Liability and LEED. Wednesday, March 10, 2010

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1 Liability and LEED Wednesday, March 10, 2010

2 Liability & LEED Project Team Contract Stylings LEED Considerations Contract Considerations Coverage Considerations 1 1

3 The Project Team LEED project accreditation is a team effort involving: Owners LEED Accredited Professional Consultants Commissioning Authorities Architect & Consulting Engineers Construction Manager / General Contractors 2 2

Consultants Commissioning Authorities Architect &

4 Project Team LEED Consultant Overall coordinator of LEED certification efforts Assists design team with LEED credit projections Provides specifications clarifying LEED credit requirements Provide recommendations involving architectural details, mechanical systems and construction practices yielding LEED credits 3 3

clarifying LEED credit requirements Provide recommendations involving

5 Project Team LEED Consultant (continued) Prepares submittal forms and associated documentation Compiles and prepares all submittals Assists Design and Construction team with individual submittals All Communications with CaGBC should be conducted through the LEED consultant 4 4

Design and Construction team with individual submittals All

6 Project Team LEED Consultant (continued) Professional Services LEED consultant is providing advice throughout the entire construction process LEED AP s employed by design teams and contractors Damages as a result of these services not likely to be covered by Wrap-up and/or General Liability Forms BI / PD occurrence required Errors and Omissions insurance required 5 5

contractors Damages as a result of these services not likely to be covered by Wrap-up and/or

7 Project Team Commissioning Authority (CxA) Leadership, review and oversight of the commissioning process Independent of design and contractor teams Ensures goals of reduced energy use, operating costs and improved productivity have been met Works closely with Engineering teams Mechanical, Electrical & Plumbing 6 6

goals of reduced energy use, operating costs and improved productivity have

8 Project Team Commissioning Authority (CxA) During Project: Develops an outline of design criteria Reviews design development documents Prepares a proposed construction phase commissioning plan Develops commissioning specifications Develops post construction operating protocols / manuals 7 7

a proposed construction phase commissioning plan Develops commissioning

9 Project Team Commissioning Authority (CxA) Professional Services CxA is typically and Professional Engineer Expert in HVAC, Plumbing and Mechanical Systems Consulting Agreement needs to include Errors and Omissions insurance in addition to standard project covers. 8 8

Plumbing and Mechanical Systems Consulting Agreement needs to

10 Project Team Architects and Engineers Provide design and consulting services throughout the entire lifecycle of the project Responsible for incorporating LEED friendly design elements into the project including: Sustainable site development Water efficiency Energy efficiency Material resources Indoor environmental quality 9 9

friendly design elements into the project including: Sustainable site development

11 Project Team Architects and Engineers Incorporates LEED criteria into the overall design Must identify systems and components that require special attention in order to obtain LEED credits Must identify certification documents required under the LEED Rating System Review submissions of contractor and/or CM relating to LEED requirements 10 10

to obtain LEED credits Must identify certification documents required under the LEED

12 Project Team Architects and Engineers Inspect project site for compliance with LEED criteria Assist LEED Consultant with submittals to CaGBC 11 11

13 Project Team Architects and Engineers Liability Considerations Professional Liability insurance for LEED related design and consulting services is available from most Canadian and international insurers Issues (if they arise) likely as a result of non-disclosure A&E s may be required to modify their definition of professional services to include services of LEED accredited professionals 12 12

insurers Issues (if they arise) likely as a result of non-disclosure A&E s may be required to

14 Project Team Construction Manager a/o General Contractor Responsible for compliance with LEED criteria, particularly regarding work site practices: Storage and collection of recyclables Construction waste management Material reuse & recycled content Construction indoor air quality management Documentation of site practices extremely important, LEED credits require CM / GC to provide certifications for Waste Cycling and disposal Use of energy efficient equipment Environmentally friendly paints, engineered materials 13 13

indoor air quality management Documentation of site practices extremely important, LEED credits require CM / GC to provide

15 Project Team Construction Manager a/o General Contractor Liability & Insurance issues: Allegations of negligence relating to LEED compliance documentation and submittals may not be covered by CGL a/o Wrap-up liability Design Build Contracts obligate CM / GC to assume liability of Architect & Engineering team Contractors professional liability should be included within insurance specifications under certain circumstances New and Innovative designs Cutting edge mechanical technologies 14 14

obligate CM / GC to assume liability of Architect & Engineering team Contractors professional liability should be included

16 Project Planning Contract Considerations Design Bid Build Design Build 15 15

17 Project Planning 16 16

18 Project Planning Design Bid - Build Design - Build Integrated Design 17 17

19 Project Planning Integrated Design is a process that can be incorporated into both Design Build and Design Bid Build contracts Process requires active and continuing participation of Owner and/or an Owner Representative(s) Architect Engineers Specialists Municipal Officials 18 18

Process requires active and continuing participation of Owner and/or

20 Project Planning Involvement of key team members and stakeholders through pre-design to project completion Insights developed at early stages of the project can prevent costly changes further along in the process Design team provided with clear direction Functionality of building improved by group feedback Project economies and collaborations may be realized and incorporated into design and construction planning

the process Design team provided with clear direction Functionality of building improved by group

21 Project Planning Liability Concerns The goal of any project is to minimize conflicts Design Conflicts Owners Needs Budgetary Concerns Contractor Conflicts Claims are disruptive, costly, deflecting energy from project at hand to self defence Claims avoidance as a result of effective communication benefits all 20 20

22 Contract Preparation Designer and Contractor Feedback Certification Delay Filing delays due to non-responsive subcontractor or consultant Adverse ruling against LEED credit(s) by CaGBC CaGBG project backlog / non-performance Enforcement of LEED required documentation & record keeping Contractors Subcontractors Consultants 21 21

23 Contract Considerations No standard contract approach Industry Contracts Owners Forms Customized Project Forms No standardized LEED contract language currently in use 22 22

24 Contract Considerations Scope of Work All project team members need to be held accountable for record keeping and assistance with LEED credit submittals Failure to perform will result in loss or delay of LEED accreditation Fee holdbacks, financial penalties may need to be incorporated 23 23

25 Contract Considerations Contractor vs. Consulting agreements Avoid temptation of signing design professionals on Contractor Agreements Insurance requirements clearly different Unclear and/or poorly drafted insurance clauses increase risk of uncovered claims Insurance can be a pre-qualifier Insurance embodies the requirements contained within the indemnity clause 24 24

26 Coverage Considerations Project Specific Coverages Course of Construction Mould Underground Property Wrap-Up Professional Liability Review Definition of Professional Services for adequacy Disclose LEED accreditation goals (requirements) within project applications

27 Coverage Considerations Contractors Professional Liability LEED AP's Design & Engineering Staff Safety Professionals Excess liability resulting from Architects and Engineers (Design-Build agreements) 26 26

28 Conclusion We are still in early days when in comes to Green Construction Technology evolving rapidly, may be unproven LEED Certification is a positive step forward For the Environment For our Communities For our well being Insurers and Insurance Professionals stand ready to support Green Building innovation 27 27

29 QUESTIONS 28 28

Samantha Ip Clark Wilson LLP tel. 604.643.3172 ssi@cwilson.com D/RJR/682791.1

by Samantha Ip Clark Wilson LLP tel. 604.643.3172 ssi@cwilson.com D/RJR/682791.1 TABLE OF CONTENTS A. INTRODUCTION...1 B. GENERAL INFORMATION ON THE TYPES OF LIABILITY INSURANCE...1 1. GENERAL LIABILITY