The AGC’s New Green Building Addendum:

Actions Over Words For Avoiding Green Legal Liability

The Associated GeneralContractors of America (AGC)recently unveiled a new contract addendum for “green building” projects – the “ConsensusDocs 310 Green Building Addendum.” The two most interesting things about it are: (1) that it exists at all; and, (2) that the AGC has very cleverly taken steps to shield its member-users from what, to some, is the Achilles Heel of the entire “green building” concept: that in any useful construction or legal sense, the term “green” has no reliable meaning at all. That the AGC’s new addendum achieves its goals by contractually defining a project’s greenness through actions instead of words is perhaps its most admirable achievement.

“Green Building” – “Green Living” – “We’ve gone Green!” In any real legal sense, exactly what does “green” mean? And what does “green building” mean? Ask a hundred people at the next green building conference you attend to define “green building” and I promise that the answers you receive will range somewhere between “energy and resource-efficient humanistic design and construction” to “a sacred calling to protect Gaia from rapacious bottom-dwelling Industrial-Capitalists.”

Don’t get me wrong – it’s not as if green building advocates don’t attempt to define “green” or “green building” – they do, with varying degrees of success. And I’m not suggesting that a perfect combination of words and sentences that would satisfy everyone’s requirements ever could, or even should exist. Flexibility can be a good thing and sometimes just stating a set of principles that are given substance primarily through actions is enough. Like the Ten Commandments, or the slightly lesser – to some – Secretary of the Interior’s Standards for Rehabilitation– it’s what you do with them that counts.

Which is great when you’re preaching to the already-converted, but not so great when trying to convince everyone else, like say, in a court of law, where skepticism and burdens of proof tend to run a little higher. Sure, thanks to aggressive marketing, the term “green” has evolved enough general meaning in the public mind to be used on bumper stickers and t-shirts with reasonable definiteness – if by “definite” we mean “less vague.” But for legal contracts involving the transfer of massive amounts construction-related capital, and all the legal liabilities that attach like barnacles to everyone involved – a slightly higher standard of clarity is probably in order.

Enter the AGC’s new ConsensusDocs 310 Green Building Addendum, which doesn’t even attempt to define uncertain terms like “green” or “green building” with mere words – it does so through the actions of project’s parties. And as much as lawyers like words, when constructing contractual bulwarks for our clients, we like actions a lot too. The AGC’s addendum allocates the responsibility for defining what “green,” and therefore what “green building” means on any given project to the parties who should be responsible for defining it – the owner, its architect/engineering team and a third party referred to as the “Green Building Facilitator” (the “GBF” – who may, or may not be the contractor or construction manager). After all, unless a contractor is part of a design/build team and/or intends to assume the role of the GBF, then absent shoddy construction, why should it be dragged under when green turns to brown and the finger pointing starts? Its job is to build, not design. And it’s certainly not to save Gaia.

The AGC was kind enough to provide me with a copy of the new addendum to review. There are no less than ten (10) defined terms that use the word “green” – which at first made me wonder why they didn’t just define “green” for any particular project in the usual way, such as: “ . . . For purposes of this Addendum, the term “green” shall mean and refer to, etc., etc . . . .” But a little closer look made that clear. The Green Building Addendum’s real purpose is to identify the roles of relevant parties and to define the methodology they’ll use to plan and implement a project’s sustainability goals. It also serves to clarify that unless a contractor has specifically accepted the role of Green Building Facilitator, they’re just there to build -planet saving’s outside their scope of work.

Here’s a snapshot of how the AGC’s Green Building Addendum goes about that:

First, the GBF, working with thearchitect/engineering team, advisesthe owner on alternatives for achieving aproject’s desired“Green Status” – such as a LEED designation goal;

Second, how a project achieves its Green Statusisdefined by its “Elected Green Measures” (comprised of the “Elected Physical Green Measures” + “Elected Procedural Green Measures”)which arises from reports and discussions between the owner, its A/E team and the GBF; and

Third,the details of the first two steps are incorporated with specificity into a project’splans and specifications – again, not something for which a contractor is usually responsible.

Of course, the above simplifies a fairly complex procedure, but unless a contractor wants to step into the green center – such as becoming the Green Building Facilitator, or the project is design-build – by using the AGC’s Green Building Addendum, it may avoid being a direct link in the daisy chain of green legal liability by requiring a project’s greenness to be defined by the decisions, work product and actions of other parties. And if that weren’t clear enough, the addendum wraps it all up with an entire final section on risk allocation.

So, when a green roof leaks, oran HVAC system underperforms, or a project’snew, imported and unvetted “sustainable” materials off-gas toxic chemicals killing every parakeet within a square mile, ora project doesn’t achieve its LEED designation and the owner doesn’t obtain its proforma-required tax benefits and starts looking around for someone to blame – then the contractor hassomething of a defense.

Will it provide absolute protection when the plaintiff’s attorney lets loose with both barrels of 12 gauge, no. 10 buckshot and names everyone who ever glanced at a project in a lawsuit? Probably not – but the Green Building Addendum, along with the many other documents produced during discovery that support it by substantiating the relative roles ofa project’s parties, might make for a very nice place to start crafting a defense.

The AGC’s Green Building Addendum is an admirable end-run around the green building movement’s obvious shortcomings – defining what “green” really means. But perhaps it’s time for green building advocates to convene their own Council of Nicaea and hammer out the canons and doctrinal orthodoxy of green building – take it to the next level – the one that recognizes the inherent legal dangers of vagueness. It won’t be pretty or easy. Or, here’s a thought – just start calling green building what it is – maybe: “energy and resource-efficient humanistic design and construction.”

Sure, it’s not as snappy as “green” and might not fit as well on a Prius’s bumper – but what more do you really need to say? The time may be approaching for green building when words and actions – not to mention results – must merge into one.

Is it possible that’s what the AGC recognized when it created its new Green Building Addendum?




Gary Cole is an Illinois and Florida-licensed attorney and an Illinois-licensed architect with over twenty years experience in design, construction and real estate development. He combines his architect's experience and insight in the design and construction industry with his legal expertise to offer a broad range of developer and architect-related services including leasing, property acquisition and disposition; design/construction transactional and litigation matters; public finance, tax-increment financing, tax credit and abatement programs and other development economic incentives; construction, mezzanine and permanent financing; land use matters; legal entity formation and joint venture agreements; state and federal (ADA) accessibility law; historic rehabilitation tax incentives and regulatory compliance; and Green construction and alternative energy facilities development. Mr. Cole is General Counsel and on the Board of Directors of The Chicago-Midwest Institute of Classical Architecture & Classical America. Mr. Cole publishes a wide variety of design and construction-related articles on his website