I understand the need for the rfp and due diligence. But due diligence isn’t worth much of anything unless you get reps and warranties from the landlord. In the context of an asset purchase, for example, even with an -as-as purchase, you get reps/warranties that the landlord has given you all the information it has. But that’s not true with an unsigned rfp or non-binding LOI. As a tenant in this market, I would dial down the due diligence and instead just put the onus on landlord to give us some strong reps and warranties in the lease itself. They’d include reps/warranties that 1. they’ve given tenant all of the documents and will continue to provide all documents/letters/notices related to such Obligations (defined term which includes any amendments to such Obligations) and 2. that they’ll continue to comply with such Obligations throughout the term of the lease. Then you deal with damages and remedies–a liquidated rent reduction and/or a self-help/rent holdback remedy and/or default. You also try, from tenant’s perspective to carve these damages out of the usual landlord hold harmless and damage limitation provisions as necessary. Finally, the lease recitals should include a statement that tenant has invested significant resources in _________ certification or green practices, that it has made public statements to its customers, clients and shareholders regarding such practices and that it would suffer damages as a result of landlord to fulfill its Obligations, etc.

From a practical drafting perspective, I generally disfavor substantive terms in an addendum–whether green or otherwise. Clients will willy nilly attach them to various leases in the future, with the result that the defined terms won’t line up, the definitions will become dated and the provisions will likely conflict with other lease terms. Instead, I would put these provisions directly into the lease. A convenient place to insert these sorts of reps/warranties is the environmental section of the lease. The enviro section typically contain a definitions section on “Environmental Law”s and “Hazardous Materials”, and then also contain a series of reps/warranties and indemnities. Of course, green lease provisions are not “environmental” per se. However, putting it there makes common sense to many clients and is sensible from a pragmatic draftsmanship perspective. But more importantly, the “green” terms we’d likely need (from landlord or tenant’s perspective) are very similar –definitions, reps/warranties, mutual indemnities and possible survival after term for any ongoing damages.