Massachusetts Builders Blog

Subcontractors: Include indemnity clauses for their role in the installation Require lien waivers when work is complete and subs have been paid. Make sure your subs are well versed in the installation of the “green” product. Provide them with manufacturer’s documentation in order to ensure warranty.

1. Contract with Consumer Include type of certification sought and appendix with all requirements. Have consumer initial all pages and sign off. Do not promise what you can’t deliver. Installation is on builder but can have indemnity agreement with subcontractor. Failure to install properly can invalidate manufacturer’s warranties. Designate who is responsible for rebates Can always provide a warranty for your workmanship. Include suggested guidelines for performance, but do not guarantee performance. Spell out homeowner’s responsibilities to ensure performance. Include change orders for a greater than ten percent increase in the cost of materials. Include the right to substitute like materials if a given item is no longer available.

The Contract is your most important protection against risk. Cover all potential areas of risk in your contract. Types of contracts i. Builder/Owner ii. Builder/Designer iii. Builder/Subcontractor iv. Builder/Supplier

1. Performance Avoid guarantees if possible. Allocate risk amongst builders, subcontractors, suppliers and owners. Account for regional variations Only pass on manufacturer’s warranties Discuss maintenance responsibilities

1. Warranties a. Clearly delineate warranties for materials, installation and performance. b. Allocate risk c. Beware of implied warranties in your state.

1. Green materials and supplies a. Beware of “greenwashing” and potential for fraud. b. Educate yourself about options. c. Include disclaimers for materials chosen by consumers d. Pass on manufacturer’s warranties e. Beware of implied warranties in your state

In prior posts, I have brought up the possibility that other green certification standards may surpass LEED. Here is a blog post about a standard that claims to go beyond LEED and consider issues that LEED does not cover, such as beauty and aesthetics: http://www.examiner.com/x-27898-Green-Technology-Examiner~y2009m11d15-Move-over-LEED-make-room-for-ILBI?cid=exrss-Green-Technology-Examiner What do you folks think of the ILBI standard?

1. Rebates and Tax Incentives a. Familiarize yourself with requirements for rebates and tax incentives. b. Designate responsibility for the acquisition of rebates. c. Avoid guaranteeing acquisition of rebates to homeowners if possible.

Certification a. Discuss options with homeowners. b. Consider design team to maximize cost savings c. Provide overview to homeowners. d. Decide whether it’s worth to receive a level of certification. e. Make sure homeowners are aware of increased financial burden f. Familiarize yourself with local and state laws that may affect certification (zoning, conservation commission). g. Changing nature of certification (requirements are fluid) h. Potential for need to renew certification.

Many standards to choose from: LEED for homes NAHB Green Building Certification http://www.nahbgreen.org/Certification/homecertification.aspx Energy Star Proposed Standard 189, Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings, is being developed by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standard e. American National Standards Institute (ANSI). The resulting ANSI approved ICC-700-2008 National Green Building Standard defines green building for single and multifamily homes, residential remodeling projects and site development projects while still allowing for the flexibility required for regionally-appropriate best green practices. Similar to the NAHB Model Green Homebuilding Guidelines, a builder, remodeler or developer must incorporate a minimum number of features in the following areas: energy, water, and resource efficiency, lot and sit...

We in the field who follow developments in green construction frequently hear that it is wonderful to "go green," but unfortunately it is usually more expensive. For that reason, "green" is still more of an upper class option, or one for those who do it because they are committed to improving our environment. Some experts say that green can be a "no lose" proposition when the construction is carefully planned, and the energy savings performance offsets the increased costs of construction, materials and supplies. However, the amount of funds saved may not offset the initial cost of green construction for years. The calculations seem to indicate that they eventually will. One of the factors in making a green construction project a success is planning. Ideally, the project will have all of the subcontractors on board from the beginning. Materials will be chosen in advance. The team will coordinate and work together when the project commences. Design d...

Resources NAHB-National Green Building Program http://www.nahbgreen.org/ LEED for Homes http://www.usgbc.org/DisplayPage.aspx?CMSPageID=147 ANSI Green Building Standard http://www.nahbgreen.org/Guidelines/ansistandard.aspx ASHRAE Green Building Standard http://www.ashrae.org/pressroom/detail/16309 Green Real Estate Law Journal http://www.greenrealestatelaw.com/ Green Building Law Update http://www.greenbuildinglawupdate.com/ Green Building Law http://www.greenbuildinglawblog.com/

Potential areas for risk: Certification Rebates and tax incentives. Green materials and supplies Installation Warranties Performance

Before I continue with my legal issues in green construction series. I have to report about two of my main interests in life these days: Starbucks and LEED certification. Starbucks is my favorite coffee. In fact, if I must admit it, I am a little obsessed. They are using their market influence to adopt a practice for LEED certification for all of their new stores. They are also using LED lights. That helps justify my spending $3.50 on a cappuccino. After all, it's for a good cause. Here's the article: http://www.reuters.com/article/mnGreenBuildings/idUS32581121620091113

Thank you Matthew DeVries for this post on the new green provisions available from Consensus Docs. This goes well with my series on green building: http://www.bestpracticesconstructionlaw.com/2009/11/articles/green-building/hot-off-the-press-consensusdocs-releases-green-building-addendum/

I recently participated in a webinar for Professional Builder Magazine called Legally Green: Deliver the Green You Promise. In that presentation, I discussed the additional risks for liability in green construction and how builders can protect themselves. I am going to publish a series of posts that summarize the areas that I have identified that may cause disputes as time goes on. First some statistics from around the Internet regarding the current status of green construction on the residential side: Green building is up even though construction is down. The National Association of Home Builders recently released figures from a survey of multi-family builders and developers. 74 percent of respondents said that their buyers and renters are willing to pay more for green amenities. However, the median additional amount that they’re willing to pay is just 2 percent. 89 percent of respondents (again, multi-family builders and developers, nationwide) said they are currently insta...

Here's to Timothy Hughes, who wrote this post: http://www.stumbleupon.com/s/#1j5Fqr/www.valanduseconstructionlaw.com/2009/10/articles/litigation/how-construction-and-other-clients-can-help-themselves// I will add one: I try to respond to clients as quickly as possible when they contact me. Please afford me the same courtesy.

Here's an exciting piece of information. Finally some goods news from Chris Thorman, who blogs about construction estimating software . MA is the top job generator with stimulus dollars for construction. http://www.softwareadvice.com/articles/construction/state-by-state-is-the-stimulus-bill-creating-construction-jobs/

As you may know, I am taking a class in LEED 2009, and am considering taking one of the exams. One of the questions that keeps plaguing me is why bother? The documentation process is incredibly detailed, the requirements are extensive and one has to hire a commissioning agent for some of the credits. I keep wondering how much expense is added when one tries to attain LEED certification and whether it's just an option for the elite. This blog post speaks to that issue and actually spells out the numbers. http://www.hotelinteractive.com/article.aspx?articleid=15282 As the article states, " Doing the government documents alone cost $50,000. " This does not make me happy. On the one hand, we are told that LEED certification is the goal. It is an achievement of which to be proud. It shows a dedication to preserving and improving our environment. However, a consultant and/or commissioning agent is usually required, and now further regulations have come into effect requir...