The Big Three;
LEED, BIM and IPD
Sue Yoakum, AIA, Esq.
Donovan Hatem LLP
Boston | New York | New Jersey | Rhode Island
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Welcome
Donovan Hatem LLP is an approved Provider with The American
Institute of Architects Continuing Education Systems (AIA/CES).
Credit earned on completion of this program will be reported to CES
Records for AIA members. Certificates of Completion for non-AIA
members are available on request.
This program is registered with the AIA/CES for continuing
professional education. As such, it does not include content that may
be deemed or construed to be an approval or endorsement by the
AIA of any material of construction or any method or manner of
handling, using, distributing, or dealing in any material or product.
Questions related to specific materials, methods, and services will be
addressed at the conclusion of this presentation.
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The Big Three; LEED, BIM and IPD
• LEED/Green/Sustainable Design,
– How to manage this changing risk?
• Building Information Modeling (BIM),
– What do I need to know and how do I keep it simple?
• Integrated Project Delivery (IPD),
– Why would I want to do an IPD project if my profits are
at risk?
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GSA
• Almost every local, state and federal building
programs are adopting green building requirements
with LEED certification leading the way
• Looking at the GSA
–2000 - All capital project LEED certified
–2007 - All leased construction LEED Silver
–2009 - LEED Silver required
–2010 - LEED Gold
Difficult to keep up with moving
LEED/Sustainability/Green requirements. However,
it is difficult to impossible to defend if such a
requirement is missed.
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Green Building Programs
• Other concerns: “Taking the Pledge” in
Washington D.C.
– In 2007, Washington, D.C. passed the Green Building
Act of 2006 and became the first major U.S. city to
impose green building standards on private projects.
– The final phase of the Act will take effect January 1,
2012 requiring new or substantially renovated
nonresidential buildings over 50,000 s.f. obtain LEED
certification and applicants are required to post up to a
$3 million performance bond guaranteeing the Act’s
green requirements will be met.
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Green Building Programs
– On November 1, 2011, an alternative to posting this
bond was proposed. Owners could opt out of the
bond requirements by signing a pledge that the
project would meet the Act’s requirements subject to
a penalty up to $3 million for non compliance.
– For design professionals working in the D.C. area,
this may result in Owner’s requiring guarantees of
LEED certification and unreasonable contract terms.
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Green Building Programs
• Looking at IGCC – International Green Construction
Code
– It claims to be an adoptable, useable and enforceable
code
– Applicable to construction of new and existing buildings
and residential buildings
– Not a rating system, but an adoptable code
– Intended to make all buildings measurably greener, not
a few buildings very green
– Development schedule
• First edition of the IGCC published in March 2012
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Tax Deductions From IRS
• EPAct Energy Policy Act of 2005
– Tax deduction for energy efficient buildings
– EPAct provides tax deduction of up to $1.80 per s.f. of
building investments that achieve specified energy cost
reductions beyond ASHRAE 90.1-2001
– Deductions of up to $.60 s.f. are available for three types
of building systems, 1) lighting including lighting controls,
2) HVAC and 3) building envelope which includes roof,
walls, windows doors and floor/foundation
– For projects placed in service after Dec. 31, 2005 and
before Jan. 1, 2013
– Possible to assign tax deduction on government projects
to designers or constructors of the system
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LEED V.3 Online Registration Concerns
• GBCI’s Agreements released in January 2011
including the following:
1) Confirmation of Agent’s Authority - Version 1,
Released January 11, 2011, and revised June 2011
2) Terms and conditions for The Use of LEED® Online Version 3, Released January 11, 2011
3) LEED® Project Registration Agreement - Version 5,
Released January 11, 2011
4) LEED® Project Certification Agreement - Version 4,
Released January 11, 2011
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LEED V.3 Online Registration Concerns
Confirmation of Agent’s Authority
Version 1 – Released January 11, 2011 and revised in
June 2011, both are good January 2011, is preferred
• Parties to this Agreement are the Design Professional,
Owner and GBCI
• Include this Agreement as an Exhibit to your Professional
Services Agreement for LEED projects
• This Agreement is critical because the Owner will most
likely require you to register the LEED Project and you
cannot without shifting the risks and liabilities found in the
collection of the GBCI Agreements/Policy Manual back to
the Owner
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LEED V.3 Online Registration Concerns
Confirmation of Agent’s Authority - January 2011,
“Article 5, Scope of Agent’s Authority. Owner has
expressly granted Agent the full legal right and authority to
take any and all actions Agent deems necessary or
advisable in connection with the LEED certification
process, with the express understanding and intent that
Owner shall be lawfully bound by any such actions taken
by Agent and with the same legal effect as if taken directly
by Owner.”
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LEED V.3 Online Registration Concerns
Confirmation of Agent’s Authority - January 2011,
“10. Liability of Owner. Owner, and not the Agent, shall be
solely and fully liable for any error, omission,
misrepresentation, breach of contractual obligations or
other wrong or damage arising from the actions of Agent
on Owner’s behalf, as such liability may be more fully set
forth in the documentation for the LEED certification
process. GBCI and Owner acknowledge that the definition
of “you” in the LEED Project Registration Agreement, the
LEED Certification Agreement, the LEED Project
Application Review Agreement and/or the LEED Volume
Certification Service and Licensing Agreement, as
entered into by Agent, applies only to Owner and not to
Agent.”
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Sample “Green” Contract Clauses
• Relating to LEED online V.3 registration
“The Owner agrees they will review and execute any and all
agreements that are a part of the LEED certification process
and be responsible for the LEED application including the
Confirmation of Agent’s Authority Agreement with the Design
Professional. If the Owner disagrees with any agreement
that is a part of the LEED certification, the Owner can, in its
sole discretion, decide to discontinue LEED certification for
the Project. Owner agrees to waive any and all claims and
damages, including consequential damages against the
Design Professional if the Owner determines they are no
longer seeking LEED certification.”
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AIA “Green” Documents and Agreements
•
AIA has a relatively new document the D503-2011 which
is a Guide to Sustainable projects
•
AIA intends to release the following “Sustainable”
Agreements in May 2012:
1) A101 – 2007 SP Standard Form of Agreement Between Owner and
Contractor for use on a Sustainable Project where the basis of payment is
Stipulated Sum
2) A201 – 2007 SP General Conditions of the Contract for Construction, for
use on a Sustainable Project
3) A401 – 2007 SP Standard Form of Agreement Between Contractor and
Subcontractor, for use on a Sustainable Project
4) B101 – 2007 SP Standard Form of Agreement Between Owner and
Architect for use on a Sustainable Project
5) B 214 – 2012 Standard Form of Architect’s Services: LEED Certification
6) C401 – 2007 SP Standard Form of Agreement Between Architect and
Consultant, for use on a Sustainable Project
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Building Information Modeling (BIM)
• What do I need to know and how do I keep it simple?
• Set Expectations
• Organization, hosting and administration of the
Building Information Models – who is responsible?
– Who, how and where for Design Team?
– Who, how and where for Build Team?
– Who, how and where for Owner’s management after
construction?
• Use Agreements to assist in setting expectations
– Digital Data Transfer Agreement, and
– BIM execution plan
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Building Information Modeling (BIM)
• Manage expectations relating to the information in the
BIM models:
– Clearly define the level of development of the BIM models by
each member of the design team during each phase of
design
– Clearly define who can use the BIM models and for what
uses
– Stress the need for the Contractor and its subcontractors to
use BIM models for their documents, including shop
drawings
– Clarify that the design teams’ models can be used by the
Contractor and its subcontractors as a reference only, but the
Contractor and its subcontractors will need to develop their
own BIM models to assist with their Work
– Clarify the Design Professional’s Construction Documents
and specifications are the controlling documents
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Building Information Modeling (BIM)
• Setting expectations for development and use of the BIM
models. The following are needed:
– AIA E 202 – 2008 BIM Protocol Exhibit, intended to be attached to
your Agreements with the Owner and Consultants
– AIA E 201 – 2007 Digital Data Agreement, intended to be attached to
your Agreements with the Owner and Consultants, or
– AIA C 106 2007 – Digital Data Licensing Agreement
• Two party agreement that creates a license to use the digital data
for a project. This agreement is anticipated to be used between
parties that do not have an agreement, i.e. contractor or
subcontractors.
AIA is working on updating the E202 and E201. Anticipate
publication sometime in 2012.
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Integrated Project Delivery (IPD)
• There continues to be significant talk about IPD.
If you exclude California, however, few projects
are using IPD.
• If you eliminate hospital projects, the number
reduces further.
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Integrated Project Delivery (IPD)
• Why would I want to do an IPD project if my profits are at
risk?
– What is considered a “Pure” IPD project? Multi-parties execute one
Agreement and promise to deliver the Project pursuant to agreed
upon terms and conditions, including defining the budget and
schedule
– Parties to an IPD Agreement typically include the Owner, Architect,
CM or General Contractor, and can include major design
subconsultants and major subcontractors
– Payment: typically, design team and contractor are paid their costs,
plus some or all of their overhead and an agreed-upon profit
– The IPD form agreements places profit at risk if the Project cannot be
delivered as anticipated
– What percentage of profit is typical to risk? Completely negotiable
from 100% to lesser agreeable amount
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Integrated Project Delivery (IPD)
• Why would I want to do an IPD project if my profits
are at risk?
– The parties work together and create a process (Core
Team) to understand, design, estimate costs and schedule,
and make decisions for the project
• This does not mean that quality design or construction is at risk.
Design and construction options are evaluated by the team in and
effort to make the best decision for the project.
– Owner carries a contingency that the “Core Team” has
available for use on the Project– “the IPD Core Team
Contingency”
– If contingency is preserved, it can be used as incentive
payment and shared among the project participants
– If contingency exhausted, project participants make up the
difference up to a certain limit . . . there goes your profit
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Integrated Project Delivery (IPD)
• A look at the money for a $100 million project
– IPD Core Team Contingency suggested at five percent
(5%) of hard construction cost, or $5 million
• Suggest a waiver of claims from the Owner within the
IPD Core Team Contingency
– Owner’s Contingency, suggested at five percent (5%)
an additional 5%, or $5 million for certain Owner costs,
increase scope, unforeseen conditions, etc.
– Total Contingencies are $10 million
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Integrated Project Delivery (IPD)
– After depletion of the IPD Core Team Contingency,
Owner looks to design professionals and GC/CM to
pay a portion of profits they agreed by contract to have
at risk
– After depletion of profits at risk . . . well the same old
claim game with deductible and insurance at risk
– Of concern is the potential disconnect between
professional liability insurance and the IPD multi-party
agreement
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Integrated Project Delivery (IPD)
– Professional insurance is triggered on fault, i.e. a
finding of negligence on the part of the design
professional
– Giving back a part of your profit per your IPD
Agreement is not triggered on your fault, or
negligence, it is a contractual obligation
• Does this profit given back count towards your
deductible?
• Not unless you insurance provider agrees
• Can professional liability insurance and IPD live
together?
• Yes project specific professional policy is the best fit
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Conclusion
• Green/Sustainability/LEED, BIM and IPD
continue to dominate the design landscape and
are changing the practice of architecture and
engineering. This is not the first time, nor will it
be the last that, the professions experience
change.
• How will your firm handle this changing
landscape?
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Contact Information
Sue E. Yoakum, Esquire, AIA
syoakum@donovanhatem.com
Donovan Hatem LLP
World Trade Center East
Two Seaport Lane
Boston, MA 02210
Tel 617.406.4674
Fax 617.406.4501
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