Photo of Lane F. Kelman

Lane F. Kelman is a Partner in the Construction Group of Cohen Seglias and Chair of the Firm’s Green Building Practice. With an active and diverse construction litigation practice, Lane represents developers, general contractors, construction managers and different trades in complex construction matters.

Engineer with flag on background series - PennsylvaniaContractors doing work on publicly-owned projects in Pennsylvania may find it more difficult to recover statutory penalties and attorneys’ fees if the owner withholds funds in bad faith. Pennsylvania’s Procurement Code, which governs bidding on public projects and payment to prime contractors and subcontractors, is intended to “level the playing field” between government and contractor. Similar, but not identical to the private prompt payment act, the statute provides for the award to the contractor of interest, a penalty in the amount of 1% of the unpaid balance per month, and attorneys’ fees if the public entity acts in bad faith by refusing payment that is due to the contractor. Pennsylvania courts previously interpreted this statute to mean that if a jury determined that the public entity acted in bad faith, then an award of penalties and attorneys’ fees was required.

Continue Reading Contractor Payment Rights on Public Projects affected by PA Supreme Court Decision

In recent years, concepts such as “green construction” and “renewable energy” seem to have become almost commonplace. In what is perhaps an effort to lead the world by example in these areas, President Barack Obama recently issued a Presidential Memorandum that calls upon federal agencies to increase drastically their use of renewable energy sources.

The Memo and Its Goals Green Bulb.jpg

The Memo outlines ambitious goals that seek to more than double the federal government’s current use. The Memo targets the use of renewable energy sources for 20% of the government’s energy needs by 2020. To achieve this goal, federal agencies must ensure that their renewable energy usage exceeds 10% of all energy usage by 2015, 15% in 2016 and 2017, and 17.5% in 2018.

Since the federal government occupies nearly 500,000 buildings across the country, the Memorandum zeroes in on building performance and energy efficiency. It prioritizes the installation of renewable energy sources directly on federal property as an ideal way to realize the targets set forth in the Memo.

Implementation and Measures

To measure the performance of federal buildings, energy and water meters are to be installed in all federal buildings where installation is cost-effective and appropriate. To promote and ensure compliance, transparency, and benchmarking, data collected from the meters is to be reported to the Environmental Protection Agency and Green Button.

Notably, the Memo is to be implemented in a manner consistent with Executive Order 13514, which was issued in October 5, 2009. This Executive Order requires new construction and major renovation on federal buildings to be considered “high performance” or “sustainable.”

What Does It Mean for the Construction Industry?

With these new goals and priorities in place, the sustainability and construction industries should expect to see an increase in the installation of renewable energy infrastructures across the country. In fact, a Presidential Memorandum dated December 2, 2011 authorizes and encourages federal agencies to enter into energy savings performance contracts for up to 25 years.

However, agency funding for energy projects remains a concern. Although many trade organizations and other industry activists have applauded the goals set by the Memorandum, the procurement processes, which have allowed large private companies to install renewable energy infrastructures through long-term power purchase agreements, are still unavailable to the federal agencies. With regard to new construction, it will be interesting to see whether and to what extent the federal government incorporates renewable energy sources into those projects.

All told, President Obama’s Memorandum gives reason for optimism within the industry, but that optimism should be guarded while funding and other implementation issues remain up in the air.

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group and chair of the Green Building and Sustainability practice group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Jennifer R. Budd is an Associate with the Firm and a member of the Construction Group.

Lori Wisniewski Azzara is an Associate at Cohen Seglias Pallas Greenhall & Furman PC. Lori practices in the areas of construction and commercial litigation and has experience in contract negotiation, claims for delay and inefficiency, mechanics’ liens, and all types of contractual disputes.

As the Greenbuild 2013 posters, web cafés and stages are removed from the Convention Center in Philadelphia, attendees and exhibitors from across the country have been reenergized in thinking about green building, sustainability and resiliency. From November 18-22, Philadelphia was painted green by thousands of professionals from all sectors of the sustainability movement. Here is a brief recap of the week’s activities and some comments from attendees and exhibitors.

  • greenbuild1-thumb-206x205-25410.jpgOver 700 exhibitors presented their sustainable design, products and construction during the two-day expo including regional industry leaders such as W.S. Cumby and Revolution Recovery.
  • Green Building tours highlighted Philadelphia’s best sustainable buildings and neighborhoods including the Tastykake Bakery, The Stable, US Airways Ground Support Equipment Maintenance Facility, Morphotek’s Pilot Plant, Longwood Gardens, the Morris Arboretum, the Navy Yard, Temple University and Penn Charter School, just to name a few.
  • Onion Flats, a Philadelphia based developer and design-builder, showed off their LEED and “Passive” certified row homes throughout the City that are changing the way Philadelphians think about urban living.
  • The U.S. Green Building Council outlined the themes, strategies, and key elements of the LEED v4 green building program; which it launched at Greenbuild.
  • Members of the public sector from the City of Philadelphia to federal government entities, such as the U.S. Department of Housing and Urban Development and the U.S. General Services Administration, explained how sustainability practices are being implemented into their design, procurement and building.
  • On Thursday evening, the Greenbuild keynote address was delivered by former Secretary of State Hilary Clinton who spoke about the importance of sustainability on a world stage. Secretary Clinton also detailed her efforts in creating a greener White House when she was the First Lady, and later ensured that all future U.S. embassies be built to a minimum of a LEED Silver standard.

Heather Blakeslee, the Deputy Executive Director of the Delaware Valley Green Building Council (“DVGBC”), had this to say about the week:

DVGBC always looked at Greenbuild as a way to showcase the region’s work. We had an absolutely impressive showing of local companies at the Expo, an unprecedented number of local presenters who are leaders nationally and internationally, and the most robust tours program to date for Greenbuild. We’re looking forward to building on that momentum by continuing to work on initiatives that make our communities stronger.

Although Greenbuild will be moving onto New Orleans, Louisiana in October 2014, the lessons learned from the week in Philadelphia will continue to be seen and implemented. For starters, CSPG&F partners John Greenhall and Lane Kelman served on the DVGBC’s Legacy Project Committee that created a youth-built “Adventure Playground” at Smith Memorial Playground in East Fairmount Park. The playground includes loose parts that allow children to continuously build and re-imagine the space.

If you are interested in presenting at Greenbuild 2014, check out the “Call for Proposals.”

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group and chair of the Green Building and Sustainability practice group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Jennifer R. Budd is an Associate with the Firm and a member of the Construction Group

As schools across the country open, most people in the Delaware Valley are well aware of the School District of Philadelphia’s financial woes. As the School District considers measures to help close its massive budget deficit, it has recently begun to take legal action that is particularly interesting.

The Lawsuits

About one month ago, the School District sued more than twenty design professionals that it enlisted for various school improvements as part of the District’s Capital Improvement Program. The goal? To recoup approximately $2 million in damages related to alleged deficiencies in the drawings and specifications for the various school improvement projects.

At this stage in the litigation, there is very little information available, as only Writs of Summons were filed. But, it is believed that the School District’s claims may arise out of a number of change orders issued to prime contractors on the projects in question. In theory, if the change orders were issued because of errors and omissions and not scope changes, design professionals may be liable.

Thumbnail image for Thumbnail image for school.jpg

The Upshot

Given the severe budgetary woes, it is not difficult to fathom why people may draw a connection between the School District’s shortfall and its recent litigation activity. Motive aside, this series of lawsuits is likely to affect the manner in which future School District contracts are drafted and administered. Though the implications remain to be seen, for future projects, it would not be surprising to see more tightly and thoroughly drafted contract documents and a more stringent change order process. It will also be interesting to see whether the litigation has a chilling effect and dissuades professionals or contractors from working for the School District in the future.

We will continue to monitor these cases and the potential implications for construction work administered by the City of Philadelphia, its agencies, authorities and departments.

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Daniel E. Fierstein is an Associate in the Construction Group of Cohen Seglias and focuses his practice on construction law. 

Two weeks ago, the Philadelphia Zoning Board approved the construction of Ridge Flats at 4300 Ridge Avenue in East Falls—a project proposed by developer and design-builder Onion Flats.

The Project

The five story building will provide 146 residential units and 9,300 square feet of retail space.  More importantly, Ridge Flats will be Philadelphia’s first – and the country’s largest – certified “passive house.”  A passive house produces a “net-zero” energy impact by producing as much energy as it uses for heating, cooling, lighting and hot water (which, at Ridge Flats, will be generated on-site).  The “net-zero” impact is accomplished by solar paneling on the roof and the construction of a highly insulated, air-tight building envelope so that the indoor spaces are easier to keep cool or warm.  The power generated by the building will be sold to a utility company, and the savings will be passed to the residents.

The Vision

Howard Steinberg, AIA, LEED AP, a principal of Onion Flats, explained the purpose and importance of Ridge Flats:

Ridge Flats strives to be the largest Passive House certified and net zero energy possible project in the country.  Our mission at Onion Flats is to continue to prove that well designed, high performance building development is a viable alternative that provides healthy and sustainable environments for our residents.  Equally important for us is to create projects that inspire the City’s politicians and development community with the hope that similar developments eventually become the rule rather than the exception, as envisioned in the Greenworks Philadelphia plan.

The building will also include many other energy saving elements such as a public art installation that incorporates and addresses the residents’ energy usage.  The building will also feature a garden landscape on the second floor to create “new ground.”  Proper storm water management will be achieved through a 100% pervious site, and much of the construction will be built through the use of sustainable and locally sourced materials.

In addition to the various “green” elements of the building, it also seeks to compliment and improve the East Falls community.  For example, the building design will encourage community among residents as it features viewing platforms and outdoor access to the residential units instead of interior hallways.  Ridge Flats will act as a buffer between the heavily traveled Kelly Drive and the pedestrian and bike friendly trails of Fairmount Park.

Recently, the Zoning Board approved several variances sought by Onion Flats, including less parking.  Under the current zoning laws, the project would have required 695 parking spaces due to the retail space planned.  Since the retail space will be geared towards pedestrians and the local community, all involved agreed that this much parking was not needed.  Additionally, all residents will have indoor bicycle storage and parking spaces for a car share program will be provided on premises.

Looking Ahead

Construction will begin in late 2013 or early 2014 and is anticipated to last about 12-14 months.  Ridge Flats is an ambitious and exciting project for Onion Flats and the City, and everyone is pulling for it.

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Jennifer R. Budd is an Associate with the Firm and a member of the Construction Group.

greenbuild.jpgGreenbuild International Conference and Expo is coming to Philly November 20-22, 2013 and we are actively seeking proposals for the annual Legacy Project. The Legacy project could be anything from a straw bale playhouse or school gardening space to a solar energy learning lab, vertical gardens or some kind of new art installation that has a lasting, positive effect on the environment in some way. The idea is that the legacy project will provide a significant contribution to greening Philly while at the same time offering a learning opportunity to an underserved community, ideally showing a commitment to not only green building and sustainability but also to Philadelphia and its diverse communities. Have ideas? Send in your proposal today, let’s show the word just how green Philly can be! #GREENBUILD

 

Learn more here: Greenbuild 2013 Philadelphia: Call for Legacy Project Proposals

By: Lane F. Kelman and Jennifer R. Budd

Cohen Seglias hopes that you, your friends and family made it through hurricane Sandy unharmed and without great loss. This storm caused billions of dollars of damage up and down the Northeast Corridor and will have widespread implications. Understanding the different interests and factors at play is paramount to protecting further loss.

As we begin cleaning up and rebuilding, action to protect your business interests to the fullest extent possible and to mitigate loss is essential. The following are some legal considerations which may prevent you from incurring any additional harm from the storm.

  • Before cleaning up, document all damage with pictures and preserve all business records.
  • Follow all notice provisions required by your insurance carriers for any potential claims, including claims for damage to your property, business interruption, and any tort liability to others. Also, property damage caused by a flood is generally not covered by a typical homeowners or commercial property policy, so a separate notification will be required under a flood insurance policy, if you have such a policy.
  • A storm like this should be considered an “Act of God” which will relieve performance or allow for delayed performance on a contract under the doctrine of impracticability.
  • A force majeure clause in a contract is generally enforced by courts and can be an essential tool for a party who cannot perform, or whose performance is delayed due to hurricane Sandy. It is important to review any such provisions in your contracts, follow any notice requirements, and implement these provisions as soon as possible.
  • Documentation of delays such as material or labor shortages, extra or repair work or resequencing is crucial.
  • If a party you contracted with is unable to perform due to the hurricane, you are under an obligation to reasonably mitigate your damages.
  • When your business is affected by a natural disaster such as hurricane Sandy, managing compensation, payroll and leave issues can be challenging. Review any employment contracts and if you have a question regarding these challenges, the Labor and Employment Practice group at Cohen Seglias is well equipped to navigate you through any issues.
  • Complete any reporting requirements to State and Federal agencies for spills or leaks of hazardous materials.
  • Check OSHA requirements and suggestions for applicable clean-up operations.
  • Before commencing any rebuilding or renovation projects, check with local governments for permitting requirements.
  • Government funding has been authorized for the recovery in many states and may be available to assist you in your clean-up and rebuilding efforts. Also, the Department of Labor offers grants to States for dislocated workers, which if given to your State, could be very helpful to your employees if your business operations are severely affected. Be sure to monitor the application process for these funds and make any deadlines.

It is impossible to predict how hurricane Sandy may impact your business; however the attorneys at Cohen Seglias are happy to discuss any issues that arise to assist you in minimizing or recovering your loss due to this awful event.

Lane F. Kelman is a Partner with the Firm and a member of the Construction Group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Jennifer R. Budd is an Associate with the Firm and a member of the Construction Group.

 

data storage.jpgConstruction today is not your father’s industry. With the growing use of electronic forms of communication and document creation, the rules have changed. Businesses continue to strive for a paperless office. Now, rather than drowning in paper, however, they are drowning in email and new ways of communicating. How does a company deal with instant and text messaging systems, server-based voicemail, online storage of sensitive files such as health records, insurance claims, and financial databases, let alone emails and documents saved only on smartphones, tablets, laptops and the like?

On September 12, 2012, Cohen Seglias Partners John Greenhall and Lane Kelman presented on this topic and taught companies how to avoid the pitfalls of the information age, and better prepare for the continually changing role of technology in construction. They gave answers to questions such as: Does an email constitute adequate notice under the contract? Are electronic signatures binding? How should I keep my electronic documents? Why should I care if my project manager is saving emails on her cell phone and not the office server? The legal ramifications to how your company views electronic documentation are huge and can result in millions of dollars of losses if you are not careful. If you have questions about electronic document retention or electronic discovery, please contact us at jgreenhall@cohenseglias.com or lkelman@cohenseglias.com.

John Greenhall is a Parter at Cohen Seglias and a member of the Construction Group. His clients hail from all areas of the construction industry and include general contractors, subcontractors, architects, engineers, sureties and owners.

Lane Kelman is a Partner at Cohen Seglias and a member of the Consturction Group. He represents developers, general contractors, construction managers and the different trades in complex matters ranging from bid protests, contract negotiations and claim prevention & management.

Maryland Governor Martin O’Malley recently signed bill MD HB 972 into law, effective March 1, 2012. The law “authorizes the state’s Department of Housing and Community Development to adopt the IGCC, while allowing local jurisdictions to make amendments to the IGCC under certain conditions as long as the local amendment is adopted in accordance with applicable local law.”MD IGCC.jpg

The IGCC was designed to reduce the environmental impact of construction projects and specifically addresses energy, water and material usage, as well as indoor environment quality.

Maryland adopted the International Green Construction Code (IGCC) as an optional requirement for new construction projects including commercial construction and residential construction over three stories high. Local governments will now have the freedom to incorporate the IGCC as a supplement – not a requirement – to the State’s current green building policy. Compliance with the IGCC, where adopted, will be voluntary, and available to a property owner who wishes to avail himself of the code. Maryland has become the first state to pass this legislation statewide.

According to Builder News, other states that have begun to adopt the IGCC include:

  • An optional code in Richland, WA;
  • An alternative requirement for new public buildings in Rhode Island;
  • The nation’s first tribal community enactment in Kayenta Township, AZ, with an optional requirement with mandatory applications still under consideration; and
  • Fort Collins, CO, approved significant extractions from the IGCC and the National Green Building Standard, ICC 700, as part of green building code amendments to the city’s building codes.

The implementation of the IGCC highlights Maryland’s leadership in the national trend towards green development. The use of IGCC or similar green construction codes is becoming more commonplace nationwide. Contractors will benefit from becoming familiar with the IGCC as implementation of green friendly codes will certainly result in changes to not only construction practices but also to specifications, construction contracts and bonding and insurance requirements.

Two weeks ago, April 3-5, the 2011 PV America conference was held in Philadelphia. More than 3,000 attendees, including PV manufacturers, distributors and installers, industry financiers and project developers, converged upon the Pennsylvania Convention Center to receive the latest updates on PV technology, industry trends and business opportunities. Co-presented by the Solar Energy Industries Association (SEIA) and Solar Electric Power Association (SEPA), PV America is the premier solar photovoltaic (PV) industry conference and trade show in the United States.

solar panel 2.jpg
According to the U.S. Solar Market Insight™ Year-in-Review 2010, released by SEIA and GTM Research in March 2011, the solar industry’s total market value grew 67% from $3.6 billion in 2009 to $6 billion in 2010. The report’s executive summary can be downloaded for free, or the full report can be purchased. Both are available here.

SEIA President and CEO Rhone Resch, further described the growth of the solar industry during his keynote address at PV America. Resch told conference-goers:

I am thrilled to announce that the solar energy industry is now the fastest growing industry in America. Let me repeat that. The solar energy industry is the fastest growing industry in America. We are growing faster than wind energy, faster than telecommunications, and, thank goodness, we are even growing faster than the mortgage foreclosure industry.

To capitalize on the networking opportunities that PV America provided, Cohen Seglias co-hosted with Independence Solar a post-conference reception on April 4 at the Le Meridien in Center City. The event offered a chance for conference attendees and non-attendees alike to make new connections and discuss information learned at the conference. Attended by more than 100 people, the reception was an expanded version of the regularly scheduled quarterly Philadelphia Solar Happy Hour which the Firm also hosts in conjunction with Independence Solar .

The Philadelphia Solar Happy Hour is a complimentary event to provide networking opportunities and strengthen the ties of the solar community in the Mid-Atlantic region.

If you would like to receive notification of the next Philadelphia Solar Happy Hour, please send an email to lkelman@cohenseglias.com.