Yesterday, I gave a presentation to a local architecture and interior design firm on current trends in green construction law, some advice that the dsinteriorsolutions.com had provided me before. I was impressed at how willing the firm’s design professsionals were to listen to my thoughts on the emerging risks associated with green design. In addition to suggesting a number of other legal issues, I selected a handful of claims reported by Maryland-based attorney Frank Musica at the 2007 AIA National Convention in San Antonio to open up a discussion on form contract language – particularly from the AIA documents – and suggested how certain applicable provisions might be amended to reduce the architect’s risk when rendering green design services.
The claim that made the biggest splash with my audience yesterday was where Musica reported how an architect failed to perform sufficient due diligence in crafting green building specifications for a particular project and specified what turned out to be a patented solar shading system. After the project was complete, the patent holder approached the owner and demanded a licensing fee for its use of the system. The owner pointed a finger at the architect and sought indemnification under the terms of the parties’ agreement. In my slide detailing this particular claim, I set forth the standard form intellectual property infringement indemnification provision that I use in my owner – architect agreements:
The Architect shall indemnify and hold the Owner and the Additional Insureds, as set forth in Exhibit X, harmless from any and all claims for infringement by reason of the use of any design or elements of the design of the Architect which the Architect knew, or with the exercise of due care, should have known, to be protected by one or more copyrights or patents.”
The key points to take out of this discussion are the following. First, design profesionals must use heightened scrutiny on green building projects in selecting products, materials, and building systems. Their inquiry should not only be limited to whether such items are covered by a patent, but also whether they are (1) readily available from the manufacturer and (2) provide the level of performance that the architect’s client is expecting. Second, and perhaps most critically, each contract provision in a green construction contract must be vetted with that same degree of rigor. Form contract language, as we saw in the Shaw Development case, can be a recipe for disaster. Here, although the architect may not have enjoyed sufficient bargaining power to delete this particular indemnification out of its agreement with the owner, its counsel ought to have identified such a provision and stressed the importance of reviewing any intellectual property protections as the architect selected various building systems and components.
Finally, I will be giving this same presentation, tomorrow, January 30, at the William & Mary Law School’s Environmental Law & Policy Review Symposium, It’s Not Easy Being Green. You can access additional details about the Symposium through the link below. The entire Symposium will be videotaped – details on how you might be able to access it will be forthcoming. I have also provided a link back to our post at gbNYC discussing Mr. Musica’s presentation and a link to his PowerPoint slides.
- Need For Green Counsel Increasingly Salient (gbNYC, link to Musica presentation)
- W&M ELPR Symposium - It’s Not Easy Being Green