Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Constructing A Green LEED Rated Project from The Roll of the Developer/Owner
By Bernard Asagai 2012 “Green” MBA Candidate
SUS 560 A1: Environmental Law Professor Ryan Vanden Brink Marylhurst University October 30th, 2011
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Abstract Successful development of a LEED accredited structure requires that the builder/developer seek the best conditions that provide the greatest chances for the developer to build the project to completion, and build it on time. If the developer is seeking tax-credits and/or state and federal green building incentives for the project, there may be many times stipulations that have to be adhered to in order to be eligible for the benefit. Because of these requirements, a developer must choose the team for the project very carefully, and also must require that all team members have adequate insurance policies that protect the owner against any negligent actions on the part of team members. As an added level of protection, the developer should require within the contract of the owner, that the person be bonded to insure that the project will be completed. Also, the owner should take out additional insurance policies on all the buildings expensive components that will be used on the project. Components such as heating and cooling units, solar panels and heat exchange systems should all have their own individual insurance policies. The developer should require in the architects and design build teams contract, as well as in the contract of the contractor that products used for the project have the greatest warranty options available on the market. (Stanley,& Shoemake, n.d.) As an additional guide for the project, the owner should contract the services of a LEED consultant that has successfully constructed LEED accredited structures at or beyond the same level that the developer is seeking for the project.
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Siting and Location Choice for LEED Project Consideration One of the most important issues that a development must address when deciding to build a LEED rated green project is where it is best to do so. If the owner is considering purchasing land to build a LEED certified project, a developer would do best to study the location for any environmental conflicts or possible unseen endangered species, as well as unknown site contamination issues which could delay or completely halt any plans for the site. ( Farber, D. A. , 2010)
A developer/owner should also understand in detail, the zoning ordinances and building
codes and appraise the zoning board's history with permitting variances for various green solutions. (Strungys, A., 2010) Purchasing land and deciding to build a LEED certified project is not enough! Areas that are under consideration for possible purchase, need to be carefully studied. Facts must be attained which address the the locations laws for permitting the use of green solutions desired by the owner. Not doing so could see a developer spending tens of thousands of dollars for something that she would've avoided if she chose another location.
Zoning boards can be a developer's greatest friend during the process of constructing a project, but should a zoning board not be “pro-green solutions�, it could see a developer in and out of zoning meetings seeking variances to use certain green solutions for the project that may have a great effect on the developers ability to attain certain tax credits and/or rebates. Given this perspective, a developer may seriously consider constructing a project in another state which is more friendly to developers building green projects. (Strungys, A., 2010)
During this analysis time period, environmental issues need to be addressed for each site that a developer is considering to purchase. Site analysis should be carried out by an experienced professional who is licensed within the state to provide such analysis and whose site expertise is also insured.
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Team Requirements and Preparation of Execution of Contracts Once a site location has been chosen that offers the greatest chances for a developer to build green, obtain zoning variances should they be needed, as well as any possible incentives from the state for building green LEED certified projects, the developer must put together a team. Once the owner has an idea of the team members that will be used, an initial integrated approach conversation need to take place to gauge the scope of the owner in terms of the LEED project that the owner is thinking about building, as well as to gauge the capability of all the team members that the developer is considering using for the project. (Stanley,& Shoemake, n.d.) At this stage, conversations should remain in a preliminary incubation mode until the owner is positive that the right individuals for this project have been gathered. At this stage as well, the owner should also contract a LEED consultant that has successfully constructed projects which have attained accreditation as an initial backing that the proper team has been built.
If the developers project is to take place within a city or state that is favorable to such projects, a developer may decide to visit the city's planning department to inquire about successful architects, contractors and successful projects which have attained LEED ratings within the city. Taking suggestions from the cities planning and zoning board has the possibility of providing additional outcomes that may help the board to grant the owner any possible variances that are needed for the project by working with professionals that the board is already familiar with. By working with the city's most experienced professionals in this area, and by keeping the cities planning and zoning officials in the loop of every stage of the project, it may help a developer to position the project so it has the greatest chances of success.
During this process of seeking out certified and qualified project team members, the owner/developer must pay specific attention to ensure that the individuals work is insured by specific insurance policies that protect the interest of owner. (Brink R., 2010) The contracts that the
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
owner/developer has with the architect/design team members should have language about specific insurance policy requirements. Regarding the contractor that will be used for the project, the contract for their work should state clearly that the contractor should not only have specific insurance policies for work provided, but that the person must be licensed within the state, and be bonded as well. Specific attention must be taken to ensure that the insurance policies carried by the architect, the design team, the engineer, and the contractor and subcontractors do not contain specific language which voids their policies should they provide work on LEED seeking projects. (Bower, K., & Cohe, L., 2009)
It may be an additional cost, but a developer would do best to assign this task
to a lawyer to ensure that adequate protection is available to the owner from team members insurance policies should the project not attain its LEED certification, and the loss of any taxcredits. (Bower, K., & Cohe, L., 2009) Once these steps have been completed, execution of the contracts can begin.
Once team members have passed this stage, charrette/integrated approach meetings between all members including, the architect, contractor and subcontractors, various zoning and planning officials and the owners financial backers should begin to take place immediately. These initial meetings will help define the scope and direction for the type of LEED building certification that the owner will be able to possibly attain. To assist in this phase the developer should consider attaining the expertise of a LEED Consultant to help provide direction for the team. In addition to the contract, a LEED Consultant can help define further, all the responsibilities and requirements that will be needed from all the teams members and can help it stay oncourse.The consultant should be able to assist the team in choosing LEED goals that are achievable, and can be attained in the minimum amount of time possible to help the developer attain any desired tax-credits.
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Furthermore, the consultant can also assist the owner, architect, engineer, and design team members in gathering all the necessary paperwork during the process to officially submit the building for its LEED inspection once the project has been completed. (LEED Project Checklist, n.d.) This should be a requirement in the consultant’s and architects contract with the developer.
Integrated Approach By working in an integrated fashion, the owner may be able to minimize costs and use less resources than by working in a traditional manner. To ensure that everyone is on the same page during the project and working together, the charrette meetings should be required by all team members and specifically stated as an obligation in their contracts. Within these initial charrette meetings, the architect and engineer should begin to have very good ideas about what the model of the project might be like. During this stage as well, team members should begin to have a good ideas about the buildings green features that the owner would like to see incorporated in its design and how they can be produced or incorporated.
As far as the owner/developers role, it is the most important in my opinion. The developer is the principle party responsible for financing the entire project. If the project fails to achieve its desired accreditation, it is the developer that could be in financial ruins if certain legal protections (such as well defined contracts which define project responsibilities and required insurance policies from all parties involved) have not been put in place. In order to mitigate risk and keep all members on-track, the developer should be engaged in every step of the process within the project. At the end of the day, everything will be "on the head" of the owner/developer. (Bower, K., & Cohe, L., 2009)
Using Tax credits and Grants to Mitigate Insurance Costs
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Tax credits and financial incentives can not only be used to help lower the overall cost of green projects, but can also be used to help an owner insure that the project has other items that are needed. Many of the rebates, tax credits, and incentives can provide financial assistance which owners can use for other needed items such as elevated insurance policies. (Brink R., 2010) Attaining extra layers of insurance coverage can be very expensive for an owner, but going after rebates and kickbacks which are provided by various local, state, and federal governments, they can help mitigate the cost associated with providing elevated coverage policies. For example, the state of Oregon has programs such as their Energy Trusted program, Utility Granted Rebate programs, and Municipal programs as well. Other states and locations have programs that are similar and owners can take advantage of them to lower the overall cost of their projects, as well as to attain additional levels of expertise and guidance. (Brink R., 2010) As a caveat though, many of these programs that are offered do require that a project attain a specific LEED rating. Not attaining a certain LEED criteria can leave a developer/owner open to bankruptcy.
Final Thoughts and HVAC Systems Commissioning The developer/owner should go out of the way to ensure that adequate levels of protection are provided against any losses should be LEED certification rating being sought is not attained due to actions or in-actions of contracted team members. The contracts of every team member should have clauses which require them to have and maintain throughout the entire construction of the project, adequate levels of insurance policy protection which will protect the owner and the project against any possible negligence from their actions. (Stanley,& Shoemake, n.d.) The owners lawyer should review all members policies to insure that they meet a protection standard chosen by the owner. If they don't, they should be given the chance to change to a policy that offers the protection being sought by the owner. if this is an issue, the owner should select a new candidate for their position on the team that meets the requirements.
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Also, to ensure that all parties requirements are being completed on time, the developer should contract a LEED Consultant to help define specific goals for the project that can be monitored in a step-by-step process throughout construction, and to help manage all the requirements of the team members during the construction of the project, and to prepare any and all documentation that will be necessary once the project is completed. Also, the Design/Build team should insure that the subcontractor being used to install the HVAC system, that the person hรกs a 3rd party LEED Expert who comissions such units. Aslo, the owners LEED Consultant should be required to attain all charrette meetings, and should also be assigned the task of ensuring that all duties required by all team members are being completed on time and are in-line with the projects timetable of seeking LEED accreditation at the specific accreditation rating being sought by the team. (Stanley,& Shoemake, n.d.)
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Resources: Bower, K., & Cohe, L. (2009, March). The Green Building Revolution: Addressing and Managing Legal Risks and Liabilities . Harvard Law School Environmental Law & Policy Clinic. BRINK, R. V. (2010). FINANCING GREEN BUILDING AND ENERGY EFFICIENCY PROJECTS IN OREGON. BRINK, R. V. (2010). GREEN BUILDING CONTRACTS: RISK SHIFTING IN LIGHT OF NEW INSURANCE PRODUCTS ∗ . Vanden Brink Consulting. Farber, D. A. (2010). Farber and Findley's Environmental Law in A Nutshell [Kindle Edition]. LEED-NC Version 2.2 Registered Project Checklist- LEED DOCUMENTATION RESPONSIBILITY MATRIX . (n.d.). LEED-N.C. Strungys, A., AICP. (09,2010, September). GREENING YOUR ZONING ORDINANCE. Camiros, Ltd. Stanley, R. E., ESQ., & Shoemake, J., ESQ. (n.d.). The Fine Print: Legal Issues In Green Building Projects. W, R., Emerson, J. D., & Robert, W. (2009). Business Law (Barron's Business Review Series) (Kindle. ed.).
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating
Actions of Protection A Developer/Owner Can Take When Seeking A LEED Rating