on the contractor to make a claim for such additional costs. While such claims may be perfunctory in most cases, one can imagine that disputes will likely result from contractors' claims arising out of such unforeseen site conditions. As a result, as parties begin to use the new A201, they should use caution in simply adopting the new Section 3.7.5 without modification and should instead examine this new provision in light of the facts and circumstances of the project in question. (This entry published by Culley Carson, a member of Womble Carlyle's construction law practice group.)

Campus Construction Not Hit by Sluggish Economy

Despite a slow economy, one sector where construction is not being postponed is on college campuses. According to an article in The Chronicle of Higher Education, some universities are even trying to speed up projects to limit the damage done by rising construction costs. In its "Buildings and Grounds" Blog, The Chronicle had profiled (see here and here) the delay of at least one year on a $55 million science building at Lehigh University, located in Bethlehem, Pennsylvania , then quickly "cleared up" speculation of a lack of funding and donations as the cause of the delay.

Through "Buildings and Grounds" Blog, The Chronicle tracks new campus building, sometimes including multimedia presentations of both new and updated construction at institutions of higher education. (This entry published by Liz Riley, a member of Womble Carlyle's construction law practice group.)