Sustainability. Green Design. LEED Certification. These are terms that design firms are becoming very familiar with and that significantly impact their present and future design practice. Of course, your contracts with clients and subconsultants will require careful wording that recognizes the unique risks and liabilities of green projects.
Here are a few suggestions you and your lawyer should consider:
When applicable, recognize that your goal is for the project to achieve LEED or other green certification. However, stress that you cannot assure, warrant or guarantee such certification. Getting certified will be subject to the processes of outside organizations such as the USGBC as well as the performance of the contractor, the client and other parties to the project.
Similarly, your client contract should state that you cannot warrant or guarantee that the project will achieve specific benefits such as a given level of energy efficiency, lowered life-cycle and maintenance costs, or any credits, incentives or grants offered by municipalities, government organizations or other public or private groups.
Establish a reasonable standard of care by noting in your contract that you will perform your services in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in a similar locale. Don’t tout yourself as a “green expert” in any of your company documents, including your contract and marketing materials.
Acknowledge in your contract that in your quest to deliver a project that qualifies for LEED or other certification requested by the client, you may need to specify relatively new or untested products, technologies, materials and systems. Recognize that these state-of-the-art resources may be of higher cost than traditional materials. Also note that the client assumes all risk for inadequate performance of new or inadequately tested materials they have recommended or approved.
Have the client contract recognize that you are not responsible for project delays caused by others (such as reviews of the project by certification agencies), and that your schedule will be adjusted accordingly if such project delays occur.
Refer to the building owner’s and occupants’ responsibility for providing regularly scheduled maintenance of the facility and its mechanical systems. Identify which party is responsible for what element of the building and include the manufacturers recommended maintenance schedule as an addendum to your contract with the client.
Be sure you and your lawyer check laws in your state or province regarding contract provisions that transfer liabilities to your client or limit their ability to seek redress from you. You’ll also want to review the contractor’s contract with the client as well as any agreements between the client and any LEED consultant or other certification body. Address any concerns you may have regarding contractual liabilities that increase your exposure.
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