Green or LEED-certification projects are not only a rapidly growing part of the North American construction market, but green building contracts have legal pitfalls that can affect liability for the contractor and precast concrete producer.
By Lane F. Kelman and Lori Wisniewski Azzara
Everyone’s ears perk up when questions of legal liability in construction arise. With the increasing demand for greener, more sustainable buildings, the construction industry is rapidly evolving. A surge in green construction, with new LEED-related strategies and technologies, means greater market opportunities for the precast concrete industry. Along with these new opportunities, however, it is imperative that contractors and manufacturers thoroughly understand precast concrete’s role in a sustainable project and how precast inherently contributes to achieving green project goals. Moreover, to protect their interests and the bottom line, producers and contractors must understand the unique risks and legal issues associated with green construction.
A review of the LEED rating system
Green building standards can be established by local, state or federal governments or through the adoption of the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) rating system. LEED is a voluntary scoring system that measures and evaluates a building’s sustainability. Because LEED is the most prevalent rating system, an in-depth understanding of point allocation and how precast concrete can contribute to achieving certification is critical to succeeding in this emerging market.
Developed by the U.S. Green Building Council in 2000, the LEED rating system provides building owners and operators with a framework to implement design and construction practices that reduce adverse environmental impacts and increase occupant health and well-being. The LEED rating system exists for various forms of construction, including new construction.
• LEED-New Construction (NC) is a commonly used rating system for new construction and major renovation projects. Achieving LEED certification signifies that a project has independent, third-party verification for high performance in design and construction strategies, including sustainable site development, water efficiency, energy and atmosphere, material and resources, and indoor environmental quality.
• LEED-NC points are allocated as follows:
Sustainable sites = 26 points
Water efficiency = 10 points
Energy and atmosphere = 35 points
Material and resources = 14 points
Indoor environmental quality = 15 points
Total = 100 points
Bonus:
LEED innovation in design 6 points
Regional priority 4 points
The total points earned determine whether a project
will be LEED certified as:
Certified (40-49 points)
Silver (50-59 points)
Gold (60-79 points)
Platinum (at least 80 points)
Why precast concrete can be green construction’s “MVP”
Precast concrete’s numerous green qualities make it the preferable choice for projects seeking LEED certification, as it:
1. Can be reused and recycled
2. Utilizes waste and recycled materials
3. Optimizes a building’s energy performance
4. Is typically made from locally available materials
Not only do precast products relate directly to certain LEED credits, but they can make significant contributions to capturing other essential LEED points. Other areas in the LEED-NC rating system where precast concrete can play a critical role in helping a project achieve its certification goals include:
Sustainable Sites credits:
• One point for developing the site in a manner that protects or restores the habitat. Precast concrete is manufactured in a controlled environment and is rapidly installed, thereby reducing on-site construction disturbance, equipment, traffic, noise, emissions, workers and construction waste.
• One point for maximizing the open space. Lower-level precast parking garages located within a building minimize the building’s footprint and allow for the natural habitat to remain undisturbed.
• Two points for the quantity and quality control of stormwater management. Precast concrete stormwater products limit the disruption and pollution of natural waterflow by managing stormwater runoff and reducing pollutants from construction sites. Precast concrete’s strength and durability allows it to withstand water pressures inside the system as well as the external existing conditions. Precast concrete permeable pavers reduce runoff water, facilitating natural percolation into the soil.
• One point for reducing urban “heat island effects” with roof surfaces and one point for non-roof surfaces. Precast concrete’s thermal mass and light color (including custom white, self-cleaning and smog-reducing concrete)1 reduce heating costs, reflect solar rays and increase overall building energy efficiency. Precast concrete underground parking structures and their inherent strength (for supporting solar panels or green roofs) also reduce heat island effects and building footprints and increase overall energy savings.
Energy and Atmosphere credits:
Buildings seeking LEED certification are required to establish a minimum level of energy efficiency and reduce the environmental and economic impacts associated with excessive energy use. The project must comply with certain building performance prerequisites in the Energy Standard for Buildings Except Low-Rise Residential Buildings (I-P Edition, ANSI/ASHRAE/IESNA Standard 90.1-2007) or applicable prescriptive measures in ASHRAE’s Advanced Energy Design Guide.
• A maximum of 19 points can be awarded for optimizing building energy performance beyond the baseline in the prerequisite standard. Precast concrete’s thermal mass and insulated sandwich wall panels help to increase building energy efficiency, which contributes to satisfying this prerequisite and obtaining critical points associated with this credit.
Material and Resources credits:
• Up to three points for maintaining the building’s existing structure, including the walls, floors and roof. This credit’s goal is to conserve resources and reduce waste and environmental impacts associated with new construction. The durability and adaptability of precast concrete can significantly aid in achieving points associated with this credit. Precast concrete’s low-maintenance surface and resilience ensure a long service life, and precast can remain during renovation. Moreover, precast panels can be moved and reused without requiring demolition of the entire structure.
• Up to two points for permanently installing materials with preconsumer and/or postconsumer recycled content of 10 to 20%. Supplementary cementitious materials (SCMs), such as fly ash, silica fume and slag cement, qualify as preconsumer recycled material, whereas recycled concrete or slag are considered postconsumer recycled materials.
• Up to two points if 10 to 20% of permanent building materials are extracted, harvested and manufactured locally (within 500 miles of the project site). The use of local materials reduces fuel costs and transportation emissions and supports the regional economy. Precast concrete products are typically comprised of locally extracted materials and produced within 200 miles of the project site.
Indoor Environmental Quality credits:
• One point for reducing indoor air quality problems from construction and/or renovation work (i.e., dust, airborne pollutants, mold). The goals of this credit are to reduce and contain air pollutants generated during construction and to protect absorptive materials from moisture damage. Precast concrete is manufactured off site, delivered to the site in pieces (eliminating onsite concrete cutting), unaffected by moisture, and does not facilitate mold growth.
Innovation in Design credits:
• Up to five points for demonstrating exemplary performance (above and beyond the requirements set forth in the LEED rating system) and/or for exhibiting innovative performance in green building categories not specifically addressed in the rating system. For example, a project that exceeds the recycled content or regional materials threshold could obtain additional points under this credit. Precast concrete’s sustainable characteristics make it an optimal green project choice for obtaining LEED certification.
• One point if a principal project participant (including the precast manufacturer) is a LEED-Accredited professional.
Green contracts: allocation of legal responsibilities
& liabilities
Precasters and contractors know there is no one-size-fits-all standard form contract, and there is no exception for contracts seeking LEED certification or that incorporates green building practices or specifications. The language of any standard form building contract must be modified to account for the specific and unique owner requirements on a project. The contract should:
1. Clearly define the project’s goals and requirements, especially with respect to the building’s operational performance and obtaining third-party, including LEED, certification.
2. Delegate green building responsibilities and identify the party ultimately responsible for achieving certification.
3. Identify the LEED points being pursued, how points will be attained, and the party responsible for record maintenance and submission to the certifying agency.
4. Specify methods for early planning/strategy meetings to ensure that the project’s construction materials and methods will capture the necessary LEED points.
Precast concrete manufacturers and suppliers should be prepared to provide detailed documentation regarding their products’ sustainability features and how the use of their products will contribute to LEED points and/or satisfy LEED criteria. Because precast concrete has the potential to contribute to a number of credits and points, there is an increased risk of liability when the product is specified for the purpose of obtaining particular LEED points and/or credits. If the contract documents are not properly drafted, the precast manufacturer or supplier could be held liable for delay in certification and/or failure to achieve the desired certification should the precast concrete not perform as originally anticipated.
With this rapidly growing green construction market comes increased risk and liability. Precasters and contractors must be proactive in thoroughly understanding LEED credits for which they can contribute, and they must be armed with contracts that clearly define responsibilities and the scope of work. When they do, they will be in a better position to avoid future disputes and guarantee that the project’s green goals are met.
Lane F. Kelman is a partner and Lori Wisniewski Azzara is an associate at Cohen Seglias Pallas Greenhall & Furman PC, based in Philadelphia. Both practice in the Construction and Green Building Sustainability Practice Groups. Lane can be reached at (215) 564-1700 or [email protected], and Lori can be reached at (412) 434-5530 or [email protected]
1 See the self-cleaning concrete article in the Fall 2012 issue of Precast Solutions magazine.
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