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Enhanced Risks When Building Green ... Tighter envelope, better glazing & high efficiency HVAC & lighting to reduce energy consumption ... – PowerPoint PPT presentation

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Presented to
Middle TN Branch
September 16, 2008
  • What is a Green Building?
  • LEED Today
  • LEED Future
  • Why Build Green?
  • Design Construction of a Green Building
  • Implementing LEED GCs Role
  • Enhanced Risks When Building Green
  • Effectively Managing, Mitigating Allocating
    Green-Related Risks
  • Issues Related to Design Construction of a
    Green Building
  • Exposure for Contractors
  • Abercorn Case Study
  • Summary Recommendations

What is a Green Building?
  • High-performance building that reduces its
    environmental footprint through sustainable site
    selection and conservation of energy and
    resources, while improving the health and
    productivity of its occupants.
  • 3rd Party Certification (USGBC-LEED Energy Star
    Green Globes)
  • LEED is currently the preeminent 3rd party
    certification program.
  • Leadership in Energy and Environmental Design
  • 5 Major Categories
  • Sustainable Site Development
  • Water Savings
  • Energy Efficiency
  • Materials Selection
  • Indoor Air Quality

LEED - Today
  • Current Rating Systems
  • New Construction (NC)
  • Commercial Interiors (CI)
  • Existing Buildings (EB)
  • Core Shell (CS)
  • Homes (H)
  • Neighborhood Development (ND)
  • Numerous pilot programs (e.g. Retail)
  • Certification Levels
  • Certified 26-32 points
  • Silver 33-38 points
  • Gold 39-51 points
  • Platinum 52-69 points

LEED - Future
  • LEED 2009 Changes (Version 3)
  • New 110 point scale
  • Certain credits with more environmental impact
    now worth multiple points, with intention to
    reward owners for employing these strategies
  • Water Efficiency Prerequisite 20 overall water
    use reduction (excluding irrigation)
  • 4 additional points available through development
    density and community connectivity (intent to
    drive development toward infill sites)
  • 4 regional points into NC

Why Build Green?
  • Advantages of Buildings vs. Conventional
  • Cost Savings (First-Cost Savings Ongoing
    Operating Expense Reductions)
  • Minimize Impact on Environment
  • Enhanced Health Productivity of Occupants
  • Increased Value Lease-Up Rates
  • Community Social Benefits
  • Other Owner Benefits (Lender Incentives Tax
    Abatements Etc.)

  • Green Will Become Standard
  • Required by Government
  • Code in Europe
  • Washington, DC and Pasadena, CA Require certain
    private development projects to meet LEED
  • Boston, MA All new and rehabilitation
    construction projects gt 50,000 s.f. must earn at
    least 26 LEED points.
  • Dallas, TX Government buildings gt 10,000 s.f.
    must achieve LEED silver Rating. New ordinance
    recently adopted applicable to private
  • Chamblee, GA All new construction gt 20,000 s.f.
    must achieve LEED certification as a condition of
  • Los Angeles, CA Commercial projects gt 50,000
    s.f. must be LEED certified.
  • San Francisco, CA Most stringent green building
    ordinance to date (enacted August, 2008). Newly
    constructed commercial buildings gt 5,000 s.f.,
    residential buildings gt 75 ft. in height, and
    renovations of buildings gt 25,000 s.f., must meet
    LEED or other 3rd party green standards.

  • Required by Owners
  • Lender Requirements Expectations
  • Overhaul of CMBS Standards on Wall Street
  • Green Programs
  • Incentive Programs
  • Tenant Occupant Expectations
  • Corporate green policies
  • Reputation/marketing
  • Health productivity of occupants
  • Permitting Incentives
  • Expedited permitting process
  • Variances
  • Tax credits abatements
  • Growing Private Equity Demand/Requirement

  • Any Trends Away from Green Building?
  • Short-term Pending suit regarding
    constitutionality of green building laws.
  • Albuquerque, NM suit by HVAC contractors, et al.
    Misguided perception that green building
    standards will negatively impact contractors
    business and right to earn a living.
  • Long-term Green building will become the norm in
  • Legislation will become Code
  • Lender expectations
  • Tenant expectations
  • Reputation in community

Design Construction of a Green Building
  • Green Building vs. Conventional Building
  • Newer Materials Technologies with Less of a
    Track Record
  • Enhanced Operations Procedures During
  • Activity Pollution Control (ESC Plan)
  • Construction Waste Management Plan
  • Diversion of Waste from Landfill
  • Recycling and/or Salvaging On-Site
  • Re-Use of Materials
  • Indoor Air Quality Management Plan
  • Stringent Requirements Associated with 3rd Party
    Certification (LEED)

Implementing LEED GCs Role
  • Prerequisite 1 Construction Activity Pollution
  • Create and implement an Erosion and Sedimentation
    Control (ESC) plan for all construction
    activities associated with the project.
  • Credit 5.1 Protect or Restore Habitat
  • On greenfield sites, limit all site disturbance
    to 40 feet beyond the building perimeter 10 feet
    beyond surface walkways, patios, surface parking
    and utilities less that 12 inches in diameter 15
    feet beyond primary roadway curbs and main
    utility branch trenches and 25 feet beyond
    constructed areas with permeable surfaces (such
    as pervious paving areas, stormwater detention
    facilities and playing fields) that require
    additional staging areas in order to limit
    compaction in the constructed area.
  • On previously developed or graded sites, restore
    or protect a minimum of 50 of the site area
    (excluding the building footprint) with native or
    adapted vegetation.

  • Credit 2.1 Construction Waste Management Divert
    50 from disposal
  • Recycle and/or salvage at least 50 of
    non-hazardous construction and demolition.
  • Develop and implement a construction waste
    management plan that, at a minimum, identifies
    the materials to be diverted from disposal and
    whether the materials will be sorted on site or
  • Credit 2.2 Construction Waste Management Divert
    75 from disposal
  • Credit 3.1 Materials Reuse 5
  • Use salvaged, refurbished or reused materials
    such that the sum of these materials constitutes
    at least 5, based on cost, of the total value of
    materials on the project.
  • Credit 3.2 Materials Reuse 10

  • Credit 4.1 Recycled Content 10 (post-consumer
    ½ pre-consumer)
  • Use materials with recycled content such that the
    sum of post-consumer recycled content plus
    one-half of the pre-consumer content constitutes
    at least 10 (based on cost) of the total value
    of the materials in the project.
  • Credit 4.2 Recycled Content 20 (post-consumer
    1/2 pre-consumer)
  • Credit 5.1 Regional Materials 10 Extracted,
    Processed, and Manufactured Locally
  • Use building materials or products that have been
    extracted, harvested or recovered, as well as
    manufactured, within 500 miles of the project
    site for a minimum of 10 (based on cost) of the
    total materials value.
  • Credit 5.2 Regional Materials 20 Extracted,
    Processed, and Manufactured Locally

  • Credit 6 Rapidly Renewable Materials
  • Use rapidly renewable building materials and
    products (made from plants that are typically
    harvested within a ten-year cycle or shorter) for
    2.5 of the total value of all building materials
    and products used in the project, based on cost.
  • Credit 7 Certified Wood
  • Use a minimum of 50 of wood-based materials and
    products, which are certified in accordance with
    the Forest Stewardship Councils (FSC) Principles
    and Criteria, for wood building components.

  • Credit 3.1 Construction IAQ Management Plan
    During Construction
  • Develop and implement and Indoor Air Quality
    (IAQ) /management Pan for the construction and
    pre-occupancy phases of the building.
  • During construction meet or exceed the
    recommended Control Measures of the SMACNA IAQ
    Guidelines for Occupied Buildings under
    Construction, 1995, Chapter 3.
  • Protect stored on-site or installed absorptive
    materials from moisture damage.
  • If permanently installed air handlers are used
    during construction, filtration media with a MERV
    of 8 shall be used at each return grille. Replace
    all filtration media immediately prior to

  • Credit 3.2 Construction IAQ Management Plan
    Before Occupancy
  • Option 1 Flush Out
  • After construction ends, prior to occupancy with
    all interior finishes installed, supply a total
    air volume of 14,000 cu.ft. of outside air per
    sq.ft. of floor area while maintaining and
    internal temperature of at least 60F and
    relative humidity no higher than 60
  • If occupancy is necessary prior to completion of
    the flush out, the space may be occupied
    following delivery of 3,500 cu.ft. of outdoor are
    per sq.ft. Once occupied, space must be
    ventilated at a minimum of 0.30 cfm/sq.ft.
  • Option 2 Air Quality Testing
  • Conduct baseline IAQ testing using testing
    protocols consistent with the United States
    Environmental Protection Agency Compendium of
    Methods for the Determination of Air Pollutants
    in Indoor Air.
  • Traditionally, developer and architect drive the
    ship, but LEED requires integrated planning
    between design and construction. General
    contractor will need to play a larger role in the
    transition from DDs to CDs.

  • Ask for a LEED checklist and modify existing
    practices based on which points are targeted.
  • For some points, it is best practice to implement
    overall program changes.
  • Construction waste management
  • IEQ management plan can be a set of standard best
    practices employed on all job sites.
  • Construction activity pollution prevention
  • Develop policy for sourcing material that
    maintains integrity of targeted points.
  • MR credit 4.1 and 4.2 Recycled Content 5.1 and
    5.2 Regional Materials
  • EQ credit 4.1-4.4 low-emitting materials
    (adhesives, sealants, paints, coatings, carpet
    systems, and composite wood and agrifiber)
  • General Conditions/Pricing should reflect
    additional time and effort for targeted points.
  • Materials and Resources 4.1 Recycled Content
  • Sustainable Sites 5.1 Protect or Restore Habitat

Enhanced Risks When Building Green
  • Design Construction Issues
  • Failure of innovative materials to meet
    performance requirements
  • Improper installation due to inexperience of
  • Unanticipated performance failures due to design
    or construction flaws.
  • Construction Delays
  • Failure to maintain adequate records
  • Failure to Achieve 3rd Party Certification
  • Owner Impacts
  • Loss of Financing
  • Loss of Permitting or Incentives
  • Loss of Tenants

  • Contractual Issues
  • Ambiguity in contracts as to expectations,
    responsibilities and liabilities of parties
  • Enhanced obligations and liabilities of
    architects and contractors
  • Greater exposure to litigation and consequential
  • Failure of Building to Meet Ongoing Performance
  • Failure to properly train operations personnel
  • Lack of continual measurement verification
  • Lack of performance of materials or technologies
  • Unanticipated side-effects
  • Failure to properly regulate tenant behavior
    under leases (need experienced green leasing

Effectively Managing, Mitigating Allocating
Green-Related Risks
  • Clearly Define Roles Responsibilities of
    Various Parties (architects, engineers
    contractors, commissioning agent, etc.) Through
    Design Charrettes
  • Contracting Process
  • Clearly define roles and responsibilities of
    parties in contracts
  • Contracts for project team, when aggregated,
    should include everything required to complete
    project with no overlap
  • Specify expectations regarding construction waste
    management (salvaging recycling diversion from
    landfill measurement)
  • Clearly specify the types of materials to be used
  • No change or substitution of materials unless
    approved by owner, contractor and LEED consultant
  • Responsibility for training operating personnel
  • Record keeping
  • On-going measurement verification

  • Exposure For Contractors
  • Standard of Care Liability
  • Enhanced standard of care of architect and
    contractor in green building context
  • Failure of materials or technologies to perform
  • Compliance with new rapidly evolving green
  • Usually required when construction permit
    application submitted
  • Can conceivably cause project to be re-designed
    and/or reconstructed
  • Should take adequate measures to limit liability
  • Limit obligations to compliance with legislation
    in effect at time of contract execution
  • Owner indemnity for any issues arising from
    newly-enacted legislation

  • Damages
  • Great exposure to consequential damages in green
    building context (loss of 3rd party
    certification, governmental incentives (tax
    credits/abatements), financing and/or tenants
  • Consider liquidated damages provision if damages
    not quantifiable (Caps on damages negotiable)
  • Warranties
  • Define with specificity the breadth of the
  • In green building context, may cover
    unanticipated green-related obligations, such as
    innovative materials and technologies required
    under LEED

  • Indemnity
  • In green context, may expose architect and
    contractor to greater liability
  • Liability with respect to non-performance of
    innovative materials and technologies
  • Exposure to broader consequential damages (loss
    of financing, tenants, etc.)
  • Must confirm if covers green aspects of project
  • Thoroughly investigate materials and technologies
    being used be consistently sensitive to LEED

  • Keep Detailed Accurate Records (LEED
    Demonstrate Performance)
  • Assure Adequate Measures in Place DURING AND
    AFTER Design Construction Process to Ensure
    Design, Construction and Performance of Building
    Meets 3rd Party Certification Requirements and
    Expectations of Parties
  • Proper training of operating personnel
  • Operation manuals
  • Periodic testing procedures
  • Ongoing measurement verification
  • Ensure a LEED AP Consultant is Engaged by Owner
    Proper Allocation of Responsibilities for LEED

  • Education About LEED
  • Insurance Performance Bonds
  • Insurance
  • Design Team Errors and Omissions Insurance
  • Protects against claims that insured did not
    perform up to required standard of care (level of
    care and skill of similar professionals in same
  • Insures against design defects, not construction
  • Contractors Commercial General Liability
    Insurance (CGL)
  • Typically covers construction defects caused by
    negligence of contractor or subcontractors
    (insures negligence, not perfection)
  • Owner Property Insurance in a Builders Risk
  • Traditionally, excludes losses resulting from
    design defect or faulty workmanship

  • Green-Related Issues Regarding Exclusions from
    EO and CGL Policies
  • Typically, the standard of care (i.e.,
    negligence) is not sufficient to cover the
    enhanced green-related obligations, so must
    confirm extent of coverage, and must thoroughly
    investigate the materials and technologies being
    used, and consistently be sensitive LEED
  • No coverage for the following
  • Warranties or guaranties or claims arising
  • Contractual obligation to achieve a certain LEED
    Rating (i.e., LEED Silver or Gold)
  • Contractual obligation to cause certain energy
    reductions or similar outcomes
  • Certifications, declarations or warranties in
    connection with LEED template
  • For the foregoing reasons, contractors and design
    professionals must be very prudent as to the
    contractual obligations they subject themselves
    to, as the same may not be covered by insurance.

  • New products out on the market
  • Firemans Fund Amended in 2006 to include green
    building specific coverage
  • Aon Corporation Green Building Property Program
    assures reimbursement for repair or replacement
    of green building components, enabling owners to
    upgrade to environmentally efficient components
    (covers certified and non-certified buildings).
    Tied to local government mandates, as well as
    LEED and other recognized standards
  • XL Insurance Sustainable Property Endorsement
    allows insured to collect an amount greater than
    value of damaged property if replaced with
    environmentally acceptable substitute (tied to
  • Travelers Just recently joined USGBC. Likely to
    lead to additional green building insurance
    products in the market
  • Performance Bonds
  • Guaranty, not insurance
  • Guarantees owner that a contractor will perform
    as required by its contract, and will pay for
    required materials and labor
  • Insurance companies may be reluctant to guarantee
    the enhanced contractual obligations of
    contractor in green building context

Case StudyAbercorn CommonSavannah, Georgia
Abercorn Plaza in the 80s
Abercorn Common Today

First LEED Certified Retail Shopping Center in
U.S. (Awarded LEED Silver CS) 2007

First LEED Certified McDonalds In U.S. (Awarded
Sustainable Features

Vegetated Roof White Roof Membrane to
Reflect/Absorb Heat and Keep Center Building
White roof membrane reflects heat, keeping the
center cooler
Concrete paving reflects heat, keeping the center
and parking lot cooler
Pervious pavement diverts storm water
Abercorn Common Shopping Center, Savannah GA.
A Case Study

Pervious Pavement
  • Almost 1 acre of pervious pavement, which
    allows water to infiltrate the ground
    (runoff coefficient of .3 vs .95 for
    traditional concrete)
  • Decreases the need for municipal stormwater
  • Helps remove sediment and pollutants
  • Decreases site runoff by 25

  • The Cistern harvests rainwater from rooftops,
  • 5 million gallons annually

  • Low-flow toilets Faucets and waterless urinals
    reduce water use
  • Tighter envelope, better glazing high
    efficiency HVAC lighting to reduce energy
  • Located ¼ mile from 3 bus stops, preferred
    parking for hybrid vehicles bike racks
    changing facilities encourages use of
    carpooling alternate transportation


Indoor Environmental Quality
  • Low-emitting paints, sealants and adhesives used
  • Zero or low volatile organic compounds (VOCs)
  • No smoking (including restaurants) before GA
    became non-smoking
  • Increased ventilation 30 over ASHRAE 62


Waste Reduction
  • Stringent construction waste management practices
    prevented 85 of construction waste from
  • Over 6,000 tons were recycled or reused

Abercorn Common Shopping Center, Savannah GA.
A Case Study

Materials and Resources
  • Over 70 of materials manufactured within a 500
    mile radius
  • Over 20 recycled materials by cost
  • FSC Forest Stewardship Council Certified Wood
    used at McDonalds

Abercorn Common Shopping Center, Savannah GA.
A Case Study

  • Abercorn Common is
  • 30 more energy efficient than code (ASHRAE
  • 55 more water efficient (than 1992 Energy Policy
  • Healthier indoor air less toxins and more fresh
  • Has 30 Less stormwater runoff
  • Uses no potable water for irrigation

Summary Recommendations
  • Green Building is here to stay
  • LEED rating system is likely standard
  • Contractor directly affects several prerequisites
    and point
  • Enhanced risk issues for contractors
  • Knowledge and careful allocation of contractual
    liabilities and obligations is critical
  • Rapidly evolving marketplace

Robert E. Stanley, Esq.
1170 Peachtree Street, Suite 750
Atlanta, GA 30309
(404) 835 - 6201