Best Practices Construction Law : Construction Lawyer & Attorney : Matthew DeVries : Smith Cashion & Orr Law Firm : Green Building & LEED Litigation

For the next couple of weeks, the only thing you will see on our living room television is the Winter Olympics.  Luge...daring!.  Freestyle moguls...awesome!  Snowboard cross...cool!  Figure skating...good time to surf the Internet!

Last night, while watching figure skating surfing the Internet, I stumbled upon this article about the Olympic and Paralympic Village in Vancouver having received the highest certification for sustainable community development from the U.S. Green Building Council.  The LEED Platinum certification was announced Mayor Gregor Robertson on Tuesday morning.  According to the article, the Olympic village is the second development in the world to receive Platinum certification. 

Platinum certification was awarded to the $1-billion, 32 hectare South East False Creek neighbourhood development project based on a variety of factors including its proximity to the downtown core, affordable housing, green buildings and habitat restoration. . . .

“If we want to stand up and make Vancouver the greenest city in the world we are going to need some serious resources and aspirations,” said Roger Bayley, design manager for Merrick Architecture, the architects behind the project. “But I have no doubt that [the Village] is going to be profitable.”
 

The sustainability website inhabitat.com had a great overview of the sustainability features of the Olympic Village almost two years ago.  These included:  solar panels, green roofs, rain water harvesting systems, in-slab hydronic system for heating and cooling of the buildings, and all underground parking.

It is good to see that the Olympic Village attained its goal for LEED certification . . . a Platinum medal in the Olympics of green building.  Local community leaders want to use the Olympic Village as model for sustainable development to help Vancouver become the "greenest city in world."  

The problem? It came at a significant cost.  A $700-million bailout was required from the City in order to finish the construction of the Olympic Village, generating concern for the profitability of future LEED development projects.

The answer? As with many other green building issues, only time will tell.  First, we will have to wait until the end of the Olympics to see how Vancouver transitions Olympic Park into affordable housing for downtown residents.  Next, we will have to watch the performance of the sustainable buildings.  If private development can do it cheaper and faster with the same or comparable performance data, then there may not be the green community development anticipated by local leaders. 

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As much as possible, I like to highlight various forms of construction contract documents.  In most of my green building presentations over the past few months, I have talked about the "soon to be released" Green Building Addendum from ConsensusDOCS.  Well, that day has finally come!

Based upon my preliminary review of the 310 Green Building Addendum, I am confident to say that the blogosphere of architects, engineers, owners, contractors, LEED AP-ers, and attorneys is going to be jumping.  There are a lot of new terms, such as Elected Physical Green Measures and Elected Green Status; there is a new contractual party, called the Green Building Facilitator (or "GBF"); and there is a meaty "Risk Allocation" section in the document. 

The first seven sections of the 310 Green Building Addendum include the following:

1. General Principles, including an acknowledgment that Green Measures are being incorporated into the project that affect the roles and responsibilities of the parties.
2. Definitions, which introduce and define all the new players, roles and responsibilities.
3. Green Requirements and Procedures, which are elected by the owner.
4. Green Building Facilitator, which addresses who this person will be and what his role will be.
5. Green Status, which sets the targeted status (i.e., LEED Certified Silver).
6. Green Measures, which outlines the steps to achieve the Green Status.
7. Plans and Specifications, which helps incorporate the green measures into the underlying contract documents.

Section 8 addresses risk allocation, which is where I will probably spend a couple of days digesting.  In this section, you will find issues such as:

• The role of the contractor during the process, as well as a provision that limits the contractor's responsibility for performing certain services. 
• A waiver of consequential damages, which is the provision that every green attorney will want to take a look at first.
• A general limitation of liability provision that addresses the failure to attain the targeted status, as well as, the failure to receive any intended benefits to the environment.

One cursory review ... and I did not find anything absolutely surprising.  I was interested to see that the contract document was not LEED-driven, meaning that the drafters wrote the green measure provisions and the green status provisions broad enough to include all existing and any future green building programs.

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I am certainly not the first ... and certainly won't be the last ... person to write about Robert Watson's webinar presentation yesterday afternoon entitled, Building a Sustainable Future: Progress & Trends Toward Improving the Environmental Footprint of Commercial Buildings.

Watson, Executive Editor for GreenerBuildings.com, is most commonly referred to as the father of LEED because of his pioneer role as founder of the USGBC rating system. Watson spoke from his home in Shanghai at 1:30 a.m. Watson began his presentation with the following bold statement:

Green buildings [are the] only bright spot in the construction market.

Even then, Watson suggested that there will be some lag in the green building market due to the introduction of the more stringent LEED 2009 requirements, as well as the economic downturn in the market generally.

One of the primary purposes of the webinar was to highlight the release of the second edition of the Green Building Market and Impact Report 2009, which was authored by Watson. The Report sets out to document how and how much green building is making a difference in the world today. Some of the key finding include:

• The estimate of reduced vehicle miles traveled has grown to 780 million to date versus 400 million in 2008, which means there are significant annual gasoline savings.
• Total water savings from LEED through 2009 is estimated at 15 billion gallons, comprising 0.5 percent of annual non-residential water use.
• Annual carbon dioxide savings from LEED buildings is approximately 2.9 million tons from energy efficiency and renewables.
• Based on average materials costs, green building materials represented approximately $7 billion in cumulative spending through 2009.
• Moreover, the embodied energy in buildings that are renovated instead of demolished is expected to save significant sums of energy.
• Finally, an average of over 60 percent of construction and demolition waste was diverted from LEED projects, totaling 25 million tons to date.

According to the report, employees are currently enjoying improved indoor environments in LEED buildings at present and the productivity benefits from LEED buildings to date range from $230 to $450 million.

What do all these number mean to the traditional commercial developer, the hard hat contractor or the construction litigator? Here are some thoughts:

1. The Report recognizes that new construction of green buildings is growing, while actual LEED certification is lagging. In my simple mind (...and I admit this may be an oversimplified conclusion...), the industry wants to be green but does not want to pay for the green plaque.
2. The growth of the green building industry has created a "several billion dollar market" for LEED qualified and sustainable materials. From a practical point of view, subcontractors and suppliers of old will need to transform some of their product lines so as not to be edged out by the new material suppliers.
3. The energy performance issues raised by green building critics will have a significant impact on the future of building standards. Shari Shapiro has addressed this issue on a number of occasions.

Watson concluded his presentation with the following statement: "In spite of the economic downturn, or perhaps because of it, LEED has reached target market saturation."

Question: Do you agree with this assessment?

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I have my Google reader set to search various blogs, news sites, and Twitter feeds to help me keep current with the latest trends in the construction industry.  There remains one major problem: the words we use have different meanings for everyone.  

Take, for example, my search of Twitter feeds (above) for Building Information Modeling (BIM).  If you were to do the same search during a weekday morning, the majority of results would return various individuals involved in some aspect of the construction industry either praising or criticizing BIM. Now, if you were to do the same search on any given Friday or Saturday night, you might be surprised to get a varied assortment of results (and photographs) of individuals out for a night of partying.  You see, BIM is also slang for "bimbo" or ... how do I say this ... a "lady with questionable morals"? 

What's the lesson here?  Did you click on this article because you thought it related to LEED or Green Buildings?  It kinda does.  It kinda doesn't.  The lesson is that we live and work in a world where information spreads quickly.  In addition, we have become informal in our communications through the use of email, texting and Twitter.  (And in our personal lives, there may not be anything wrong with informality in our communications.)

However, the construction project is built on expectations and performance.  Where those expectations are accurately and correctly reduced to a writing, the parties have a written contract.  Where the parties use words that have different meanings (and both interpretations are reasonable), we now have an ambiguity.  A judge or arbitrator will then be asked to interpret that ambiguity based upon any number of legal tools (i.e., parties' words and conduct, other writings outside the four cornings of the contract, industry norms, etc.).  As the construction industry begins to employ new technologies, such as BIM, or new performance based goals, such as energy performance from a LEED certified building, then it becomes even more important that we use words that do not lead to miscommunication.

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When discussing the short and long term building performance of a green project, the issue generally comes down to the following question: Is there any identifiable or measurable gap between the predicted building performance (in the design and construction phases) and the actual bulding performance (during occupancy, operation and maintenance)?  This issue has been addressed in part by a number of my colleagues, including Stephen Del Percio ("Energy Performance in LEED Buildings: A History") and Chris Cheatham ("Real Life Example of the Energy Performance Gap").

Yesterday, I saw the following following press release: USGBC Tackles Building Performance Head On.  The USGBC announced the Building Performance Initiative, which is intended to assist LEED building owners and project teams to close the gap between predicted performance and actual performance.  The new initiative seeks to tackle building performance by the following:

1. Employ a comprehensive data collection effort from all buildings that have acheived LEED certification;
2. Implement an appropriate method to analyze the data collected; and
3. Provide feedback to building owners.

There will be four summits held across the country in September and October to preview the proposed data collection and data analysis methods.  "The local summits are a way to gather people's input for our vision and also for them to share their performance stories, successes and challenges," said USGBC LEED Senior Vice President, Scot Horst.

Although USGBC says that it is ready to rumble by tackling building performance head on, it will be interesting to see some of the ideas previewed in these summits.  Already, we have heard from numerous industry players about the proposed enforcement tactic of revocation.  One of the more significant unknowns is determining whether LEED certification (based upon design and construction) should be separate from building performance (based upon actual assessment). In other words, will USGBC have a multi-tier certification for design/construction and performance? Will USGBC have a conditional certification based upon predicted performance? Will USGBC extend the certification process to include building performance? The USGBC better be ready to rumble!

Photo: Wade

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A few weeks ago I tweeted about the local building code in Nashville "under review."  Actually, those words were a little weak.  What about these words: "Contractor Leads Attack Against Nashville's LEED Legislation" ... the exact words used by my colleague Stephen Del Percio, attorney and author of Green Real Estate Law Journal.  A good analysis by Steve!  

The original article by Michael Cass in The Tennessean highlights a local contractor's frustration with the LEED requirements on a school project.  However, Councilman Duane Dominy, sponsor of the bill, said he didn't write the legislation specifically to help the contractor and isn't trying to "do away with LEED." 

According to the title of the legislation at issue (BL2009-503), the bill seeks "to allow an alternative to LEED certification based upon lowered measured energy use."  The legislation was introduced on July 21, 2009 and passed its first reading. The bill was then referred to the Codes Committee. It was scheduled for three votes on August 6, 2009, but was "deferred" for a later time.

Importantly, the preamble contains a statement that any alternative should be allowed "provided the alternative system will result in actual lower measured energy use."  There are many signficant highlights of the proposal, including the following:

• it allows for a city-wide approval of an alternative to LEED certification;
• it requires "actual lower measured energy use" for an alternative system
• it requires the governing authority (Metro Goverment) to approve a certified or duly recognized "business energy professional" to monitor the energy use 12-18 months after substantial completion

Finally, here are the two kickers:

D. If the energy use objectives are not met, the pre-determined entity responsible for the warranty shall reimburse the Metropolitan Government for excess energy use costs for any year of the warranty period based on the energy rate costs prevailing during the first year of the warranty period. The entity responsible for the warranty shall provide the Metropolitan Government an irrevocable warranty surety.

E. No warranty penalty or reimbursement shall be applicable if the Metropolitan Government significantly changes the function of the facility beyond what was originally authorized by the final use and occupancy permit.

A couple of thoughts on this new legislation: First, it will be interesting to see whether a surety will step up to the plate with an irrevocable warranty.  I cannot imagine the difference in energy costs savings and losses would be so significant so as to place the risk beyond insurability. 

Second, there remains a carve-out in the event that the owner changes the function of the building beyond what was anticipated.  In other words, there appears to be a less stringent standard ... or no penalty ... for major rennovations that perhaps change the function of the building.

Finally, the legislation demonstrates that there is, and will continue to be, tension between the LEED rating system and alternative rating systems, particularly as local and state jurisdictions become more green-saavy in their understanding of sustainable design, energy performance, and longterm investment strategies.

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Which is worse: (a) one lawyer in a room of one hundred architects; or (b) one architect in a room of one hundred lawyers? 

Two weeks ago I found myself in the first category (... although I'm sure that I was not the only shark in the room ...) at a local United States Green Building Council (USGBC) meeting that featured the "2009 Top Ten Green Projects" awarded by the American Institute of Architect (AIA) Committee on the Environment (COTE). In case you don't know, every year COTE highlights the top green projects based upon the measures of sustainable design.  According to COTE, "Sustainability envisions the enduring prosperity of all living things ... [and] ... [s]ustainable design seeks to create communities, buildings, and products that contribute to this vision."  The measures of sustainable design include, among others, design and innovation, land use & site ecology, materials & construction, and energy flows & energy future.

The "Top Ten" from 2009 may be old news to many of you.  However, it is worth mentioning here because of the AIA / USGBC comparison that was highlighted in the 2009 presentation:

As you can see, the COTE Top Ten Measures go a few steps beyond the LEED rating system.  According to the speakers a few weeks ago, Henry Siegel and Kim Shinn (both were judges on the 2009 Top Ten panel), the COTE measures include both quantitative and qualitative measures (or "intangibles").  In the presentation above, the measures highlighted in yellow on the left are those areas not fully addressed by USGBC's LEED rating system. 

(... DON'T JUMP THE GUN, USGBC!... I am not done yet...)  This presentation was based upon the LEED v 2.2 criteria ... and not LEED 2009, which now addresses some of those areas included in COTE's Top Ten Measures (i.e., regional credits, future energy performance).  For the green-building newbie, the Top Ten Green Projects is a good starting point for seeing various sustainable measures carried out in actual building projects ... with cool pictures, too!

[NOTE: The full presentation can be found on AIA-COTE's website ... about halfway down on the left.]

UPDATE (8-1-09): Thanks to Michael at www.buildinggreen.com, who pointed out that Henry Siegel is past chair of AIA COTE and is currently a committee member. He was not a judge on the panel this year.

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Mom always said I was a late bloomer (... Wonder what she meant? ...)  Well, you can call me late to this game, but hopefully not too late. 

Perhaps the best summary of the new LEED 2009 Minimum Program Requirements (MPR) can be found on Stephen Del Percio's Green Real Estate Law Journal.  Last week, Chris Cheatham's Green Building Law Update caught on fire with comments about his post on LEED Decertification.  The match that lit the fire turned out to be the following language found on USGBC's website about the MPRs:

NOTE: CERTIFICATION MAY BE REVOKED FROM ANY LEED PROJECT UPON GAINING KNOWLEDGE OF NON-COMPLIANCE WITH ANY APPLICABLE MPR.  IF SUCH A CIRCUMSTANCE OCCURS, REGISTRATION AND/OR CERTIFICATION FEES WILL NOT BE REFUNDED. 

A couple of observations from my neck of the woods.  First, I am not sure that the fact USGBC has wielded this revocation stick is as noteworthy as its ramifications. Indeed, verification requirements and revocation/de-certification processes appear in various substantive areas of law (i.e., union and labor, banking, minority business, etc.). What is noteworthy, again, is the fact that the revocation stick will have undetermined consequences. 

In other words, the authority to revoke LEED certification from a project raises legal concerns beyond the scope of LEED’s stated intent—that is, to provide “building owners and operators a concise framework for identifying and implementing practical and measurable green building design, construction, operations and maintenance solutions.” Now we are talking about issues like: third party standing to initiate decertification proceedings, time elapsed certification, regulation enforcement and insurance coverage questions.

Next, would you be surprised to learn that the concept of "permit revocation" has been adopted by a local municipality for green projects that fail to provide proof of LEED certification? That’s right, last fall the City of Gaithersberg, Maryland adopted the “Green Building Requirements” to amend its building code, which included the following revocation provision:

3110.2.4 Verification. Within eighteen (18) months after the receipt of a Certificate of Use and Occupancy, the applicant shall provide proof to that the required LEED-level rating was obtained. Failure to submit the required proof shall be grounds for revocation of the Certificate of Use and Occupancy.

This code was passed almost one year ago. I’m looking into whether any revocations have occurred yet under this new Gaithersberg ordinance.

 Finally ... and here's the kicker … apparently, a LEED revocation is underway or has already occurred somewhere out there. According to the literature for the Green Buildings Seminars in September 2009, there is one reported instance of decertification proceedings. Lawrence Spielvogel, an independent consulting engineer, is scheduled to “discuss why this non-compliance typically occurs, and will describe the actions of the designers that led to the first ever decertification of and plaque removal from a LEED Certified project.” 

 Did I read that correctly?  Let's ask Larry ...  ring ... ring ... [conversation] ... hang up phone ... Yes, I read that correctly! Looks like we have to wait for the presentation in September 2009 to report on the whole scoop.  Perhaps Shari will go for me?

 And now ... what I promised in the title of this post ... here is what some the industry experts have said about the revocation issue:

  If I missed you, send me an email and I will update the list.

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I realize that the title to this post may scrunch some “What you talkin’ about, Willis?” eyebrows to the many LEED AP-construction-green-building-attorneys out there. However, the title really conveys the first words that ran through my mind as I read Gary Cole’s post on The Real Green Goblin – Emerging Legal Liability for Green Design Professionals and Contractors on his blog LAW/ARK.

I must admit that I jumped to various conclusions prior to reading Cole’s entire post. Instead, I focused on the following statements:

The bad news is that attorneys, especially those already practicing in construction law, will soon realize that aside from green design and construction’s sometimes specialized and occasionally ill-defined vernacular, there’s no real novelty in the types of claims that might arise.

No new frontiers of jurisprudence need be explored–a leaky green roof is still a leaky roof–whether it also requires regular mowing and landscape maintenance changes little from a legal perspective.

As I continued reading the post, however, I realized that Cole was marching in the right direction, particularly with the following statement: “In non-legal terms, most legal liability associated with green design and construction will arise from one issue–though it’s an issue with many faces–unfulfilled expectations.” Cole even makes a call out to the “fellow attorneys” reading the post with a disclaimer that this is an oversimplified analysis of the legal claims available.

When discussing green building claims, perhaps the best point made by Cole is understanding the balance between a project’s “green marketing claims” (or its “form”) and its “real performance (or its “substance”). I view that so-called "balance" at the heart of the issue. While it can be said that green building disputes will arise primarily from parties’ unfulfilled expectations–as do most commercial contract disputes–the form and substance will be an inherent part of any claim, whether pursued in contract, tort or otherwise.

Cole may be right that there is no novelty to the traditional types of claims (contract, tort, statutory, etc.) that may arise in green construction disputes. However, the novelty in the green building industry is the new set of standards that will inevitably become part of the legal dispute. In other words, while “a leaky green roof is still a leaky roof” … there will be new risks to be allocated, different types of damages lost, additional players involved, varied proof required and, yes, perhaps a novel cause of action alleged because that leaky green roof system failed.  Given the relatively uncharted territory, I cannot say that "green building for attorneys is merely hoopla" ( ... my words ... not Cole's ...)

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Just when you thought it was safe to put up your study books, your on-line prep exams, and your stacks of flash cards ... there is a new professional certification available for all you sustainable design players.  Green Roofs for Healthy Cities announced last month its Green Roof Professional (GRP) Accreditation Program at the 7th Greening Rooftops for Sustainable Communities Conference, Awards and Trade Show in Atlanta. The GRP accreditation exam focuses on five key areas, including predesign, design, contract management, quality assurance and support, and maintenance.

While it is informative to learn about a new accredited professional in the green building world, a key issue is understanding the role of "professional accreditation" (whether LEED AP or GRP or other designation) in the green construction process.  According to Green Roofs' website, becoming a GRP can provide a number of important benefits that are key to the long-term health and growth of the green roof industry, including the following:

• Enabling professionals to differentiate themselves in the marketplace.
• Establishing a high-level of professionalism and improved multi-disciplinary collaboration.
• Increasing customer confidence in green roof technology.
• Resulting in better green roof design and installation practices.
• Protecting the industry from the inevitable failures that result from inappropriate design, installation and maintenance practices.

According to the Green Building Certification Institute, the LEED credential "provides employers, policymakers, and other stakeholders with assurances of an individual’s current level of competence and is the mark of the most qualified, educated, and influential green building professionals in the marketplace."

Is that what these AP-ers provide? Customer confidence or assurance? Better green designs and installation practices? Understanding that there will be different levels of consultation—from technical advice on a rainwater pit to legal advice on risk allocation—perhaps GBCI got it right by creating the new multi-faceted credentialing system that seeks to differentiate between accomplishment, knowledge, expertise and longterm success in the industry (Green Associate, LEED AP BD+C, LEED Fellow, etc.). 

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Look around the internet and you are sure to find one of these:

The design team of a 28,000 sq. ft. public school hope to achieve SS Credit 6.2, Stormwater Design: Quality Control, in the LEED-NC Rating System. Incorporating which of the following green building elements into the design would aid the team in achieving this credit? (Choose three)

A. constructed wetland

B. solar hot water system

C. vegetated roof

D. infiltration basin

E. high-albedo concrete

The correct answers are A, C, and D. (Thanks www.intheleeed.com for the sample.)  Well, if you look around Nashville, you are sure to find a real life LEED AP exam question brewing on some property known as Bells Bend.  It's called the May Town Center ... and the development has both supporters and critics.  If you think I'm kidding about the exam question, watch this clip and listen for words like "sustainable site" "light reduction" and "green-washing":

Following hours of heated open hearings, the Planning Commission voted last week against the proposed land use plan for the development. According to the Nashville Business Journal,

The Metro Nashville City Council has final say on zoning changes and will take up the issue in a public hearing on July 7. However, with a negative recommendation from the planning commission, the zoning measure will need 27 votes from the council, rather than the 21 usually required. . . .The planning staff had recommended approval of a zoning request to allow the development, but that was contingent on the land use plan amendment. The commission then voted down the proposed zoning changes.

There are many of us in Nashville closely watching the May Town Center development and I look forward to reviewing some of the LEED-related issues on the project, as well as reporting back after the July hearings.

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And I only have 18 days until my test ... because I am taking the test on the "second to last" day.  If you are wondering why I am calling it the "last" LEED AP 2.2 test, GreenSource explains the basic requirements of the new LEED categories, including an easy-to-read chart of credentials.  If you have not already registered for the version 2.2 test, then it's too late.  If you have registered, then you should already have a scheduled test date ... and June 30, 2009 is the last possible date to take the LEED AP 2.2 test.  If you already passed, BuildingGreen.com explains what it means for you.

I know there are endless resources (...free and not-so-free.,.) out there that can help you prep for the exam.  Well, thanks to my partner Vic McConnell (...Mom always liked you best...) who passed the exam last week, I have a plan of action.  With the obligatory disclaimer (...there are no guarantees that you will pass if you follow this method...), here are some of the materials that I am using for my preparation: 

• USGBC Reference Guide (LEED Reference Documents)
• USGBC Colorado Chapter Study Guide (Test)
• intheleed.com (LEED AP Walkthrough; audio files)
• Greenexamprep.com (5 sample tests; flashcards)
• GBCI Candidate Handbook
• University of Florida "Learning to Leed" website
• Leedexamstudy.com (online courses)
• Summary Chart ... homemade
• Memory Chart ... homemade

Here is a list of substantive issues that I am focusing on for the test:

• Certification ratings and points
• Six credit categories (WIMSIE)
• Code/Standards referenced (especially ASHRAE)
• Exemplary Performance Credits/ID Credits
• Project registration
• Project certification process
• CIR process (Credit Interpretation Rating)
• Appropriate rating system (LEED-NC)
• Certification application & fees
• Prerequisites
• Introductory sections to each credit
• Submittals for each credit
• Submittal phases
• Commissioning (EAP1 & EAc3)
• Synergies between credits
• Relations between SS 6.1 & 6.2; SS 5.1 & 5.2; and SS 7.1 & 7.2
• Energy Performance credits EAP2 & 1
• EQ Credits (3.1 – 3.2)
• EQ Credits (4.1 – 4.4)
• Water efficiency  – plumbing fixtures involved
• Project administrator duties

 All you LEED-ers, did I miss anything? 

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That's not exactly how the headline reads ... but close enough.  The actual title is BIM Promotes Sustainability: Practitioners are Finding Paths to Green through Interoperable Software.  As reported by McGraw Hill Construction, this article demonstrates the practical utility of Building Information Modeling (BIM) on a construction project ... a green one!  MH reports about the restoration of the historic Grant School in Washington, D.C.: "The contractor had nearly finished the time-consuming coordination of mechanical, electrical, and plumbing trades. Then work ground to a halt. Local legislation had just passed requiring all public buildings to achieve LEED certification."

Although the project was exempt from the change in the law, the School wanted to demonstrate their commitment to green by seeking LEED certification.  Using BIM, modifications to the design (including the mechanical systems and the acoustics) were relatively straightforward.   Without BIM, the work would would have been prohibitive given the increased costs and delays associated with the re-design.

Two cool things ...

First, the Grant School project featured by MH typifies the benefits of technology in the industry.  According to Dwayne Sellars, BIM manager for Turner Construction, his company is using BIM even in situations where the architect does not because the model reveals conflicts between systems that are often discovered only in the field. 

Second, not only does the Grant School project illustrate the effective use of BIM technology, the format of article itself is exciting.  The article is presented in a case-study format as part of McGraw Hill's Continuing Education Center.  You can review the information and take a test for 1.00 credit for HSW/SD.  According to CEC, after reading the full article you will be able to: 

• Describe building-information modeling (BIM).
• Explain strategies for applying BIM to promote sustainability.
• Discuss uses of BIM at different phases of a building's life cycle.
• Understand how BIM relates to green "best practices" within your own discipline.

The real import of the article--and particularly the convergence of BIM and LEED--is realized upon reading the concluding paragraph:

Architects are receiving better, earlier energy-related analysis; engineers are providing more focused expertise during design; builders are reducing waste in construction; and facility managers are increasing the efficiency of their operations. And many of those experiencing the benefits of technology and teamwork have visions of still more capabilities and benefits in the future.

No time for the test, McGraw Hill ... but thanks for the good information.

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In this day and age of Biggest Loser, South Beach Diet, and the latest fitness craze highlighted by Oprah, I find myself more and more conscious about my eating habits. In fact, if you promise not to tell anyone, we have a little fitness competition within our own law firm starring four fatties. Although I have not been faithful to my own fitness regime (…again, please keep that a secret…), I have found myself diving into a new set of suits in my wardrobe. Herein lies today’s topic…the matter of perspective.

You see, according the average observer, my somewhat strained belt buckle and 1-inch-shy-of-buttoning jacket are signs of an outgrown suit. But little does that average observer know is two months ago I would not have been able to attempt the acrobats of wearing this suit to work. This is one of many suits from 10 years ago! Give me two more months and the pants will be sliding on with room to grow.  You see, that average observer has a different perspective than my family who has never seen me in these suits.

I view a lot of the challenges in the green building industry as emanating from a matter of perspective. There are countless resources available on the web about the legal risks associated with green building—just look at some of the green sites on the sidebar ( -----> ). However, as you scroll through some of those posts on green building, the tone of each writing evidences the perspective of each author. In the same fashion, a green building seminar given to construction attorneys is entirely different than a green building seminar given to owners, design professionals and engineers.

Stated differently, the parties’ expectations about the benefits of a green design will result in disputes. As noted by Frank Musica at the 2007 AIA Convention, these are often “unrealistic expectations” of the owner-developer that place significant risks on the architect. But Frank was presenting to a bunch of architects. What if the talk was given by Professor Thomas E. Glavinich at an annual AGC convention, who defines "the green contractor"?  (... If you look closely, Frank was there, too. Frank is everywhere ...)

Do you understand the potential disputes caused by the parties’ perspective? So long as each party maintains a different perspective on the particular issue, then disagreement will run the project performance. But if the parties are able to clearly and accurately reduce their reasonable expectations to a writing … a contract … then perhaps the perspective they will share is one of success.

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