The National Law Review’s featured guest bloggers this week are from Pepper Hamilton LLP. Wendy Klein Keane outlines things that need to be considered for LEED® or similar certifications: 
If you are contemplating pursuing certification under the LEED (Leadership in Energy and Environmental Design) Green Building Rating System or another green building code or standard for a construction project, it is important that you integrate these objectives and requirements into your design services agreement. It is equally important that these issues be integrated into the construction services agreement(s) for the project as well, but those issues will be addressed in a future post. As a starting point, you should consider the following questions and ensure that they are covered by your design services agreement.
1) What kind/level of certification are you seeking for the project? While you may not know the precise level of certification that you will obtain, you should include a provision in the contract that identifies the governing standard that has been chosen (or is required) for the Project.
2) Does the agreement permit you to use the instruments of services to obtain that certification? You need to make certain that your agreement with the design professional permits the underlying design documents to be used to apply for and obtain certification, without constituting a breach of the contract or violation of copyright laws.
3) What additional scope of services will be required as a result of seeking LEED or similar certification? Obtaining LEED or similar certification is dependent on not just the design professional’s performance, but also a variety of other factors including the contractor’s performance, the budget, the documentation, and the institution responsible for the certification process. As a result, the agreements for the project should be carefully drafted to make sure that the required scope is correctly and completely allocated amongst the parties. There are currently only a few standard forms that address a design professional’s scope of services for a project seeking LEED or similar certification. One example is the American Institute of Architects (“AIA”) Document B214-2997 (Standard Form of Architect’s Services: LEED Certification) (http://www.aia.org/contractdocs/AIAS076745). Article 2 of the AIA-B214 includes services that could be provided by the design professional for projects seeking LEED certification. The B214 can be modified and made an exhibit to your design services agreement. Another example is the ConsensusDOCS 310, Green Building Addendum, (http://consensusdocs.org/catalog/300-series/), which is appropriate for use on any green building project. You could also review and integrate parts of the LEED Green Building Rating System or other relevant written codes or standards into the agreement. All of these sources are starting points only and must be evaluated and made suitable for your project.
4) How will achieving LEED or similar certification be guaranteed or incentivized in the agreement? Owners and design professionals should consider the risks and benefits of obtaining certification and develop contractual provisions to ensure that the desired certification is obtained. One way to encourage performance is through a liquidated damages provision where the design professional bears some financial responsibility if certification is not obtained due to his or her acts or omissions. Another possibility is to include a bonus payment tied to completing the application process or obtaining actual certification.
These questions touch on only a few considerations that can be integrated into your design services agreement to make certain that the necessary contractual framework is in place to successfully achieve the desired green certification for your project. The specific facts and goals of each project should be considered and included in the design services agreement for that project.
Copyright © 2010 Pepper Hamilton LLP
About the Author:
Ms. Klein Keane is an associate in the Construction Practice Group of Pepper Hamilton LLP, resident in the Philadelphia office. She also is a member of the firm’s Sustainability, CleanTech and Climate Change Team. She is one of the few attorneys who passed the Green Building Certification Institute’s exam to qualify as a LEED® (Leadership in Energy and Environmental Design) Accredited Professional. Ms. Klein Keane has experience counseling clients through all phases of the construction process on both public and private projects, including contract drafting and negotiation, bidding, contract administration, and litigation and alternative dispute resolution proceedings. www.pepperlaw.com / 215-981-4982
