Wednesday, March 10, 2010
Liability and LEED
Liability & LEED
• Project Team • Contract Stylings • LEED Considerations • Contract Considerations • Coverage ConsiderationsThe Project Team
LEED project accreditation is a team effort involving: • Owners
• LEED Accredited Professional Consultants • Commissioning Authorities
• Architect & Consulting Engineers
Project Team
LEED Consultant
• Overall coordinator of LEED certification efforts • Assists design team with LEED credit projections
– Provides specifications clarifying LEED credit requirements
• Provide recommendations involving architectural details, mechanical systems and construction practices yielding LEED credits
Project Team
LEED Consultant (continued)
• Prepares submittal forms and associated documentation
– Compiles and prepares all submittals
– Assists Design and Construction team with individual submittals
• All Communications with CaGBC should be conducted through the LEED consultant
Project Team
LEED Consultant (continued) Professional Services
– LEED consultant is providing advice throughout the entire construction process
– LEED AP’s employed by design teams and contractors
• Damages as a result of these services not likely to be covered by Wrap-up and/or General Liability Forms
– BI / PD occurrence required
Project Team
Commissioning Authority (CxA)
• Leadership, review and oversight of the commissioning process
– Independent of design and contractor teams
• Ensures goals of reduced energy use, operating costs and improved productivity have been met
• Works closely with Engineering teams
Project Team
Commissioning Authority (CxA) • During Project:
– Develops an outline of design criteria – Reviews design development documents
– Prepares a proposed construction phase commissioning plan – Develops commissioning specifications
Project Team
Commissioning Authority (CxA) • Professional Services
– CxA is typically and Professional Engineer
– Expert in HVAC, Plumbing and Mechanical Systems
• Consulting Agreement needs to include Errors and Omissions insurance in addition to standard project covers.
Project Team
Architects and Engineers
• Provide design and consulting services throughout the entire lifecycle of the project
• Responsible for incorporating LEED friendly design elements into the project including:
– Sustainable site development – Water efficiency
– Energy efficiency – Material resources
Project Team
Architects and Engineers
• Incorporates LEED criteria into the overall design
• Must identify systems and components that require special attention in order to obtain LEED credits
• Must identify certification documents required under the LEED Rating System
• Review submissions of contractor and/or CM relating to LEED requirements
Project Team
Architects and Engineers
• Inspect project site for compliance with LEED criteria • Assist LEED Consultant with submittals to CaGBC
Project Team
Architects and Engineers – Liability Considerations
• Professional Liability insurance for LEED related design and consulting services is available from most Canadian and international insurers
– Issues (if they arise) likely as a result of non-disclosure
• A&E’s may be required to modify their definition of professional services to include services of LEED accredited professionals
Project Team
Construction Manager a/o General Contractor
• Responsible for compliance with LEED criteria, particularly regarding work site practices:
– Storage and collection of recyclables – Construction waste management – Material reuse & recycled content
– Construction indoor air quality management
• Documentation of site practices extremely important,
LEED credits require CM / GC to provide certifications for
– Waste Cycling and disposal
– Use of energy efficient equipment
Project Team
Construction Manager a/o General Contractor Liability & Insurance issues:
• Allegations of negligence relating to LEED compliance documentation and submittals may not be covered by CGL a/o Wrap-up liability
• Design Build Contracts obligate CM / GC to assume liability of Architect & Engineering team
• Contractors professional liability should be included within insurance specifications under certain circumstances
Project Planning
Contract Considerations • Design – Bid – Build • Design – Build
Project Planning
Integrated Design
Project Planning
• Integrated Design is a process that can be incorporated into both Design Build and Design Bid Build contracts • Process requires active and continuing participation of
– Owner and/or an Owner Representative(s) – Architect
– Engineers – Specialists
Project Planning
• Involvement of key team members and stakeholders through pre-design to project completion
– Insights developed at early stages of the project can prevent costly changes further along in the process
– Design team provided with clear direction
– Functionality of building improved by group feedback
– Project economies and collaborations may be realized and incorporated into design and construction planning.
Project Planning
Liability Concerns
• The goal of any project is to minimize conflicts
– Design Conflicts – Owners Needs
– Budgetary Concerns – Contractor Conflicts
• Claims are disruptive, costly, deflecting energy from project at hand to self defence
Contract Preparation
Designer and Contractor Feedback • Certification Delay
– Filing delays due to non-responsive subcontractor or consultant
– Adverse ruling against LEED credit(s) by CaGBC – CaGBG project backlog / non-performance
• Enforcement of LEED required documentation & record keeping
– Contractors – Subcontractors
Contract Considerations
• No standard contract approach
– Industry Contracts – Owners Forms
– Customized Project Forms
Contract Considerations
Scope of Work
• All project team members need to be held accountable for record keeping and assistance with LEED credit
submittals
• Failure to perform will result in loss or delay of LEED accreditation
• Fee holdbacks, financial penalties may need to be incorporated
Contract Considerations
Contractor vs. Consulting agreements
• Avoid temptation of signing design professionals on Contractor Agreements
• Insurance requirements clearly different
• Unclear and/or poorly drafted insurance clauses increase risk of uncovered claims
Coverage Considerations
Project Specific Coverages • Course of Construction
– Mould
– Underground Property
• Wrap-Up
• Professional Liability
– Review Definition of Professional Services for adequacy
• Disclose LEED accreditation goals (requirements) within project applications.
Coverage Considerations
Contractors Professional Liability
– LEED AP's
– Design & Engineering Staff – Safety Professionals
• Excess liability resulting from Architects and Engineers (Design-Build agreements)
Conclusion
• We are still in early days when in comes to Green Construction
• Technology evolving rapidly, may be unproven • LEED Certification is a positive step forward
– For the Environment – For our Communities – For our well being
• Insurers and Insurance Professionals stand ready to support Green Building innovation
