LEED limitation of liability verbage ...

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Author Message Robin E. Snyder Senior Member Username: robin Post Number: 77 Registered: 08-2004 Posted on Friday, January 05, 2007 - 04:23 pm:    Has anyone (specifically independents) added any verbage to their contracts that limits their liability for obtaining LEED certification. IE, that covers themselves from anyone blaming the specs if LEED certification isn't achieved. Jeffrey Wilson CSI CCS Intermediate Member Username: wilsonconsulting Post Number: 4 Registered: 03-2006 Posted on Friday, January 05, 2007 - 04:41 pm:    My standard proposal/agreement includes the following. This might not be as strong a statement as you're looking for, but could be a start: "This Proposal includes incorporating into the specifications information needed to fulfill LEED guidelines, based on information furnished by Architect. Responsibility for interpreting requirements to obtain LEED certification, and for producing required documentation, are retained by Architect." Kenneth C. Crocco Senior Member Username: kcrocco Post Number: 79 Registered: 04-2003 Posted on Monday, January 08, 2007 - 01:08 pm:    There is a "potential disconnect" in specifying for LEED certification. Product selection is by the architect of record, who ever that is depending on your agreement. Specifiers are required to list multiple products in most situations. We are generally asked to specify according to a listing of potential points needed to achieve a given rating. It is common practice to specify to achieve more points than necessary to "assure" achieving the desired certification. Unless every material and product is evaluated, and cost estimates are known, the higher certification levels cannot be guaranteed without change order. Suppose the bidding results in pricing that includes products and materials the sum total of which does not result in the number of credits necessary to get certifications desired. I have participated on a project which required all team participants, including general contractor and some subs to review LEED certification. The Owner agreed to pay additional costs to original price offered by the General Contractor. I noted how much coordination is really required to guarantee higher level certification. Who is really doing this coordination? In terms of the verbage required in the contract, I would think the words guarantee (not) and adjustment by change order should show up somewhere. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 774 Registered: 03-2002 Posted on Monday, January 08, 2007 - 06:39 pm:    Robin, How can they blame the specs (or specifier) if the specs call out for LEED products? What is the penalty for not achieving LEED rating? Here in Washington state, any project receiving state funds must, BY LAW, achieve a LEED silver rating. But reading the fine print, there is no penalty if only LEED certified is achieve or no LEED rating is achieved. The Owner has to understand that EVERYONE on the team is responsible for achieving a LEED rating. That said you should ALWAYS plan to get more LEED points than you will actually get. It's good to have a buffer. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 431 Registered: 07-2002 Posted on Monday, January 08, 2007 - 07:30 pm:    this is where the Washington State law is stupid and not very well thought out. the LEED rating is given by the USGBC, which doesn't have to answer to anyone. Their standards are changing on a somewhat regular basis because their emphasis is always on pushing the envelope to require more stringent performance and requirements. our contract language is along the lines of "while Architect will endeavor to provide a project that meets the stated goals of LEED silver (or whatever), the achievement of the LEED rating is not under the control of the Architect and no liability will be accrued. And as for the requirement by "law" -- its simply not enforceable. what will the city of Seattle do to a project that doesn't get the LEED rating? make them take out some floors of the building? you can't give out a building permit that is conditional on something that no one has any control over. Julie Root Senior Member Username: julie_root Post Number: 72 Registered: 02-2004 Posted on Monday, January 08, 2007 - 08:03 pm:    In the City of Pasadena, CA the USGBC LEED score card is required for permit submittal and in order to get the permit you have to achieve many sign offs with various departments who look at certain credits. We have not gone through the whole process yet, but apparently it will be reviewed again before Certificate of Occupancy is issued. I agree that it seems difficult to enforce, but I think in the future we will see more of this. As we get better about implementing sustainable practices I do not think it will be that big of a deal. Just like codes from version to version there is usually a couple of big things that change that has everyone in a panic for several months until it is problem solved. LEED credits in my experience from version to version are similar. We all seem to adjust and make the transition, then the next issuance comes out. We always put a buffer in and our contract language is similar to what Anne wrote. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 432 Registered: 07-2002 Posted on Wednesday, January 10, 2007 - 12:48 pm:    the diffference --- and its huge -- is that the LEED rating doesn't come from the governmental agency. we have experience with energy codes and building codes that are adopted by a building department or agency, and they also have the ability to make exceptions for various reasons -- ie, you can appeal or ask for a code variance. if the City of Seattle (or Pasadena) granted the LEED rating, then there would be some latitude. we have a somewhat comparable thing with getting hospitals certified by the JCAH, but the scope of their certificate is somewhat more static, and more predictable. with LEED, we've had several experiences of us doing what was required for a particular credit... and then having the interpretation change to be more exacting than we had worked toward.