On October 28, 2010
By Scott Wolfe Jr
Last week, we published an article identifying some Things That Can Go Wrong On A Green Building Project. To prepare for these potential problems (and others), here is a list of things you should keep in mind when contracting for a green building project:
1) Define Things: Terms like ‘sustainability,’ ‘green certification’ and ‘high performance building’ do not have any universal meanings. Clearly define the goals of the building and project. Consider adopting a rating system, and specify the system and the version.
2) Designate a responsible party for certification: A green/LEED coordinator can go a long way, designating someone who will be responsible for coordinating all parties, analyzing the work to ensure compatibility with the rating system, and put together all the paperwork required on the project.
3) Responsibility Matrix: Create a “matrix” of who will be responsible for what. This will at least mitigate the finger-pointing if or when something goes arwy.
4) Payment Issues. An especially important consideration for contractors: Be cautious about tying certification with substantial or final completion. Certification may never come, but in all cases, it could take between 6-18 months after substantial completion to get certified. That’s a long time to have money withheld – and this will create payment problems with subs and suppliers. If nothing else, make sure your contracts up and down the chain have the same payment timeframes and expectations.
5) Know Vendors and Products. These technologies are new and can be complex. Don’t subscribe to a technology without investigating. Get to know the products and manage the expectations of the owner. For a discussion of how these new green technologies can present problems, see Paul Beers’ guest post on Chris Hill’s Construction Law Musings.
6) Consequential or Specific Damage Waivers (LDs). Damages for failure to certify or for failure to meet certain benchmarks may be murky. Consider waiving consequential damages, and call out these specific expectations and considering waiving those damages or presenting LDs for them. For a discussion about whether a consequential damage waiver is effective for green building damages, see this blog post: Is Failure To Achieve LEED Certification Consequential Damages?
7) Flow Down. Make sure your obligations up the chain, go down the chain.
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