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RFP Considerations for Tenants Considering Certification Under LEED 2009 for Commercial Interiors

USGBC’s LEED 2009 for Commercial Interiors rating system includes a significant number of points which tenants can earn towards their LEED-CI certification simply by choosing to lease space in qualifying base buildings; tenants can vet the available pool by properly streamlining the Request for Proposal process.

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Finding the Green to Go Green: Is This Green Leasing’s Moment?

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?

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Massachusetts Green Buildings Used 40 Percent More Energy Than Predicted

Back in 2007, the Energy Engineering Program at the University of Massachusetts Lowell completed a study of the actual energy performance of 19 green buildings across the Bay State. The study was funded by the Massachusetts Renewable Energy Trust and identified 13 schools which were certified under the LEED-based Massachusetts Collaborative for High Performance Schools Criteria, as well as 6 buildings that had earned LEED certification. The study compared energy consumption as predicted during the design phase and actual occupancy post-construction; buildings included in the study provided at least one year of occupancy data. The authors also interviewed individual project teams and energy modelers and conducted occupancy surveys in evaluating the effectiveness of various types of efficiency measures. All of the buildings received design or construction grants from the Massachusetts Technology Collaborative, which provided the prediction data that project teams had submitted in connection with their funding applications. Although the study concluded that these 19 green buildings were consuming (on average) 40 percent more energy than predicted, all of the buildings were consuming less than a building designed to Massachusetts baseline building codes. The disparity in predicted versus actual energy consumption is probably not surprising, but the study did identify a number of issues common across the buildings which resonate with many of the technical and operational provisions of documents like the Model Green Lease. I think it is therefore worthwhile to review the study both from a green leasing perspective, but also in terms of LEED, particularly because the Lowell study has not been referenced in many of the recent articles discussing the ongoing LEED performance gap.

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Green Leasing Series: Environmental Performance Objective Clauses in Green Leases

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.

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Initial Legal Thoughts on the LEED 2009 Minimum Program Requirements

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.

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