ASID Icon - Winter 2011 - (Page 31)
By Sharlyn Underwood, ASID
BEHIND THE BEAUTIFUL, sustainable, highly func-
tional, healthy and safe environments that interior designers create is a plethora of contract language. When practicing green design, there is another level of legal language that needs to be in place. There are many reasons to design and build green: decreased or no utility expenses, increased resale value, improved insurance rates, healthy work/live environments, and improved occupant productivity to name a few. With some of these design features come additional ﬁrst end costs. An owner may invest more in triple-glazed windows, energy-efficient lighting, low VOC materials, and water saving ﬁxtures in order to realize a healthy live/work environment and a signiﬁcant cost savings in utility bills and employee turnover for the long term. Designing, building and documenting practices to meet these green terms should be included in the design and construction contracts.
KEEP YOUR CREDENTIALS CURRENT
Liability should be limited to situations that arise because of the designer’s or contractor’s negligence.
GUARD AGAINST RISK
Given their investment in green, owners want contract language that supports a green building result. Owners should request documentation of designer’s and contractor’s green building experience. Desired green building features and requirements and any LEED® services should be noted in bid documents. As a designer, keep your green building credentials current or partner with someone who does and be prepared to respond directly to the required green building features and requirements. Attorney Donald Simon, partner at Wendel, Rosen, Black & Dean, says designers and contractors need to use good common sense in green building contract language. Do not promise anything that is beyond the designer’s and contractor’s ability or control to deliver. A design and construction team cannot control the certiﬁcation body—Green Building Certiﬁcation Institute (GBCI) for LEED®, U.S. Environmental Protection Agency (EPA) and U.S. Department of Energy (DOE) for Energy Star, or any other third party reviewer. Instead, liability should be limited to situations that arise because of the designer’s or contractor’s negligence.
In introducing its new “Guide for Sustainable Projects, including Agreement Amendments and Supplementary Conditions” document (AIA® Document D503™-2011), the AIA cautioned, “This rapidly changing ﬁeld of sustainable design and construction presents new roles, responsibilities, risks and opportunities for those involved in the design and construction industry. A clear understanding of these new roles and responsibilities will be increasingly important.” Many insurance companies currently provide better rates to green building owners. Concurrently, professional liability insurance companies are revising the standard of care clauses to include green design. Historically, interior designer’s standard of care would include, but not be limited to, designing for the health, safety and welfare of the occupant, complying with local building codes, addressing ergonomics and accessibility, and providing concise and accurate drawings and speciﬁcations. When lawsuits are ﬁled, often times they have a basis on whether or not the standard of care was met. With the inclusion of a general knowledge of green design in the standard of care, a suit could be made based on green design issues. Interior designer Rachelle Schloessler Lynn, FASID, CID, LEED AP BD+C, is partner in Studio 2030. Along with her business partner, they have professional liability insurance and client contracts that address their green building design practices. Rachelle recommends, “Interior designers [should] continue to learn about all aspects of green design that impact interiors from water efficiency, energy efficiency (speciﬁcally lighting), indoor air quality (low VOC) and material selections to ensure that the standard of care is met when designing for their clients.
Green design strategies are being recommended in the new International Building Code – International Green Construction Code (IgCC) that is scheduled to be published in March 2012.” Susan Dorn, General Counsel for the U.S. Green Building Council, recommends reviewing the white paper that the USGBC compiled a couple of years ago, “The Legal Risk in ‘Building Green’: New Wine in Old Bottles? - A USGBC Panel Discussion” and the aforementioned AIA Guide for Sustainable Projects documents. Susan also provides the following: The basic legal relationships of design professionals to the project remain in place. Having said that, make sure the designer, the client, and other members of the project team are clear about expectations and the scope of work each project member is taking. Before bidding or agreeing to take on a project, the designer should gather as much information as possible, and be comfortable with the knowledge level and experience of the rest of the project team. Insurance markets are increasingly sophisticated and able to tailor insurance to the needs of design professionals, so now is the time to update errors and omissions insurance. Finally, know applicable state licensing and regulatory schemes, and, for designers focusing on the residential market, be familiar with the state’s consumer protection statutes while compiling client agreements and advertising design services. The USGBC provides a publicly available list of lawyers that counsel design clients on these very issues. i
Sharlyn Underwood, ASID, LEED AP BD+C, consults on green design and LEED and writes on sustainable design.
Table of Contents for the Digital Edition of ASID Icon - Winter 2011
design for life
resource guide & advertisers
IP Focus 2011
ASID Icon - Winter 2011