Overview of Authorities Permits & Green Sustainable Controls in - - PowerPoint PPT Presentation

Overview of Authorities Permits & Green Sustainable Controls in Dubai

Presented to: The British University in Dubai-

Construction Law and Dispute Resolutions Department June 2015

By : Monif Loutfy

Biography

Monif Loutfy

Ø Masters is Construction Law and Dispute Resolution-UK Ø Masters in Business Administration-Management-MBA Ø International Pg. Diploma in Project Management-UK Ø Architect-Lebanon Ø 18-year professional experience in the Construction Industry

within contractors and consulting firms in Lebanon and UAE

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Brief

—

Authorities Permits

—

Green Buildings -Built Environment

—

International Background of Green Built Environment

—

United Arab Emirates/Dubai attempts

—

Local Authorities requirements in promoting and implementing the green and sustainable environment;

—

Legal aspects-Case Law review

—

Contract provisions and the clauses of contracts to be included to define the scope of each

party and role in Green Building -Built Environment Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

—

Why do we need building permits : It is an administrative record to notify

• f an intent to build, to ensure compliance with codes and planning

requirements ( set back, height, areas, use, facilities, services….)

—

Who is involved in the permit application process Owner –Consultant – Authorities-Contractor.

—

What documents are required ..affection plans, detailed design, as relevant authority requirements

—

How does the process work –online, submission of drawings and documents , design calculations, compliance with codes special submissions, payment of fees

—

Change management ( new design –new consultant-new contractor – extension of existing permit…)

—

Post permit requests ( Inspections –quality –EHS-completion…)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

• Dubai Municipality (DM)
• Trakhess
• Road and Traffic Authority (RTA)
• Environment Health and Safety (EHS)
• Dubai Electricity and Water Authority (DEWA)
• Dubai Civil Aviation Authority (DCAA)
• Dubai Maritime City Authority (DMCA)
• Dubai Land Department
• Etisalat
• DU
• Civil Defense-Fire Department
• Dubai Police

Submissions to take place by consultant or contractor as relevant, including necessary undertakings from employer/developer

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Authorities Permits to be obtained from (as applicable) :

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Building Permit

— Building Permit prior to start of works — NOCs from Authorities (EHS, DEWA, Civil Defense, RTA, DU,

Etisalat,…)

— Permits for : Demolition –Mobilization Dewatering –shoring

excavation and piling -Infrastructure –Fit out-Modifications – septic tanks-water wells…

— Inspection of Authorities during Construction — Building Completion Certificates ( DM, Trakhees, EHS, DEWA,

Civil Defense…)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Purpose and Recent Updates

— To enable developers and owners to obtain the necessary licenses

prior to start construction of any new project, and for all type of buildings

— It requires to the review of all drawings and designs by relevant

authorities to ensure compliance with the codes and guidelines

— Implementation of Building Information Modeling (BIM) for buildings

higher than 40floors, universities, hospitals, …(DM Circular 812/02/02/1/1214482 dated 18/11/2013)

— Use of green cement materials – use of 24/7 system of fire alarms-

accreditation of materials –Dubai wind codes, etc…

— Green Buildings with an accreditations ratings.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

What is a Green Sustainable Built Environment

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

“Green building (also known as green construction or sustainable building) refers to a structure and using process that is environmentally responsible and resource- efficient throughout a building's life-cycle: from siting to design, construction, operation, maintenance, renovation, and demolition…”

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

U.S. Environmental Protection Agency

Background

— The green building field began to come together more

formally in the 1990s:

—

American Institute of Architects (AIA) formed the Committee on the Environment (1989)

—

Environmental Resource Guide published by AIA, funded by EPA (1992)

—

EPA and the U.S. Department of Energy launched the ENERGY STAR program (1992)

—

First local green building program introduced in Austin, TX (1992)

—

U.S. Green Building Council (USGBC) founded (1993)

—

"Greening of the White House" initiative launched (Clinton Administration 1993)

—

USGBC launched their Leadership in Energy and Environmental Design (LEED) version 1.0 pilot program (1998)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— “… is transforming the way we design, build,

maintain and operate our buildings, homes and communities.”

— “USGBC is committed to a prosperous and

sustainable future through cost-efficient and energy-saving green buildings, and works toward its mission of market transformation … in support of public policy that encourages and enables green buildings and communities.”

www.usgbc.org

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

The U.S. Green Building Council (USGBC)

United Arab Emirates(UAE) Attempts for Green Building and Built Environment

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

¡ “On land and in the sea, our forefathers lived and survived in this environment. They ... recognized the need to conserve it, to take from it only what they needed to live, and to preserve it for succeeding generations"

Late HH Shaikh Zayed Bin Sultan Al Nahyan

— “On October 24th, 2007 His Highness Sheikh

Mohammed bin Rashid Al Maktoum, UAE Vice President, Prime Minister and Ruler of Dubai issued a resolution and directive that effective January 1st, 2008, all owners of commercial and residential buildings on the emirate of Dubai must comply and implement internationally recognized environment-friendly specifications of sustainable development to turn Dubai into Green Dubai.”

(New resolution on green building specifications by Dubai Ruler , 2008) (Arabian Business Staff Writer, 2007)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

The Emirates Green Building Council (EGBC)

— Formed in 2006, with the goal of advancing

green building principles. — “…Protecting the environment and ensuring

sustainability in the United Arab Emirates by the implementation of green building policies and regulations, by the adoption of consistent rating systems, and by the increase in the overall knowledge sharing and information available

• n built environments and communities...”

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— “…The building industry must take into account

the planet’s finite available resources, and in turn, design and build living environments to maximise resource use efficiency. To be socially and environmentally responsible is not an option; it is a responsibility to our future generations…”

• Mr. Saeed Al Abba

Chairman-Emirates Green Building Council

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

UAE Vision 2021- Green Economy -UAE cabinet / February 7, 2010

— The UAE Vision 2021 specifically mentions the need

to develop and promote renewable energy sources as one of the challenges facing the UAE …

— “…we want the UAE to vigorously support international

initiatives to protect the environment in full consciousness of its worldwide responsibility…”

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

UAE Government Bodies Green Initiatives

—

UAE becomes the first country in the Middle East and North Africa (Mena) region to apply international environmental standards on government building projects.

—

Ministry of Public Works new guidelines illustrate general rules on the application of green building standards at new government projects implemented which strive to increase environmental safety and establish clear standards for certified green developments in the UAE.

—

Ministry of Environment and Water will work closely with local government departments through the Department of Municipal Affairs to ensure that all new projects implemented adhere to the guidelines, so it will contribute to energy efficiency by promoting water conservation and encouraging smarter building design and reducing harmful emissions of dangerous gasses.

—

Department of Tourism and Commerce Marketing in Dubai aims of reducing carbon emission from hotels by 20 per cent.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

—

Dubai Chamber achieved the coveted LEED certification for Existing Buildings in 2009. May 2014 achieved Platinum Accreditation

—

Drainage and Irrigation Department of Dubai Municipality has a grey water treatment plant for use in irrigating local parks and trees.

—

Supreme Council of Energy in Dubai allocated AED12 billion for producing electricity from the solar energy in 2011. A

—

Masdar City in Abu Dhabi aims also to produce 7 per cent of its energy by 2020, which will be the first emission-free city in the world, hosing the headquarters of the International Renewable Energy Agency (IRENA).

—

Abu Dhabi has created Zayed Future Energy Prize in appreciation

• f the first environment supporter, the late Sheikh Zayed Bin

Sultan Al Nahyan.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 UAE Government Bodies Green Initiatives (Cont’d)

—

Dubai hosted the second session of the Dubai Global Energy Forum, it is clear that the transition to sustainability is already well underway and gathering real momentum.

—

The new criteria for the certification of sustainable buildings in the UAE were revealed during the Arab International Sustainable Real Estate Conference

—

It is the first city in the world to have established a governing body, the Dubai Supreme Council of Energy, with oversight of the entire energy sector, both the production and the demand side.

—

Dubai Integrated Energy Strategy 2030 , with a resource make-up consisting of five per cent from solar, 12 per cent from nuclear, 12 per cent from clean coal and the remaining 71 per cent from gas (AMEinfo, 2013)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 UAE Government Bodies Green Initiatives (Cont’d)

—

Mohammed bin Rashid Al Maktoum Solar Park, with the first phase — a 13 MW photovoltaic array — scheduled for completion by the end of 2013, feeding 1,000MW of electricity into Dubai’s grid.

—

The Dubai Metro has simultaneously reduced both traffic congestion and air pollution.

—

The Dubai Electricity and Water Authority DEWA's Sustainable Building the largest government building in the world to have secured a Leadership in Energy and Environmental Design Platinum rating for green buildings from Leadership in Energy and Environmental Design (LEED),

—

The popular Jumeirah Emirates Towers has been re-certified by the Green Globe - an organisation that monitors sustainability in global travel and tourism businesses.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 UAE Government Bodies Green Initiatives (Cont’d)

— The first building to achieve rating in

UAE is Pacific Controls Headquarters in Jebal Ali Free Zone and is the 16th worldwide to achieve a Platinum rating under the US Green Building Council's Leadership in Energy and Environmental Design (LEED)

(Leadership in Energy & Environmental Design, 2013)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— On January 15, 2012 in continuation to the

above attempts, UAE Vice President, Prime Minister and Ruler of Dubai His Highness Sheikh Mohammed bin Rashid Al Maktoum has also announced the launch of a long term national initiative to build a green economy in the UAE under the slogan: "Green Economy for Sustainable Development” (UNDP , 2012)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

The Green Economy Initiative includes six major tracks covering a wide range of legislation, policies, programmes and projects:

1.

The first track aims to promote renewable energy, clean fuels and energy efficiency usage.

2.

The second track intends to encourage investments in green economy and green technologies and to create job opportunities for UAE citizens.

3.

The third track, concerning the green city, includes urban planning, sustainable transportation, and clean air initiatives;

4.

The fourth, dealing with climate change, aims to reduce carbon emissions, encourage organic agriculture and preserve biodiversity.

5.

The fifth track is set to rationalize the use of water and energy resources, encourage recycling and raise environmental awareness.

6.

The sixth track, on green technology, will focus on carbon capturing and storage technologies plus generating energy from waste.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Emirates GBC: Top Green Building Tips

—

Sustainable Procurement at all Stages (suppliers, production chain, delivery of materials,…)

—

Integrated Design and Delivery Plan, Environmental Plan ( sustainable friendly, BIM, optimize cooperation, recycling, low energy, waste management, audits …)

—

Training and Awareness (staff involved, owners, developers, communication, long term and short term saving,…)

—

Respect Green buildings Standards and Regulations (remain informed, approvals process, safety, global assessment methods and norms-ASHRAE,ISO, …)

—

Innovation and new technologies implementation (remain informed, market trends, academics, research,…)

—

Green Design ( specifications, location, end product, aware of environment you operate in, solar systems, climate, value engineer …)

—

Retrofit Study ( consumption, low cost/no cost measures, performance indicators, metering, quality assurance, revisit, …)

—

Share Best Practices (ideas, lessons learned, workshops, involve experts …) http://emiratesgbc.org/green-building-tips/

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Regulatory Implementations of the above Strategies

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Trakhess-CED: Green Building Standards.

— Provide the building permits through ePemit,

publication of regulations and communication of procedures , Accreditation Program, ensure quality control and inspections on sites, as well issue of building completion certificates.

— “…Through its circulars, mainly the one issued on

• ref. Circular 3306/2008/sk dated 6th May 2008,

Trakhees –CED advised that all developments effective January 2008 shall comply with the Green Building Standards, to implement in their designs to achieve the required standard…” (Trakhees-CED , 2008)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Trakhess- Environment Health Safety Department (EHS)

— Defines a green building as: “…one where the qualities

• f both the indoor and outdoor environments have been

considered and protected ..., increased water savings, reduced pollution, enhanced indoor air quality, better productivity and reduced operation costs,…reducing the Green House gas (GHG) emissions and climate change adaptation.”

— EHS established Green Building regulations to

implement within Dubai World jurisdiction and a sustainability department/green building department was created exclusively to administer these regulations.

— The Original Mandatory requirements were evolved

from USGBC LEED

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Dubai Municipality

— With its slogan :

‘Be Educated on Green Buildings’

— Aims to intensify efforts in the field of green

build through education and training.

— It is linked to the approaching mandatory

green building rules and regulations on all buildings of the emirate starting in 2014

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Dubai Land Department

— Detailed criteria were published in a book

entitled : ‘Dubai Sustainable Communities Initiative’

— “The Land Department strives to introduce and

implement these initiatives following in the vision and strategy of His Highness Shaikh Mohammad Bin Rashid Al Maktoum to build a sustainable economy,”

Sultan Butti Bin Mejren, Director General at the Land Department

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Dubai Water and Electricity Authority (DEWA)

— Implementation of a decision issued by His

Highness Sheikh Mohammed Bin Rashid Al Maktoum, and as part of Dubai Strategic Plan 2015 for applying the specifications of green buildings to all the buildings and premises.

— DEWA, in co-operation with Dubai Municipality, has

launched the Green Building Regulations & Specifications, a set of specifications and guidelines for regulating the criteria of the structure that allows adequacy in the consumption of electricity, water and renewed energy as part of the green buildings project in Dubai, which will make savings of around AED10 billion until 2030

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

But Worth to Note…..

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Mandatory Compliance and Voluntary Incentives

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

YET!!! The Legal Challenges

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— Contract documents, quantity surveyors, claims

specialists, arbitrators and even local courts are not exposed or equipped to include such provisions to ensure those mandatory Authority requirements are taken in consideration during drafting of contracts, battle of forms, contracts signature and even during the administration of the contract.

— Developers, project managers, consultants and

contractors as well have to comply with Authorities requirements yet liabilities, responsibilities and scopes between project parties and stakeholders are not well defined, leaving the room for a lot of conflicts and disputes during the life cycle of the project.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

How!!

— Building Permits — Design No Objection Certificates (NOCs) — Construction NOCs — Building Completion Certificates — Third Party Accreditations ( LEED-EHS…)

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

This may Imply and Cause …

—

Sources of Liability —

By the Contract

—

Obligations

—

Shift of Liabilities

—

Tortious Rights

—

Duty of Care

—

Misrepresentation

—

Economic Loss

—

Negligence

—

Negligent Misrepresentation

—

Fraud

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Major Barriers to Green Buildings

—

Lack of Regulatory Laws-Case Law –Precedence –Civil Codes

—

Lack of Financial incentives

—

High Cost perceptions

—

Health/Financial Benefits Public awareness

—

Technical knowledge-Inexperience

—

“Green” Materials availability

—

Cost

—

Present the outcome and bring stakeholders to develop and execute a common project vision.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Potential Risks

—

For an Owner, a failure to achieve certification could result in breach of contract claims for lost profits from potential tenants who are only interested in a certified building or lost tax credits and other incentives linked to attaining certification.

—

Other claims may be grounded in false advertising, fraud or deceit if the building had been marketed as 3rd party certified during its construction but does not achieve it.

—

For Contractors and Designers, a failure to achieve certification could lead to law suits from Owners seeking consequential or liquidated damages for breach of contract.

—

Owners may seek damages from Contractors or Designers in the amount of a building’s diminution in value

—

Holdbacks while the other parties sort out their rights and obligations, await final certification on a completed building, or attempt to blame Subcontractors or suppliers for faulty or negligent work.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Potential Risks (Cont’d)

— Due to the novel risks and specialized

requirements of green projects, parties may unintentionally accept more risk than on a standard project.

— Green projects require heightened co-ordination

among participants in order to meet the requirements of 3rd party rating systems.

— Participants should carefully review any use of

consequential or liquidated damage provisions in their contracts as potential claims may exceed the original value of the contract

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Challenges and Opportunities for Green Building Lawyers

— “…There are now approximately 1,100 LEED

accredited professionals (LEED AP or LEED Green Associate) who now identify themselves as being related to the legal services industry…”

— “…Granted, they are not all lawyers in private

practice, and there are many more lawyers practicing green building law who are not LEED accredited…”

Second Annual Greenbuild Legal Forum -http://legallygreenblog.com

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— Predicting the course of construction law and

practice in a more sustainable world is a risky intellectual endeavour, much as construction itself is a risky economic and legal endeavour

— Construction law evolves in response to broader

changes in the law and advances within the design and construction industries. Some developments in incremental steps; others transform construction law to a specialized practice of the construction bar

— Here to ask whether the sustainable construction

movement will eventually transform construction law and practice or, instead, will simply be absorbed into the existing fabric of construction contracting

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 Challenges and Opportunities for Green Building Lawyers (Cont’d)

—

Lawyers for owners, for example, frequently recommend provisions intended to assure that the project will meet well-defined green building standards, such as a specific certification level.

—

Those drafting a contract on behalf of an architect or

• ther design professional are more interested in

maintaining the integrity of the design process and limiting the designer’s legal liability to the customary standard of care for professional malpractice.

—

Advocates for contractors and subcontractors promote provisions that clarify the scope of work and limit warranty obligations. Commentators viewing the circumstances from a claims perspective frequently note the potential liability risks inherent in the green building process.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 Challenges and Opportunities for Green Building Lawyers (Cont’d)

—

This primary focus was on allocation of contractual responsibility and potential liabilities of owners, design professionals and constructors for achieving identified “green” targets, be they LEED certification, energy efficiency, or some other green building performance metric.

—

The design to meet the criteria and standards set for green ratings whether locally or internationally.

—

The construction industry is commonly characterized as technically and

• rganizationally fragmented as a key factor preventing a tangible transition

to sustainable construction.

—

More inclusive stakeholder participation in the building process is a vital step to ensure that sustainability fostered in construction occurs in a wider social context and not only in terms of technical interventions.

—

Moving construction law and practice toward more collaborative and integrative contractual

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015 Challenges and Opportunities for Green Building Lawyers (Cont’d)

Scenarios for Green Building Disputes-as per the current legal precedence :

• 1. A project may not comply with regulatory

requirements: the primary claims have involved bid protests and challenges to code requirements

• 2. Green building certification related to issues either

in design scope or the construction techniques and used

• 3. Private parties have addressed failure to obtain

LEED certification, non-satisfaction of LEED standards, additional costs of LEED compliance, and whether and to what extent “green” damages are cognizable and calculable.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Henry Gifford, et al. v. U.S. Green Building Council

— Briefly stated, the “green” aspect of this case

was triggered by the developer’s counterclaim alleging the contractor failed to “construct an environmentally sound ‘Green Building,’ in conformance with a Silver Certification Level according to the [USGBC’s Leadership in Energy and Environmental Design (“LEED”) rating system,” which resulted in the loss of tax credits under Maryland’s green-building incentive

• program. This matter was settled on undisclosed

terms, but received wide-spread discussions meaning in dozens of articles and presentations.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Southern Builders, Inc. v. Shaw Development LLC

— Construction was completed in 2006 and

the developer (Shaw) intended to achieve LEED Silver certification. There were delays in construction and when Southern Builders filed a claim for $54 000, Shaw counter-claimed for $1.3 million with $635 000 in lost tax credits. The case ultimately settled out of court, but this too can inform our understanding of what went wrong.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Burchick Construction Company v. Pennsylvania State System of Higher Education

— Court upheld a bid protest by a contractor who

challenged unconventional procurement procedures used on a public project. The project's owner attempted to justify the departure from standard bidding procedures based upon its desire to obtain LEED certification, which the owner contended required coordination and cooperation of the prime contractors and a different procurement

• procedure. The Court disagreed concluding that

traditional public bidding procedures were not inconsistent with a desire for LEED certification.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Hampton Technologies, Inc. v. Department of General Services

— By contrast, the Court rejected a

disappointed bidder's protest alleging that developer had inappropriately considered the awardee's experience on LEED projects, reasoning that LEED criteria has been included in the project documentation supplied to bidders.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Bain v. Vertex Architects

— The stated objective of the Architectural Contract

was to ‘create a sustainable green modern single family home.’” The form agreement the parties used was the AIA’s standard form of agreement for a residential or small commercial project.

— The LEED-related allegations are contained in the

first cause of action for breach of the architect’s

• agreement. Bain claims that, among other

breaches, the architect “failed to pursue and

• btain for the Project certification from the

USGBC LEED for Homes Program.”

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

In Keefe v. Base Village Owner & Pitkin Co. Dist. Ct.

— Case brought against the developer, alleging in part

that in marketing the condominium, the developer represented that the condominium would be a LEED-certified building within a LEED-certified

• neighborhood. The purchasers further alleged that

neither the building nor the neighborhood are LEED-certified and sought to rescind the purchase

• contracts. Ultimately, the case was resolved on
• ther legal grounds, but the case demonstrates the

risks that developers face when marketing properties based upon the anticipation that the project will be able to achieve LEED certification, but then are unable to do so.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Chesapake Bay v Weyerhaeuser Company

— Case filed as Weyerhaeuser provided "defective,

inferior and or unsuitable building products" for the Bay , alleging causes of action: Breach of contract, Common law indemnity, Contribution, Negligent Misrepresentation and Negligence . "As a result of Plaintiffs' reliance on Weyerhaeuser's assurances that submitted material was appropriate material for use in construction of the Project and for the environment . Thus, the defective condition of the material has created a clear risk of death or serious injury at the project." This case is an example of green building litigation that can develop as a result

• f the materials and products that go into the

project.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— These cases illustrate the tension in

using new green building considerations, which often involve subjective evaluations, to the objective financial framework normally utilized in public bidding and lowest responsible bidder evaluation laws.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Recommendations

—

Designers need to continually ask product suppliers and manufacturers about their raw materials

—

Educate the client, barriers preventing clients from committing to a sustainable design Obtain proper local building approvals

—

Maintain green improvements between tenant and landlord

—

Secure financing

—

Negotiate with insurance and financial institutions

—

Resolve disputes over building projects that fail to achieve their energy conservation goals.

—

Organizational learning methods in the construction industry such as post-project review and post-occupancy evaluation focus on technical issues. Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

— Contracts between developer, contractor

and architect/engineer should assign responsibility for obtaining required certification, while leases between tenants and landlords should contain clauses that include the parties’ individual responsibilities for maintaining green improvements

— Planning next green building project

from the learning lessons.

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Recommendations (Cont’d)

—

Contract Language Terms by using performance based standards may also be a viable alternatives to LEED defined goals

—

Define Timelines by clearly laying out the timeline of green projects, including extra time for documentation and material sourcing, unexpected delays and litigation similar to the Shaw case can be avoided

—

Regulatory Environment against an internal review of company documentation policy to ensure that it complies with the relevant 3rd party system being used.

—

Assign Liability According to responsibility for achieving project: Design versus Construction

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Recommendations (Cont’d)

—

Consequential Damages

—

Liquidated Damages

—

Length and Scope of Obligations in time and scope of services a party is expected to provide on a project

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Industry Standard Forms may need to be modified in order to fully address the responsibilities of sub-trades, sub-consultants (ie. LEED Facilitators or other 3rd party advisors), and material suppliers on green projects

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Tort Liability should be defined

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Promise Only What Can Be Delivered

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Product Liability -Litigation Among Material Suppliers , Potential complications for Designers and Contractors seeking material appropriate for the use on green projects.

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Insurance -Potential Exclusions -Professional Liability Insurance

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015

Recommendations (Cont’d)

Thank You…

Legal Aspects: Overview of Building Permits–Green and Sustainable Controls in Dubai BUiD -May 2015