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Green Buildings: Law, Contract and Regulation

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Peter S. Britell


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Local and state governments are increasingly adopting mandates requiring green construction. Lenders commonly insert green requirements into mortgages. National tenants require green in their leases. Whether you represent buyers, lenders, owners, tenants, construction companies, or design and engineering firms, green is no longer optional.

Green Buildings: Law, Contract and Regulation is a detailed practitioner's guide to everything from green terminology — the “language of green” — to complex issues of real property law, liability and due process. It discusses government mandates, green requirements and incentives, and clauses in all the standard types of agreements affecting real estate — purchase, sale, lease, mortgage financing, design, construction, and insurance. It also examines statutory language in detail.

Throughout, Green Buildings: Law, Contract and Regulation features realistic examples and practical solutions. Four appendices provide summaries of government mandates and incentives, green building codes, zoning laws, tax credits and similar incentives from state and local governments from coast to coast. This is the ultimate guide for attorneys trying to stay in the vanguard of the green revolution.

Book #00707; looseleaf, one volume, 708 pages; published in 2010, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-169-9

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 708
  • ISBN: 978-1-58852-169-9
  • Pub#/SKU#: 707
  • Volume(s): 1

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  • Peter S. Britell

Peter S. Britell is a partner in Venable LLP. Prior to 2010 he chaired the global real estate and construction group at Dewey & LeBoeuf. He has broad experience in virtually every area of construction and real estate practice and has been lead counsel in many high-profile transactions and projects. He is listed under Real Estate in Best Lawyers in America, New York Super Lawyers and The New York Area's Best Lawyers. He is an Adjunct Professor at University of Miami School of Law where he created one of the first law school courses (if not the first) in the Law of Green Buildings for their L.L.M. Program in Real Property Development. He was pro bono chair of Housing & Services, Inc. a New York not-for-profit corporation which during his 13-year tenure created more than $200 million in housing for the homeless and other lowest-income tenants. Mr. Britell is a magna cum laude, Phi Beta Kappa graduate of Harvard College and a cum laude graduate of Harvard Law School and holds an LL.M in Taxation from New York University Law School. He has written extensively on real property and construction law. He is on the National Roster of Neutral Arbitrators of the American Arbitration Association (Construction and Commercial Panels). Mr. Britell's interest in the legal aspects of sustainability began with a question: "What is the role of the lawyer in the green revolution?" This led him to write "What Does Green Mean?" (Green Terms in Commercial Agreements) with Smita G. Korrapati, New York Law Journal (June 11, 2007), which was the impetus for this treatise.


Introduction—What is Green? A New Legal Language

CHAPTER 1
Introduction-What is Green? A New Legal Language

§ 1.01 The Role of the Lawyer in the Green Revolution
§ 1.02 What is Green?
§ 1.03 Green Law Outline
[1] Introduction
[2] Sources of Green Requirements; Green Rating Systems
[3] Government Green Mandates - Building Codes and Other Mandatory Requirements
[4] Selection of Property—Due Diligence
[5] Green Provisions in the Purchase and Sale Agreement
[6] Green Incentives (Property Tax Abatements, Income Tax Credits, Zoning Bonuses and Others)
[7] Green Provisions in Leases
[8] Green Issues in Mortgage Finance
[9] Green Issues in Insurance Coverage
[10] Green Issues in Construction Management Agreements and Construction Contracts
[11] Green Issues in Design and Engineering Agreements
[12] Government Green Requirements and Incentives

CHAPTER 2
Sources of Green Requirements; Green Rating Systems
Chapter Contents

§ 2.01 New Language of Green
[1] What are Green Requirements? Green Ratings?
[2] Sources of Green Requirements
[3] Green Rating Systems
§ 2.02 Leadership in Energy and environmental Design (LEED)
[1] LEED Overview
[2] Process for Obtaining LEED Certification
[3] LEED Accredited Professionals
[4] LEED Credit Interpretation Requests and Appeals
[5] Issues with LEED
[6] Internationalization of LEED
§ 2.03 Green Globes
[1] What is Green Globes?
[2] Process for Obtaining Green Globes Certification
[3] Green Globes Third-Party Assessors
[4] Issues with Green Globes
§ 2.04 Residential Green Rating Systems: NGBS and LEED/H
[1] Introduction
[1] National Green Building Standard
§ 2.05 ENERGY STAR
§ 2.06 ASHRAE 90.1-2007
§ 2.07 Capital Markets Partnership Green Building Investment Underwriting Standards
[1] Evaluation Tool for Lenders and Investors
[2] Other Non-Governmental Green Rating Systems
§ 2.08 Governmental Green Requirements
§ 2.09 Contractual Green Requirements
§ 2.10 Administrative Agencies with Green Jurisdiction
§ 2.11 Judicial Decisions and Other Green Mandates
[1] Common Law of Green
[2] Regulated Businesses
[3] Professional Ethics
[4] Insurance Policy Requirements
§ 2.12 Model Codes: The International Green Construction Code
[1] Introduction
[2] Is There a Need for Another Green Building Guideline?
[3] Overview of the IGCC
[4] Potential Legal Issues

CHAPTER 3
Government Green Mandates (Building Codes and Other Mandatory Requirements)
Chapter Contents

§ 3.01 Introduction
[1] What are Green Mandates?
[2] Categories of Governmental Green Mandates
[3] General Issues with Governmental Green Mandates
[4] Legal Challenges to Green Mandates
[5] Departures from LEED
§ 3.02 Green Rules in Building Codes, Ordinances, or Rules
[1] Different Types of Rules
[2] Green Building Codes
[3] International Green Construction Code
[4] Evolution of Green Mandates
§ 3.03 Municipal Green Mandates for Government Buildings and Government-Funded Projects
[1] Atlanta, GA
[2] Austin, TX
[3] Bangor, ME
[4] Berkeley, CA
[5] Bloomington, IN
[6] Portland, ME
[7] Kansas City, MO
[8] New York, NY
[9] Chapel Hill, NC
[10] Portland, OR
[11] Houston, TX
[12] Washington, DC
§ 3.04 Muncipal Green Rules for Private Non-Governmental Projects
[1] Los Angeles, CA
[2] San Francisco, CA
[3] Boulder, CO
[4] Albuquerque, NM
[5] New York, NY
[6] Dallas, TX
[6] Berkeley, CA
[6] Washington, DC
§ 3.05 Green Mandates in Zoning Ordinances
[1] Miami, FL
[2] Boston, MA
§ 3.06 State Green Mandates
[1] California Green Building Standards Code (“CalGreen”)
[2] Response to the Adoption of CalGreen
§ 3.07 Enforcement Mechanisms in Green Mandates
[1] Denial of Building Permit or Certificate of Occupancy
[2] Financial Penalty or Loss
§ 3.08 Vagueness Or Invalid Delegation of Legislative Authority
§ 3.09 Dispute Resolution in Green Mandates
§ 3.10 Other Green Mandates
[1] Regulated Businesses
[2] Professional Ethics
§ 3.11 What Municipal Managers Should Know About Green Law

CHAPTER 4
Due Diligence in the Selection of Property
Chapter Contents

§ 4.01 The Green Factor in Property Selection
[1] General
[2] Purpose and Techniques of Due Diligence
[3] What Are the Green Factors?
[4] Existing Green and Future Green
[5] How to Find Green Properties
§ 4.02 Engineering and Environmental Inspection
[1] General
[2] Green Engineering Inspection
[3] Green Environmental Inspection
§ 4.03 Green Consultants
[1] Green Ratings Consultants
[2] Green Appraisers
[3] Other Types of Green Consultants
§4.04 Green Zoning Review
[1] Additional Task for Attorneys
[2] Title Insurance Zoning Endorsement
§ 4.05 Green Lease Review
[1] Standard Part of Due Diligence
[2] Tenant Requirements
[3] Landlord Requirements
[4] Confirmation of Green Facts: Green Consultants and Estoppel Certificates
[5] Other Types of Green Certification
§ 4.06 Green Mortgage Review
[1] Mortgages to Be Assumed
[2] Loans Not Yet Disbursed
[3] Mortgage Estoppel Certificate
§ 4.07 Green Covenants, Conditions, and Restrictions
[1] Rights to Approve Design—Residential Developments
[2] Rights to Approve Design—Industrial Subdivisions
§ 4.08 Green Easements
[1] Many Kinds of Easements
[2] Greening of Easements
§ 4.09 Green Tax Benefits
[1] Green Income Tax Credits
[2] Green Property Tax Benefits
§ 4.10 Green Architect, Engineering, and Consulting Agreements
[1] Projects In Development
[2] Completed Projects
§ 4.11 Green Construction Contracts for Projects in Development or Under Construction
§ 4.12 Green Property Management Contracts
[1] Property Manager Tasks
[2] Green Management Contract Due Diligence
§ 4.13 Green Service Contract Due Diligence
[1] Broad Range of Services
[2] Green Issues

CHAPTER 5
Green Provisions in the Purchase/Sale Agreement
Chapter Contents

§ 5.01 General
[1] Starting Point
[2] Importance of New Green Provisions
§ 5.02 Representations and Warranties
[1] General
[2] Standard Non-Green Representations; Facts Not Available in the Public Record
[3] Green Representations and Warranties—A Major Category
[4] Different Types of Green Representations and Warranties
§ 5.03 Covenants
[1] General
[2] Non-Green Covenants
[3] Green Covenants
§ 5.04 Conditions
[1] General
[2] Green Conditions
§ 5.05 Prorations and Apportionments
[1] General
[2] Green Apportionments
[3] Green Tax Credit Prorations
[4] Green Energy Revenues and Expenses
[5] Green Purchase Price Adjustments
§ 5.06 Remedies for Default; Damages
[1] Traditional Remedies
[2] Remedies for Green Defaults
§ 5.07 Indemnities
[1] Purpose of Standard Indemnities in the Purchase/Sale Agreement
[2] Types of Green-Specific Indemnities
[3] Green Indemnity Covering Buyer Costs to Cure
[4] Green Indemnity for Loss of Defined Money Benefit
[5] Green Indemnity for Third-Party Claims

CHAPTER 6
Green Incentives
(Property Tax Abatements, Income Tax Credits, Zoning Bonuses and Others)
Chapter Contents

§ 6.01 Introduction
[1] What are Green Incentives?
[2] Certain General Issues with Green Incentives
[3] Departures from LEED
[4] Due Diligence
§ 6.02 Technical/Compliance Issues in All Green Incentives
[1] Technical Requirements for Compliance
[2] Consequences of Non-Compliance
[3] Stages of the Application/Compliance Process
§ 6.03 Green Income Tax Credits—General
§ 6.04 Tax Credits for Sustainable Design and Construction
[1] Maryland
[2] New Mexico
[3] New York
[4] Oregon
§ 6.05 Tax Credits for Renewable Energy and Energy Conservation
[1] General
[2] Federal Tax Credits
[3] State Tax Credits
§ 6.06 Real Property Tax Incentives—General
§ 6.07 Real Property Tax Incentives for Green Design and Construction
[1] Cincinnati, OH
[2] Howard County, MD
[3] State of Nevada
§ 6.08 Real Property Tax Incentives for Renewables or for Energy Conservation
§ 6.09 Zoning Incentives for Sustainable Development
[1] Philadelphia, PA
[2] Pittsburgh, PA
[3] Nashville, TN
[4] Arlington, VA
[5] Seattle, WA
§ 6.10 Green Sales Tax Incentives
§ 6.11 Green Grants from Public and Private Sources
§ 6.12 Mortgage Lending Incentives for Green Projects
§ 6.13 Insurance Incentives for Green Projects
§ 6.14 Expedited Permitting

CHAPTER 7
Green Provisions in Leases
Chapter Contents

§ 7.01 Green Provisions Are Appearing in Many Leases
[1] General
[2] Landlord Green Covenants
[3] Major or National Tenant Green Requirements
[4] Impact of Major Tenant Green Requirements on Other Tenants
[5] Remedies for Breach of Green Covenants
[6] Indemnification for Breach of a Green Covenant
[7] Rights and Costs to Cure
[8] Green Issues in Bankruptcy
[9] Green Description of Premises
[10] Purchase of Electricity from Landlord
[11] Green Issues in Subleases and Assignments
[12] Disclosure Issues
[13] Similar Provisions for Many Leases; Differences by Category
§ 7.02 Landlord Green Provisions—Office Leases
[1] When Tenants Will Encounter LEED/Green Ratings
[2] Design and Construction of Tenant Fit-Out
[3] Design and Construction of Future Alterations
[4] Tenant Use and Operating Covenants
[5] Green Cleaning and Rubbish Disposal
[6] Green Rules and Regulations
§ 7.03 Tenant Green Provisions - Converse of Landlord Standards
§ 7.04 Store Leases
[1] Landlord Provisions
[2] Tenant Provisions
§ 7.05 Shopping Center Leases
[1] Landlord Provisions
[2] Tenant Provisions
§ 7.06 Restaurant Leases
[1] Landlord Provisions
[2] Tenant Provisions; Major Tenant Green Programs
§ 7.07 Residential Leases (Rental Apartment or Condo)
[1] Landlord Provisions
[2] Condominium Leases
§ 7.08 Master Lease of Entire Building
§ 7.09 Ground Leases
§ 7.10 The Movement Toward Model Green Leases and Lease Clauses
[1] What is a Green Lease?
[2] Green Leases Toolkit
[3] New York City Model "Energy-Aligned" Lease Clause
[4] The BOMA Model Green Lease
[5] General Thoughts on Model Green Leases

CHAPTER 8
Green Issues In Mortgage Finance
Chapter Contents

§ 8.01 Green Law Affects Mortgages of All Types
[1] “Involuntary” Green Impact on Lenders
[2] Impact on Different Types of Mortgages
[3] Four Categories of Green Issues for All Mortgages
[4] How Green Affects Mortgage Collateral
§ 8.02 Green Issues in New Loans
[1] Pre-Closing Green Conditions—New Developments
[2] Pre-Closing Conditions—Existing Buildings
§ 8.03 Sale of Property Before Full Funding of Loan
§ 8.04 Sale of Property Subject to Funded Loan
§ 8.05 Types of Green Loan Covenants
§ 8.06 Green Loan Remedies
[1] Correctable Problems
[2] Uncorrectable Problems
§ 8.07 Green Issues in Specific Types of Loans
[1] Land Loans
[2] Condo Development Loans
[3] Large Scale Mixed-Use Development Loan
§ 8.08 Green Regulatory Requirements
§ 8.09 Green Issues in Loan Syndications and Participations
§ 8.10 Green Issues in Appraisals
[1] MAI Appraisals
[2] Bank Regulators

CHAPTER 9
Green Issues in Insurance Coverage
Chapter Contents

§ 9.01 Green Impact in All Types of Coverage
[1] Introduction
[2] Categories of Green Insurance
§ 9.02 Green Issues In Property Insurance
[1] Incremental Costs of Green Construction
[2] New Coverage Issues
[3] Green Risk Insurance Issues of Additional Insured and Other Parties
[4] Waivers of Subrogation and Releases
[5] Examples of New Green Property Insurance Coverage
§ 9.03 Green Issues in CGL Policies
[1]  Standard Commercial General Liability Insurance
[2]  Examples of Green Issues under CGL Policies
[3]  Additional Insured Green Issues under CGL Policies
§ 9.04 Professional Liability Coverage Issues
[1] Difficulty of Assessing Green Risks
[2] Issue of Green Direct vs. Consequential Damages
[3] Insurance for LEED Professional or Commissioning Agent

CHAPTER 10
Green Issues in Construction Management Agreements and Construction Contracts

§ 10.01 Green Impact on Both Process and Completed Construction
[1] All Construction Contract Structures
[2] Green Provisions Specific To Type of Agreement
§ 10.02 Green Pre-Construction Services
[1] Green Cost Estimating
[2] Green Constructability Analysis
[3] Green Value Engineering
[4] Enhanced Commissioning as Part of Pre-Construction
[5] Green Scheduling
[6] Green Logistics/Planning Green Means and Methods
[7] Green Due Diligence on the Project Site
[8] Murphy’s Law of Green Planning
§ 10.03 Green Bidding of Trades
[1] Prequalification of Green Contractors/Subcontractors
[2] Analysis of Green Bids
[3] Experience with Green Ratings and Government Requirements
[4] Importance of Financial Strength; Bonding Issues
§ 10.04 Green Issues in Bidding or Negotiation of GMP or Lump Sum
[1] Bid Risk or Post-Bid Pricing
[2] Green Issues in General Conditions
[3] Green Issues in Construction Contingency
[4] Green Issues in Public or Private Bidding of GMP or Lump Sum
[5] Green Issues in Time of Completion
[6] Green Issues in Means and Methods
§ 10.05 Green Issues During Construction
[1] Change Orders
[2] Delay Issues
[3] Replacement of Defaulting Contractors; Related Surety Issues
[4] Construction Defects; Green Issues in Corrective Work
[5] Construction Defects—Architect or Engineering Error
[6] Post-Certification Failure of Green Construction
§ 10.06 Green Issues in Substantial Completion and Final Completion
[1] Punch List Issues; Green Finishing Checklist
[2] Commissioning and Enhanced Commissioning
[3] Close-Out Agreements
[4] Final LEED Certification or Similar Documentation
[5] Actual Green Inspection for Green Globes or Other Green Requirements
§ 10.07 Green Damages and Remedies under Construction Contracts
[1] Completion Damages
[2] Other “Direct” Green Damages
[3] Consequential Damages vs. Direct Damages
[4] Green Consequential or Special Damages
[5] Limitations of Contractor Green Liability
[6] Green Indemnity Issues in Construction Contracts
[7] Rights and Costs to Cure
[8] Green Liability of CM as Agent (i.e., Not-At-Risk)
[9] Green Issues in Design/Build Contracts
§ 10.08 Green Issues for the Surety

CHAPTER 11
Green Issues in Design and Engineering Agreements

§ 11.01 Green Impact from Program through Completion
[1] Design and Engineering Agreements of All Kinds
[2] Design - Not Construction - Services
[3] Green Ratings and Green Requirements
§ 11.02 Green Programming
§ 11.03 Green Concept Design
§ 11.04 Architect Responsibility for LEED Services
§ 11.05 Green Cost Estimating/Cost Reconciliation
§ 11.06 Green Value Engineering/Redesign to Budget
§ 11.07 Enhanced Commissioning as Part of the Design Process
[1] Liability Issue - Independent CxA
§ 11.08 Green Issues in Project and Construction Schedules; Design Schedule
[1] Project and Construction Schedules
[2] Schedule for Architect’s Services
§ 11.09 Green Schematic Design
§ 11.10 Green Design Development
§ 11.11 Green Due Diligence
§ 11.12 Green Construction Documents
§ 11.13 Green Sub-consultants
§ 11.14 Murphy’s Law of Green Design
§ 11.15 Green Bidding of Trades
§ 11.16 Green Issues in Fee Negotiations
[1] Fee for Basic Services
[2] Green Issues in Additional Services
§ 11.17 Green Issues During Construction Administration
[1] Change Orders
[2] Punch List Issues; Green Finishing Checklist
[3] Final LEED Certification or Similar Documentation
[4] Actual Green Inspection for Green Globes or Other Green Requirements
§ 11.18 Construction Defects; Green Issues in Corrective Work
[1] Construction Defects - Architect or Engineering Error
[2] Post-Certification Failure of Green Construction
§ 11.19 Green Standard of Care
§ 11.20 Green Damages Under the Architect Agreement
[1] Direct vs. Consequential Damages
[2] Green “Direct” vs. Green Consequential Damages
§ 11.21 Limitations of Design Professional Green Liability
[1] Green Indemnity Issues in Design and Engineering Agreements
[2] Liability for Greenwashing
[3] Cure Provisions
§ 11.22 Green Liability of LEED Professional or Commissioning Agent
§ 11.23 Green Issues for the Malpractice Insurer