October Program Summary:
Legal Aspects of Green
Guest Speakers:
Christa Dommers
Partner, Real Estate Practice Group
Seyfarth Shaw LLP
Kim Pexton, LEED AP
Director of Sustainable Construction
HITT Contracting, Inc
Susan Dorn
General Counsel
US Green Building Council (USGBC), Green Building Certification Institute (GBCI)
Moderator:
Marnie Abramson, LEED AP
Principal
Tower Companies
This presentation highlighted the legal implications of LEED certification from the perspectives of contractors, building tenants, building owners, and the US Green Building Council itself.
Marnie Abramson, the event's moderator, started off with a breakdown of LEED Version 3.0, the new version of LEED that will roll out this winter. The biggest changes to LEED will occur within the areas of sustainable sites, energy and efficiency, and water efficiency areas.
All LEED rating systems will be condensed into two volumes – one for interior design and construction, and one for building design and construction. Projects will be assessed on a scale of 110 points (40-49 points for Certified; 50-59 points for Silver; 60-69 points for Gold; and 70+ points for Platinum). USGBC has also introduced four bonus points, known as “regional priority” points, which focus on alignment with local environmental issues. Each zip code has six credit priorities that projects can potentially address. December 21, 2009 is the last day for registered projects with Version 2.2 to upgrade to Version 3.0 for free.
What's New With Version 3.0?
Susan Dorn, USGBC and GBCI General Counsel , went on to describe a number of new steps USBC is taking to improve the credibility of the LEED rating system. First, USGBC is instituting an Annual Building Performance Initiative to study energy and water use in certified buildings.
Version 3.0 will also include “sunset dates” for registered projects; all project submittals must be furnished to GBCI within six years of initial project registration. And, if no submittals have been handed over and there is no evidence of construction progress within four years of registration, GBCI can cancel a project's registration. GBCI does recognize that Neighborhood Development projects can take much longer than six years – these projects must be completed within 19 years of initial interface with GBCI.
The rollout of Version 3.0 coincides with the issuance of new logo guidelines. USGBC developed a 16-page guideline in reaction to abuse of the USGBC member logo, the LEED certification logo, and the USGBC brand. For example, a developer who has just started construction on a building that he hopes will achieve Platinum certification cannot put a sign in front of the site describing the project as “LEED Platinum.” Susan confirmed that these guidelines will be posted on the GBCI website shortly.
LEED's Impact on Tenants and Landlords
Most LEED certified projects are commercial buildings, often with lease tenants. And, as LEED becomes more popular, more and more building owners and tenants are embracing the green lease.
Christa Dommers noted that leases have been incorporating some sustainability goals for years. Christa suggests that both landlords and tenants develop their own sustainability mission statements and objectives. This process will allow them to establish what they absolutely do or do not need from the other party.
So, what exactly can a green lease do? First, it can identify a tenant or landlord's operational and environmental priorities. It can also allocate benefits and costs. A green lease can address energy use and management (such as when the building's HVAC system will operate) and can allow for energy use measurement and reporting. According to Christa, one of the most common subjects in a green lease is cleaning specifications. A green lease can also remedy for failures.
There are a number of green lease forms available to the public. Building Owners and Managers Association International (BOMA) has developed a document geared towards owners and managers. It can be purchased on the BOMA website (www.boma.org). The Real Property Association of Canada's (REALpac) lease has become the definitive green lease in Canada. It includes numerous specific requirements and can be tailored for use in the US. The lease can be downloaded from the REALpac website for free (www.realpac.ca). The Corporate Realty, Design & Management Institute (CRDMI) issued a new form this year that attempts to balance the interests of both landlords and tenants. Many companies also develop their own proprietary green leases.
LEED's Impact on Contractors
Kim Pexton stepped in to describe the challenges that face contractors tackling LEED projects. Contractors are only directly responsible for submitting about five percent of LEED credits (construction waste management, indoor air quality, etc), but they must actively participate in the entire LEED certification process. Their actions can directly influence the outcome of project certification.
And failure to achieve certification does not only impact the building owner. Kim identified three areas of potential risk for contractors who do not properly manage their job sites. First, contractors can lose fees. They can also face legal fines. And they can lose future business.
Click here for the copy of the PowerPoint presentation.
Click here for a PDF list of attendees.
