Tag Archives: design professional

Risks in designing for LEED certification

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“Green” building is a hot topic for construction professionals, and the coveted LEED certification (Leadership in Energy and Environmental Design) is the gold standard in demonstrating a commitment to environmentally friendly building.

According to the US Green Building Council which developed the LEED system, LEED is “an internationally recognized green building certification system, providing third-party verification that a building or community was designed and built using strategies aimed at improving performance across all the metrics that matter most: energy savings, water efficiency, CO2 emissions reduction, improved indoor environmental quality, and stewardship of resources and sensitivity to their impacts,”

Because LEED certification is relatively new, the legal implications of designing to obtain a specific LEED certification are still being hammered out. Potential risk in designing to a specific LEED standard is the failure of a building, once built, to meet the green criteria it was supposed to meet.

Case in point: Charlotte’s ImaginOn, a Children’s Theatre and Public Library facility. Designed as one of Charlotte’s first LEED buildings, ImaginOn is not meeting the green requirements it was designed to meet. This is due, in large part, to the popularity of the Center, which has led to an increase in operating hours and, of course, associated energy costs.

As noted in the Charlotte Observer, “the episode illustrates gaps between energy-saving potential and actual performance.”

Whether or not the increased hours should be considered as foreseeable, questions remain. Should such a situation be considered a breach of warranty? A changed condition? Or a little of each?

Until these matters get resolved in the Courts, it is wise practice to design with LEED goals but not certification or performance guarantees. All parties should recognize that circumstances may change which will prevent LEED certification or which will in other ways limit or eliminate any energy efficiencies which are anticipated.

Update:  For more risks in designing for LEED certification, check out my post: Legal risks in designing a Construction project for LEED certification (take 2)

 

Failure to Coordinate in Design-Bid-Build case costly mistake

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In a recent Business Court decision, an architecture firm was hit with a $2.3+ million judgment stemming from the design and construction of the kitchen exhaust and HVAC ductwork systems in the Charlotte Bobcats Arena.

The project was a “fast track” project, and the architecture firm claimed they were only contracted to provide diagrammatical drawings of the arena’s ductwork system. Subcontractors on the project sued for their cost to perform extra work to remedy alleged design deficiencies. Post-trial relief is currently being sought by the architectural firm (including a motion for judgment notwithstanding the verdict, a new trial, or a new trial on the damages issue).

Whether or not such post-trial motions are granted, however, the case raises the very real issue as to architectural responsibility versus contractor coordination responsibility, especially in fast-track projects. This case highlights the risks to architects in failing to make their responsibilities and contractual limitations explicitly clear to both owners and contractors. The case also highlights the need to explicitly review shop drawings for coordination issues that might be present.

The case is Hunt Construction Group Inc. et al. v. City of Charlotte, North Carolina, and Ellerbe Becket Inc., case number 08-11915, in the Mecklenburg County Superior Court.

Handling Threats of Contract Termination in the Construction Context

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The threat of a contract termination, especially one “for cause” as opposed to “for convenience” , is something that strikes terror in the heart of many contractors.  The request by an owner to terminate for cause is something that must be handled carefully by the design professional/contract administrator.  A misstep by any party can cost untoward damages relating to contract termination in the construction context.

 

Managing Changes on the Construction Project

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As sure as Santa’s arrival each year, the setting of the sun each night, and the arrival of the bowl games each December, there will be changes to a construction project.   How you manage those changes is important.  If you can properly document delays, changes in scope, or other issues, you can recoup your time and expenses.  If you fail to manage changes well, you are literally throwing money away.  And– if you are a design professional and do not have a good system in place for handling change order requests, you are almost guaranteeing a lawsuit at the end of the project.  Read more on Managing Changes on the construction Project  at this link.

 

Understanding the Construction Contract Before You Sign It

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Construction contracts are not all alike.  Though they may familiar AIA form, for example, they often have changes, strikethroughs, and the like which can seriously alter the controlling language.  The time to read and understand your contract is before you sign it.  For a more in-depth look at this issue, refer to my article on construction contract terminology.