Attorney's Role in LEED Construction

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2



ALI-ABA Audio Seminar

Attorney's Role in LEED Construction

May 29, 2009

Telephone Seminar/Audio Webcast

TABLE OF CONTENTS

Page

PROGRAM SCHEDULE ix

FACULTY PARTICIPANTS xi

FACULTY BIOGRAPHIES xiii

STUDY MATERIALS

1. Attorney’s Role in LEED Construction--PowerPoint Presentation

by Shari Shapiro and Chris Cheatham

1

vii



2



PROGRAM SCHEDULE

for May 29, 2009

Program Schedule Eastern Central Mountain Pacific/Arizona Alaska Hawaii

NationalTeleseminar/Webcast 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 8:30 a.m. 6:30 a.m.

Adjournment 1:30 p.m. 12:30 p.m. 11:30 a.m. 10:30 a.m. 9:30 a.m. 7:30 a.m.

Scope and Purpose: Green design and construction and the potential for inclusion

of “LEED” certification requirements present opportunities for clients of construction

and real estate attorneys. Counsel must know and outline the best practices for

incorporating these requirements into construction contracts and obtaining LEED

certification. This teleconference and live audio webcast will provide an overview of

LEED certification for green buildings and offer practical advice for negotiating green

construction projects. Our speakers will discuss the current status of the

requirements and the attorney’s role as well as look to what may be next as interest

in LEED certification increases.

Topics include:

• What is the LEED rating system and what other standards exist?• Will one system be the preferred standard?

• What are the risks to Green Building and how do I manage these risks for my

clients?

• What are the benefits to LEED certification?• What does the future hold for Green Building?

• What legal issues are unique to Green Building and LEED certification? Faculty

Shari Shapiro, Obermayer, Rebmann, Maxwell & Hippel LLP, Philadelphia, PA

Chris Cheatham, Watt, Tieder, Hoffar & Fitzgerald, LLP, Washington, D.C.

Program (All Times EDT)

12:30 p.m. Attorney’s Role in LEED Construction – panel discussion

Questions and Answers 1:30 p.m. Adjournment

* Questions and Answers will be integrated into the program. Questions are welcomein advance of and during the seminar by e-mail to [email protected] (Subjectline: Faculty question).

ix



Total 60-minute hours of instruction: 1.0; Total 50-minute hours: 1.2

Suggested Prerequisite: Limited experience in legal practice in subject matter.

Educational Objective: Development of proficiency in performance of intricate and

complex legal tasks within a narrow area, provision of information on recent legaldevelopments; maintenance of professional competence as a practitioner.

Level of Instruction: Intermediate

x



ALI-ABA Audio Seminar

Attorney's Role in LEED Construction

May 29, 2009

Telephone Seminar/Audio Webcast

PLANNING CHAIR

Shari Shapiro

Obermayer Rebmann Maxwell & Hippel LLP

1617 John F Kennedy Blvd

Philadelphia, PA 19103-1821

FACULTY

Chris CheathamWatt Tieder Hoffar & Fitzgerald, LLP

8405 Greensboro Dr Ste 100

Mc Lean, VA 22102-5106

xi



2



ALI-ABA Telephone and Audio-Only Webcast

Attorney’s Role in LEED Construction

TSPX06/TWPX06

Faculty Biographies

Speakers

Shari Shapiro

Obermayer, Rebmann, Maxwell & Hippel LLP

Philadelphia, Pennsylvania

Shari Shapiro is an associate with Obermayer Rebmann Maxwell & Hippel LLP. She is a

member of the Environmental Department.

Ms. Shapiro is a LEED Accredited Professional. Ms. Shapiro focuses her practice on

green building law, which includes sustainable project financing, regulatory drafting,

land use approvals, contracts, and conflict resolution. Ms. Shapiro is the Sustainability

Coordinator for Obermayer’s Sustainability Initiative.

Ms. Shapiro maintains a blog on legal issues related to Green Building, available at

www.greenbuildinglawblog.com.

Ms. Shapiro is the Co-Chair of the ABA State and Local Government Section

Subcommittee on Land Use/Environmental Law, and is on the Board of Directors of the

Delaware Valley Green Building Council.

Ms. Shapiro recently coordinated a seminar entitled “Getting Green Done…Right,”

exploring the nuts and bolts of environmentally sustainable and economically viable

development projects. Ms. Shapiro made a presentation on “Local Regulation of Green

Building Projects” at the seminar.

Ms. Shapiro earned her Juris Doctorate degree from the University of Pennsylvania

where she received the Milton C. Sharp Award for Best Grades/Best Research in Urban

Renewal or Land Use Planning. While attending the University of Pennsylvania, she

obtained a Certificate in Business and Public Policy from the Wharton School of

Business.

Ms. Shapiro received her Bachelor of Arts Degree in Development Studies and Modern

British History from Brown University.

Ms. Shapiro is admitted to practice in the states of Pennsylvania and New Jersey.

xiii



Chris Cheatham

Watt, Tieder, Hoffar & Fitzgerald, LLP

Washington, D.C.

Chris focuses his practice on suretyship, construction, government contracts, and

commercial contract law. He also holds a Leadership in Energy and EnvironmentalDesign® Accredited Professional (LEED AP) designation. The LEED rating system is

the nationally recognized benchmark for design, construction and operation of high-

performance green buildings. As a LEED AP, Chris is part of a select group of attorneys

nationwide who have recognized the significance of “green” building trends and he is the

first Virginia practicing attorney to attain the designation. Chris possesses an

understanding of green building strategies to assist clients through the LEED certification

process, from startup to final verification of a project’s green measures, as well as

navigating clients through the evolving green building regulatory requirements.

Chris has assisted clients in disputes arising from a variety of construction projects,

including locks and dams, complex levee systems, housing complexes, airports andresidential homes. In addition to his litigation experience, Chris has drafted and

negotiated contract documents, provided advice in contract administration, and prepared

claims on behalf of sureties and contractors.

Memberships and Affiliations

• American Bar Association

o Forum on the Construction Industry

o Tort Trial & Insurance Practice Section

o Fidelity & Surety Law Committee

• AGC of Metropolitan Washington D.C.

o Young Contractors Forum

• Virginia Bar Association

o Construction and Public Contracts Law Section

o Civil Litigation Section

o Young Lawyers Division

o DC Habitat for Humanity

Environmental Community

• USGBC National Capital Region Chapter

Publications and Presentations

• Author, "White Paper: Virginia's Green Building Battle," U.S. Green Building

Council National Captial Regional Chapter, Website Resources, April 2008.

• Author, "Virginia's Green Building Battle," Virginia State Bar, Construction Law

and Public Contracts News, Spring 2008.

• Author, "Does Your Arbitration Agreement Have Holes Making Rulings Less

than Final?" Watt, Tieder, Hoffar & Fitzgerald Newsletter , Summer 2007.

• Contributor, American Bar Association Forum on the Construction Industry,

Construction Law Glossary, 2008.

xiv



• Author, "Does Your Arbitration Agreement Have Holes Making Rulings Less

than Final?" Watt, Tieder, Hoffar & Fitzgerald Newsletter , Summer 2007.

• Contributor, Construction Law Glossary, American Bar Association Forum on the

Construction Industry, 2008.

xv



2



Shari Shap

iro, LEED A

P, Esq.

Chris Cheatham, LEED AP, Esq.

Attorne

y’s Role in

L

EED C

onstruction

M

ay 29, 2009

2



Wha

t is “green”building

?

•A g

reen building, also known as a

sustainable building, is a stru

cture that is

des

igned, built, renovated, operated, or

reused in an eco

logical and r

esource-

efficient manner. Green buildings are

des

igned to mee

t certain objectives such as

pro

tecting occupant health; improving

employee produ

ctivity; using energy, water,

and

other resources more efficiently; and

reducing the overall impact to the

env

ironment.

3



Why build green

the green reason

•The

built environm

ent has a profound impact on

our natural environment, econom

y, health, and

productivity.

•In the United States alone, buildings account for:

•7

2% of electricity consumption,

•3

9% of energy use,

•3

8% of all carbon dioxide (CO

2) emissions,

•4

0% of raw materials use,

•3

0% of waste output (136 million tons

annually), and

•1

4% of potable water consump

tion.

4



Why build greenth

e OTHER

gree

n reason

•

The overall green building market (both non-residential and residential)

is likely

to more than double from today’s $36-49 billionto $96-140

billion

by 2013 (Source: McGraw Hill Construction (2009). G

reen

Outlook 2009: Trends Driving Change.)

•

The value of green building construction is projected to increa

se to $60

billion by 2010(Source: McGraw-Hill Construction (2008). K

ey

Trends in the European and U.S. Construction Marketplace:

SmartM

arketReport.)

•

The construction market accounts for 13.4%

of the $13.2 trillion U.S.

GDP(S

ource: Departmen

t of Commerce (2008). Annual Valu

e of

Constru

ction Put in Place.)

•

The gre

en building products market is proje

cted to be worth $30-$40

billion annually by 2010

(Source: Green Building Alliance (2

006).

Green B

uilding Products: Positioning South

western Pennsylvania as

the U.S. Manufacturing C

enter.)

5



Un

ited States Green

Bu

ilding Council

(USGBC)

Un

ited Stat

es Green

Building Co

uncil

(USGBC)

•

Founded in 1993

•

Non-pro

fit trade

org

•

Develop

s LEED

•

USGBC

Chapters

•

Founded

in 1993

•

Non-pro

fit trade

org

•

Develops LEED

•

USGBC Chapters

6



Leadership

in Energy

and Enviro

nmental

De

sign (LE

ED)

Leadership

in Energy

and Environmental

Design (LE

ED)

•

Established in 2000

•

Green building r

ating system

•

Develop

ed by US

GBC

•

Established in 2000

•

Green building rating sys

tem

•

Developed by US

GBC

7



8



Other Ra

ting Sy

stems

•Gre

en Globes

•Ene

rgy Star

•NA

HB

•Earthcraft

10



Ben

efits of Green Building

Certification

•Verification

•Ma

rketing

•Regulation

•Incentives

11



Green Building Risks

•Parties and Risk

s

•Owner –choose green building approa

ch

•Architect –in

corporate green design

•Contractor –build to plans and

specifications

•Sub-contractors –same as

contractor

•Sureties –bond the green contractor

•LEED consultant –???

13



Lega

l Issues: LEEDigatio

n

•Sha

w Developm

ent v. Southe

rn Builders

•The

Contract:

16



Lega

l Issues: LEEDigatio

n

•Sha

w Developm

ent v. Southe

rn Builders

•Damages

17



Legal Issues: Defects

•“Don’t Let Gree

n Design Cause Red Ink”

•Frank Musica, Victor O. S

chinnerer an

d

Co.

•AIA Convention –2007

•21 green building claims

18




•Ene

rgy Use Abo

ve Promise

“Architects and consulting engineers signed

contract that stated

that projects w

ould ‘reduce

operating costs by 50 percent’over schools of

similar size. Energy usage is com

parable to other

schools recently designed and constructed. Scho

ol

system is publicly embarrassed, d

isappointed an

d

blam

ed as being ‘h

oodwinked’by architect and

engineers. School system brings claim.”

“D

on’t Let Green Design Cause Red Ink,”Frank Musica

19




•Guarantee of Indoor Air Qua

lity

“Lu

red by the promise of ‘he

althier and

more productive

occupants’basic to LEED

pub

licity, tenant rents space in Silver

certified building. At end of first year,

tenant’s records indicated greater use of

sick

leave. . . . T

enant deman

ds rent rebate

from project bas

ed on promise of a

healthful workplace and tena

nt sues

architect.”

“D

on’t Let Green Design Cause Red Ink,”Frank Musica

20



Leg

al Issues: Reg

ulation

•Gre

en practices are being incorporated into state

and

local zoning a

nd building codes and

ordinances

•1

4 percent of U.S. cities with p

opulations of

m

ore than 50,00

0 have green b

uilding programs

•T

he number of counties with g

reen building

p

rograms has grown by nearly 400 percent since

2

003

•Fed

eral statutes require federal agencies to proc

ure

recycled material, reduce energy consumption a

nd

prevent pollution.

21



Ty

pes of G

reen Building

Reg

ulations

•Command and Control Type Reg

ulations

•July 17, 2008

California adopts green build

ing

code for all new

construction s

tatewide

•2

007Boston, Washington, S

an Francisco, L

os

A

ngeles mandate green building requirements

for new construction above a s

pecified square

footage

•Financial Incentives

•2

008Portland

enacts “feebate”structure

•Non-Financial Inc

entives

•E

xpedited perm

itting; increase

d FAR, buildin

g

h

eight or density for green buildings

22



AHRI v. City

of Albuquerque

•October 3, 2008, C

hief District C

ourt Judge Ma

rtha

Vazquez granted the preliminary injunction, and laid

out her opinion that the Albuquerque Code was indeed

preempted.

•“There is no doubt that Congress intended to

p

reempt state re

gulation of the energy efficiency of

certain building appliances in order to have

u

niform, express, national energy efficiency

standards.”

•“At the time the

Code was drafted the Green

B

uilding Manag

er, by his own admission, wa

s

u

naware of fede

ral statutes governing the ene

rgy

efficiency of HV

AC products and water heaters and

the City attorneys who reviewed the Code did not

raise the preemption issue.”

24



Other Regulatory Pitfalls

•Sta

te preemption

•Rational relationship require

ment

•Void for vaguen

ess

•Confiscatory takings/Reason

able Fees

•Improper delegation of authority

25



The

Future

•

The Stimulus a

nd Green Bu

ilding: Funding

•

General Ser

vices Administration

$4.5 billion

•

Department of Defense

$3.6 billion

•

States

$3.1 billion a

nd $3.2 billion

26



The

Future

•

The Stimulus a

nd Green Bu

ilding: Risks

•

LEED Certifica

tion Guarante

es

-www.fedbizopps.g

ov

27



Cap & Trad

e

•Wh

at is Cap and Trade?

•How might it effect buildings?

•Wa

xman-Markey Bill

28



New Model Building Cod

es

•ASHRAE

Standard 189

•ICC

Commercial

Green Building

Code

•CalGreenCode

29

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