As an increasing number of contractors seek LEED and other third-party green building certifications, the complex set of documents used to manage construction projects must adapt to reflect the challenges and risks inherent in green building. Risks include the use of new materials and design techniques, uncertainty around the performance of the building upon completion and the ability to actually achieve a third-party certification. Both the American Institute of Architects (AIA) and the Association of General Contractors publish form contracts to demonstrate how to draft contracts that adequately address these risks.

As an increasing number of contractors seek LEED and other third-party green building certifications, the complex set of documents used to manage construction projects must adapt to reflect the challenges and risks inherent in green building. Risks include the use of new materials and design techniques, uncertainty around the performance of the building upon completion and the ability to actually achieve a third-party certification.

LEEDigation is a term coined by construction attorney Chris Cheatham to define green building litigation. LEEDigation might arise in a number of scenarios; if a building is unable to achieve the agreed-upon building certification, if a project fails to obtain government incentives or satisfy mandates for green building construction or if a green building is improperly designed or constructed.

In order to manage these green building risks and avoid LEEDigation altogether, well-designed contracts accurately reflecting the goals, responsibilities, and liabilities of the parties involved in a green construction project are critical. Two large industry groups publish form contracts specifically addressing these green building challenges. I’ve provided a brief summary of both to give you an idea of the key topics to address in any green building contract.

As no construction project is identical, every contract must seek to accurately reflect its’ project, players, and liabilities. These standard forms provide a starting point. (This means: don’t just download these forms off the internet and hope for the best! Yes, you really have to talk to a lawyer to review and amend your contract.)

Architect/Owner Contracts
The American Institute of Architects (AIA) publishes numerous documents to cover the relationship between architect and owner. AIA B214–2007 establishes the duties and responsibilities when the owner seeks LEED certification on a project. The architect’s services under AIA B214–2007 include:

• Conducting a pre-design workshop where the LEED rating system will be reviewed and LEED points will be targeted
• Preparing a LEED Certification Plan
• Monitoring the LEED Certification process
• Providing LEED specifications for inclusion in the Contract Documents
• Preparing a LEED Certification Report detailing the LEED rating the project achieved

AIA B214–2007 may be used two ways: the document can be incorporated into the owner-architect agreement as the architect’s sole scope of services or in conjunction with other scope of services documents or it can be attached to G802-2007, Amendment to the Professional Services Agreement, to create a modification to an existing owner-architect agreement.

Some attorneys suggest that the AIA B214-2007  does not go far enough in defining the owner’s goals and should also include an explicit statement of the owner’s green building goals.

Contractor/ Owner Contracts
The Association of General Contractors publishes a set of documents called the ConsensusDOCS that manage the owner/contractor relationship. In November, the group released the construction industry’s first comprehensive standard contract document addressing the unique risks and responsibilities associated with building green projects. ConsensusDOCS 310 Green Building Addendum is designed to work with other ConsensusDOCS documents or other form contracts. The Green Building Addendum uses contractual best practices to identify the project participants and  manage the implementation and coordination efforts critical to achieving a successful green building project, including achieving a third-party certification.

A critical component of the Green Building Addendum is the appointment of a Green Building Facilitator (GBF). A GBF is a person or entity responsible for coordinating, implementing and concluding necessary documentation to achieve the project’s green building goals. The GBF might be the architect/engineer, contractor, construction manager or even a third-party advisor/independent consultant. The project architect remains responsible for incorporating the specific green measures into the design, with assistance from the GBF. Notably it is the GBF who bears the liability if the green building goals are not achieved. The Green Building Addendum is designed to be used in conjunction with developing the underlying agreement between the owner and GBF, which will address commercial terms such as compensation, damages, and insurance requirements.

Reprinted with permission from Green Economy Post