Page 293 - The Green Building Bottom Line The Real Cost of Sustainable Building
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THE FINE PRINT: LEGAL ISSUES IN GREEN BUILDING PROJECTS  271



                         would reduce operating costs and provide a healthier indoor environment. Budget
                         and scheduling concerns prevented the building from achieving Gold certification.
                         The developer sued the architect, claiming that the architect had guaranteed the cer-
                         tification level.
                       ■ After a green roof was installed on a building, water infiltration resulted in signifi-
                         cant damage. Analysis concluded that a lack of structural stability caused the infil-
                         tration.  The structural engineer claimed that no one had provided proper
                         information related to the green roof. The engineer’s liability had been limited con-
                         tractually to $50,000, an amount insufficient to repair the damage.
                       ■ A law firm hired an architect to design a sustainable office that would receive favor-
                         able press.  The architect received promotional materials from manufacturers of
                         green products and, based on these materials, incorporated the products into the
                         design of the office. The local press investigated the products and claimed that they
                         were not as sustainable as suggested by the promotional materials. The law firm
                         claimed its reputation was damaged and demanded that the architect remedy the
                         situation.
                       ■ A county government required the recycling of construction materials. The archi-
                         tect on a project in the county agreed to provide construction observation services.
                         The contractor decided during construction that the recycling obligation was caus-
                         ing delays and that prices for recycled material had declined. It began dumping con-
                         struction waste in another state. When the county took action against the project’s
                         owner, the owner sued the architect for failure to properly observe construction.


                         Other claims have involved patent infringement, consumer protection laws,
                       breaches of confidentiality, and mold issues. The range of possible claims from any
                       building project is nearly unlimited, and developers always need to consider how to
                       protect themselves. How are these considerations different for a green building
                       project?


                       1. Nature of the Obligation
                       When a developer enters into a contract with a design or construction professional, the
                       contract typically does not require the professional to perform its obligations perfectly.
                       Rather, the professional usually agrees perform its obligations in a manner consistent
                       with the degree care ordinarily exercised by other members of the profession in simi-
                       lar circumstances. This is called the “standard of care.”
                         In a green building project, the standard of care may not be adequate to protect the
                       developer’s interests. Two of the above examples describe instances where an archi-
                       tect recommended green products that either caused construction delays or were not
                       as green as advertised. If the architects in those cases had agreed to use only the degree
                       of care ordinarily exercised by other architects in similar circumstances, they might
                       not have been expected to thoroughly investigate the availability or environmental
                       attributes of the products in question.
                         If additional risks arise out of the fact that a developer is constructing a green build-
                       ing, that developer may need to consider requiring guarantees or other assurances
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