The Right Equation for Responsible Development: Spotlight on the Motherhouse

In multi-part series, exclusive to the Maine Real Estate Insider, we’ll provide an up-close look at the most notable commercial development projects of the past year that are helping to fuel Maine’s economy in terms of investment and job creation.  MEREDA is proud to recognize responsible development based upon criteria including environmental sustainability, economic impact, energy efficiency, difficulty of the development, uniqueness, social impact and job creation.

Please join with us in celebrating The Motherhouse in Portland.

MEREDA:  Describe the building and project.

The Motherhouse:  The Motherhouse is a structure built as a convent for the Sisters of Mercy, most of which was completed in 1909.  It’s about 140,000 square feet and we redeveloped most of that, about 115,000 square feet, into 88 apartments.  The apartments are for seniors 55+ and are a mix of affordable and market-rate.  It was financed through a combination of state and federal historic tax credit equity, federal housing tax credit equity from MaineHousing, HOME funds from the city, a tax increment financing package, and some developer capital, as well as several different kinds of debt, also from MaineHousing.

MEREDA:  What was the impetus for this project?

The Motherhouse:  Over time it had become clear that the Motherhouse was the key to the entire campus redevelopment.  Not only is it the most prominent feature of the 20-acre campus, but it was in many ways the most difficult to redevelop. We knew that we would not be able to achieve a feasible master plan without taking on the Motherhouse first.  Affordable housing made sense since we do a lot of that – the rest of the campus was planned to be market rate – and the available sources for affordable housing pair well with the historic tax credits, so we took a shot.  We ended up having to apply twice and just barely were able to pull a complicated budget together.  We then took a little break as somebody decided to sue the City over their rezone of the property, so once that was disposed of, we could finally proceed.

MEREDA:  That sounds like quite a process.  How long were you in the planning stages before construction started?

The Motherhouse:  Developers Collaborative had been working with the initial developer, Seacoast Management, for a couple years on various redevelopment options. Seacoast had been working on it for much longer, well over a decade.  Seacoast actually had an entirely different development plan they put quite a bit of effort into around 2007, but we all know what happened then.  All told I would say DC had 3 years of constant effort to put the project together and get it to construction.

MEREDA:  Tell us about the most challenging aspect of getting this project completed.

The Motherhouse:  It was making the construction budget work with the sources we had available.  The City and MaineHousing really stepped up and helped out to fill the last bit of the gap, but most of the other sources, namely the tax credits, are a function of the costs, so you can back into the amount the budget has to be.  The initial estimates we received were way beyond what we had available. We ended up choosing to work with Portland Builders on the project and it was definitely the right decision.  I think we cut probably 20% out of the budget without losing any scope to speak of, and I am not sure who else could have pulled that off.

MEREDA:  Something unexpected you learned along the way was….

The blower door test was interesting.  It’s amazing how many holes there can be in a large five story century old building.  Chasing them all down and plugging them was quite an endeavor, but we got there in the end.

We also learned a lot as a management company.  It was our first lease up of one of our affordable properties, and our largest.  So, there was a learning curve there and it was impressive to see our team respond.  The great thing about all that was that in the midst of that activity – I won’t use the word chaos – they were able to create community almost instantly.  It’s a really warm, welcoming place today and the biggest reason for that is not the architecture or the financing.  It’s the people that live there and the folks that staff it.  As a developer I think I learned a lot from my team about how they create community, in ways that go beyond good design, good planning and programming, etc.

MEREDA:  Now that it’s complete, what feature of the project do you think makes it the most notable? 

The Motherhouse:  Well, the gold dome is certainly the most recognizable – I often see it when I’m coming into PWM on a flight.  But it’s the interior common spaces that to me are architecturally more interesting.  With historic buildings, you have let the spaces tell you what they want to be – Archetype Architects is great at that.  We have some really jaw-dropping spaces inside that simply can’t be built today.  That’s certainly a part of the community that we’ve been able to create – our residents are as proud of the building as we are.

 

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Environmental DNA (eDNA): What is eDNA and How Can it Benefit the Development Community

By Gabe Pelletier, Project Technician and Jake Riley, Associate, Stantec

What do human beings, Zebra mussels, and Atlantic salmon have in common? They all contain deoxyribonucleic acid (DNA) in each cell. DNA is the molecule that contains the genetic code for each organism. All living organisms expel this unique genetic material into their environment, and we call this material “environmental DNA” (eDNA). Currently our planet is facing a biodiversity challenge with regards to rare, threatened, and endangered species and a simultaneous increasing threat of invasive species. Maine has a combination of approximately 60 State and Federally listed threatened and endangered animal and invertebrate species. When considering the development of a property or project, the planning process may require studies to determine if these species could be affected. Presence of these species could require permitting, compensation for impacts to habitat, or costly changes to project plans. Now, more than ever, it’s increasingly important to find effective, rapid, and efficient ways to monitor where these species are to meet regulatory requirements for protection, as well as to design projects that reduce or avoid impacts to protected species and manage invasive species.

In aquatic settings, fish and other aquatic species (e.g. amphibians) shed eDNA through the skin, feces, urine, blood, body, eggs, or sperm into the water they inhabit. eDNA emitted from species can be detected by filtering a water sample taken directly from a water body, extracting the eDNA, and the eDNA is analyzed to detect the presence of a specific target species.

How does eDNA stack up against more conventional methods for observing and detecting aquatic species, such as trapping, netting, and/or electrofishing? In short, conventional methods may take additional time, be more expensive, and could harm rare species and their habitat while requiring a state collection permit. Conventional sampling techniques often require a visual detection of the target species to determine presence versus a positive detection from the presence of the target species eDNA.. This eDNA survey technique can extend the survey season, make it possible to survey migratory species, survey vernal pools outside the spring breeding window, survey for elusive species and species at low densities, and survey life stages (e.g. eggs, larvae) and in conditions not previously possible with conventional equipment. Utilizing eDNA, biologists can prolong the traditional surveying period allowing for a larger sample size and a longer sampling season at potentially a lower cost to the developer.

Detecting eDNA in the aquatic environment depends on several factors when setting up a sampling design. The strength of the eDNA signal will depend on how recent the target species was present and how long the species was there. Population density and lifecycle stage also influence how much eDNA is present in the water body. Lastly, the volume and flow rate of the aquatic environment plays an important role for dictating the sampling design. Whereas a small pond or lake will likely hold eDNA longer, a running river is more likely to transfer remnant eDNA downstream.

The future for eDNA is bright and the applications are seemingly endless. Here in Maine we face environmental concerns not only in our inland and coastal water bodies, but also in rural and urban ecosystems. Using this new technology, tests are continuously being developed for aquatic species as well as expand to terrestrial species. The enthusiasm isn’t only in the scientific world, however, as this new surveying tool offers a way for developers to meet their regulatory requirements effectively and efficiently while reducing costs and avoiding harmful impacts to rare species.

Gabe Pelletier, Project Technician and Jake Riley, Associate can be reached by contacting Stantec’s Topsham, Maine office.   

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After an Overwhelming Number of Attendees at our Bangor Breakfast, We are Pleased to Host our “Solar Power in Maine” Program Again in Portland!

In 2019, the Maine Legislature passed a number of bills related to renewable energy development. After lagging our neighbors in the rest of New England in terms of solar deployment for the last decade, the new policy landscape promises to make Maine a leader in this area and provides substantial opportunities for local private investment for Maine’s real estate community.  Come learn more about the new solar policy landscape in Maine, from design to financing to tax credits and the opportunities it provides for investors, owners, operators, developers, landowners and more.

Join MEREDA for breakfast on December 12, 2019 from 7:30 AM – 9 AM at the Portland Regency Hotel in Portland to learn more about the new solar policy landscape in Maine.

About the Event:

MEREDA’s Morning Menu – “Solar Power in Maine: What you need to know about investing in solar in Maine”

Portland Regency Hotel
20 Milk Street
Portland, ME 04101

Thursday December 12, 2019

Breakfast: 7:30 a.m. – 8:00 a.m.
Program: 8:00 – 9:00 a.m.

About the Panelists: 

Fortunat Mueller is President and co-founder of ReVision Energy, northern New England’s leading renewable energy installation contractor. ReVision Energy is a 100% employee owned, certified B Corp dedicated to the professional design, installation and service of renewable energy systems and has offices in, Liberty, Portland, ME and Brentwood, and Enfield, NH, and North Andover, MA.

Fortunat received a Masters Degree in Mechanical engineering from Brown University with a concentration in thermodynamics and fluid mechanics and is a licensed Professional Engineer in ME and NH.

Justin Morren is a Manager in BerryDunn’s Tax Consulting and Compliance Group. Justin is a seasoned advisor on tax treatments for pass-through entities, and brings a deep understanding of  partnership and limited liability company taxation, including contributed property concerns and complex tax allocations. Justin provides planning, compliance, and consulting services to privately held entities in the professional services, manufacturing, wholesale and retail, real estate, and forest products industries. In this role, he has advised business owners on the tax benefits of renewable energy ITC tax credits. This experience includes tax planning using multiple year income tax projections for after-tax cash flow purposes and tax return compliance.

Jim Larrick has over 15 years of commercial banking experience, with the past 6 years being with Mascoma Bank, a $1.8 billion mutual bank and Certified B Corp with offices in Vermont, New Hampshire and Maine. At Mascoma, Jim serves as both a commercial lender and group manager, and he sits on the Bank’s loan committee. Jim also leads the Bank’s efforts in commercial solar lending, maintaining a solid understanding of legislative rules and regulations. He has closed over $20 million in construction to permanent financing on commercial solar arrays. Jim graduated from the University of Michigan with a Bachelor of Science in Statistics and received his MBA from the University of Chicago.

Registering for This Event:

MEREDA Members: $45 each | Non-Members: $55 Each
Prices Increase by $10 after December 5

Your RSVP is requested by December 5. Payment is expected at the time of registration. No refunds will be granted to anyone who registers but fails to attend or who cancels after December 5.

For more information and to register, visit  https://www.mereda.org

MEREDA’s Morning Menu is Sponsored by Norway Savings Bank.

 

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Maine’s Coming Solar Expansion

On October 29th, a panel of experts gathered in Bangor to participate in MEREDA’s Morning Menu Breakfast event titled, “What You Need to Know about Investing in Solar in Maine”.  Panelist Vaughan Woodruff of Insource Renewables provides us with this overview of what may lie ahead for solar in Maine.
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By:  Vaughan Woodruff, CEO | Founder, Insource Renewables

As a result of the 2019 legislative session, Maine now has perhaps the hottest solar market in the country. Dozens of developers have converged on Maine to expand a market that is expected to attract more than one billion dollars of direct investment over the next 5 years. Commercial and residential real estate brokers, farmers, large institutions, and other landowners across Maine have become acutely aware that something has shifted in Maine, as many have been inundated with calls from solar developers seeking sites for prospective solar projects.

There is an imperative for developers to secure land as quickly as possible – application queues are beginning to form at Central Maine Power and Emera Maine for projects that might not be built for years. The goal for solar developers is to be as close to the head of the line as possible to avoid incurring additional costs associated with significant electrical grid upgrades. Having control of a viable site, typically secured through a lease option from the landowner, gives a developer the permission needed to begin qualifying a project with the utility.

The most sought-after parcel is roughly 25-35 acres in size, relatively level, accessible to three-phase service, and within reasonable vicinity of a utility substation. These characteristics are likely to minimize the costs needed to connect a five megawatt (AC) solar facility to the grid. Why is five megawatts significant? It represents the largest electrical generation facility that can provide bill credits to customers, which is the highest value that can be generated from a solar facility. Anything larger requires the owner to sell into the wholesale electricity market and deal with a more complex regulatory framework.

Once the first of these projects are constructed in late 2020 or early 2021, Maine electrical ratepayers for whom solar is not a good fit at their home or business will have another avenue to access some of the benefits of solar energy. Renters and homeowners and businesses with a shaded site or limited tax credit appetite will be able to subscribe to these shared solar projects to reduce their electricity costs.

While much of the activity in Maine’s solar market right now is focused on these speculative projects, there were a number of other significant changes related to solar energy development that will reduce barriers to solar energy for Maine businesses.

Tax certainty. Prior to this legislative session, there was uncertainty regarding the eligibility of solar investments for Maine’s Business Equipment Tax Exemption (BETE) program. To clarify the tax treatment of solar investments, the legislature passed LD 1430 – An Act To Create Tax Equity Among Renewable Energy Investments. As a result, businesses (and residents) utilizing solar to offset their electricity bills will not be required to pay property taxes on solar equipment that could undercut the economics of their investment.

Credit certainty. Historically, Maine utilized a simple practice called net energy billing that has been used by a large majority of states across the country. In 2017, the Maine Public Utilities Commission enacted a change that required Maine ratepayers to pay for additional meters to reduce the credits to solar facilities. The program would prove to be a bad deal for ratepayers. This year, the Maine legislature corrected the problem by reinstating net energy billing. Businesses considering solar are now assured they will receive a full credit for the energy they generate.

Rate certainty. Medium or large electricity consumers are required to pay a demand charge as part of the utility rate structure. Demand charges are measured in kilowatts and represents the peak power demand in a month. Net energy billing provides energy credits in kilowatt-hours, which represents the volume of energy used in a month. Demand charges typically represent at least 40% of the electricity costs for these businesses. Since energy credits can’t be applied towards demand charges, many commercial solar investments have not been cost effective and Maine businesses have been at a disadvantage with competitors in other states that have figured out how to effectively compensate commercial solar investments. In 2019, the legislature developed a method to compensate businesses with monetary credits rather than energy credits. The monetary credits can be applied to all electricity costs, include demand charges.

With the federal investment tax credit for solar slated to stepdown from 30% in 2019 to 26% in 2020 and 22% in 2021, these changes are happening just in time for Maine businesses to leverage the maximum tax credit benefit for their solar investment. By committing to a solar investment before the end of 2019, Maine businesses can safe harbor the full 30% tax credit for projects built in 2020 and beyond.

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The Right Equation for Responsible Development: Spotlight on the Ballard Center

In multi-part series, exclusive to the Maine Real Estate Insider, we’ll provide an up-close look at the most notable commercial development projects of the past year that are helping to fuel Maine’s economy in terms of investment and job creation.  MEREDA is proud to recognize responsible development based upon criteria including environmental sustainability, economic impact, energy efficiency, difficulty of the development, uniqueness, social impact and job creation.

Please join with us in celebrating the Ballard Center in Augusta.

 

MEREDA:  Describe the building and project.

Dirigo Capital Advisors:  The Ballard Center was formally the location of Maine General Medical Center, a regional health care organization serving Central Maine.  The hospital, after 111 years of continuous operations at the site, elected to consolidate operations with their Waterville affiliate.  This new $330 million facility in North Augusta left MGMC with a tough choice – what to do with the existing 250,000 square foot, 20 acre facility located in the heart of Augusta’s East side on the Kennebec River.  In 2013, Dirigo Capital Advisors purchased the building through an affiliate, and began the long process of repurposing this unique facility.  Five years later, the project is a success with nearly 70% of the building occupied with health care, education and financial services tenants. 

MEREDA:  What was the impetus for this project?   

Dirigo Capital Advisors:  Maine General called upon us because we have a specific skillset in redeveloping difficult properties.  They did not want to see it torn down and felt we were best suited to take on this difficult undertaking.

MEREDA:  That sounds like quite a process.  How long were you in the planning stages before construction started?

Dirigo Capital Advisors:  18 months.

MEREDA:  Tell us about the most challenging aspect of getting this project completed. 

Dirigo Capital Advisors:  Like any specialized building, the Ballard Center was constructed around an initial design purpose which was to deliver emergency health care.  As the area grew, the building was added on to.  By 2012, the main facility was comprised of three connected structures all built for different functional areas.  Taking that type of building – with eight operating rooms, a maternity ward and so on – and formulating a redevelopment plan that envisions an entirely new purpose – is very complicated.  Making a building built for the needs of the 1950s work for the needs of the new area is not as easy as it sounds.  Thankfully we have an exceptional partner in the City of Augusta who is supportive and helpful at every turn.

Perhaps the greatest challenge is the “big building” problem.  On the day that you buy a giant empty building you are inheriting an unknown amount of capital issues, and certainly enormous operating expenses.  There is a very, very tight time frame in which to meet objectives.  Focus, planning and execution are especially important to avoid be swallowed whole by overhead.

MEREDA:  Something unexpected you learned along the way was…. 

Dirigo Capital Advisors:  How to repurpose a former operating room, there’s no manual for that.

MEREDA:  Now that it’s complete, what feature of the project do you think makes it the most notable?  

Dirigo Capital Advisors:  It is hard to overstate the impact the alternative (demolition) plan would have had on the community.  This project has  been on the banks of the Kennebec for over a century, and its loss would have taken not only a toll on the immediate   neighborhood but also on the region as well.  The redevelopment has brought to Central Maine a renaissance of medical specialties.  The building’s redevelopment plan was specifically designed to accommodate Maine General’s planned growth in specialties like dermatology where there was zero practice before, forcing patients to Southern Maine for care.  Pediatrics are also a significant part of the footprint.  Through this project, health care options for the area have dramatically increased but at a fraction of the cost of building new.

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2019 Greater Portland Mid-Year Office Market Survey

Prepared by Nick Malone, Malone Commercial Brokers

The Portland economy has been expanding year after year putting this little big city on the radar for many businesses. The first half of 2019 was no exception, setting the scene for what the future office market might hold. Tenants relocating, construction in full swing, downtown parking  becoming increasingly scarce, the seemingly nonstop traffic, and the steady demand for downtown Class A office space.

Vacancy and Absorption

Overall vacancy as of mid-year, (combining lease and sublease) increased to 7.82% compared to the 4.90% in 2018 due to large vacancies in the suburban Class A mar-ket. In a market like this one or two large vacancies can have a significant impact on overall vacancy rates. To that point 2211 Congress Street at 200,000 SF of available space and 225 Gorham Road at 72,000 SF of available space largely attribute to this increase in vacancy. Despite the large vacancies to fill, overall vacancy is still relatively low considering that the last time overall rates were close to 8.0% was in 2007 at 7.15% (excluding 2018 rates). We anticipate seeing several downtown companies flee the downtown market due to the space crunch in the Class A market, lack of parking and scarcity of large floor plates.

Overall downtown vacancy has increased slightly to 5.38% from the 4.90% in 2018. Breaking down by submar-ket, Class A vacancy has increased to 3.25% compared to the 1.04% in 2018. Again the devil is in the details with regard to the noted “increase”. In 2018, Stonecoast master-leased 42,000 SF of space for anticipated expansion de-mands. Until all that space is needed, they are subletting some of that space(likely on a short-term basis). This sublet space is likely not an option for tenants looking for long-term deals. Class B has decreased from 8.59% in 2018 to 6.81%. Vacancy rates in the Class B market still remain healthy, however we are seeing spaces stay on the market for longer periods of time which is a bit concerning. Finding downtown Class A space over 8,000 SF is continuing to be extremely rare. Large floor plates in both the Class A and Class B downtown markets are difficult to find and fill very quickly many times with multiple interested parties.

Overall suburban vacancy is the highest it has been since 2010 at 9.77% largely due to Class A buildings becoming vacant bringing the overall Class A vacancy to 16.16%. WEX (225 Gorham Road) relocating, leaving over 72,336 SF vacant, and Unum (2211 Congress Street) leaving Home Office I creating 207,883 SF of vacant space. It is rumored that two deals gave already been signed for 2211 Congress Street. These two vacancies alone account for about 65.30% of the suburban Class A vacancy and 49.70% of all the suburban market vacancies. In the Class B market, overall vacancy increased slightly to 4.33% from the 3.17% in 2018 with the two-story building on One Davis Farm Road in Portland becoming vacant bringing 48,897 SF available for lease.

Total net absorption (as of mid-2017) is negative 217,324 SF (- 2.09%) with downtown absorption being positive 19,314 SF (+ 0.42%) and suburban absorption coming in at negative 236,665 SF (- 4.10%). Both WEX and Unum are the cause of this unusually high negative absorption.

Looking Ahead

Construction and future office buildings, as part of larger mixed use projects continue to be on the rise in Greater Portland. We are seeing most new office construc-tion take place in the downtown market through a number of new and upcoming projects. 12 Mountfort Street, the former Shipyard brewery, is set to be the Covetrus headquarters with 140,000 SF of office space accompanied by a 72,797 SF Hotel and a separate 9,060 SF of residential. 100 Fore Street is set to add a 70,000 SF of office space to the market with a three-floor parking garage. The old Portland Press building on 385 Congress Street is set to be devel-oped. This could potentially add 100,00+ /- SF of new Class A office space as well as retail, hotel, residential space, and a parking garage to service the building. All these projects fall in various stages of the overall planning process ranging from conceptual plans to permitted and approved projects.

North River IV, the developers who bought One and Two Portland Square four years ago for $66M, submitted a master plan a few months back. The plan includes two large buildings to be built on the existing parking lots of the One and Two Portland Square buildings. The plans include 290,000 SF of office space, 35,000 SF of retail space, 76 apartments, a 135-room hotel, and multiple levels of parking for 1,336 vehicles according to Randy Billings of the Portland Press. Many factors need to be taken into consideration with a plan like this.

With Portland growing so rapidly, it will be interesting to see where this proposal goes and how it could affect the economy.

Downtown Parking Dilemma

Parking continues to be an increasing concern whenever a tenant is searching and/or renewing for downtown office space.

• Most office tenants have at least 10-20 employees who commute to work that need 8-hour parking 5 days a week. Playing musical chairs with every 2-hour maximum parking meter is not an ideal situation. Downtown parking availability can sometimes make or break a deal.

• The current scarcity of parking is driving some tenants to look towards the suburbs for office space. Eventually the high demand could drive downtown rates up.

• Monthly parking rates are as much as $185 per space per month with almost no spaces available. Downtown garages have a 3+ year waiting lists.. Given the supply, even paying a high premium won’t guarantee a monthly parking spot.

Significant Office transactions:

• Cross Realty purchased the 52,644 SF office complex at 34 & 41 Hutchins Drive in Portland for $10.6M.
• Cianchette Family LLC purchased the 45,378 SF office building at One Monument Way in Portland for $7.25M from East End Corp.
• The 84,180 SF 465 Congress Street building sold for $7M . The new owner already has plans for much needed renovations on the building.
• The 30,000 SF office condo at 75 Washington Avenue sold for $4.6M.
• 10,444 SF at 167 Fore Street was leased by Covetrus (formally Vets First Choice).

*The data gathered in this survey excludes some shadow space, medical office, buildings under construction, and some mixed-use buildings. Towns included in this survey are Portland, South Portland, Westbrook, Scarborough, and Falmouth. In addition, the definition of Class A and Class B building used in this survey may vary from other market surveys.

For the full report published on September 10, 2019, please visit https://www.malonecb.com/reports.

Nick Malone did a summer internship at Malone commercial Brokers for the 2019 season. Nick is currently a student at Bentley University studying Economics-Finance and will graduate in the Spring of 2021. Nick is the son of Mark Malone, Partner, Malone Commercial Brokers.

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MEREDA’s Morning Menu Breakfast Event – Opportunity Zones: What you Need to Know to Take Advantage of this Opportunity in Real Estate and Beyond

The 2017 Tax Cuts and Jobs Act created a bi-partisan tax incentive program based on economically distressed Opportunity Zones. Investors in Qualified Opportunity Zone businesses now

have the ability to defer, and to some extent eliminate, recent capital gain income, by properly investing their gain proceeds. Gov. LePage has designated 32 Opportunity Zones in Maine ranging from Saco to Madawaska, including parts of Downtown Portland, which opens the door for real estate developers pursuing projects in these designated areas to tap into a whole new group of tax savvy investors.

Join the Maine Real Estate & Development Association for breakfast on November 21 from 7:30 AM – 9 AM at the Pepperell Mill Campus in Biddeford to learn more about these complicated new rules. Panelists Andy Smith and Nelson Toner will offer insights about how the legislation will impact the real estate industry and the tax advantages available to investors in Opportunity Zone projects.

About the Event:

MEREDA’s Morning Menu – Opportunity Zones: What you Need to Know about This Opportunity in Real Estate and Beyond

Pepperell Mill Campus
40 Main Street
Biddeford, ME

Breakfast: 7:30 – 8:00 AM
Program: 8:00 – 9:00 AM

About the Panelists:

For more than 30 years, Nelson Toner has practiced law at Bernstein Shur providing tax planning, estate planning and business succession planning to individual and business clients. Prior to working at Bernstein Shur, Nelson worked in the tax department at the Boston office of Grant Thornton, an international accounting firm during the halcyon days of pre-1986 real estate syndications. Nelson gives many local and state seminars, including a regular presentation at the Maine Tax Forum each autumn, and for many years taught Estate and Gift Tax at the Maine Law School. He also writes the S Corporation column for the Journal of Passthrough Entities, a national tax publication.

Nelson earned a bachelor’s degree in mathematics from Trinity College (Hartford), a JD degree from Case Western Reserve University, and an LLC in taxation from Boston University

Andrew Smith is a principal at Baker Newman Noyes, specializing in assisting his clients with practical advice and creative solutions to their most challenging business issues, including tax efficient structures for business transactions; fixed asset analysis; succession planning; and tax deferral and reduction strategies. He also works with real estate clients of all sizes on cost segregation studies, like-kind exchanges, and historic rehabilitation credits. In addition to serving clients, Andy is also actively involved in the firm’s college recruiting initiatives, having begun his career at the firm in 1997 as an intern and leads the tax department’s Multi-Generational
Business group.

He earned a bachelor’s degree in business administration, with concentrations in accounting and finance, from the University of Maine, Orono.

Registering for this Event:

MEREDA Members: $45 each | Non-Members: $55 Each
Prices Increase by $10 after November 14

Your RSVP is requested by November 14. Payment is expected at the time of registration. No refunds will be granted to anyone who registers but fails to attend or who cancels after November 14.

For more information and to register, visit  http://www.mereda.org

MEREDA’s Morning Menu is Sponsored by Norway Savings Bank and Pepperell Mill Campus. 

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Resolution of Disputes: The Pros and Cons of Arbitration and Litigation

By:  Richard Gagliuso, Shareholder, Bernstein Shur 

Disputes are a common, if not inevitable, byproduct of construction projects. Most commercial construction contracts anticipate that disputes may arise by providing a mechanism for resolving them. There is great variety in these “dispute resolution provisions,” but they typically provide for litigation or arbitration, with or without mediation as another step in the process.

To define these terms, “litigation” refers to the process of resolving disputes in court. Contract provisions calling for litigation of disputes may also dictate the jurisdiction or forum where such litigation is to occur. These terms are generally enforceable, and they have a significant impact on the expense and the outcome of litigation. Such provisions may also include “choice of law” terms which dictate the state or jurisdiction – often the state where the project is located – whose law will apply to the contract and to any dispute arising out of it.

“Arbitration” is an alternative to litigation which bypasses the court system in favor of a process where a private, independent arbitrator, rather than a judge or jury, is the decision-maker. This process may but need not be administered or managed by an organization such as the American Arbitration Association. As in the case of litigation, arbitration provisions may contain forum selection clauses and/or choice of law terms.

“Mediation” is not an alternative to litigation or arbitration, but rather an adjunct to one of these processes which involves a third party acting as an intermediary and facilitating settlement discussions between the parties to the dispute. Dispute resolution provisions often provide for mediation followed, if mediation is unsuccessful, by either litigation or arbitration.

Participants in construction projects often find themselves faced with a choice of dispute resolution mechanisms as they draft contract documents or review those prepared by others. These provisions tend to be overlooked by contractors and other parties more concerned with the business terms of the deal, but failing to focus on them, understand them and consider them carefully is a mistake.

Mediation should be a part of most dispute resolution provisions. It offers the prospect of an early resolution of disputes before much of the expense of either litigation or arbitration is incurred. I recommend the inclusion of mediation provisions in nearly all of the construction contracts that I draft or review.

The choice between litigation and arbitration, however, is more interesting, as each of these processes has its advantages and disadvantages.

The principal advantages of litigation are that, (i) it is a structured process governed by strict rules, (ii) it offers a full range of remedies, including not only an award of damages but injunctive relief, (iii) it is presided over by a judge paid by the taxpayers, (iv) it may offer the alternative of a jury trial, (v) it gives the parties rights of appeal, and (vi) it leads to a final court judgment. These are not insignificant considerations and contracting parties must weigh their importance in each case.

These advantages come with other features, however, that may be less attractive. The judge hearing the case in court is likely to be a generalist without any particular expertise or experience in construction. Arbitrators, by contrast, are generally chosen for their expertise in this area, which means that the decision-maker in arbitration is likely to have seen these issues before. On the other hand, unlike the judge who is compensated out of public funds, the arbitrator is paid by the parties, who often split the arbitrator’s fees in the first instance. In large construction disputes, these fees are often substantial and may make arbitration a less attractive option.

It is also important to understand that litigation is a public process, with court filings and hearings open to the public. Depending on the nature of the disputes and the evidence likely to be presented, this may be an important downside to litigation, as opposed to the private and confidential nature of arbitration.

Depending on the jurisdiction, litigation may be a prolonged and inefficient process, which inevitably leads to greater expense. Arbitration, by contrast, is designed to be more streamlined and efficient, often leading to an earlier resolution than litigation would offer. But of course, this efficiency comes with a cost in terms of less of an opportunity for discovery and foregoing some of the rights (e.g., a jury trial) and remedies (e.g., injunctive relief) available in court. In arbitration, rights of appeal typically are extremely limited, and a final arbitration award does not result immediately in a final court judgment. In other words, a quicker resolution is not always a better or fairer one.

These pros and cons, among others, must be weighed in considering what dispute resolution mechanism is best suited for a particular project or a particular party. There is no single right answer, which means that the right answer “depends.” Fortunately, experienced construction counsel are well versed in these issues and situated to help contractors, owners and other project participants make the right choice for them. 

Originally posted on June 7, 2019 https://www.bernsteinshur.com/what/publications/the-construction-advantage-27/

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MEREDA’s Morning Menu Breakfast Event “Developing in Maine for Nearly Two Centuries”

J.B.Brown & Sons was founded in 1828 and is one of the oldest and largest property owners in the greater Portland area. Join us for a MEREDA breakfast whereby our state historian, Earle G. Shettleworth, Jr. shares how the company was founded and the impact this person and the company has had on Maine.  The talk will focus on the past as well as the future.  The president of J.B. Brown & Sons – Vin Veroneau will talk about the current breadth and expanse of the company, as well as showcase some of the current projects in the works.

Make plans to join MEREDA on Nov. 14, 2019 from 7:30 AM – 9:00 AM at the Clarion Hotel in Portland to learn about one of the oldest and largest property owners in the greater Portland area, J.B. Brown & Sons. Join us for breakfast, network with your colleagues and enjoy learning about this very interesting company and it’s impact on the built environment. 

About the Event:

MEREDA’s Morning Menu – Developing in Maine for Nearly Two Centuries
November 14, 2019 – 7:30 – 9:00 AM

Clarion Hotel
1230 Congress Street
Portland, ME

Breakfast: 7:30 – 8:00 AM
Program: 8:00 – 9:00 AM

About the Panelists:

A native of Portland, Maine, Earle G. Shettleworth, Jr. attended Deering High School, Colby College, and Boston University and was the recipient of honorary doctorates from Bowdoin College and the Maine College of Art. At the age of thirteen, Shettleworth became interested in historic preservation through the destruction of Portland’s Union Station in 1961. In 1971 he was appointed by Governor Curtis to serve on the first board of the Maine Historic Preservation Commission, for which he became architectural historian in 1973 and director in 1976. He retired from that position in 2015. Mr. Shettleworth has lectured and written extensively on Maine history and architecture and has served as State Historian since 2004.

Vin Veroneau joined J.B. Brown as President in January 2005. He has been involved in commercial real estate development, asset management, and marketing since 1987. Prior to his association with the Company, he was a partner at North Atlantic Commercial Brokers in Portland, Maine, and a commercial leasing manager with Northland Development Corporation. He holds a B.S. in Finance from the University of San Francisco, an M.B.A from the University of Southern Maine, and a J.D. from the University of Maine School of Law. In addition, he has taken several real estate courses in the Community Planning & Development graduate program at the Muskie School of Public Policy. He currently serves as a Director of both Bangor Savings Bank and DBH Management, Inc. and is a Trustee of Waynflete School.

Registering for this Event:

MEREDA Members: $45 each | Non-Members: $55 Each
Prices Increase by $10 after November 7

Your RSVP is requested by November 7. Payment is expected at the time of registration. No refunds will be granted to anyone who registers but fails to attend or who cancels after November 7. 

For more information and to register, visit  http://www.mereda.org

MEREDA’s Morning Menu is Sponsored by Norway Savings Bank and CHA Architecture.

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MEREDA’s Morning Menu Breakfast Event: Solar Power in Maine: What you need to know about investing in solar in Maine

In 2019, the Maine Legislature passed LD 91 which reset the state’s metering policy for solar and ensures that consumers who produce electricity from solar panels are fairly compensated for supplying excess energy back to the electric grid. Come learn more about solar, from design to financing to tax credits.

Make plans to join the Maine Real Estate & Development Association (MEREDA) for breakfast on October 29 from 7:30 AM – 9:00 AM at the Hollywood Casino & Hotel in Bangor.

About the Event:

MEREDA’s Morning Menu – Solar in Maine: What you need to know about investing in solar in Maine

October 29, 2019 – 7:30 – 9:00 AM

Hollywood Casino Bangor
500 Main Street
Bangor, ME

Breakfast: 7:30 – 8:00 AM
Program: 8:00 – 9:00 AM

About the Panelists:

Jeffrey J Eades, National Sales Director at KEF Clean Energy (K4G) since June of 2015, is responsible for the development and delivery of Key Equipment Finance and Key Bank’s Energy Efficiency and Renewable financing offerings throughout the corporate footprint. His role includes the management of sales team members located in the Eastern, Midwestern and West Coast Regions.

Justin Morren is a Manager in BerryDunn’s Tax Consulting and Compliance Group. Justin is a seasoned advisor on tax treatments for pass-through entities, and brings a deep understanding of partnership and limited liability company taxation, including contributed property concerns and complex tax allocations. Justin provides planning, compliance, and consulting services to privately held entities in the professional services, manufacturing, wholesale and retail, real estate, and forest products industries. In this role, he has advised business owners on the tax benefits of renewable energy ITC tax credits. This experience includes tax planning using multiple year income tax projections for after-tax cash flow purposes and tax return compliance.

Vaughan Woodruff, is the CEO and founder of Insource Renewables, a solar contracting firm headquartered in Pittsfield, Maine. Insource Renewables is one of only ten solar installation companies in North America to achieve accreditation and was recognized in 2019 as a “Best For the World” company based on ranking in the top 10% of Certified B Corps around the globe in its treatment of workers. In addition to leading Insource’s efforts over the past decade, Woodruff is the former chair of Maine’s solar industry trade group and is a recognized as a leading voice for the solar industry at the Maine legislature and Public Utilities Commission.

Registering for this Event:

MEREDA Members: $25 each | Non-Members: $35 Each
Prices Increase by $10 after October 22

Your RSVP is requested by October 22. Payment is expected at the time of registration. No refunds will be granted to anyone who registers but fails to attend or who cancels after October 22. 

For more information and to register, visit  http://www.mereda.org

MEREDA’s Morning Menu is Sponsored by the City of Bangor, Bowman Constructors and KeyBank. 

 

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