Agilewaves is an angel-funded company founded by a pair of ex-NASA engineers, and the Building Optimization System and Resource Monitor is its signature product. The Agilewaves BOS, like those of the other bigs in this field, monitors electric, water and gas usage per unit and then integrates and packages that information. The novel part of Agilewaves’ BOS approach is that it monitors usage without having to rely on utilities for data, delivering utility-quality accuracy in real time through an easy-to-read dashboard (and even to wireless devices, if you’re into that sort of thing) (if you are, we’d both salute you and urge you to consult that pictured reference).
It’s hardly controversial, given what the “g” in gbNYC stands for, to advocate the idea that green retrofits are a good idea for buildings in New York and elsewhere. But as the consensus grows that this is, in fact, what’s going to happen — at least in the sense that a greener built environment is so clearly wise, responsible and cost-effective that it kind of has to happen — let’s take a break from popping Cristal over the coming retrofit boom and fretting over the imperfections of our current capacities. During that break, we’d encourage you to take a walk (but bring mittens, it’s cold) and maybe give some thought to just how we’re going to pay for all those awesome retrofits that are surely coming down the pike. While we all broadly agree on what should happen when it comes to retrofits, it will be easier to believe that all those good things will happen when we have some idea how they will happen. Which brings us to… green leasing?
USGBC’s Green Lease Guide does much more than just discuss the split incentive that’s a major barrier to implementing a truly green lease; it provides tenants with a form environmental impact questionnaire designed to assist them in vetting potential properties, as well as eleven pages of sample green lease provisions. The Guide is primarily written for commercial office tenants, but landlords will find its background information useful as well.
Back in June, a Winnipeg developer unveiled 1735 Corydon Avenue, a 2-story, 12,800-square-foot office building which is the first in Canada’s Manitoba province to require all potential tenants to sign a green lease.
Last Wednesday, I had the opportunity to join a panel discussion on green leasing at the Urban Green Expo here in New York City. The session, which was titled “Green Leases: Aligning the Incentives of Landlord and Tenant,” presented the results of four projects which aim to provide brokers, landlords, tenants, and their attorneys with guidance towards creating more sustainable leasing structures. The projects, which may be familiar to you, were the Real Property Association of Canada’s (REALpac) Green Office Lease, the BOMA Green Lease Guide, and the NRDC’s Green Lease Forum, which aimed to create a set of principles for lease negotiations and other recommendations for making existing leases more energy efficient. I presented the Model Green Lease Task Force’s Model Green Lease- an effort which, as you may know, was spearheaded by green leasing guru Alan Whitson (who has contributed here at GRELJ previously in an insightful response to an article that we wrote on environmental performance objective clauses). Unlike the BOMA Green Lease Guide (created by Jones Day partner Steve Teitelbaum, who also participated on the panel), the Model Green Lease is an extremely compact document, drafted from scratch, which is fundamentally based on the theory that, in order to make a more compelling business case for green buildings, leases must be crafted as gross (i.e., the landlord is responsible for building operating expenses, unlike in a net lease, where the tenant pays for its own share of those costs). The document, which also includes a corresponding reference guide, comprises just 17 pages plus exhibits and incorporates ten essential elements that aim to support a specific definition of a green building created by the Task Force for purposes of the project: “[a] building that is environmentally responsible, profitable and a healthy place to live or work.”
Many commentators suggest that, as a threshold issue, a green lease include an “environmental performance objective,” or a clause that requires both landlord and tenant to operate the demised premises pursuant to a set of very general, aspirational green building objectives. Upon reading a sample environmental performance objective clause, you may be reminded of the form language in the 2007 version of the AIA’s B101 Owner Architect Agreement, which obligates the architect to make a set of very vague and non-specific green building-related recommendations to the owner with respect to certain aspects of its proposed design for the project. While provisions in a lease that set forth a roadmap for landlord and tenant to operate demised premises in a sustainable manner should by no means be discouraged, it is important for landlords to carefully consider the specific language that they may choose to insert into a green lease as part of such clauses.
As you may know, USGBC’s LEED v3 program launched this past Monday, April 27. Project teams currently pursuing LEED certification under any of the Version 2 programs can opt into LEED v3 for no additional registration fee through the end of the year. The Version 2 programs will be available to project teams for registration until June 26; after that date, all projects must proceed with registration under LEED v3. LEED v3 is comprised of what USGBC calls “LEED 2009″ revisions to the suite of LEED rating systems (other than Homes and Neighborhood Development, which are not changing under v3), a new online interface for project teams, and a shift in the administration of the LEED certification process to the Green Building Certification Institute (“GBCI”). USGBC calls the LEED 2009 credit revisions “a reorganization of the existing commercial and institutional LEED rating systems along with several key advancements.” The revisions contemplate harmonization (i.e., credits and prerequisites are consistent across all LEED 2009 rating systems), credit weighting (i.e., greater emphasis on energy efficiency), and regionalization (up to four bonus credits for projects that address a local environmental issue of import). Although they are important to review for background purposes, the thrust of this article is not to detail the mechanics of the LEED v3 program. Rather, a number of the new minimum program requirements (“MPRs”) present some novel legal issues for project teams- and their attorneys- to consider in connection with drafting construction agreements or leasing documents in connection with LEED v3 projects.
Much like the rest of the green building industry, green leases contain a collection of legal risks that landlords and tenants have not previously had to consider. This article considers a small sample of such problems, specifically in relation to certification requirements, cost issues, insurance provisions and green product issues. Many companies and government agencies require their space to satisfy an applicable LEED for Commercial Interiors certification level. These entities look for a lease to specify that the space will meet such standards. Landlords are not generally in the position to guarantee such certification level. The project architect, general contractor, subcontractor and USGBC all have a much greater impact on whether the space meets the required certification level. The landlord will thus need to make sure it is working with contractors and architects that understand the issues and are able to work towards achieving the necessary certification levels. It will need to protect itself in its applicable project contracts. The landlord and tenant must work together in attempting to craft a lease that adequately protects each of their respective interests and avoids liability outside of either of their control.
Much like the term green building, green lease is a term without a widely accepted definition. (Editor’s note: this is a critical point that we will be exploring in detail in future articles in this series). A green lease can take many forms. However, the key concepts in any green lease are: (i) rent structure and operating expenses; (ii) build out of tenant improvements; (iii) sustainable development principles and regulations (throughout the building or larger development); (iv) the use and disposal of hazardous materials, including cleaning supplies; (v) recycling; and (vi) environmental management plans. A green lease will generally detail environmentally friendly products to be used, water and energy conservation methods and targets, the use of alternative sources of energy on-site, such as solar or wind, indoor air quality standards, and dispute resolution procedures.
Let’s check in on some recent leasing activity at two of Manhattan’s highest profile new commercial office buildings, both of which are pursuing LEED ratings and commanding Class A rents.