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Lawsuit Potential if Building Does Not Achieve LEED Cert.

  • 1.  Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-15-2010 03:58 PM

    An interesting article from the Building Operating Management December 2010 issue.  What happens if you promise the client a LEED Certification and the building does not achieve certification?

    http://www.facilitiesnet.com/green/article/Responsibilities-Must-Be-Spelled-Out-In-a-Green-Building-Contract--12117

    -------------------------------------------
    Cathleen Hart AIA
    CHAI Architects, LLC
    San Antonio TX
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    AIA26 San Diego June 10-13


  • 2.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-16-2010 09:13 AM
    the litigators are circling like hungry vultures trying to figure out how to attack this beast.  you can feel their disappointment and frustration in not having figured out how to enter this market.  yet.

    that said, the one thing one should never do is promise LEED certification.  achieving certification is a team effort and it involves everyone taking some portion of responsibility:  the owner, the design team, the general contractor and subcontractors, product suppliers.  too many parties for any one entity to control or take responsibility for.  add to that, that there is a third party reviewer who one has little control over, either.

    there are a lot of issues in a lot of agreements, and it is amazing that there haven't been more lawsuits.  i tend to think it's because, up till now, there really hasn't been any loss when LEED isn't achieved.  in most cases, it's purely a marketing benefit.  i think the article misspeaks when it says tax credits were loss because of LEED certification.  there are tax credits for energy savings and renewable energy, but i don't know of any for LEED specifically.

    energy performance is a whole other bucket of worms.  there's a lot of misconception about energy modeling being an accurate predictor of performance.  they are not the same thing at all.  and modeling is an imprecise science, at best.  again, there are many variables over which there is little control:  occupant use, the weather, and operations and maintenance being the three largest.

    education is probably one of the key issues.  understanding what LEED is and what energy modeling does.  education of the professionals and building trades, as well as the public.  this is all still fairly new to most people and we're learning, but we have a long way to go.  however, that said, as education increases, so will expectations and, therefore, responsibility and liability.

    -------------------------------------------
    Glenn Richters AIA
    Benefield Richters
    Knoxville TN
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    AIA26 San Diego June 10-13


  • 3.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-19-2010 08:19 AM
    Here is more information on the Captain's Galley lawsuit - and, yes, the state (Maryland) tax credits were tied to LEED certification.  $650,000 worth.  http://www.sherin.com/D6C897/assets/files/Documents/HJG_MCL_Green_Litigation_Oct_08.pdf

    See also the Comptroller of Maryland web page:  http://business.marylandtaxes.com/taxinfo/taxcredit/greenbldg/default.asp  The material from the Comptroller does not make it 100% clear what has to be submitted, but I believe an actual certificate of LEED certification by GBCI was required.
    -------------------------------------------
    William Holland AIA
    West Newton MA
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    AIA26 San Diego June 10-13


  • 4.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-20-2010 04:05 AM
    William, thank you for the informative article links you provided.  I could not tell from your comments what you think about the lawsuit.

    Relatedly, in doing a google search on usgbc and its co-founders, I found this information regarding a lawsuit that challenges the legitimacy of the LEED program:
    http://www.dinslaw.com/lawsuit_challenging_legitimacy_of_leed_program/

    Frankly, the more I am learning about the USGBC, GBCI, and LEED, the more shocked I am that the AIA didn't step in far sooner and take control of this whole idea/process.  It is a monstrosity to say the least.  And now we have municipalities making it mandatory that buildings must be LEED certified.

    I wonder if many people realize what this organization has done.  Far from supposedly making our buildings better, they are now poised to literally stand in the way of a licensed architect- who is not LEED AP certified- from practicing architecture.  Thus, rendering state licensure and the AIA as totally subservient to their standards.  It is scandalous!

    This thread would be better titled: "While we were sleeping..."


    -------------------------------------------
    Tara Imani AIA
    Principal
    Tara Imani Designs, LLC
    Houston TX
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    AIA26 San Diego June 10-13


  • 5.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-21-2010 12:32 PM

    The USGBC, GBCI, and LEED may be a monstrosity, but for me it's a testament to what can happen when client needs aren't being adequately served.  Obviously there's an untapped demand for better performing buildings and addressing hidden concerns about real environmental impacts.  When we look in the mirror, can we honestly say we're providing the breadth and depth of services we're capable of and our clients require?

    As I see it, LEED provides a tool that can help a team attain modest and achievable goals that might be unattainable otherwise because of industry realities.  It seems to be morphing into something else, however, driven to absurdity by hordes of industry partisans.

    Maybe we would do well to reflect on what organizational arrangements could work better for those who rely on architects to deliver habitable and sustainable living conditions.  Would something like that be worth discussing in greater detail?  How could it happen?
    -------------------------------------------
    Randall Anway AIA, LEED, CNU, CSBA
    Principal
    New Tapestry, LLC
    Old Lyme CT
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    AIA26 San Diego June 10-13


  • 6.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-21-2010 12:50 PM
    tara,

    i'm curious as to why it is you feel usgbc is "poised to literally stand in the way of a licensed architect- who is not LEED AP certified- from practicing architecture?"

    LEED AP accreditation has nothing to do with architecture licensure.  LEED AP accreditation isn't even required for a building to obtain LEED certification.  LEED certification has little to do with building codes.

    and what part of the LEED process do you think is "a monstrosity?"  how would the AIA have made it any different?

    -------------------------------------------
    Glenn Richters AIA
    Benefield Richters
    Knoxville TN
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    AIA26 San Diego June 10-13


  • 7.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-21-2010 03:18 PM

    Many on the forum are worrying without cause. As Glenn points out, anyone can apply for a building to be LEED certified; you do not need to be a LEED AP. Further, it has been my experience that most governmental agencies are requesting that buildings be "designed to meet LEED standards" which is very different than requiring LEED certification.

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    Robert Longo AIA
    Partner
    Cornerstone Architectural Group
    South Plainfield NJ
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    AIA26 San Diego June 10-13


  • 8.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-21-2010 03:39 PM
    Hi Glenn,

    I'll be happy to answer your questions as best I can.

    //i'm curious as to why it is you feel usgbc is "poised to literally stand in the way of a licensed architect- who is not LEED AP certified- from practicing architecture?"//

    The reason I see it this way is that, for example, in order for me to qualify to take the LEED AP exam, I first need to provide proof that I am working directly on a LEED certified building (or one that's going through the certification process).  How can a sole practitioner do this unless they either convince the client to hire them as their "LEED expert" (though they don't yet have that credential behind their name) or they could manage to work with a firm as their LEED consultant.  Now, why would said client or firm hire someone who isn't a LEED certified architect when they can choose to work with someone else who is LEED AP certified?  Is this not the way the process works? 

    The way the info on the USGBC site came across was that "in order to be a doctor, you must first prove you're a doctor."  So, it seems to me that unless you are employed at a firm and are given the chance to work on a building that is being LEED certified, you're kind of chasing your tail on this one.  Perhaps I'm missing something in this process and am making it more difficult than it needs to be.

    I wonder, has the eligibility criteria gotten more stringent since the first exams in 2001?

    So, based upon the above, and in correlation to the fact that many cities and municipalities are now requiring all new buildings to be LEED certified, it seems to me that only licensed architects who are already LEED AP certified will qualify to handle such building design.  Thereby, shutting out all licensed architects who are not yet LEED certified.  In this manner, the USGBC is dictating sustainabilty in the built environment- which is not inherenly a bad thing- it's just that they "OWN" and directly benefit financially from it; also, they are seductively "forcing" architects to sell their clients on LEED, are they not?

    //LEED AP accreditation has nothing to do with architecture licensure.//

    Right, your statement is correct.
     

    //LEED AP accreditation isn't even required for a building to obtain LEED certification.//

    Oh, this is something new to me.  I wasn't aware that a building could obtain LEED certification without LEED AP certified people working on it- isn't that a given?  If this is the case, I guess I don't fully understand the process of either certifying a building versus the need for a person to pass the certification exam. 

     
    //LEED certification has little to do with building codes.//

    Really? I was of the impression that some cities and municipalities are adopting LEED principles into their building codes and are using such language as "the building must be LEED certified."  Is this not the case?  Perhaps I am misinformed on this; I will look into it further.

    //and what part of the LEED process do you think is "a monstrosity?"//
     
    Let me count the ways!  Where should I begin?  Firstly, who created it?  Wasn't it a scientist who worked for R&D in the US govt?  I want to say, with all due respect to him and his grand ideas,  "who died and made him god of green architecture?"  While I agree that it is definitely critical that our decisions as architects be based on sound scientific information, it seems very wrong for only non-architects to write specific standards and codes to achieve that.  While I believe our building codes must be informed by their data/knowledge, they must not be the drivers of the code.  Architects need to take more of a leadership role in the process of creating building codes based on sustainable, green principles.  Instead, we have usurped this duty to the USGBC, in my opinion.  (and...maybe this would have been fine had the AIA been more straightforward and vocal about it; instead, they seemed just as surprised and unknowledgeable about what does LEED stand for as the average AIA member who never attends a National convention- that is, when I attended the 2006 convention.)



    //how would the AIA have made it any different?//


    First of all, I would respect the LEED certification process much more had it come from the AIA.  Instead, it seems that an outside entity is calling the shots on how we should approach sustainable design.  Do you think that an architect would have created this silly point system where you get 1 point if you have a bike rack, and one point if you have a LEED AP person on the job, etc.  <=== by the way, I think this answers the question of whether an owner can get his/her building LEED certified without using a LEED AP certified person.  I'm guessing the answer is, then, that they can, but they will only be eligible for a lower than the LEED Platinum standard...? 

    Since I haven't been a part of a LEED process, I don't know much about it except for what I've heard on the tertiary.  The point system seems cumbersome and arbitrary.  And, now, as we've seen in the Shaw lawsuit in Maryland, the point system is the bone of contention.  Are we now being reduced to depend upon administrative staff to track and tally up points- 1 for this, 2 for that, determining who is responsible for this or that.  Surely, there must be a better way.  I can conceive of an AIA Sustainable Design/LEED Document that would address these matters.  But, perhaps their legal counsel told them to steer clear of it...?
    It has taken U.S.G.B.C. since 1993 to create this "standard."  Why were these people the ones who were qualified to take on this task? Were they the only experts on this?  I think the AIA was remiss in not taking hold of this information and adopting it under their umbrella.  It was as if they threw up their hands in defeat and said, this is boring, too difficult, let them do it.  Well, now the AIA is basically subservient to USGBC.  

    I have been trying to find a good analogy, but am still having trouble with that.  I was thinking it reminded me of how the health care industry came under the control of the insurance companies with managed care back in the 90's- where you had unlicensed payor sources dictating the care that a physician could provide to a patient.  This is not like that though.  Instead, we- licensed architects- are paying the USGBC to tell us what to do.  Doesn't this seem backwards to you?

    And now, I suppose in response to the concern for differentiation between who is LEED AP, they have created LEED AP specialties.  Well, what if you're a general practitioner?  Right now, for me for example, I can become LEED AP certified under the Building Maintenance and Oversight specialty as I know a developer who would likely hire me as his LEED consultant- so I could then be eligible to take the exam.  I haven't read any further than that on this process, but it seems to me that it would be better for a licensed architect to be LEED AP BD + C.  So, the resultant effect is fragmentation of our services- unless I'm simply not understanding this process.

    Also, I've heard that the test is intentionally difficult.  Why? That, too, seems absurd.

    If you read the class action lawsuit out of New York, the attorney nails it on the head regarding how USGBC describes how "even inexperienced people can benefit from becoming LEED certified."  WHAT?  This is preposterous language.  And yet, we have licensed architects who have brilliant track records and are leaders and lecturers in sustainable design not able to pass the exam on the first time through.  So, that is how a LEED AP can usurp the role of a licensed architect.  Better to hire some administrative assistant to tally up and dole out the responsibility for each point... 

    I'd like to think that the AIA would have been able to create a far better system- if not right away, at least over time it would have perfected it.  Maybe it's not too late.  I look forward to the day when the AIA maneuvers their way to be the leaders on the "LEED" system- why not call it, LSDGB (The AIA Leaders in Sustainable Design & Green Buildings), a subsidiary non-profit entity of the AIA?

    So, that is my perspective. 

    Incidentally, I am signed up to take a $315 class in February on how to prepare to pass the LEED exam the first time through and I plan to become LEED AP certified (plus whichever specialty applies to me) within the next six months.  While I may not agree with how this all came about, I see that LEED certification is no longer an option if one wants to remain employable.

    Having been away from the industry for a while, I am playing catch up in general.  So, among other books, I have recently ordered "The Philosophy of Sustainable Design" and "Green from the Ground Up."

    Well, thanks for listening to all this...  I apologize for its lengthiness.  I appreciate any insight or input you or anyone else has on what's been shared here.

    Kind regards,
    Tara

    -------------------------------------------
    Tara Imani AIA
    Principal
    Tara Imani Designs, LLC
    Houston TX
    -------------------------------------------






    AIA26 San Diego June 10-13


  • 9.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-22-2010 07:08 PM

    I will not comment on the lawsuit mentioned against the AIA other than to say I feel the suit mentioned is grossly unfounded despite what the legal language used may make it sound like.

    In relation to the USGBC and LEED I will say that I have met and communicated with several of the USGBC employees including many of the highest ranking members of its leadership over eight or more years. I can say without exception I have found ALL to be tremendously dedicated to the betterment of the planet, humankind, and society. The USGBC and its staff have done a hero's job of helping transform the built environment to a greener, more prosperous and in many ways more humane world; this more so in the cause of sustainability than any other organization I know of.

    Our firm has been members of the AIA and the USGBC for about equal times.  And I have watched the AIA's position for about 30 years. I can honestly say that the AIA has not stepped in as THE leader in sustainability for the built environment despite many decades of opportunities and calls for it to do so.  The USGBC has.  This is not to cast stones to the AIA although they have unfortunately either passed or otherwise missed some very open doors to do be a much stronger leader. I am not questioning the reasons why this is so here.

    I was involved in developing sustainable or green criteria to guide land use, energy, water, etc. in Ames, Iowa about 30 years ago; long before LEED was developed.  I can say that this is not an easy thing to do for a city of 50,000 people; and we were a long way from having developed anything as good as LEED.  With LEED the USGBC has developed a system that is being used nationally and used in modified form internationally.  This is because it is an excellent system and because skilled people introduced it successfully to the market place and there is a system in place to support it. (Superior systems like LEED can fail without the right support). It is also successful because it is consensus based by members and its evolution is likewise consensus based.  Like all human endeavors it is not perfect.  But it is adjustable and adjusted.  For example credit weightings changed considerably in 2009 and will continue to change.

    LEED is the best thing going (that most of us know about) at integrating complex societal, environmental and economic issues into something that make sense, is relatively balanced and works.  Yes, it works. LEED provides a framework that entire team can follow; the owners, the designers, the builders and the users. And at the end society has a lot greener buildings and building products because of LEED.

    Many want to boil down the success of LEED or lack thereof to energy performance.  First LEED is not ALL about energy; nor do I believe it should be.  There is a lot more to sustainability than just energy. And LEED is not a predictor of energy use.  There has been a lot of discussion about this on the web and in print articles and by now this should be clear to most. But I will restate the point in my own terms:

    The Optimize Energy Credits in most versions of LEED are tied to ASHRAE STD. 90.1.  This is a nationally recognized energy standard that if followed can lead to greatly improved energy performance compared to building designs that do not follow a reasonably strict energy standard.  Compliance with this standard can be net by following prescribed methods or a combination of proscriptive methods that when modeled show modeled performance that exceeds the minimums. By the way the standard is upgraded every 3 years with higher requirements that common sense suggests would raise the bar on performance.  After all would one not expect better energy performance with higher levels of insulation, better windows, more efficient mechanical systems.  And where do insulation ratings and equipment efficiency ratings (R-values, SEERs and COPs, etc.) come from?  Not from the USGBC.  No they come from third party testing agencies. The energy modeling that CAN be used to show compliance with some LEED credits is tied to this standard and is based on mathematical calculations that show the difference a between a MODELED base model and a design model. It is meant to show RELATIVE differences between the two despite the fact that modeling spits out a number.  It is NOT meant to show IN USE performance differences between the two.  Again these are models, not buildings in use.  And where do(es) the modeling software(s) come from? (There are many approved for use with ASHRAE Std. 90.1 that have to meet strict tolerance criteria.)  They do not come from the USGBC.  No the USGBC relies on nationally (and in some cases internationally) recognized standards.  If buildings do not perform as highly as modeling suggests it is not the fault of the USGBC.  The USGBC does not guarantee energy performance and neither should the design team members that design a building unless they are willing to assume a considerable risk.

    Let's recognize LEED for what it is; an incredible transformative tool. 

    Cheers,

    Ralph Bicknese AIA
    Hellmuth & Bicknese Architects, LLC
    Maplewood MO
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    AIA26 San Diego June 10-13


  • 10.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-23-2010 08:54 AM
    Excellent points, Ralph - thank you.

    As others have already noted, we as architects should never guarantee any outcome that is beyond our control.  Anyone who promises a client a specific LEED rating is opening themselves up to liability and litigation.  Reading the comments here, I'm struck by how much misinformation is still out there about the USGBC, LEED, and sustainability.  Our profession needs to be on top of this and provide leadership, regardless of what AIA does at the national or chapter level.  We each need to do this at the project level - architect to client - and also peer to peer. 

    In the end, it's not about LEED or any other rating program - it's about designing and building something better for our clients. 


    -------------------------------------------
    Roxanne Button AIA, MRAIC, LEED AP (bd+c, homes)
    Architect
    Architectural Resources
    Buffalo NY
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    AIA26 San Diego June 10-13


  • 11.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-23-2010 10:00 AM
    Well said, Ralph. Well said. Thank you.

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    Kurt Thompson AIA
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    AIA26 San Diego June 10-13


  • 12.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-23-2010 10:21 AM


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    James Gleeson
    Design Integration, PLLC
    Charlotte NC
    -------------------------------------------
    I am responding to Ralph's post, but this is more generally a response to the many architects and others who still see the LEED program as an expensive and risky 'burden'- and there are still many who do. I spoke to a leading architect in the Carolinas within the last month who was bemoaning the requirement that he and others were experiencing, by agencies requiring LEED certification. It was 'expensive and difficult', they thought.

    From the beginning of the LEED program, I was encouraged by the possibility that background reference materials that went with the LEED program/Reference manual described an inclusive, holistic process that could yield much higher performance. I have found over and over again, with LEED and without it, that this is the major lesson of the USGBC and LEED and not the point system or even the technology. This integrated or holistic approach is what makes or breaks the the 'green building' design process, not how many points you can muster. There are many LEED certified buildings that got the points to qualify but in which the strategies were not properly integrated to produce the desired result. Conversely there are buildings which are not certified but were designed by a team of stakeholders, working closely together to find synergies in their design processes which produced excellent reductions in energy use, embodied energy, or improvements to IAQ, etc.

    Green, or high-performance building design is, or could be, the biggest boon to the architectural profession ever if architects took up their natural role as leaders of the the integrated high-performance design process. There are so many potential values to building owners, users and the community in general, associated with greening the built environment, that architects should be 'selling' these values, not just providing commodity overhead services. We can reduce health risks and raise productivity in an enterprise which can make the building 'free', yet we are arguing about whether the risks to build green are too great.

    If architects want to minimize risk AND be recognized as leaders in the field of sustainability, we must just do what we are in a position to do- Assemble and Lead the stakeholder team for each project and encourage and coach them to work together on a set of greatly elevated goals that will both produce results AND minimize risk of legal wranglings later.

    As Ralph said, LEED is a excellent framework on which to build a consensus-based team to design and build high-performance buildings. It is up to Architects to develop and LEAD a process which produces results. Those who learn to routinely produce the results, which always come from a well led team, will prosper in the future.

    Jim Gleeson, AIA
    Design Integration
    Earthcrew
    Charlotte, NC

    AIA26 San Diego June 10-13


  • 13.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-23-2010 01:01 PM
    To Ralph Bicknese:

    To be clear, there is no lawsuit against the AIA.  Rather, I think the lawsuit your post was referring to is the one against the USGBC.  Here is a portion of the article explaining the parties involved:

    ///On October 8, 2010, Plaintiffs Henry Gifford and Gifford Fuel Saving, Inc. filed this class action suit against U.S. Green Building Council ("USGBC"), David Gottfried, Richard Fedrizzi, Rob Watson, et al. USGBC is a nonprofit organization founded by David Gottfried and Richard Fedrizzi that trademarked the Leadership in Energy and Environmental Design rating system ("LEED") designed by Rob Watson. The putative class members include consumers who paid for LEED certification, taxpayers whose city and state tax dollars have been spent on the costs of LEED certification in publicly-commissioned buildings, and building design and construction professionals who design energy-efficient buildings.///





    -------------------------------------------
    Tara Imani AIA
    Principal
    Tara Imani Designs, LLC
    Houston TX
    -------------------------------------------






    AIA26 San Diego June 10-13


  • 14.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-26-2010 04:20 PM
    I suspect that most architects may not realize that one of the primary reasons, if not THE primary reason why the USGBC recommends that Commissioning Authorities be independent of the design team, is to assure that they are not beholden to a party that has an interest in the success of the project. However, along with their independence, they are supposed to limit themselves to the role of observer. At least one of the organization which certifies Commissioning Authorities prohibits them from getting involved in design or any other activity that might create a conflict for them, without bringing the potential conflict to the attention of the Owner (or whomever retains them) and satisfying them that appropriate steps are being taken to prevent that conflict from affecting their role as an independent party. 

    I raise this issue because commissioning is such an integral part of the LEED certification process. 

    If you have the opportunity to review or edit the agreement between the Commissioning Authority and the Owner, I recommend that you make sure that it stipulates that, under no circumstance is the CxA to express an opinion regarding the design or why or why not the completed systems are performing in accordance with the design. Otherwise, there is an opportunity for a unnecessary rift to develop between the design team and the owner. 

    If the systems are found not to be operating properly, the appropriate protocol is for that information to be transmitted to the design team for their review and comment. If the CxA gets involved in fixing a problem, it can subvert the design intentions.

    Subverting design intentions is just one of the many ways in which a building might fail to achieve LEED certification. The above approach can help prevent such an outcome.
      
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    Eliot Goldstein AIA
    The Goldstein Partnership
    Maplewood NJ
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    AIA26 San Diego June 10-13


  • 15.  RE:Lawsuit Potential if Building Does Not Achieve LEED Cert.

    Posted 12-16-2010 02:59 PM
    SIMPLE - Don't "promise."  It's similar to the trap of cost estimates or construction observation. Architects cannot 'guarantee' estimates; nor can we 'supervise' construction. And we cannot 'promise' LEED certification.
    Accurate language remains vital.

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    Peter Saucerman AIA
    Dreyfuss & Blackford Architects
    Sacramento CA
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    AIA26 San Diego June 10-13