Chapter 10 The Real Estate Owner's Perspective: Opportunities … · 2017-02-08 · example where under LEED Version 2.0 SSc4.1 awarded only 1 point, under LEED 2009, a project can

Chapter 10

The Real Estate Owner'sPerspective: Opportunities andRisks*

Richard J. Sobelsohn

Moses & Singer LLP

§ 10:1 Introduction§ 10:2 Must comply with environmental laws§ 10:3 Must be a complete, permanent building or space§ 10:4 Must use a reasonable site boundary§ 10:5 Must comply with minimum �oor area requirements§ 10:6 Must comply with minimum occupancy rates§ 10:7 Must allow usgbc access to whole-building energy and

water usage data§ 10:8 Must comply with a minimum building area to site

area ratio§ 10:9 Glossary

*Copyright (c) 2010 Practising Law Institute; Richard J. Sobel-sohn. Reprinted with permission.

Green Building Certi�cation Institute LEED Project Registra-tion Agreement: (c) Green Building Certi�cation Institute. ((c) GBCI2009) Reprinted with Permission

Major Changes from LEED-NC v.2.2 to LEED 2009 NC: (c) 2009U.S. Green Building Counsel, Inc. Reprinted with PermissionThe New Project Certi�cation Rates: E�ective January 11, 2010 Table:Copyright Nexus Green Building Source. Reprinted with permission

LEED 2009 Minimum Program Requirements: (c) 2009 U.S.Green Building Counsel, Inc. Reprinted with Permission

LEED 2009 MPR Supplemental Guidance; Version 1.0, November2009: (c) 2009 U.S. Green Building Counsel, Inc. Reprinted with Permis-sion

If you �nd this article helpful, you can learn more about thesubject by going to www.pli.edu to view the on demand program or seg-ment for which it was written.

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KeyCiteL: Cases and other legal materials listed in KeyCite Scope canbe researched through the KeyCite service on WestlawL. Use KeyCiteto check citations for form, parallel references, prior and later his-tory, and comprehensive citator information, including citations toother decisions and secondary materials.

The Real Estate Owner's Perspective: Opportuni-ties and Risks

LEED version 3.0 is a good example of how the USGBCis trying to morph with the times and adapt to the ever-changing sustainable building world. But with changes toany ingrained system, there are, and may be, multiple re-lated issues resulting from the change. This articlediscusses how the U.S. Green Building Council (“USGBC”)Leadership in Energy and Environmental Design (“LEED”)v 3.0 di�ers from v 2.0 and how those changes may impacta real estate owner's exposure to a myriad of risks andliabilities. In this discussion, we will also explore transac-tional and regulatory considerations and how the prin-ciples of the new version must be incorporated into thenumerous contracts entered into relating to a sustainablebuilding.

So what is di�erent about LEED Version 3.0? LEEDVersion 3 incorporates LEED 2009, LEED Online Version3 (“LEED Online”), and modi�es the LEED certi�cationprocess and with fundamental changes made to LEEDVersion 2.0. Yet with the new changes made by USGBC,those project owners with buildings certi�ed under previ-ous versions of the rating system are now in limbo when itcomes to recerti�cation. Although existing buildings arenot required to switch to LEED 2009 immediately,recerti�cation may mandate compliance to the latest ver-sion in the future. Due to this, property owners with exist-ing certi�ed buildings may have potential issues and li-ability not envisioned by themselves or USGBC and noone knows exactly how to prepare for the future. Butbefore delving into the legal/risk analysis of the di�er-ences between LEED v 3.0 and prior versions, we need tounderstand Version 3.0 and where we are today.

With LEED 2009, the rating systems for Core & Shell,

Handbook for Architects, Engineers & Contractors

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Commercial Interiors, Schools, New Construction andExisting Buildings: Operations & Maintenance were allmorphed into new systems (USGBC has not yet revampedthe rating systems for Homes or Neighborhood develop-ment and is in the midst of piloting LEED for Retail). Andin this morphing process, the major enhancements includewhat USGBC calls “harmonization, regionalization andcredit weightings”.

E Harmonization: Credits and prerequisites from allLEED commercial and institutional rating systems weremade consistent with each other. USGBC calls this “draw-ing on their most e�ective common denominators, so thatcredits and prerequisites are consistent across all LEED2009 rating systems” and into this was further incorpo-rated credit interpretation rulings (“CIR”) which wereclari�ed where needed.

E Regionalization: The Green Building Certi�cationInstitute (USGBC's certi�cation administrator, “GBCI”)has prioritized six credits towards certi�cation based on aproject's location (“Regional Credits”), primarily due to“regionally speci�c environmental issues”. A project cannow be awarded up to four extra points (one point percredit) for earning priority credits.

E Credit Weightings: The last of the major changesthat came with LEED 2009 includes a re-weighing ofLEED credits depending on their ability to impact di�er-ent “environmental and human health concerns. Withrevised credit weightings, LEED now awards more pointsfor strategies that will have greater positive impacts onwhat matters most — energy e�ciency and CO2reductions.” Here there are thirteen environmental impactcategories (“EIC”) which are topped by indoor environmen-tal quality, resource depletion, water intake and climatechange. A given credit is now prioritized into EIC's andassigned a value based on how it promotes the environ-ment or similarly, how it may mitigate a negative impactto the environment. The most value is given to thosecredits that have “the highest potential for making thebiggest change”. The old Version 2.0 credits still exist, butjust worth di�erent amounts, so now, LEED 2009 oper-ates on a uniform 100-point scale. To simplify matters andas an illustration, LEED for New Construction 2009 hasincreased the point value of the credit(s) relating to the

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proximity of a building to public transportation. Why?Because when a building is closer to public transportationit permits building occupants to take advantage of alterna-tive transportation methods which in turn have greatimpact(s) on ozone and fossil fuel depletion, acidi�cation,land use, smog formation, ecotoxicity and other negativeimpacts from single-occupant vehicle use (all of which alsoa�ects a building's carbon footprint associated with oc-cupant transportation to and from the building). So, forexample where under LEED Version 2.0 SSc4.1 awardedonly 1 point, under LEED 2009, a project can now obtainunder this category as many as 6 points. See the chartbelow for an example of weighting changes for LEED —NC.

The Registration Agreement below is required of all ap-plicants in the LEED rating system. The following chartalso compares LEED NC 2.2 with LEED 2009 NC to giveyou an idea of how the weighting system changed. USGBChas become more sophisticated in its approach, but withthat sophistication has additional requirements post-certi�cation with which property owners will have to deal.

Green Building Certi�cation InstituteLEED® Project Registration Agreement

The purpose of this document is to ensure that thepersons registering this Project have reviewed all aspectsof the LEED Certi�cation process and are fully aware ofand agree to all of the following terms, conditions andprovisions.

AGREEMENT

1. SCOPE OF BINDING AGREEMENT1.1. BY ACCEPTING THIS AGREEMENT YOU

ACKNOWLEDGE THAT YOU ARE FULLY AWAREOF AND AGREE TO ALL OF THE FOLLOWINGTERMS, CONDITIONS, AND PROVISIONS.

1.2. This LEED Project Registration Agreement, here-after referred to as the “Agreement,” is entered into byand between you and GBCI, each of which are de�nedbelow, and constitutes a binding agreement betweenyou and us.

1.3. This Agreement consists of the terms, conditions,


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and provisions expressly set forth herein as well as thefollowing documents which are incorporated by refer-ence herein in their entirety: (i) the LEED Certi�cationPolicy Manual, linked hereto; (ii) the LEED Certi�ca-tion Application, that you submit to us and which weaccept; (iii) the applicable LEED Green Building RatingSystem for your selected Project type as identi�ed below;and (iv) the applicable LEED Green Building RatingSystem Reference Guide for your selected Project typeas identi�ed below; all of which are intended to becomplementary and interpreted in harmony so as toavoid con�ict.

1.4. In the event of any con�ict or discrepancy be-tween the terms, conditions, or provisions, of the docu-ments identi�ed in the preceding Section 1.3 of thisAgreement, they shall take precedence in the followingorder: the terms, conditions, and provisions of thisAgreement; followed by the LEED Certi�cation PolicyManual, followed by the LEED Certi�cation Applica-tion, followed by the applicable LEED Green BuildingRating System for your selected Project type as identi-�ed below, followed by the applicable LEED GreenBuilding Rating System Reference Guide for yourselected Project type as identi�ed below.

1.5. This Agreement constitutes a fully integratedagreement that supersedes any and all prior agreementsbetween you and us concerning the LEED Certi�cationprocess as it applies to your Project.

1.6. If you are unable or unwilling to accept thisAgreement your sole choice is to withhold your LEEDCerti�cation Application and/or terminate the registra-tion for your Project. We will not refund any fees paidby you to us should you determine to withhold yourLEED Certi�cation Application and/or terminate theregistration for your Project.

1.7. You agree that any obligations we are required toundertake under this Agreement may be assigned ordelegated by us in our sole reasonable discretion.

2. DEFINITIONS2.1. As used herein, the words “we,” “us,” and “our”

refer to the Green Building Certi�cation Institute (alsoherein referred to as “GBCI”), a non-pro�t corporation of


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the District of Columbia with an address of 2101 LStreet NW, Suite 650, Washington D.C. 20037, and allof its respective employees, agents, o�cers, directors,assigns and successors in interest.

2.2. As used herein, the words “you,” “your,” and“yourself” refer to the person who registers a Projectwith LEED Online as well as all persons who partici-pate in Project submittals, including the Project Owner'sduly authorized agents and employees.

2.3. As used herein, the word “Owner” refers to theentity or person that possesses the exclusive right tohold, use, bene�t from, insure, enjoy, convey, transfer,and otherwise dispose of the Project that has beenregistered with us through the use of LEED Online.

2.4. As used herein, the phrase “registration” refersto the process through which a Project is established inLEED Online. This process includes the completion andsubmission of all applicable Registration Forms withinLEED Online, as well as the remittance of all applicablefees to us.

2.5. As used herein, the phrase “Registration Forms”refers to the electronic data submission templates avail-able within LEED Online through which basic Projectand Owner information is provided to us for the purposesof completing registration and establishing a Project.

2.6. As used herein, the phrase “Project” refers to allreal or physical property within the LEED ProjectBoundary, including the building(s), space(s), struc-ture(s), land, �xtures, etc., which collectively areregistered in LEED Online as a single entry.

2.7. As used herein, the phrase “your Project” refersto the Project that is the subject of the RegistrationForms you hereby submit to us.

2.8. As used herein, the phrase “LEED Project Bound-ary” refers to the line drawn on submitted documenta-tion indicating the limits of the real property which col-lectively is being registered with us as your Project.

2.9. As used herein, the phrase “LEED Certi�cation”refers to GBCI's determination that a Project is incompliance with all minimum program requirements,has satis�ed all prerequisites, and accumulated the min-imum number of points to achieve a particular level of


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LEED Certi�cation, such as Certi�ed, Silver, Gold orPlatinum as outlined in the LEED Green Building Rat-ing System under which it is registered.

2.10. As used herein, the phrase “LEED Certi�cationprocess” refers to the steps that take place from andincluding the submission of a LEED Certi�cation Ap-plication to us through and including our �nal action onsuch application.

2.11. As used herein, the phrase “LEED Certi�cationApplication” refers cumulatively to the electronic formsavailable via LEED Online that allow you to submitdocumentation and other information necessary to dem-onstrate that your Project is in compliance with allstated LEED Green Building Rating System require-ments including minimum program requirements,prerequisites, and credits. Access to the LEED Certi�ca-tion Application is available to the Project Administra-tor upon the completion of registration.

2.12. As used herein, the phrase “Project Administra-tor” refers to a role assigned to a particular person as-sociated with your Project within LEED Online. Thisrole carries with it unique permissions and responsibili-ties with regards to the administration of the LEEDCerti�cation Application. LEED Online will initially as-sign this role to the person who completes the registra-tion for your Project. This role may be changed atanytime.

2.13. As used herein, the phrase “LEED Online”refers to the LEED Online Version 3 informationsubmittal tool located at URL https://www.leedonline.com designed to facilitate the submission of informationand documentation through the use of electronic formsas is necessary to complete registration and the LEEDCerti�cation process.

2.14. As used herein, the phrase “LEED Green Build-ing Rating System” refers to one of a series of ratingsystems under which you may register your Project.Each LEED Green Building Rating System is comprisedof a unique series of minimum program requirements,prerequisites, and credits that must be satis�ed in orderto achieve LEED Certi�cation. The execution of thisAgreement will allow you to register for one of the fol-


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lowing LEED Green Building Rating Systems currentlyo�ered by us as listed below and linked hereto:

LEED 2009 for New Construction and MajorRenovations Rating SystemLEED 2009 for Core & Shell Development RatingSystemLEED 2009 for Schools New Construction andMajor Renovations Rating SystemLEED 2009 for Existing Buildings: Operationsand Maintenance Rating SystemLEED 2009 for Commercial Interiors RatingSystem

2.15. As used herein, the phrase “prerequisite” meansa mandatory Project characteristic, measurement, qual-ity, value or function as identi�ed within a particularLEED Green Building Rating System.

2.16. As used herein, the phrase “credit” means a non-mandatory Project characteristic, measurement, quality,value or function as identi�ed within a particular LEEDGreen Building Rating System. Each credit is assigneda particular quantity of points.

2.17. As used herein, the phrase “minimum programrequirement” refers to a mandatory Project characteris-tic, measurement, quality, value or function as identi-�ed within a particular LEED Green Building RatingSystem.

2.18. As used herein, the phrase “LEED Green Build-ing Rating System Reference Guide” refers to one of aseries of three publications, each pertaining to a partic-ular set of LEED Green Building Rating Systems. Thesepublications provide supplementary information onprogram requirements including all prerequisites andcredits. These publications are available for purchasefrom USGBC at its website located at URL http://www.usgbc.org. The three current LEED Green Building Rat-ing System Reference Guides and the LEED GreenBuilding Rating System(s) they apply to are listed below:

LEED Reference Guide for Green BuildingDesign and Construction, 2009 Edition, U.S. GreenBuilding Council, Inc. (2009), ISBN: 978-1-932444-14-8

LEED 2009 for New Construction and Major Renova-tions Rating System


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LEED 2009 for Core & Shell Development RatingSystem

LEED 2009 for Schools New Construction and MajorRenovations Rating System

LEED Reference Guide for Green BuildingOperations and Maintenance, 2009 Edition, U.S.Green Building Council, Inc. (2009), ISBN: 978-1-932444-16-2

LEED 2009 for Existing Buildings: Operations andMaintenance Rating System

LEED Reference Guide for Green InteriorDesign and Construction, 2009 Edition, U.S. GreenBuilding Council, Inc. (2009), ISBN: 978-1-932444-15-5

LEED 2009 for Commercial Interiors Rating System2.19. As used herein, the phrase “Licensed Profes-

sional” refers to a person formally certi�ed by a licens-ing board to practice as a Professional Engineer,Registered Architect, or Registered Landscape Architect.

2.20. As used herein, the phrase “Rating SystemSunset Date” refers to the date occurring six (6) yearsafter the close of registration for a particular ratingsystem, or particular rating system version, as deter-mined and announced by us, and as further described inSection 8.4 of this Agreement.

2.21. As used herein, the phrase “Project CompletionDate” refers to the date on which the building receives aCerti�cate of Occupancy or similar o�cial indicationthat it is �t and ready for use.

2.22. As used herein, the phrase “Energy and WaterUsage Data” means all information pertaining to water,electricity, gas, oil, steam, coal, wood, solar, wind, tidalkinetic or other such service or resource provided to theProject site and/or created at the Project site in part orin whole.

2.23. As used herein, the phrase “Government Entity”means a sovereign nation, and any of its agencies orinstrumentalities, as well a state, provincial or localgovernment, including an agency, board or commissionin the executive branch of such government.

2.24. As used herein, the phrase “U.S. Green Build-ing Council, Inc” (also herein referred to as (“USGBC”)refers to the U.S. Green Building Council, Inc., a


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501(c)(3) public charity of the District of Columbia withan address of 2101 L Street NW, Suite 500, WashingtonD.C. 20037, and all of its respective employees, agents,o�cers, directors, assigns and successors in interest.USGBC is the sole and exclusive owner of the LEEDtrademark and the LEED Certi�ed certi�cation markwhich GBCI has been licensed to use.

3. OVERVIEW OF THE REGISTRATION AND LEEDCERTIFICATION PROCESS

3.1. You agree that (i) you shall comply with theLEED Certi�cation process policies, deadlines, guide-lines, and instructions as are published by us in theLEED Certi�cation Policy Manual as of the date of theOwner's execution of the LEED Certi�cation Agreement,or, should the Owner fail to execute such Agreement,then as of the date of your execution of this Agreement,and (ii) your Project will meet all applicable require-ments therein speci�ed, regardless of whether any par-ticular section or subsection of such LEED Certi�cationPolicy Manual is speci�cally referenced in thisAgreement.

3.2. This Agreement entitles you to establish yourProject in LEED Online and to begin �lling out a LEEDCerti�cation Application under a current LEED GreenBuilding Rating System as identi�ed in Section 2.14 ofthis Agreement.

3.3. Upon completing registration, the LEED Certi�-cation Application for your Project shall become acces-sible within LEED Online. At such time you will be ableto enter and administer the LEED Certi�cation Applica-tion for your Project, as well as accept and assign proj-ect team members to work on your LEED Certi�cationApplication, either in whole, or on a credit by credit orprerequisite by prerequisite basis.

3.4. Upon completing registration, your Project shallbe represented in the Registered Projects List withinthe LEED Project Directory, which is maintained by usand viewable on our website at URL http://www.gbci.org. You may choose to limit this disclosure of Projectinformation by selecting the con�dentiality optionwithin the Registration Forms or at anytime thereafterthrough the LEED Online Project administration tools.


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3.5. Upon completion of registration, you shall beentitled to submit credit interpretation requests, subjectto all fees, restrictions, and requirements as identi�edby us in the LEED Certi�cation Policy Manual.

3.6. This Agreement shall not entitle you to receiveservices from us constituting the review of your LEEDCerti�cation Application. Such services are procuredthrough the execution of the LEED Certi�cation Agree-ment, which is available at the Legal Page within LEEDOnline linked hereto, which details the LEED Certi�ca-tion process and requires the remittance of additionalfees as identi�ed within the LEED Certi�cation PolicyManual. Nothing in this agreement shall be construedto establish a preexisting duty upon us, to you, toperform such services or to convey LEED Certi�cation.

3.7. Prior to the submittal of your LEED Certi�cationApplication to us, the Owner(s) of your Project mustenter LEED Online and execute the LEED Certi�cationAgreement. At such point in time that the LEED Certi-�cation Agreement is executed by all Project Owners,the Project Administrator, and only the Project Adminis-trator, may submit such application to us. Further, allLEED Certi�cation Applications must be submitted viaLEED Online.

3.8. Upon execution of the LEED Certi�cation Agree-ment by all Project Owners, the submission of a LEEDCerti�cation Application, and the receipt of all ap-plicable fees, we shall review your application in a man-ner consistent with the LEED Certi�cation process poli-cies, deadlines, guidelines, and instructions as arepublished by us in the LEED Certi�cation Policy Man-ual as of the date of the Owner's execution of the LEEDCerti�cation Agreement.

3.9. You agree that up and until the date of theOwner's execution of the LEED Certi�cation Agreement(or in the instance there are multiple Owners of yourProject, the date upon which the �rst Owner to acceptthe agreement does so), that you shall abide by theLEED Certi�cation process policies, deadlines, guide-lines and instructions as are published by us in theLEED Certi�cation Policy Manual as of the date of yourexecution of this Agreement.


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3.10. You agree that the LEED Certi�cation Applica-tion for your Project shall not be submitted for �nalreview until after the Project Completion Date.

3.11. By registering your Project with GBCI, you rep-resent that you will endeavor in good faith to use rea-sonable commercial e�orts to: (i) design your Project toachieve LEED Certi�cation at the LEED Certi�ed Level,or higher, (ii) construct such Project so as achieve LEEDCerti�cation at the LEED Certi�ed Level, or higher,and (iii) pursue LEED Certi�cation for such Project.Further, by registering a Project, you represent that: (i)you have not been told by the Owner of the Project (ifother than yourself), and you have no other reason tobelieve that the Project you are registering has not beenor will not be designed to achieve LEED Certi�cation atthe LEED Certi�ed Level, or higher, (ii) you have notbeen told by the Owner of the Project (if other thanyourself), and you have no other reason to believe, thatthe Project you are registering will not be constructed insuch a manner so as to achieve LEED Certi�cation atthe LEED Certi�ed Level, or higher, and (iii) you havenot been told by the Owner of the Project (if other thanyourself), and you have no other reason to believe, thatLEED Certi�cation will not be pursued for the Projectyou are registering.

4. PAYMENT AND ADJUSTMENT OF FEES4.1. You hereby assert your understanding and

knowledge of the fees associated with registration andthe LEED Certi�cation process as set forth in the LEEDCerti�cation Policy Manual in the Section titled Fees.You agree that you will pay all such fees.

4.2. You hereby acknowledge and agree that such feesshall be remitted to us by credit card at the time ofregistration, or by check; however, we will not processthe registration for your Project until payment has beenreceived in full.

5. DOCUMENTATION5.1. The LEED Certi�cation process requires both the

submission and retention of certain information anddocumentation demonstrating compliance with programrequirements. You agree that all documentation you


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provide to us for the purposes of completing a LEEDCerti�cation Application, and that which is submitted tous for the purposes of procuring a review in accordancewith the terms, conditions, and provisions of the LEEDCerti�cation Agreement, shall be maintained by you atthe site for your Project for a period of not less thanseven (7) years commencing on the date of award ofLEED Certi�cation.

5.2. You agree that all documentation submitted forthe purposes of completing a LEED Certi�cation Ap-plication shall be provided in accordance with the poli-cies and procedures pertaining to Minimum NarrativeRequirements, Required Signatories, and LicensedProfessional Exemptions. You hereby acknowledge thatthe Project Owner will be required to con�rm that eachLicensed Professional on the Project team who hasregistered as such with us meets each of the LicensedProfessional Exemption requirements. You further agreethat you shall notify us immediately of any adversechange in the status, or good standing, of any LicensedProfessional(s) who has provided information throughthe Licensed Professional exemption process. Suchobligation shall continue throughout the LEED Certi�-cation process up and until �nal award or denial ofLEED Certi�cation occurs.

6. APPLICATION SUBMISSION TIMELINES ANDREVIEW POLICIES

Upon the submission of the LEED Certi�cation Applica-tion for your project, we shall strive to meet the timelinesstipulated within our Application Review Policies as theyare set forth in the LEED Certi�cation Policy Manual.However, if we do not meet these timelines, you shall notbe entitled to a refund of any portion of the fees associatedwith registration, LEED Certi�cation, any recerti�cationor expedited review fees, and/or any other fees you pay tous, nor will any submission deadline or Rating SystemSunset Date be extended unless our failure to meet thesetimelines was a result of our willful misconduct, grossnegligence, or wanton or reckless behavior.7. MINIMUM PROGRAM REQUIREMENT, PRE-REQUISITE, AND CREDIT APPEALS

If it is determined by us that you have not satis�ed a


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minimum program requirement, prerequisite or credit,you shall have the opportunity to appeal such determina-tion by us. The procedures and costs for appealing thedenial of a minimum program requirement, prerequisite,or credit are set forth in the LEED Certi�cation PolicyManual. All appeals are decided by us in our reasonablediscretion. You acknowledge that our resolution of suchappeals shall be �nal and binding unless the same wasarbitrary or capricious.8. LEED PROJECT REGISTRATION CLOSUREAND CANCELLATION POLICY

8.1. You hereby acknowledge our intention to certifybuildings in accordance with the most recent LEEDGreen Building Rating Systems made available by theUSGBC.

8.2. You hereby acknowledge that we will regularlyclose registration for a Green Building Rating System orGreen Building Rating System version concurrentlywith the release of a new Green Building Rating Systemor Green Building Rating System version. We reservethe right to close registration for a particular LEEDGreen Building Rating System or for a particular LEEDGreen Building Rating System version at any time andfor any reason. Such closure of registration shall be im-mediately e�ective upon an announcement of the sameby us.

8.3. You hereby acknowledge and agree that no ad-ditional Projects may be registered under a LEED GreenBuilding Rating System or LEED Green Building Rat-ing System version after registration for that LEEDGreen Building Rating System or LEED Green BuildingRating System version is closed. If your Project hascompleted registration at the time that a LEED GreenBuilding Rating System or LEED Green Building Rat-ing System version is closed, your Project shall continueto exist within LEED Online as a registered Project.

8.4. You agree that you shall demonstrate the requi-site level of activity on your LEED Certi�cation Applica-tion prior to the Rating System Sunset Date as explainedin the LEED Certi�cation Policy Manual. You furtherunderstand and agree that if you are unable to demon-strate such requisite level of activity prior to the Rating


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System Sunset Date, that the registration for your Proj-ect shall be canceled, or, at your election, your projectwill be registered and reviewed under the current LEEDGreen Building Rating System or LEED Green BuildingRating System version o�ered by GBCI applicable toyour Project type. If no current LEED Green BuildingRating System or LEED Green Building Rating Systemversion is available, then your project shall be canceled.

8.5. You agree that you shall maintain a substantiallevel of activity designed to e�ect the submission of acomplete LEED Certi�cation Application. As more fullyset forth in the LEED Certi�cation Policy Manual, wereserve the right to cancel the registration for your Proj-ect if, as determined solely and reasonably by us, youfail to maintain such substantial level of activity for aperiod of four (4) years or more.

8.6. You agree that if you have registered your Proj-ect in accordance with the New Construction, Core &Shell or Commercial Interiors rating systems that youmust submit a LEED Certi�cation Application no laterthan two (2) years after the Project Completion Date.You further understand and agree that if you are un-able to submit a LEED Certi�cation Application for yourProject within such two (2) year period that the registra-tion for your Project shall be canceled.

8.7. You agree that if the registration for your Projectis cancelled in accordance with these terms that youronly recourse for seeking LEED Certi�cation for yourProject is to register your Project as a new Project underthe then-most recent LEED Green Building RatingSystem or LEED Green Building Rating System versionapplicable to your Project type, to the extent that suchrating system remains open for registration.

8.8. You agree that you shall not be entitled to thereturn or refund of any fees paid by you to us pertainingto your Project if your registration is subject to cancel-ation in accordance with these terms.

9. REGISTRATION OF A PROJECT SUBJECT TOAN AWARD, FINAL DENIAL OR REVOCATION OFLEED CERTIFICATION

You agree that if your Project is subject to award ofLEED Certi�cation, denial of LEED Certi�cation, or revo-


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cation of LEED Certi�cation as further explained in theLEED Certi�cation Policy Manual, under any LEEDGreen Building Rating System, that you shall not registerthat same Project under the same or under any otherLEED Green Building Rating System except for the cur-rent version of the LEED for Existing Buildings: Opera-tions and Maintenance Rating System.

10. CERTIFICATION AUDIT AND REVOCATION10.1. You agree that at any time we may audit your

documentation and/or conduct an audit by performing asite visit of your Project as set forth in the LEED Certi-�cation Policy Manual in the Section titled Certi�cationChallenge Policy.

10.2. You acknowledge that we retain the right, inour sole reasonable discretion, to deny or revoke LEEDCerti�cation from any Project where we are denied ac-cess to perform a site visit, or we are denied the abilityto examine retained documentation for your Project.

10.3. We reserve the right to revoke LEED Certi�ca-tion if we determine that the same was conferred basedon false or misleading information that you, or othersauthorized by you provided to us, and that in any waymaterially a�ects the grant of LEED Certi�cation foryour Project.

11. CERTIFICATION EXPIRATION POLICY[Applies to Projects Registered Under the LEED

2009 for Existing Buildings: Operations and Mainte-nance Rating System Only]

You agree that if you are submitting a LEED Certi�ca-tion Application under the LEED 2009 for ExistingBuildings: Operations and Maintenance Rating Systemyou shall be required to achieve LEED Certi�cation atleast once every �ve (5) years from the date of the mostrecent award of LEED Certi�cation. If you are unable orunwilling to achieve LEED Certi�cation at least onceevery �ve (5) years, the LEED Certi�cation for your Proj-ect shall expire and all rights and privileges related to theLEED Certi�ed status, including but not limited to rightsand licenses to use and display certain intellectual prop-erty owned or licensed by us, shall be immediatelyrevoked.


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12. PROJECT MONITORING12.1. It is our intention to review the ongoing perfor-

mance of your Project once it is completed to assesscompliance with LEED Green Building Rating Systemrequirements. You understand that it shall be a mate-rial condition of LEED Certi�cation that the Owner ofyour Project agree to authorize both us and USGBC toaccess and review your Project's Energy and Water Us-age Data from the utility service provider and/or thewhole-project metering facility where such meters are inplace, so long as such access is reasonably practicable.This authorization shall be maintained for a period of�ve (5) years following the date your Project achievesLEED Certi�cation.

12.2. You acknowledge that it shall be the burden ofthe Project Owner to notify all subsequent Ownersand/or occupants of your Project of the project monitor-ing requirements stated in section 12.1 of thisAgreement.

12.3. You acknowledge that the Project Owner shallbe required to use reasonable e�orts to require that allsubsequent Owners and/or occupants of your Project, inpart or in whole, comply with the project monitoringrequirements stated in section 12.1 of this Agreement.

12.4. You acknowledge that the Project Owner shallbe required to authorize such access as stipulated withinthe project monitoring requirements section 12.1 of thisAgreement within the �rst calendar year after your Proj-ect achieves LEED Certi�cation. t is our intention toreview the ongoing performance of your Project to as-sess compliance with LEED Green Building RatingSystem requirements. You understand that it is a mate-rial condition of LEED Certi�cation that the ProjectOwner(s) agrees to authorize both us and USGBC to ac-cess and review your Project's Energy and Water UsageData from the utility service provider and/or the whole-project metering facility where such meters are in place,so long as such access is reasonably practicable. Thisauthorization shall be maintained for a period of �ve (5)years following the date your Project achieves LEEDCerti�cation.

13. INTELLECTUAL PROPERTY HELD BY YOU13.1. With regards to any and all content and/or data


227

that you provide to us in the LEED Certi�cation Ap-plication for your Project (but not including any plans,drawings, schema and/or designs), you hereby grant usand USGBC a limited, irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide, andsublicensable right to use, reproduce, prepare derivativeworks from, distribute, display and publish such contentand/or data in any and all media and formats knownnow or in the future. This right is granted at the timeyou upload or enter such information within LEEDOnline and shall be retained by us regardless of whetherthe LEED Certi�cation Application for your Project issubmitted to us for review. Such rights and licensesshall survive the cancellation of registration for yourProject by you or by us, as well as a denial or revocationof LEED Certi�cation for your Project by us, or abandon-ment of LEED Certi�cation by you.

13.2. We agree that the use of such materials identi-�ed within section 13.1 of this agreement by us and/orany agent, authorized representative, assign, or subli-censee by us, shall be for the following limited purposes:i) the furthering of research pertaining in general togreen buildings and in particular buildings that achieveLEED Certi�cation under a LEED Green Building Rat-ing System; ii) educational purposes designed to promotethe proliferation of knowledge about and/or participa-tion in the development of the LEED Green BuildingRating Systems; and iii) promotion of the sale of goodsand/or services directly related to LEED or the LEEDGreen Building Rating Systems.

14. INTELLECTUAL PROPERTY HELD BY GBCIAND USGBC

14.1. You acknowledge that GBCI and USGBC ownand/or maintain a license to use several proprietarytrademarks, certi�cation marks, and associated acro-nyms, logos and other graphic images, including but notlimited to the “GBCI” trademark, the “LEED” trade-mark, the “USGBC” trademark, and the LEED Certi�edcerti�cation mark, (collectively “Logos”), which arepowerful marketing tools and valuable assets held by usand USGBC respectively.

14.2. You agree to abide by the guidelines restricting


228

the use of these logos, trademarks, and other intellectualproperty as set forth in the LEED Certi�cation PolicyManual, in the Section titled Logo Guidelines.

14.3. You agree that prior to a �nal determination byus that your Project has achieved LEED Certi�cation,that the use of proprietary trademarks, certi�cationmarks, and associated acronyms, logos and othergraphic images, including but not limited to the “GBCI”trademark, the “LEED” trademark, the “USGBC”trademark, or the LEED Certi�ed certi�cation mark asheld by USGBC or us in such a way as to suggest thatyour Project has achieved such LEED Certi�cation shallconstitute an unauthorized use and/or reference of suchintellectual property.

14.4. You acknowledge that if you engage in any un-authorized use or reference to the proprietary trade-marks, certi�cation marks, associated acronyms, logosand other graphic images, including but not limited tothe “GBCI” trademark, the “LEED” trademark, the“USGBC” trademark, and or the LEED Certi�ed certi�-cation mark, your right to continue using any such intel-lectual property may be terminated and that irrepara-ble injury will occur if such unauthorized use continues,and, without limiting any remedies available to USGBCand/or GBCI you agree, that USGBC and/or GBCI shallbe entitled to temporary, preliminary, and permanentinjunctive relief, plus an award for damages, costs, andreasonable attorneys' fees arising from or relating tosuch unauthorized use or reference.

14.5. You understand and agree that should yourProject be demonstrated to be in compliance with allLEED Certi�cation requirements, we will o�er the Proj-ect Owner a limited, non-exclusive, revocable, royalty-free license to use the “LEED” trademark, the LEEDCerti�ed certi�cation mark, and other associated logos,subject to reasonable restrictions of use as set forth inthe LEED Certi�cation Policy Manual. Such license doesnot constitute a transfer of ownership and may berevoked in accordance with the Terms of this Agreement.

15. RELEASE AND LIMITATION OF LIABILITY15.1. You knowingly and intelligently waive and

release all claims and causes of action against GBCI


229

and USGBC arising out of, or in any way related to,registration and/or the LEED Certi�cation process otherthan claims and causes of action for your losses, dam-ages, costs or expenses that are the direct and proximateresult of willful misconduct, gross negligence, or wantonor reckless behavior by GBCI, USGBC, or both. Thiswaiver and release includes, but is not limited to, claimsand causes of action arising out of or relating to GBCI'sdecision not to certify a Project at a particular level, orat all, GBCI's decision that particular minimum programrequirements, prerequisites, and/or credits have notbeen satis�ed, or delays in the LEED Certi�cationprocess.

15.2. If, after taking into account the provisions setforth in these Terms and all defenses available to GBCI,USGBC, or both, it is determined that either GBCIand/or USGBC is liable to you, then the maximumamount that you can recover from GBCI or USGBC forany and all injuries, claims, losses, expenses, costs, anddamages whatsoever arising out of, or in any way re-lated to, registration and/or the LEED Certi�cation pro-cess is capped at and shall not exceed the sum of (i) thefees that you paid to GBCI to register the Project that isthe subject of your claim, and (ii) the fees that you paidto GBCI to apply for LEED Certi�cation for the Projectthat is the subject of your claim, less any refunds thatGBCI provided to you for said Project.

16. WAIVER OF CONSEQUENTIAL DAMAGESNotwithstanding anything herein to the contrary, nei-

ther you nor GBCI nor USGBC shall be liable for anyconsequential losses or damages arising out of, or in anyway related to, registration and/or the LEED Certi�cationprocess, whether arising in contract, tort (includingnegligence), strict liability or otherwise, including, but notlimited to, losses of use, pro�ts, business, reputation,�nancing, property value, tenants, or productivity.

17. DISCLAIMER OF WARRANTIESBoth GBCI and USGBC expressly disclaim any and all

warranties including the warranty of habitability, mer-chantability, �tness for a particular purpose, and oranything else concerning any Project. It is understood and


230

agreed that there are no warranties, express or implied,written or oral, statutory or otherwise, with respect to ei-ther the services or the certi�cations provided by GBCI,USGBC, or both. By way of example only, and withoutlimiting the broad scope of the foregoing, it is understoodthat LEED Certi�cation, whether at the Certi�ed level orany other level, does not mean that the Project is structur-ally sound or safe, constructed in accordance with ap-plicable laws, regulations or codes, free of mold or mildew,or free of volatile organic compounds or allergens.18. INDEMNIFICATION

With respect to each and every Project you register forLEED Certi�cation and/or for which you submit a LEEDCerti�cation Application, you agree to indemnify GBCIand USGBC for, and to hold them harmless against, anyand all third-party claims, judgments, liabilities, causes ofaction, losses, damages, costs and expenses arising fromor in any way related to registration and/or the LEEDCerti�cation process to the extent that such claim, judg-ment, liability, cause of action, loss, damage, cost orexpense was not caused by GBCI's, USGBC's or bothorganization's negligence, gross negligence, willful miscon-duct, or wanton or reckless behavior.

19. NOTICE OF CLAIM19.1. If you have been damaged by any act or omis-

sion of GBCI, then, within thirty (30) calendar days af-ter the occurrence of each such act or omission, you mustprovide us with written notice describing with reason-able detail the act and/or omission, how you were dam-aged by it, and a reasonable estimate of the extent ofmonetary amount of your damages you claim to havesu�ered. You must provide this written notice to us bycerti�ed mail, return receipt requested, addressed asfollows:

General CounselGreen Building Certi�cation Institute2101 L Street, NWSuite 650Washington, DC 20037

19.2. Your providing us with the notice in the manner


231

and within the time frame described in section 19.1,above, is an express condition precedent to your right tocommence and maintain litigation against us. Youknowingly and intelligently waive any and all claimsand causes of action against us to the extent that you donot provide us with the notice in the manner and withinthe time frame described in section 19.1, above. Fur-ther, you agree not to commence litigation against GBCIuntil sixty (60) calendar days after we receive (as evi-denced by our signature on the return receipt) the writ-ten notice described in section 19.1, above. Your right tocommence and maintain litigation against us is furtherlimited as described in section 20, 21, and 22, below.

20. MEDIATIONWithin thirty (30) calendar days after receiving the no-

tice described in section 19.1, above, we may elect to referyour claim to non-binding mediation (hereafter referred toas “Mediation”). If we refer your claim to Mediation, thenyou shall not be entitled to commence litigation against usuntil after the Mediation is completed as documented by aletter from the mediator stating that the Mediation iscompleted; provided, however, if there comes a time whenthe applicable statute of limitations for your claim willexpire within ninety (90) calendar days and the Mediationhas not been completed, then you may commence litiga-tion for the sole purpose of satisfying the applicable stat-ute of limitations and you shall immediately stay such lit-igation until the Mediation is completed. Mediation shalltake place in person in the District of Columbia, Washing-ton D.C., before a mediator jointly selected by you and us,and both you and we shall have at least one person attendthe Mediation in person who has full authority to settleyour claim. The costs and fees billed by the mediator shallbe split and paid equally by you and us.21. GOVERNING LAW

These Terms, and all of the rights and duties of you andGBCI arising out of or related to registration, the LEEDCerti�cation process, or the relationship between you andGBCI, are governed by the laws of the District of Colum-bia, United States of America, without regard to itscon�icts of law rules. This provision applies to all claimsand causes of action that you have or acquire against


232

GBCI, whether based in contract, tort, statute, or anythingelse.

22. VENUEYou agree that any and all claims and causes of action

that you have or acquire against GBCI shall be com-menced in and decided exclusively by a court of competentjurisdiction located in the District of Columbia, UnitedStates of America. You agree to submit to the personaland exclusive jurisdiction of the courts located in theDistrict of Columbia, United States of America. You waiveall defenses and arguments that the courts located in theDistrict of Columbia, United States of America, constitutean inconvenient forum based upon your residence, yourdomicile, the location of the Project that is the subject ofthe litigation, the location of witnesses, the location ofdocuments, or anything else. You knowingly and intel-ligently waive your right to a jury trial with respect to anyand all claims and causes of action that you have oracquire against GBCI.

23. NO THIRD-PARTY BENEFICIARIESThis Agreement is for the sole and exclusive bene�t of

you and GBCI. Nothing in these Terms, or the Agreement,shall be deemed to create any third party bene�ciaries orconfer any bene�t or rights on or to any person other thanyou and GBCI, provided, however, that USGBC is speci�-cally a contingent third party bene�ciary of this Agree-ment, Only you and GBCI, and USGBC as a contingentthird party bene�ciary, shall be entitled to enforce theseTerms, and the Agreement, and to exercise the rightscontained within them.

24. MISCELLANEOUS24.1. If any provision set forth in this Agreement, or

the application thereof to any circumstance, shall, toany extent, be found by a court of competent jurisdictionto be invalid or unenforceable, then such provision willbe more narrowly construed so that it becomes legal andenforceable, and the remainder of this Agreement, andthe application of such provision to circumstances otherthan those as to which it is held invalid or unenforce-able, shall not be a�ected thereby, while each provisionset forth in this Agreement shall be valid and enforce-


233

able to the fullest extent permitted by law, the entireAgreement will not fail on account thereof, and the bal-ance of the Agreement will continue in full force and ef-fect to the maximum extent permitted by law or equitywhile preserving, to the fullest extent possible, its origi-nal intent.

24.2. The headings used in this document are for easeof reference only and shall not in any way be construedto limit or alter the meaning of any provision.

24.3. Any rule that ambiguities are construed orinterpreted against the drafter of a document, or againstthe party for whose bene�t the document is made, shallnot apply to these Terms.

24.4. This Agreement may only be modi�ed in writingand all such written modi�cations must be signed byyou and the then-current General Counsel, President,Director of Certi�cation, or Chief Operating O�cer ofGBCI. No other individuals have the authority to modifythis Agreement on behalf of GBCI. No action or inactionby GBCI shall be construed as a waiver of this or anyother provision of these Terms.

25. GOVERNMENT ENTITIESIf you are a Government Entity, the following clauses do

not apply to you: Clause 15, Release and Limitation of Li-ability; Clause 16, Waiver of Consequential Damages;Clause 18, Indemni�cation; Clause 20, Mediation; andClause 22, Venue.

Major Changes from LEED-NC v2.2 to LEED 2009NC

Sustainable Sites ChangesCredit 2 — DevelopmentDensity & Community Con-nectivity

E Reweighted from 1 pointto 5 points.

E Clari�ed de�nition of eli-gible Basic Services

Credit 4.1 — Alternative E Reweighted from 1 pointto 6 points.

Transportation: PublicTransportation Access

E Clari�ed how to measuredistance to public transit.


234

Sustainable Sites ChangesCredit 4.3 — Alternative E Reweighted from 1 point

to 3 points.Transportation: Low Emit-ting & Fuel E�cient Ve-hicles

E Added language address-ing the use of discountedparking for Option 2.E Added Option 4 address-ing car sharing.

Credit 4.4 — Alternative E Reweighted from 1 pointto 2 points.

Transportation: ParkingCapacity

E Added language address-ing the use of discountedparking for Option 2.E Added Option 5 clarifyingthe requirements formixed-use projects.

Credit 7.1 — Heat IslandE�ect:

E Clari�ed requirements forOption 1 and Option 2.

Non-RoofCredit 8 — Light PollutionReduction

E Modi�ed requirements forinterior and exterior lightpollution.

Water E�ciency ChangesPrerequisite 1 — WaterUse

E Added new prerequisitewhich was previouslyWEc3.1.

Reduction: 20% E Updated baselines for�ow rates, based on theEnergy Policy Act of 1992and subsequent rulings bythe Department of Energy,requirements of the EnergyPolicy Act of 2005, and theplumbing code require-ments as stated in the 2006editions of the UniformPlumbing Code or Interna-tional Plumbing Code.

Credit 1.1 — Water E�-cient


Landscaping: Reduce by50%


235

Sustainable Sites ChangesCredit 1.2 — Water E�-cient


Landscaping: No PotableWater Use or No IrrigationCredit 2 — InnovativeWastewater Technologies


Credit 3 — Water Use Re-duction

E Reweighted from 2 pointsto 4 points.E Modi�ed thresholds to30%, 35%, and 40%reductions.E Updated baseline for �owrates, based on the EnergyPolicy Act of 1992 and sub-sequent rulings by the De-partment of Energy, re-quirements of the EnergyPolicy Act of 2005, and theplumbing code require-ments as stated in the 2006editions of the UniformPlumbing Code or Interna-tional Plumbing Code.

Energy & Atmosphere ChangesPrerequisite 2 — MinimumEnergy Performance

E Updated referenced stan-dard to ASHRAE 90.12007.E Revised to include mini-mum energy performanceimprovement, previously inEAc1.E Revised to include threecompliance paths re�ectingEAc1.

Credit 1 — Optimize En-ergy Performance

E Reweighted from 1 — 10points to 1 — 19 points.E Updated referencestandard.E Revised achievementthresholds. Higher thresh-olds were added.


236

Sustainable Sites ChangesE Prescriptive path Option2 now includes AdvancedEnergy Design Guides forSmall Retail, Small Ware-houses, and Self Storagebuildings.E Prescriptive path Option3 now excludes healthcare,warehouse, and laboratorybuilding types.

Credit 2 — On-Site Renew-able Energy

E Reweighted from 1-3points to 1-7 points.E Revised achievementthresholds. Lower andhigher thresholds added.

Credit 3 — Enhanced Com-missioning


Credit 4 — Enhanced Re-frigerant Management

E Reweighted from 1 pointto 2 points.E Language added prohibit-ing the operation of �resuppression systems thatcontain ozone-depletingsubstances.

Credit 5 — Measurement &Veri�cation

E Reweighted from 1 pointto 3 points.E Requirement added toprovide process for correc-tive action if M&V planshows energy savings arenot being achieved.

Credit 6 — Green Power E Reweighted from 1 pointto 3 points.E The Green-e product cer-ti�cation requirement wasclari�ed to specify Green-eEnergy products.

Materials & Resources ChangesCredit 1.1 — Building Re-use:

E Combined with previousMRc1.2.


237

Sustainable Sites ChangesMaintain Existing Walls,Floors & Roof

E Reweighted from 1-2points to 1-3 points.E Added a lower achieve-ment threshold.

Credit 2 — ConstructionWaste Management

E Combined MRc2.1 and2.2 into one credit.

Credit 3 — Materials Re-use


Credit 4 — Recycled Con-tent


Credit 5 — Regional Mate-rials


Credit 7 — Certi�ed Wood E No changes were madefor 2009 release. Credit isundergoing a separate de-velopment process and willbe balloted outside theLEED 2009 Rating Systemas a single credit.

Indoor EnvironmentalQuality

Changes

Prerequisite 1 — MinimumIndoor Air Quality Perfor-mance

E Updated referenced stan-dard to ASHRAE Standard62.1-2007.

Prerequisite 2 — Environ-mental Tobacco SmokeControl

E Residential (Case 2) clari-�ed to include hospitality.

E Added requirement toweather-strip exterior doorsand windows in residentialprojects.

Credit 1 — Outdoor AirDelivery Monitoring


Credit 2 — Increased Ven-tilation



238

Sustainable Sites ChangesCredit 3.1 — Construc-tion Indoor Air

E Updated referenced stan-dard to the Sheet Metaland Air Conditioning Na-tional Contractors Associa-tion (SMACNA) IAQ Guide-lines For OccupiedBuildings Under Con-struction, 2nd Edition2007, ANSI/SMACNA 008-2008 (Chapter 3).

Quality Management Plan— During ConstructionCredit 3.2 — Construc-tion Indoor Air QualityManagement Plan —

E Clari�ed that all �nishesmust be installed prior to�ush-out.E Threshold for formalde-hyde level was revised from50 to 27 parts per billion inOption 2, Air Testing.

Credit 4.3 — Low-EmittingMaterials — Flooring Sys-tems

E Updated to include all�ooring systems.

E Added requirement toOption 1 that hard surface�ooring must be FloorScorecompliant or 100% of thenon-carpet �nished �ooringmust be FloorScore-certi�ed and must consti-tute at least 25% of the �n-ished �oor area.E Added requirement toOption 1 that concrete,wood, bamboo, and cork�nishes must meetSQADMD Rule 1113, Ar-chitectural Coatings, rulesin e�ect on January 1,2004.


239

Sustainable Sites ChangesE Added requirement toOption 1 that tile settingadhesives and grout mustmeet SCAQMD Rule 1168.VOC limits correspond toan e�ective date of July 1,2005 and rule amendmentdate of January 7, 2005.E Added Option 2 whichrequires that all �ooringelements installed in thebuilding interior must meetthe testing and product re-quirements of the Califor-nia Department of HealthServices Standard Practicefor the Testing of VolatileOrganic Emissions fromVarious Sources UsingSmall-Scale EnvironmentalChambers, including 2004Addenda.

Credit 5 — Indoor Chemi-cal & Pollutant SourceControl

E Required length for per-manent entryway systemchanged from 6 feet to 10feet.E Added requirement toprovide containment fordisposal of hazardous liquidwastes in places where wa-ter and chemical mixingoccurs.

Credit 6.2 — Controllabil-ity of Systems: ThermalComfort

E Updated reference stan-dard to ASHRAE 62.1-2007.

Credit 7.2 — ThermalComfort — Veri�cation

E Clari�ed that EQc7.1must be earned in order tobe eligible for EQc7.2E Clari�ed that residentialprojects are not eligible forthis credit.


240

Sustainable Sites ChangesCredit 8.1 — Daylight &Views:

E Deleted the glazing factorcalculation option.

Daylight 75% of Spaces E Simulation model optionupdated to include 500foot-candle maximum inclear sky conditions. Proj-ects with automated shadesfor glare control only needto demonstrate compliancewith minimum fc levels.E Prescriptive option added.E Added Option 4 whichallows a combination of Op-tions 1, 2, and 3, based onsquare footage.

LEED 2009 also revamped entirely the LEED Accred-ited Professional Program incorporating into it a methodof acknowledging those with experience in the “greenbuilding world”. There are now three levels toaccreditation:

E LEED Green Associate for those with “general knowl-edge of green building practices”. Candidates must havedocumented: (i) experience on a LEED-registered project,(ii) documented employment in a sustainable �eld of work,or (iii) participated in or graduated from an educationprogram addressing sustainable building principles. Theapplicant must also be willing to submit to an applicationaudit.

E LEED AP for those who “continue to signify anadvanced depth of knowledge in green building practices”and are able to document experience with at least oneLEED project within the past three years. This designa-tion will also signify a subspecialty in a particular LEEDRating System (i.e., Operations + Maintenance, Homes,Building Design + Construction, Interior Design, Construc-tion, and Neighborhood Development. The LEED AP examis divided into two parts: (i) the LEED Green Associateexam and (ii) a specialty exam based on one of the LEEDRating Systems. The applicant must also be willing tosubmit to an application audit.


241

E LEED Fellows for those “leading professionalsdistinguished by their years of experience and contribu-tions to the standards of practice and body of knowledgefor achieving continuous improvement in the green build-ing �eld.”

Additionally, there are basic requirements whichinclude: (i) continuing education, (ii) the “Disciplinary andExam Appeals Policy”, and (iii) and payment of thecredential maintenance fee.

LEED Online was also an improvement to the certi�ca-tion process where Version 2 left o�. Version 2, a paperapplication format with (submission of a binder or CD)required two (2) copies of the application with payment ofcerti�cation review fees. Applicants then waited for a re-sponse from GBCI. Now with LEED Online, “project teamscan manage project details, complete documentationrequirements for LEED credits and prerequisites, uploadsupporting �les, submit applications for review, receivereviewer feedback, and ultimately earn LEEDcerti�cation.” A major bene�t of this faster and more user-friendly system is the capability for the project team todocument compliance together as a team so that norequired submission falls through the cracks.

USGBC promises that with LEED Online:E A team member involved in more than one registered

LEED project “will be able to sort, view, and group theirprojects according to a number of project traits, includinglocation, design or management �rm.”

E Each team member will have roles and credit respon-sibility assigned to them so keeping track of who isresponsible for what is achieved. An added bene�t to thesystem permits the LEED reviewer to contact the projectteam through the process if any minor clari�cations areneeded to complete the review.

E Now there are “Status indicators and timelines”where “the system explains all the steps in the review andcerti�cation process more clearly and highlights whichsteps a speci�c project has completed. The system displaysspeci�c dates associated with each phase and step, includ-ing the target dates each review will be returned to thecustomer.” Furthermore, with this new streamlined pro-cess, GBCI touts “End-to-end process support — the newsystem shepherds each project team through the entire


242

certi�cation process, from initial project registrationthrough all review phases. Further, the registration phaseincludes extra help for beginners to decide which LEEDrating system is best suited for their project type, whileallowing experienced users to get through the processquickly.”

E New data is required for LEED Online as well as adata-check system is in place. For example, a building'sgross �oor area or FTE occupancy is now required forcertain LEED credits. But LEED Online also makes iteasier for the user by automatically populating basic in-formation in all applicable forms after the team memberenters data the �rst time, thus saving re-entry time andhelping to ensure that the forms are consistent. Since inthe past there were delays processing due to those ap-plications submitted for review without required data,LEED Online now eliminates this by alerting users whenrequired data is missing.But with any new system, there is always a burden inexchange for a bene�t. One of the costs here is that thefees for certi�cation have increased which may, in itself,deter some projects from registering. The charts belowexplain in detail the new fees. When a project teamsubmits documentation for review on LEED Online, thefee is paid. As an accommodation to large property own-ers, GBCI wants users to know that although the follow-ing fees are for single-building LEED projects only thatthere may be special multiple-building project ratesavailable. The irony is that if the developer has manybuildings in its portfolio, they may have the �nancialwherewithal to a�ord the fees anyway.

The New Project Certi�cation Rates: E�ectiveJanuary 11, 2010 (courtesy of NEXUS Green BuildingResource Center).

Copyright Nexus Green Building Source. Reprinted withpermission


243

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Platinum Certi�cation Rebates

Projects that are awarded LEED platinum certi�cationin 2009 will receive a rebate for all certi�cation fees. Therebate applies to projects that certify using LEED for NewConstruction, LEED for Existing Buildings, LEED forCommercial Interiors, LEED for Core & Shell, or LEEDfor Schools. Projects that certify this year under newlyreleased LEED rating systems not listed above (excludingpilot projects and LEED for Homes projects) will also beeligible. Registration fees, appeal review fees, and any ad-ditional fees required to expedite LEED certi�cation willnot be refunded.

Special Certi�cation Fees

Projects registered between 2002 and 2005

The following certi�cation fees apply to projects regis-tered under LEED for New Construction Version 2.1 be-tween November 15, 2002 and November 15, 2005, andprojects registered under LEED for Existing BuildingsVersion 2.0 and LEED for Commercial Interiors Version2.0 before November 15, 2005.

Less than 75,000 Square Feet75,000 — 300,000Square FeetMore than 300,000 Square Feet

Paper Cer-ti�cationFees a1

Fixed Rate Based onSquareFootage

Fixed Rate

USGBCMembers

$1,500.00 $0.020 / sf $6,000.00

Non-Members

$1,875.00 $0.025 / sf $7,500.00

Note: All fees are subject to change. Sorry, no refunds.

a1 Projects registered before November 15, 2005 that wish to useLEED Online are subject to the new certi�cation fee structure and areeligible for a possible credit toward that new certi�cation fee. For moreinformation, please contact GBCI's project certi�cation sta�.


252

Projects registered prior to 2002

Certi�cation fees for projects registered under LEED forNew Construction Version 2.0 (prior to November 15,2002) is $1,200.00 (USGBC Members) and $1,500.00 (Non-Members).

But what about all those existing buildings certi�ed asNC or EB that will have to recertify? How will this be ac-complished? All LEED-NC and LEED-EB projects thatwill come up for recerti�cation will be required to registerunder the LEED Online Existing Buildings Rating Systemversion that is in e�ect at the time of the recerti�cationregistration. How to prepare for this is unclear. We knowthe LEED 2009 program requirements which are set forthbelow. What will be the LEED 2011, 2012, 2015 programrequirements is anyone's guess. Presumably there will befurther enhancements to the system. The troubling issueis what happens if a building became certi�ed under theold system and cannot for either structural constraints orother issues cannot rise with the tide? To compound theproblem for building owners is how the loss of certi�cation(if they are unable to come up to the new standards) orthe reduction in certi�cation level (from Platinum to Gold,Gold to Silver or Silver to Certi�ed) will a�ect those ten-ants in their properties which signed leases speci�cally fora level of certi�cation? These consequential losses are verytroubling and there is no easy solution at hand.

LEED 2009 Minimum Program Requirements

Apply to LEED 2009 for New Construction and MajorRenovations, LEED 2009 for Core & Shell Development,LEED 2009 for Schools New Construction and MajorRenovations, Commercial Interiors, and ExistingBuildings: Operations & Maintenance.

Do not apply to LEED for Homes, LEED for Neighbor-hood Development, or any LEED Rating System adoptedprior to 2009.

Version November 2009

This version adds to the April 2009 version clarifyinglanguage, but not new requirements, that was approvedby the LEED Steering Committee and the USGBC Execu-


253

tive Committee in November 2009.

Introduction

This document identi�es the MPRs, or minimum charac-teristics that a project must possess in order to be eligiblefor LEED Certi�cation. These requirements de�ne thetypes of buildings that the LEED Green Building RatingSystems were designed to evaluate, and taken togetherserve three goals: to give clear guidance to customers, toprotect the integrity of the LEED program, and to reducecomplications that occur during the LEED certi�cationprocess. The requirements in this document will apply toall those, and only those projects seeking to demonstrateconformance with the rating systems listed above.

De�nitions, exceptions, and more extensive guidance re-lating to these MPRs are available in a separate documenttitled: LEED 2009 MPR Supplemental Guidance. Termsthat are italicized and underlined here are de�ned in theSupplemental Guidance document (they are marked assuch only the �rst time that they appear).

At this time U.S. Green Building Council, Inc. has au-thorized the Green Building Certi�cation Institute (GBCI)to confer LEED Certi�cation. GBCI has agreed to considerrequests for exceptions to MPRs that are not alreadyde�ned in the LEED 2009 MPR Supplemental Guidancedocument on a case-by-case basis for special circumstances.

In addition to complying with the MPRs, a project mustalso demonstrate compliance with all rating systemrequirements in order to achieve LEED Certi�cation.

1. MUST COMPLY WITH ENVIRONMENTAL LAWS

New Construction, Core & Shell, Schools,Commercial Interiors:

The LEED project building or space, all other real prop-erty within the LEED project boundary, and all projectwork must comply with applicable federal, state, and localbuilding-related environmental laws and regulations inplace where the project is located. This condition must besatis�ed from the date of LEED project registration or thecommencement of schematic design, whichever comes �rst,up and until the date that the building receives a certi�-


254

cate of occupancy or similar o�cial indication that it is �tand ready for use.

Existing Buildings: O&M:

The LEED project building, all other real propertywithin the LEED project boundary, any project work, andall normal building operations occurring within the LEEDproject building and the LEED project boundary mustcomply with applicable federal, state, and local building-related environmental laws and regulations in place wherethe project is located. This condition must be satis�edfrom the commencement of the LEED project's initialLEED-EB: O&M performance period through the expira-tion date of the LEED Certi�cation.

All Rating Systems:

A lapse in a project's compliance with a building-relatedenvironmental law or regulation that results from anunforeseen and unavoidable circumstance shall not neces-sarily result in non-compliance with this MPR. Such lapsesshall be excused so long as they are remediated as soon asfeasibly possible.

2. MUST BE A COMPLETE, PERMANENT BUILDINGOR SPACE

All Rating Systems:

All LEED projects must be designed for, constructed on,and operated on a permanent location on already existingland. LEED projects shall not consist of mobile structures,equipment, or vehicles. No building or space that isdesigned to move at any point in its lifetime may pursueLEED Certi�cation.

New Construction, Core & Shell, Schools:

LEED projects must include the new, ground-up designand construction, or major renovation, of at least one com-mercial, institutional, or high-rise residential building inits entirety.

Commercial Interiors:

The LEED project scope must include a complete


255

interior space distinct from other spaces within the samebuilding with regards to at least one of the followingcharacteristics: ownership, management, lease, or partywall separation.


LEED projects must include at least one existing com-mercial, institutional, or high-rise residential building inits entirety.

3. MUST USE A REASONABLE SITE BOUNDARY

New Construction, Core and Shell, Schools,Existing Buildings: O&M:

1. The LEED project boundary must include all contigu-ous land that is associated with and supports normalbuilding operations for the LEED project building, includ-ing all land that was or will be disturbed for the purposeof undertaking the LEED project.

2. The LEED project boundary may not include landthat is owned by a party other than that which owns theLEED project unless that land is associated with and sup-ports normal building operations for the LEED projectbuilding.

3. LEED projects located on a campus must have projectboundaries such that if all the buildings on campus becomeLEED certi�ed, then 100% of the gross land area on thecampus would be included within a LEED boundary. Ifthis requirement is in con�ict with MPR #7, Must Complywith Minimum Building Area to Site Area Ratio, thenMPR #7 will take precedence.

4. Any given parcel of real property may only be attrib-uted to a single LEED project building.

5. Gerrymandering of a LEED project boundary isprohibited: the boundary may not unreasonably excludesections of land to create boundaries in unreasonableshapes for the sole purpose of complying with prerequisitesor credits.

Commercial Interiors

If any land was or will be disturbed for the purpose of


256

undertaking the LEED project, then that land must beincluded within the LEED project boundary.

4. MUST COMPLY WITH MINIMUM FLOOR AREAREQUIREMENTS

New Construction, Core and Shell, Schools,Existing Buildings: O&M

The LEED project must include a minimum of 1,000square feet (93 square meters) of gross �oor area.

Commercial Interiors

The LEED project must include a minimum of 250square feet (22 square meters) of gross �oor area.

5. MUST COMPLY WITH MINIMUM OCCUPANCYRATES

New Construction, Core & Shell, Schools, andCommercial Interiors:

Full Time Equivalent OccupancyThe LEED project must serve 1 or more Full Time

Equivalent (FTE) occupant(s), calculated as an annualaverage in order to use LEED in its entirety. If the projectserves less than 1 annualized FTE, optional credits fromthe Indoor Environmental Quality category may not beearned (the prerequisites must still be earned).


Full Time Equivalent Occupancy

The LEED project must serve 1 or more Full TimeEquivalent (FTE) occupant(s), calculated as an annualaverage in order to use LEED in its entirety. If the projectserves less than 1 annualized FTE, optional credits fromthe Indoor Environmental Quality category may not beearned (the prerequisites must still be earned).

Minimum Occupancy Rate

The LEED project must be in a state of typical physicaloccupancy, and all building systems must be operating at


257

a capacity necessary to serve the current occupants, for aperiod that includes all performance periods as well as atleast the 12 continuous months immediately preceding the�rst submission for a review.

6. MUST COMMIT TO SHARING WHOLE-BUILDINGENERGY AND WATER USAGE DATA

All certi�ed projects must commit to sharing withUSGBC and/or GBCI all available actual whole-projectenergy and water usage date for a period of at least 5years. This period starts on the date that the LEED proj-ect begins typical physical occupancy if certifying underNew Construction, Core & Shell, Schools, or CommercialInteriors, or the date that the building is awarded certi�-cation if certifying under Existing Buildings: Operations& Maintenance. Sharing this data includes supplying in-formation on a regular basis in a free, accessible, andsecure online tool or, if necessary, taking any action to au-thorize the collection of information directly from serviceor untility providers. This commitment must carry forwardif the building or space changes ownership or lessee.

7. MUST COMPLY WITH A MINIMUM BUILDINGAREA TO SITE AREA RATIO

The gross �oor area of the LEED project building mustbe no less than 2% of the gross land area within the LEEDproject boundary.

LEED 2009 MPR SUPPLEMENTAL GUIDANCE

Version 1.0 November 2009

§ 10:1 Introduction

The LEED 2009 MPR Supplemental Guidance was writ-ten to help project teams understand how their buildingsand their spaces can meet the Minimum Program Require-ments (MPRs). This document builds on the MPRs byestablishing exceptions, providing direction for speci�c sit-uation, de�ning key terms, and describing the intentbehind each MPR. This Supplemental Guidance is the


258

dynamic partner of the MPRs: it will evolve over time torespond to a changing and complex industry while therequirements themselves will remain the same.

ABOUT THE MPRSThe MPRs list the basic characteristics that a project

must possess to be eligible for certi�cation under theLEED 2009 rating systems, therefore de�ning a broad cat-egory of buildings that the LEED 2009 rating systemswere designed to evaluate. They were developed over a pe-riod of nine months by USGBC sta� and committeemembers, and were o�cially approved in April, 2009 bythe LEED Steering Committee (LSC). In November 2009,the LSC and the USGBC Executive Committee approvedof additional MPR language that clari�ed, but did not addto, the existing requirements. When new rating systemversions become available, the MPRs will be completelyrevised and re-approved. Please �nd the MPRs at the fol-lowing locations:

� stated throughout this document� condensed for all rating systems here:

http://www.usgbc.org/DisplayPageaspx?CMSPageID=2014

APPLICABLE RATING SYSTEMSProjects registering under the following rating systems,

including those that upgrade from past versions, aresubject to the MPRs: New Construction and Major Renova-tions 2009 (NC), Core & Shell 2009 (CS), Schools 2009,Commercial Interiors 2009 (CI), and Existing Buildings:Operations 2009 (EB: O&M). The MPRs do NOT apply toLEED for Homes, LEED for Neighborhood Development,rating systems that have not yet launched, and pre-2009rating systems.

VERSIONS OF THIS DOCUMENTThis document will be regularly updated as necessary to

provide additional clari�cation on the intent and applica-tion of the MPRs. All changes and additions will be clearlycommunicated as highlighted text within each newversion. Retired versions will be archived and permanentlyaccessible.

Projects must comply with the version of this document

§ 10:1The Real Estate Owner's Perspective

259

that is current at the time of the project's registration. Itis the responsibility of the project team to be familiar withthe current version when registering a project. Versionspublished after a LEED project's registration may bereferenced by project teams for additional clari�cations, ifdesired.

SUBMITTING QUESTIONS ABOUT THE MPRSThe process for submitting alternative compliance or in-

terpretation requests regarding MPRs is still underdevelopment. This process and fees related thereto will bedescribed in a later version of this document. All generalinquires relative to the MPRs should be sent to GBCI fromthis website: http://www.gbcj.org/customerserv.aspx.

IF MPR COMPLIANCE IS IN QUESTIONIf it becomes known that a LEED project is or was in

violation of an MPR, certi�cation may be revoked, or thecerti�cation process may be halted. These situations willbe handled on a case by case basis according to GBCI'schallenge policy.

UNUSUAL BUILDING TYPESSome buildings have characteristics that are not speci�-

cally prohibited by the MPRs, but nonetheless make themunsuitable for evaluation under the LEED rating systems.If a project team recognizes that their building has such acharacteristic, they are encouraged to implement greenbuilding strategies but refrain from attempting LEEDcerti�cation. The decision not to attempt certi�cation is atthe discretion of the project team only. In general, GBCIwill not prevent a building or space from attempting LEEDcerti�cation as a result of an unusual characteristic thatis not addressed by the MPRs.

PRECERTIFICATION AND RECERTIFICATIONProjects pre-certifying under LEED CS must meet the

MPRs applicable to all LEED CS projects. Projects re-certifying under LEED EB: O&M must meet the MPRsapplicable to all LEED EB: O&M projects.

RATING SYSTEM SELECTIONThe MPRs, and this document, do not deal with rating

§ 10:1 Handbook for Architects, Engineers & Contractors

260

system selection, i.e., choosing the proper LEED ratingsystem for a given project. Please �nd guidance on thistopic in the introductions to each rating system and in therating system selection wizard tool found in the registra-tion process in LEED Online.

DOCUMENTING COMPLIANCE WITH THE MPRSThe LEED project owner must con�rm that the project

complies with each of the MPRs by completing checkboxesand an initial box in the Project Information form #1 inLEED Online v3. Unless there is a special circumstance,project teams are not required to submit additionaldocumentation to prove compliance.

MULTIPLE BUILDINGSWith a few exceptions, this document excludes guidance

speci�c to multiple building projects. Such guidance isunder development and will be included in a later versionof this document.

Please �nd underlined terms in the de�nitions sectionat the end of this document.

§ 10:2 Must comply with environmental laws

MPR Language

All Rating Systems:

A lapse in a project's compliance with a building-relatedenvironmental law or regulation that results from anunforeseen and unavoidable circumstance shall not neces-sarily result in non-compliance with this MPR. Such lapsesshall be excused so long as they are remediated as soon asfeasibly possible.

New Construction, Core & Shell, Schools,Commercial Interiors:

The LEED project building or space, all other real prop-erty within the LEED project boundary, and all projectwork must comply with applicable federal, state, and localbuilding-related environmental laws and regulations inplace where the project is located. This condition must besatis�ed from the date of LEED project registration or thecommencement of schematic design, whichever comes �rst,


261

up to and until the date that the building receives a certif-icate of occupancy or similar o�cial indication that it is �tand ready for use.

Existing Buildings: O&M:The LEED project building, all other real property

within the LEED project boundary, any project work, andall normal building operations occurring within the LEEDproject building and the LEED project boundary mustcomply with applicable federal, state, and local building-related environmental laws and regulations in place wherethe project is located. This condition must be satis�edfrom the commencement of the LEED project's initialLEED-EB: O&M performance period through the expira-tion date of the LEED Certi�cation.

Intent:The purpose of this MPR is to highlight the importance

of environmental laws and regulations that apply to LEEDprojects. While all building projects ought to comply withall legal requirements, as the LEED rating systems arestandards for excellence in green building, it is appropri-ate and logical to speci�cally require LEED certi�ed build-ings to comply with applicable environmental laws andregulations. Such legislation establishes a baseline stan-dard for sustainability.

THIS MPR DOES NOT INTEND TO:E align LEED, USGBC, or GBCI with any form of

governmentE give USGBC/GBCI the opportunity to penalize proj-

ect teams or building owners for unintended, short term,minor o�enses

E extend to environmental laws that are not relatedto the design, construction, and operation of a LEEDproject building

E force project teams to make extensive and unneces-sary e�ort to verify compliance with environmentalbuilding laws

Speci�c Allowed Exceptions:

E Short-term lapseAs stated in the MPR, a lapse in a building's compliance

with an environmental law that results from unforeseen


262

and unavoidable circumstances will not be considered as abasis for revocation of LEED certi�cation. However, theLEED project team must demonstrate a dedicated e�ort toreturn the building to compliance as soon as feasiblypossible. As a precaution and at the project team's discre-tion, the building owner may notify GBCI of any lapse incompliance and e�orts to bring the building back intocompliance. The MPR form under ‘Project InformationForms’ in LEED Online should be used for this purpose. Ifthe lapse occurs after certi�cation (applicable only to EB:O&M certi�ed projects), the project team may contactGBCI through regular customer service at

http://www.gbci.org/customerserv.aspx.

E Exemption granted by authoritiesIf the project is granted an exemption from a building-

related environmental law from governmental authoritiesfor any reason, then that project is exempt from this MPRin regards to that particular law. In the event that this oc-curs, a description of the situation leading to the exemp-tion and proof of the exemption (such as an o�cial letterfrom the granting authority) must be provided in the MPRform under ‘Project Information Forms’ in LEED Online.

E Special consideration for LEED for CommercialInteriors projects

Only the gross �oor area within the LEED projectboundary of a LEED CI project must comply with thisMPR, NOT the building that the project is located in.

E Special consideration for LEED for Core and Shellprojects

For LEED-CS projects, interior �t-out work conductedby a tenant is NOT subject to this MPR unless strategiesimplemented in the �t-out space contribute to earnedcredits for that project via the tenant sales and leaseagreement path. For the purposes of this exception, a ten-ant is considered an entity which is leasing space from theowner.

Additional Information and Clari�cation

E Applicable building-related environmental laws

DEFINITIONFor the purposes of this MPR, an ‘environmental law’ is


263

considered to be a statute, rule, treaty, convention, execu-tive order, regulation, or ordinance that seeks to protectthe natural environment and/or human health which maybe negatively impacted by activities surrounding thedesign, construction, development, and (for those usingEB: O&M), operation of a building.

LOCATIONThis MPR applies to ALL LEED projects, regardless of

location, and includes all existing building-related environ-mental laws in the jurisdiction where the LEED project islocated. For US projects, this includes laws at the federal,state, and local level.

CATEGORIESCategories containing laws that fall under the purview

of this MPR include, but are not limited to the following:wetlands, noise, runo�, asbestos, air quality, pollution,sewage, pesticides, safety, and forestry.

EXAMPLESThe following are examples of US federal building-

related environmental laws and regulations that USGBCgenerally expects will fall under the purview of this MPRfor most LEED projects. This list is not intended to beexhaustive, only illustrative: its purpose is to further ori-ent project teams as to the meaning of this MPR and toassist project teams in determining which laws fall underthe purview of this MPR. It is the project team'sresponsibility to know which laws apply to thebuilding and to verify that the project is incompliance.

E Clean Water ActE OSHA Safety and Health Regulations for Construc-

tionE Endangered Species ActE OSHA Recording and Reporting Occupational Injuries

and Illness

E New laws and regulationsThis MPR includes new laws, regulations, and ordi-

nances as they are enacted.

E Con�icts between LEED 2009 requirements and lawsIn the rare case that an applicable building-related


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environmental law covered by this MPR con�icts with anMPR, or a LEED prerequisite or credit, the law will takeprecedence. Project teams may still comply with the MPRand achieve the prerequisite or credit by submitting aProject CIR requesting approval of an alternative compli-ance path that satis�es both the law and the intent of theLEED requirement.

E Law enforcementBy verifying that a LEED project complies with this

MPR, it is assumed that project owners are accurately andwillingly attesting that the LEED project complies withapplicable building-related environmental laws. LEED isa voluntary program that rewards exemplary buildingperformance. In no way will USGBC or GBCI act as lawenforcement. With this MPR, USGBC and GBCI are usingestablished laws only to ascertain that the LEED projectis meeting a minimum environmental standard.

E MPR #1 and Sustainable Sites Credit 1 (SSc1) SiteSelection in LEED NC, LEED CS, and LEED for Schools

The intent and requirements of SSc1 di�ers from that ofthis MPR. This MPR requires compliance with the law,and SSc1 rewards voluntary land use choices. A point maybe earned under SSc1 if the LEED project complies with aseries of criteria. Projects that do not meet these criteriademonstrate unsustainable, but not illegal developmentpractices. SSc1 essentially builds on the requirements ofMPR #1.

E SettlementsIt is recognized that, in the case of an alleged environ-

mental law violation, building owners sometimes agree ona settlement with EPA or other governmental agency tomake reparations for their actions. Guidance on how thisMPR will be applied in such a situation is forthcoming. Ifyou are in this situation and need to know if you are incompliance with this MPR, please contact GBCI throughthis website http://www.gbci.org/customerserv.aspx.

§ 10:3 Must be a complete, permanent building orspace

MPR LanguageAll Rating Systems:


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All LEED projects must be designed for, constructed on,and operated on a permanent location on already existingland. LEED projects shall not consist of mobile structures,equipment, or vehicles. No building or space that isdesigned to move at any point in its lifetime may pursueLEED Certi�cation.

New Construction. Core & Shell. Schools:LEED projects must include the new, ground-up design

and construction, or major renovation, of at least one com-mercial, institutional, or high-rise residential building inits entirety.

Commercial Interiors:The LEED project scope must include a complete

interior space distinct from other spaces within the samebuilding with regards to at least one of the followingcharacteristics: ownership, management, lease, or partywall separation.

Existing Buildings: O&M:LEED projects must include at least one existing com-

mercial, institutional, or high-rise residential building inits entirety.

Intent:The LEED rating systems were designed to evaluate

complete buildings and spaces in �xed locations. Partialbuildings or spaces are unsuitable for LEED certi�cationbecause, when analyzed under the requirements of LEEDprerequisites and credits, they create results inconsistentwith those of whole buildings or spaces. Also, partial certi-�cation can easily appear to encompass an entire buildingor space, sending a false message to users.

Permanency is an important requirement because a sig-ni�cant percentage of LEED prerequisites and credits aredependent on location, making a mobile building or spaceunacceptable. The stipulation for already existing landresponds to the fact that arti�cial land masses displaceand disrupt marine ecosystems. Buildings that generatethe need to develop such land do not meet the overallintent of the LEED rating system. Anything less than adistinct, complete, and permanent project on existing landwill not be able to accurately demonstrate compliance withLEED.


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THIS MPR DOES NOT INTEND TO:E exclude a building or space that could be fairly

evaluated through the LEED certi�cation process if theexclusion is based on a technicality

E exclude buildings with an unusual design or builtthrough non-traditional means that could be fairlyevaluated through the LEED certi�cation processSpeci�c Allowed Exceptions:

E Movable buildings and parts of buildingsPrefabricated or modular structures and moveable build-

ing elements of any variation may be certi�ed oncepermanently installed and/or established as part of theLEED project building in the location that they areintended to stay for the life of the complete structure.

E Horizontally attached buildings (including additions)Horizontally attached buildings may be certi�ed inde-

pendently, provided that the following two conditions aremet:

a) they are physically distinct (see de�nition in Glos-sary)

b) they have unique addresses or names.If these conditions are not met, the structure is consid-

ered a single building and must be certi�ed as such.

E Vertically Attached BuildingsCurrently, structures that are vertically stacked are not

recognized as distinct buildings that may apply separatelyto LEED. Buildings may only be distinguished if they arehorizontally attached. However, an alteration to this rulethat would allow some vertically stacked structures tocertify separately is under consideration. There is notimeline for the release of this alteration. If you would liketo certify a building that is built on top of or below an-other building please contact GBCI through this websitehttp://www.gbci.org/customerserv.aspx.

E Buildings constructed on top of or below undergroundpublic infrastructure

Buildings vertically connected to, but physically distinctfrom public infrastructure such as a transportation hub,may be considered a building in its entirety and certi�edindependently of the infrastructure.


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E Special consideration for LEED for CommercialInteriors projects

MOBILITYBuildings in which CI projects are located must be im-

mobile, and are subject to the same guidance on thesubject of permanency as projects that are certifying underwhole building rating systems.

ALREADY EXISTING LANDBuildings in which CI projects are located are NOT

required to be built on already existing land.

E Special Consideration for LEED for Core & Shellprojects

For a project certifying under CS, the project is consid-ered a ‘building in its entirety’ without interior �t-outscomplete

E Arti�cial land mass or support structures� Buildings located on previously constructed docks,

piers, jetties, in�ll, and other manufactured structures inor above water or other bodies are permissible, providedthat arti�cial land is previously developed, i.e., once sup-ported hardscape or another building before the develop-ment of the LEED project.

� Buildings cantilevered over water, highways, or otherbodies are acceptable.

� Existing land to which soil or other material has beenadded is acceptable.

E Multi-tenant buildings certifying under LEED EB:O&M

Multi-tenant buildings certifying under LEED EB: O&Mmay exclude up to 10% of the gross �oor area from someprerequisites and credits as outlined in the LEED EB:O&M reference guide and the submittal forms in LEEDOnline.

E Floor separation may be used to de�ne a completeinterior space

Ownership, management, lease, and party walls arelisted in the MPR as acceptable methods for de�ning


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complete interior spaces for LEED-CI. Floors and ceilings,i.e. the structural component separating two �oors, mayalso de�ne two complete interior spaces if one �oor is unaf-fected by construction work, even if both �oors serve thesame occupant.

E Owner-occupied buildings and Cl: Certifying space notseparate by ownership, management, lease, party wall, or�oor

There are many situations in which a single entity owns,manages, and occupies an entire building, and wishes tocertify a renovated portion of the building which is notseparate from other portions by a party wall or �oor. Forexample, a single �oor in an academic building might bedivided into labs and o�ces, and only the labs undergo arenovation. Such a space is not automatically disquali�edfrom attempting to certify under LEED CI. Project teamswith this situation must submit a narrative in Project In-formation Form #1 in LEED Online v3 con�rming that theconditions below are met.

a) It is unreasonable or impossible to draw a projectboundary where there is separation by ownership, manage-ment, lease, or party wall separation.

b) The LEED project boundary is not drawn in such away as to speci�cally avoid �oor area that would notcomply with other MPRs, prerequisites, or attemptedcredits.

c) The LEED project boundary is drawn at a clearfunctional and physical barrier such that the LEED certi-�cation, if awarded, could not easily be perceived to extendto uncerti�ed �oor area.

d) The LEED project boundary is not drawn in such away as to create an unreasonably di�cult review processthat results from the reviewer's inability to distinguish be-tween strategies, services, or materials in the LEEDcertifying space and the non-LEED certifying space. Forexample, it would be best if the LEED project boundarycoincided with an HVAC zone boundary.

e) If the project is on multiple �oors, the renovation or�t-out work is conducted under a single constructioncontract and signage will be used to clearly indicate which�oors/space is LEED certi�ed. The �oors need not beadjacent.


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Additional Information and Clari�cation

E Movable buildings� Structures not compliant with this MPR include cars,

motor homes, trains, boats, ships, planes, and transientexhibits of any kind.

� If, for any reason, a LEED 2009 certi�ed building ismoved from the location cited at the time of LEED certi�-cation, it will no longer be in compliance with this MPR.

E Certifying buildings with movable partsBuildings with large movable parts, such as a retracting

ceiling in a stadium, are acceptable.

E Certifying temporary buildingsThe amount of time that a building or space is intended

to remain standing does not a�ect compliance with thisMPR.

E Multi-party ownershipMultiple-party ownership of a certifying building or

space is acceptable. Proper accountability for MPR andrating system conformance must be in place.

E Building typesThe categories of buildings suitable for LEED — com-

mercial, institutional, and high rise residential areintentionally inclusive, and are in no way exclusive. Theycover a wide range of building types, including industrial.GBCI will not prevent a building from attempting certi�-cation due to its use. However, building use may restrictproject teams to one rating system or another. Forexample, single family homes are restricted to LEED forHomes. Information on rating system selection can befound in the introduction to each rating system and thewizard tool found in the registration process in LEEDOnline v3.

E No exceptions for projects with EQp2 con�ictsSome project buildings, such as casinos, typically have

di�culty achieving LEED certi�cation due to a smokingpolicy that con�icts with Indoor Environmental Qualityprerequisite 2, Environmental Tobacco Smoke Control


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(EQp2). There will be no exceptions to this MPR to allowfor partial building certi�cation of such buildings. Projectteams are encouraged to carefully review option 2 in EQp2to explore opportunities to achieve LEED certi�cation de-spite a smoking room located within a project.

§ 10:4 Must use a reasonable site boundary

MPR Language

New Construction, Core and Shell, Schools, ExistingBuildings: Operations and Maintenance

1. The LEED project boundary must include all contigu-ous land that is associated with and supports normalbuilding operations for the LEED project building, includ-ing all land that was or will be disturbed for the purposeof undertaking the LEED project.

2. The LEED project boundary may not include landthat is owned by a party other than that which owns theLEED project unless that land is associated with and sup-ports normal building operations for the LEED projectbuilding.

3. LEED projects located on a campus must have projectboundaries such that if all the buildings on campus becomeLEED certi�ed, then 100% of the gross land area on thecampus would be included within a LEED boundary. Ifthis requirement is in con�ict with MPR #7, Must Complywith Minimum Building Area to Site Area Ratio, thenMPR #7 will take precedence.

4. Any given parcel of real property may only be attrib-uted to a single LEED project building.

5. Gerrymandering of a LEED project boundary isprohibited: the boundary may not unreasonably excludesections of land to create boundaries in unreasonableshapes for the sole purpose of complying with prerequisitesor credits.

Commercial InteriorsIf any land was or will be disturbed for the purpose of

undertaking the LEED project, then that land must beincluded within the LEED project boundary.

Intent:


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In order to ensure fair and consistent evaluation for allprojects under the Sustainable Sites credit category, it isnecessary to have guidelines for an acceptable LEED proj-ect boundary. All site conditions and impacts related to abuilding must be considered and addressed in the certi�-cation process to ensure a complete and thorough exami-nation of the environmental impact of a building.

THIS MPR DOES NOT INTEND TO:E force project teams to create an awkward or misrep-

resentative LEED project boundary that does not re�ectactual land use

E prevent project teams from making appropriate useof land to earn prerequisites and credits

E imply that land left outside of the LEED projectboundary should not also bene�t from environmentallysensitive land use practices.Speci�c Allowed Exceptions:

E Assiging real property for subsequent certi�cation underEB: O&M

SINGLE BUILDINGLEED projects certifying under EB: O&M may use some

or all of the same real property that was used in the previ-ous Design and Construction OR EB: O&M certi�cation.The boundary does not need to be drawn in the same loca-tion — as long as the requirements of this MPR are met,the project team may re-draw the project line at theirdiscretion.

MULTIPLE BUILDINGSA single building previously certi�ed as part of a

multiple building LEED project may wish to pursuesubsequent LEED certi�cation under EB: O&Mindependently. Real property within the original collectiveboundary can be re-attributed to that single building forthe EB: O&M certi�cation.

E Including non-contiguous parcels in the LEED projectboundary

Non-contiguous parcels of land may be included withinthe LEED project boundary if the conditions below aremet.


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a) Non-contiguous parcels must be separated by landthat is owned and operated by an entity di�erent than theowner of the land that the LEED project building sits on.

b) All parcels separate from the parcel that the LEEDbuilding sits on must directly support or be associatedwith normal building operations.

c) Non-contiguous parcels are no more than 1/4 mile(0.40 kilometer) walking distance apart.

d) There is a clear walking path between the parcelse) All real property within the LEED project boundary,

including the non-contiguous parcel(s), is subject to therequirements of all MPRs, prerequisites, and attemptedcredits. For example, two sets of storm water calculationswould need to be provided for two separate parcels to dem-onstrate compliance with Sustainable Sites credit 6.

f) All land within the LEED project boundary must begoverned by a common regulatory jurisdiction and isowned, leased, or managed by the same organizationalentity.

g) A description of the non-contiguous parcels of landwithin the LEED project boundary, the land betweenthem, and compliance with items (a) through (f) abovemust be provided in the Additional Details section of Proj-ect Information form #1 in LEED Online v3.

E Land outside the LEED project boundary used forcompliance with speci�c credits

LEED — EB: O&M, SUSTAINABLE SITES CREDIT 5Any o�-site land used to earn this credit is not required

to be included in the LEED project boundary, and thereforeis not subject to consideration for prerequisite, othercredit, or other MPR compliance EXCEPT MPR#7.

ALL RATING SYSTEMS: STORM WATER DESIGNCREDITS

The nature of storm water calculations often neces-sitates that land outside the LEED project boundary beconsidered when determining compliance for these credits.Also, it may be necessary to discharge site runo� to aregional or master stormwater management system, suchas a retention pond. This additional real property does not


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need to be included in the LEED project boundary or beconsidered for prerequisite, other credit, or other MPRcompliance.

E Facilities (including parking) outside the LEED projectboundary used for compliance with speci�c credits

Facilities (including parking) that are not within theLEED project boundary but are used to demonstratecompliance with a credit or prerequisite, as allowed perthe rating system and reference guide, need not beconsidered for other prerequisite, credit, or MPRcompliance. However, those facilities cannot be used toshow compliance for other LEED projects, unless the suf-�cient capacity is present.

‡ EXAMPLE O�-site showers used to show compli-ance with Sustainable Sites credit 4.2, AlternativeTransportation, Bicycle Storage and Changing Roomsin LEED NC need not be included in the calculationsfor Water E�ciency prerequisite 1, and cannot be usedto earn this credit for an additional LEED project un-less the required shower to-FTE ratio is met for bothprojects.

E Real property no longer attributed to a certi�ed building

If a certi�ed building is demolished, all real property at-tributed to that LEED project may be assigned to anotherLEED project.

E Easements and leasesLand that the LEED project owner leases or has an

easement on may be included within the LEED projectboundary.

E Shared construction sitesA LEED project boundary must include all land dis-

turbed for that project's construction, regardless ofoverlapping construction activity for other projects. For in-formation on overlapping LEED project boundaries, pleasesee the bullet below entitled ‘Site boundary guidance forphased building projects, or building on land that wasdesignated for a previously certi�ed LEED project’.


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E Site boundary guidance for phased building projects, orbuilding on land that was designated for a previouslycerti�ed LEED project

Project teams with phased building projects often wishto certify each phase as it is completed.

Phased building projects are either 1) buildings withplanned future additions or 2) sites with a master plan formultiple buildings. If a phased project falls into the �rstcategory, the bullet entitled ‘Horizontally Attached Build-ings’, in the MPR #2 section, must be consulted for infor-mation on whether or not the di�erent phases are permit-ted to certify separately.

Phased projects with multiple buildings will often beable to easily designate a LEED project boundary (LPB)for each building, such as in this example:


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For projects with multiple phases of the same building,or a building located on land that is a part of an alreadycerti�ed LEED project, overlapping LEED project bounda-ries is inevitable. An exception to the fourth stipulation inthis MPR — “Any given parcel of real property may onlybe attributed to a single LEED project building” — may bemade in this situation if certain criteria are met. Notethat the purpose of this exception is to protect theintegrity of certi�ed LEED projects while allowingthe future projects to successfully pursue LEEDcerti�cation. Please see below an illustration of what isrequired and allowable in this situation, with correspond-ing written guidance on the next page.

EXAMPLE: JONES ELEMENTARY SCHOOL, USINGTHE LEED FOR SCHOOLS 2009 RATING SYSTEM

Description of phases


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Description of overlapping areas


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Example results of overlapping areas


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LEED PROJECT BOUNDARY GUIDELINES FOR THEFIRST PHASE

The �rst building in a phased building project mustinclude all land as required by this MPR. Land designatedfor a future building may not be excluded.

LEED PROJECT BOUNDARY GUIDELINES FORSUBSEQUENT PHASES

A subsequent building in a phased building project mustinclude/exclude land as required by this MPR with theexception of the fourth stipulation: ‘Any given parcel ofreal property may only be attributed to a single LEEDproject building.’ This exception may be made if the fol-lowing conditions are met.

a) Information on previous project must be disclosed.The project team must inform the LEED reviewer whenthey are developing on land belonging to a previously cer-ti�ed LEED project. The name, LEED project number,LEED project boundary, and list of credits earned must bedisclosed. This information may be disclosed in Project In-formation Form #1 in LEED Online v3.

b) Land necessary to earned SS credit 5.1 or 5.2 for aprevious project must not be displaced. A subsequentbuilding phase located on land that is part of a certi�edLEED project MAY NOT displace land that is critical to aprevious phase's compliance with SS credit 5.1 or 5.2. ThePhase 1 project team must take into consideration futurephases when applying for SS credit 5.1 and 5.2. If unfores-sen circumstances result in an infringement on this policy,the project team must submit a Project CIR to requestconsideration for an alternative solution that satis�es theintent of SS credit 5.1 and 5.2.

c) Credits are not double counted. Overlapped LEEDproject boundaries restrict project teams' ability to pursuecertain credits, as detailed below.

SS credit 3, Brown�eld Redevelopment: The samebrown�eld redevelopment e�ort can contribute to captur-ing this credit for only one LEED project.

SS credit 5.1, Site Development — Protect or RestoreHabitat: Land area that contributed to an earlier LEEDproject's capture of this credit via Case 2 (PreviouslyDeveloped Areas or Graded Sites), may not be used by alater project to capture the credit.


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SS credit 5.2, Site Development — Maximize Open Space:Land area that contributed to an earlier LEED project'scapture of this credit may not be used by a later project tocapture the credit.

SS credit 7.1, Heat Island E�ect, Non-Roof: Strategiesthat contributed to an earlier LEED project's capture ofthis credit may not be used by a later project. If there isnew development during a later phase on the same land(such as new sidewalk), then strategies associated withthat new feature may contribute to the capture of thecredit for that phase.

WE credit 1, Water E�cient Landscaping: Strategiesthat contributed to an earlier LEED project's capture ofthis credit may not be used by a later project. If there isnew development during a later phase on the same land(such as new shrubbery plantings), then strategies associ-ated with that new feature may contribute to the captureof the credit for that phase.

NOTE on SS prerequisite 2, Environmental SiteAssessment: The same documentation may be used to showcompliance for multiple LEED projects.

Additional Information and Clari�cations

E De�ning land that is associated with and directlysupports a building

This MPR requires that ‘The LEED project boundarymust include all contiguous land that is associated withand supports normal building operations for the LEEDproject building . . .’. This includes land which is alteredin any way as a result of the LEED project construction,and features enjoyed by building users, such as:

� hardscape, such as parking and sidewalks� septic treatment equipment� stormwater treatment equipment� landscapingOften, these features are shared with other nearby

buildings. In this case, the project team must make a judg-ment and divide the land reasonably among the buildings.See guidance for shared hardscape and construction sitesituations below.

E Shared hardscape and on-site parking facilitiesIf a LEED project building shares use of a parking lot,


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parking garage, or other amenity with another building,then those amenities must be allocated according to thepercentage of use for each building. A brief description ofthe situation and any related calculations should beprovided in Project Information form #1 in LEED Onlinev3. The project team must only show that the appropriatepercentage of amenities is included within the boundaryfor their own project. It is also their responsibility toascertain that they do not inappropriately cross bounda-ries with another LEED project.

‡ EXAMPLE Two neighboring stores are beingconstructed, and one is pursuing LEED certi�cation. Anew parking lot with �fty spaces will be shared by thetwo stores. The certifying store estimates that it willuse twenty parking spaces on a regular basis to serveits employees and customers. Therefore, the projectteam must draw its LEED project boundary to includetwenty spaces and forty percent of the supportinghardscape (driveways, sidewalks, etc).

E Supporting infrastructure not owned by building owner

Infrastructure supporting the LEED project buildingmay be omitted from the LEED project boundary if it isnot owned by the LEED project owner AND if it is notincluded in the scope of construction work for the LEEDproject. This omittance must be done consistently through-out the submission.

E Small buildings within the LEED project boundaryOccasionally, there are small buildings physically close

to the LEED project building, and associated with itsnormal building operations. Such a building may beincluded within the LEED project boundary and excludedfrom required compliance with MPRs, prerequisites, andcredits (unless speci�cally addressed below) if the condi-tions listed below are met. Temporary structures erectedfor the purposes of supporting construction administrationwork and that will be removed at construction completionare not subject to this MPR and will not be required tocertify.

a) The building must be ineligible to apply for LEEDcerti�cation because it does not meet MPR #2, Must Be AComplete, Permanent Building or Space, MPR#4, Must


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Comply with Minimum Floor Area Requirements, or MPR#5 Must Comply with Minimum Occupancy Rates.

b) The building must comply with MPR #1, MustComply with Environmental Laws

c) The building must comply with all Sustainable Sitesprerequisites.

d) No credit may be claimed for strategies implementedin the building.

e) Only two such buildings may be included within theLEED project boundary.

§ 10:5 Must comply with minimum �oor arearequirements

MPR LanguageNew Construction, Core and Shell, Schools, Existing Build-ings: Operations and MaintenanceThe LEED project must include a minimum of 1,000 squarefeet (93 square meters) of gross �oor area.

Commercial InteriorsThe LEED project must include a minimum of 250

square feet (22 square meters) of gross �oor area.Intent:The thresholds and calculations that make up the

system of evaluation in LEED begin to break down andlose meaning once the building or space being evaluatedreaches relatively diminutive proportions. A building orspace that is too small would compromise the integrity ofthe LEED certi�cation system.

THIS MPR DOES NOT INTEND TO:E exclude small buildings and spaces for any reason

other than that stated in the intent: simply that theycannot be fairly analyzed by the LEED rating system

E imply that small buildings and spaces do not alsohave an impact on the environment and their occupants,and therefore also have the opportunity to achieve greenbuilding excellence in their design and construction

Speci�c Allowed Exceptions

None

Additional Information and Clari�cationsE Open air stadiums, kiosks, and similar building types


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satisfy this MPR if the minimum required amount of gross�oor area is met for some part of the structure. The de�ni-tion of gross �oor area must be carefully reviewed whenconsidering such a building for compliance with this MPR.For example, many parking garage structures will notmeet this de�nition if they are essentially large roofed-over areas, because such areas are not counted within thetotal gross �oor area.

§ 10:6 Must comply with minimum occupancyrates

MPR Language

New Construction, Core & Shell, Schools, and Com-mercial Interiors:






Minimum Occupancy RateThe LEED project must be in a state of typical physical

occupancy, and all building systems must be operating ata capacity necessary to serve the current occupants, for aperiod that includes all performance periods as well as atleast the 12 continuous months immediately preceding the�rst submission for a review.

Intent:Many credits and prerequisites throughout the LEED


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rating systems evaluate the impact of the LEED projectbuilding on the building users, particularly those in theIndoor Environmental Quality credit category. USGBCbelieves it is appropriate and necessary to require that aminimum number of people bene�t from the strategiesimplemented in order to earn the credits.

In EB: O&M, compliance with many prerequisites andcredits is evaluated based on actual usage patterns.Therefore, it is necessary to require that typical usage ofthe LEED project building is underway during the perfor-mance periods, so that accurate measurements can betaken.

THIS MPR DOES NOT INTEND TO:E imply that buildings and spaces with a small

amount of human tra�c do not also have an impact thefew occupants they do have, and therefore also have theopportunity to achieve green building excellence in theirdesign and construction

E exclude buildings that experience �uctuations in oc-cupancy


MINIMUM OCCUPANCY RATE APPLICABLE TOEBOM ONLY

E Unexpected and temporary decline in occupancy(applicable to EBOM only)

If occupancy unexpectedly and temporarily falls belowthe required threshold within the period of time subject tothis MPR,* but still meets the requirement using aweighted average (as described below), the project teammust submit a description of the situation as well as themeasures they have taken to keep the reduced occupancynumbers from a�ecting the results for each prerequisiteand credit that deals with occupancy. Explanations speci�cto a prerequisite or credit should be given in the optionalsection for that prerequisite or credit, and general descrip-

[Section 10:6]*As stated in the MPR language, the period of time subject to this

MPR includes at least the 12 continuous months immediately preced-ing the �rst submission for a review and all performance periods.


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tions should be given in the MPR form under ‘Project In-formation Forms’ in LEED Online.


FULL TIME EQUIVALENT OCCUPANCY APPLICABLETO ALL RATING SYSTEMS

E Calculation method for determining annual FTE (thecalculation for determining weighted occupancy for EB:O&M is below)

Although each building varies in regular occupancy, thepurpose of setting the baseline annual FTE is to ensuresu�cient occupancy to warrant awarding points in the EQcredit category.

Annual FTE is based on the average 40 hour work week,assuming 48 total work weeks in the year. Based on thisassumption, one annual FTE is de�ned as one personspending eight hours a day for 240 days in the building, or1920 hours annually. The calculation can be done by aver-age FTE occupants per day, week, or month:

By day, must be greater than or equal to 240: (total oc-cupant hours in an average day/8) × number of occupieddays

By week, must be greater than or equal to 48: (total oc-cupant hours in an average week/40) × number of occupiedweeks

By month, must be greater than or equal to 12: (total oc-cupant hours in an average month/160) × number of oc-cupied months

‡ EXAMPLE A religious worship facility has anhour-long service once a week for a year, and an aver-age of thirty people attends each service. The buildingstands empty the remainder of the time. The annualFTE calculation for this building is:

(30 total occupant hours in an average day / 8) × 52 oc-cupied days = 195So, the combined occupant hours result in the equivalent ofone person spending 195 eight hour days in the facility. EQcredits may not be pursued. However, if it gains 10 newmembers, this MPR would be satis�ed:40 total occupant hours in an average day / 8) × 52 occupieddays = 260

E Only occupant hours that the building intends and


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expects to accommodate under normal building opera-tions shall be included in annual FTE calculations.

MINIMUM OCCUPANCY RATE APPLICABLE TOEBOM ONLY

E Space types subject to this MPR

Gross �oor area that is designed to be regularlyoccupied should be the focus when determining compli-ance with this MPR.

Any common space such as a lobby or bathroom thatreceives any use as well as any space that does not typi-cally have occupants (such as closets or mechanical rooms)counts toward compliance with this MPR. Common spacethat is not receiving any use — for example, a bathroomon a �oor completely devoid of occupants — does not counttoward compliance.

E Determining typical physical occupancyThe de�nition of typical physical occupancy is ‘The state

in which normal building operations are underway andthe building is in use by the average number of full timeequivalent occupants for which it was designed.’

To determine the average number of full time equiva-lent occupants the building was designed for, project teamsmust assess buildings on a case by case basis, using rea-sonable judgment. Design intentions, �oor area capacity,and building system capacity must all be considered.Atypical or indeterminate cases must be described in theProject Information forms #1 in LEED Online v3.

All buildings except for hotels are considered to be incompliance with this MPR if more than 50% of its �oorarea is fully occupied (i.e., in a state of typical physical oc-cupancy), as time-averaged over the performance periodfor all prerequisites and attempted credits, including the12 months leading up to the initial submittal of applica-tion for review. The threshold for hotels is 55%.

Any building that experiences occupancy of less than100% during a performance period should refer to theLEED EB: O&M Reduced Occupancy Guidance whencompleting submittal requirements. This document can befound here: http://www.gbci.org/customerserv.aspx.


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‡ EXAMPLE A hotel has 100 equally sized rooms,and no common space aside from a small lobby. Sincethe hotel was built, sixty of the rooms have been full asan annual average, taking into account all seasons.Therefore, it is considered to be in compliance with thisMPR because sixty exceeds the minimum threshold of55%.

‡ EXAMPLE There is a school with nine equallysized classrooms, and circulation space equal to thesquare footage of one classroom. Four of the classroomsare not being used, but the other �ve are being fullyused. Therefore, occupancy for the entire building is at60%. If attendance in the three of the classrooms dropsto 50% each, then occupancy for the entire buildingdrops to 45%, and compliance with this MPR is inquestion.

E Minimum Occupancy Rate Threshold Change

In fall 2009, the minimum occupancy rate threshold forEB: O&M changed from the historic number 75% to the55% and 50%, as detailed above. This change was as aresult of a scrutiny of marketplace conditions, and was ap-proved by the LEED Steering Committee (LSC). Thisthreshold is not expected to change again in the foresee-able future. If and when it does change to become morestringent, the change will only apply to projects registeredafter the date the change is announced.

E Calculation method for determining weighted occupancy(the calculation for determining annual FTE is in aseparate section)

A LEED project building experiencing �uctuating oc-cupancy rates during the period of time subject to thisMPR* may utilize the following formula in determiningcompliance:

[(number of days at x% capacity* x%) + (number of days aty% capacity* y%) + (.)] / total days in operation

‡ EXAMPLE An o�ce building with ten equally sized�oors submits for preliminary review on January 1,exactly a year after its earliest performance periodbegan. It is open 260 days a year. The building oper-ated at full capacity for the �rst 150 work days of thatyear. Unexpectedly, six �oors become vacant (occupancy


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drops to 40%) for 50 days. Then, those six �oors becomeoccupied again, each operating at half its capacity forthe last 60 days (occupancy for the entire building risesto 60%).

[(150*1) + (50.*4) + (60.*6)] / 260 = 79%

Because o�ces are required to be at 50% capacity ata minimum, this building is in compliance with thisMPR.

* As stated in the MPR language, the period of timesubject to this MPR includes at least the 12 continuousmonths immediately preceding the �rst submission fora review and all performance periods.

E Project area is leased but not occupied

Leased but unoccupied space does not comply with thisMPR because it is not considered physically occupied.

§ 10:7 Must allow usgbc access to whole-buildingenergy and water usage data

MPR Language

All certi�ed projects must commit to sharing withUSGBC and/or GBCI all available actual whole-projectenergy and water usage data for a period of at least 5years. This period starts on the date that the LEED proj-ect begins typical physical occupancy if certifying underNew Construction, Core & Shell, Schools, or CommercialInteriors, or the date that the building is awarded certi�-cation if certifying under Existing Buildings: Operations& Maintenance. Sharing this data includes supplying in-formation on a regular basis in a free, accessible, andsecure online tool or, if necessary, taking any action to au-thorize the collection of information directly from serviceor utility providers. This commitment must carry forwardif the building or space changes ownership or lessee.

Intent:The goal of decreased energy and water use consump-

tion is a major component of LEED certi�cation. Trackingactual building consumption and comparing it to the us-age proposed in design cases, or tracked during a perfor-


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mance period, is essential to the individual success of eachLEED certi�ed building and the ongoing evaluation anddevelopment of the LEED program.

By providing usage data, LEED project owners will notonly be taking a very active part in advancing the greenbuilding movement, but they will also be provided feedbackabout the performance of their building in the context ofcomparable buildings. As well, buildings that achieveLEED certi�cation in a Design and Construction ratingsystem will be able to more easily pursue certi�cationunder LEED for Existing Buildings, Operations and Main-tenance with readily available performance data.

Access to complete and accurate information on everyLEED building project's performance allows the USGBCto aggregate individual building information and performprogram evaluations on its e�cacy such as average LEEDenergy and water savings relative to national and regionalaverages. Aggregate �gures on carbon emissions, costs,and other environmental impacts associated with buildingenergy usage are of signi�cant interest to USGBC andGBCI as well as green building advocates, builders, own-ers, and operators. USGBC will use all building data toinform the continuous improvement of the LEED ratingsystems, develop related educational programming,identify key areas of needed research and present clear,unbiased results to the building community. Building per-formance feedback will be provided to LEED project own-ers based on the information by making comparisons tonational or known comparable datasets.

THIS MPR DOES NOT INTEND TO:E penalize project teams with buildings that do not

perform as well as intendedE create insurmountable technical or legal barriers to

registering a LEED project

Speci�c Allowed Exceptions:

E Where whole project meters are cost-prohibitive orphysically impractical to install

Owners of LEED project buildings or spaces that do nothave meters in place that measure energy and/or waterusage for the entire LEED certi�ed gross �oor area willnot be expected to supply energy and/or water usage data


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unless and until such meters are installed. Many Com-mercial Interiors projects, higher education campuses, andmilitary bases will fall into this category.

E Sale, Assignment or other Transfer of OwnershipTo own a LEED certi�ed project is to participate in the

ongoing evolution of the green building movement. In thatspirit, and in keeping with the intent of this MPR, theowner's commitment to provide whole-building energy andusage data is expected to carry forward to the next ownerif all or part of a LEED certi�ed project is sold, re-assignedor otherwise transferred. However, it is recognized thatthis may not always be possible, and GBCI will respectthe realities of situations in which reasonable e�orts tomaintain the commitment are not successful. In this situ-ation, the initial building owner will no longer be requiredto provide the data or access to the data.


E Correlation of actual performance to design performanceData collection is for research purposes only, and proj-

ect teams are required simply to share data, NOT to showthat design cases submitted during certi�cation wereaccurate. For projects in NC, CI, CS, and Schools, actualperformance will usually vary from projected performance.This MPR addresses the act of data sharing, not thecontent of the data. (Note that projects certifying underLEED EB: O&M are required to submit performance dataduring the certi�cation process, and this does a�ect if, andwhat level of certi�cation will be achieved.)

E Determining typical physical occupancyThe de�nition of Typical Physical Occupancy', as given

in the de�nitions section below, is: ‘The state in whichnormal building operations are underway and the build-ing is in use by the average number of people that it wasdesigned for.’

To determine the average number of full time equiva-lent occupants that the building was designed for, projectteams must assess buildings on a case by case basis, usingreasonable judgment. Design intentions, �oor area capa-city, and building system capacity must all be considered.


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Projects certifying under LEED for New Construction,Commercial Interiors, Core & Shell, and Schools mustbegin sharing data once 50% of the gross �oor area meetsthe de�nition of typical physical occupancy.

E Process of data collectionThe process of data collection as well as the speci�c data

that will be collected is currently under development, anda more detailed description will be released as soon as it isavailable.

E Reporting ResultsAnalysis of the data will be made publicly available on a

regular basis (schedule to be determined).

E Facilitating certi�cation under LEED for ExistingBuildings: Operations & Maintenance

All building performance data collected may be used tomeet the submittal requirements of the EB: O&Mapplication.

E Core & Shell projects do not require special treatmentMetering and data collection for Core & Shell projects

does not di�er from other projects. Data may be collectedfrom spaces that the LEED project team did not �t out aspart of their core and shell design and construction — thisis normal and acceptable.

§ 10:8 Must comply with a minimum building areato site area ratio

MPR Language

The gross �oor area of the LEED project building mustbe no less than 2% of the gross land area within the LEEDproject boundary.

Intent:Because LEED is a rating system for buildings, it is ap-

propriate to restrict the amount of land associated with aLEED certi�ed project. While it is recognized that largesections of real estate may be a�ected by human activitygenerated by a building as well as an owner's general landuse decisions, this stipulation has been put into place toensure that an overabundance of land associated with a


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LEED certi�cation does not occur and certain SustainableSites credits are awarded fairly.

THIS MPR DOES NOT INTEND TO:E imply that land left outside of the LEED project

boundary should not also bene�t from the environmen-tally sensitive land use practices


None


E Calculation method for determining gross �oor area tosite area ratio

[Gross Floor Area (sf) / Site Area (sf)] × 100

‡ EXAMPLE A 4000 square foot building is locatedon a �ve acre (217,800 sq ft) site:

[4000/ 217,800] × 100 = 1.8%

This building must claim only 4.6 acres (200,000 sq ft)within its LEED project boundary to meet the 2% buildingarea to site area minimum.

E There is no maximum building area to site area ratio.E Site area (or, gross land area) includes all land within

the LEED project boundary, including the footprint of theLEED project building.

E If a LEED project boundary must be adjusted in orderto meet this MPR, the adjustment must be done such thatthe new boundary also complies with MPR #3, Must Use aReasonable Site Boundary. If there is a con�ict, this MPRtakes precedence. In other words, the project team mayeliminate land that is usually required by MPR #3 to bewithin the project boundary, in order to comply with thisMPR. However, the elimination must be done in a reason-able fashion: the project team cannot remove land speci�-cally because it would not comply with another MPR, pre-requisite, or credit requirements.

E If there is not any land included within the LEED


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project boundary (as will typically be the case with LEEDCI projects), the project will be in compliance with thisMPR by default.

E O�-site land used to earn Sustainable Sites credit 5 inEB: O&M must be included in the calculations for thisMPR.

§ 10:9 Glossary

Certi�cate of Occupancy: A document issued by a lo-cal authority indicating that premises comply with provi-sions of zoning, building ordinances, building code, and/orapproved plans and speci�cations. This is often requiredbefore premises can be occupied and title transferred.

Complete Interior Space: At a minimum, all the gross�oor area within the exterior walls of a building that iswithin a single occupant's control and contains all build-ing components altered as part of the LEED-certifyingconstruction scope. Ownership, management, lease, andparty walls are acceptable methods for de�ning twocomplete interior spaces. Floors/ceilings, i.e. the structuralcomponent separating two �oors, may also de�ne twocomplete spaces if one �oor is una�ected by constructionwork, even if both �oors serve the same occupant.

Design and Construction Rating Systems: AnyLEED rating system that addresses both the design andconstruction of a building or interior space. Includes LEEDfor New Construction and Major Renovation, LEED forCore & Shell, LEED for Schools, LEED for CommercialInteriors, LEED for Retail, and LEED for Healthcare.

Entirety: The sum of the constructed components thatmake up a building which is physically distinct from an-other building. Must include all vertically attachedcomponents of the building.

This horizontal dividing line CANNOT distinguish thetop half of this structure from the bottom half as a build-ing in its entirety:


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This vertical dividing line CAN distinguish the buildingon the right from the building on the left, if they arephysically distinct and separate addresses or names:


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Full Time Equivalent (FTE): A regular building oc-cupant who spends 40 hours per week in the building orspace, or the equivalent. Part-time or overtime occupantshave FTE values based on their hours per day.

Gerrymander: To divide and assign land in such a wayas to give unfair, inconsistent representation to one parcelover another.

Gross Floor Area: (based on ASHRAE de�nition) Sumof the �oor areas of the spaces within the building, includ-ing basements, mezzanine and intermediate-�oored tiers,and penthouses with headroom height of 7.5 ft (2.2 meters)or greater. Measurements must be taken from the exteriorfaces of exterior walls OR from the centerline of wallsseparating buildings, OR (for LEED CI certifying spaces)from the centerline of walls separating spaces. Excludesnon-enclosed (or non-enclosable) roofed-over areas such asexterior covered walkways, porches, terraces or steps, roofoverhangs, and similar features. Excludes air shafts, pipetrenches, and chimneys.

Gross Square Feet/Square Meters: see ‘Gross �oorarea’.

Normal Building Operations: The complete activitiesand functions intended to take place within the buildingand on associated property.

Land: Any part of the earth's surface not covered by abody of water.

LEED Project: All real property within the LEED proj-ect boundary, including the building(s) or space(s), allstructures, land, etc. which collectively is attempting orhas earned certi�cation.

LEED Project Boundary: The line drawn on a siteplan submitted to GBCI indicating the limits of the realproperty for which the project team is attempting or hasearned certi�cation.

LEED Project Building: The structure which is at-tempting or has earned certi�cation.

LEED Project Space: The gross �oor area which is at-tempting or has earned certi�cation.

LEED Project Registration: The process throughwhich the project team establishes a LEED project inLEED Online. This process is considered complete oncepayment is received by USGBC and/or GBCI.


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Major Renovation: Construction work that is extensiveenough such that normal building operations cannot beperformed while the work is in progress, and/or a new cer-ti�cate of occupancy is required.

Operational Activities: See ‘Normal BuildingOperations’.

Party Wall: A wall without openings erected as a com-mon support to structures on both sides.

Performance Period: The continuous, unbroken timeduring which sustainable operations performance for abuilding and/or site is being measured.

Physically Distinct: The condition in which a buildinghas both of the following:

a) exterior walls that are party walls or are separatefrom adjoining buildings by air space

b) lighting, HVAC, plumbing, and other mechanicalsystems that are separate from the systems of adjoiningbuildings.LEED project boundary lines that “slice” through party

walls must not pass through any mechanical, electricaland plumbing (MEP) service infrastructure. Exceptionsinclude buildings served by a common or shared chillerplant or heating water, or steam supply pipes (i.e., not airducts), and only if the thermal energy serving the structureto be separated is sub-metered. Note that the de�nition of‘physically distinct’ has special implications for compli-cated retail and mixed use situations, and speci�c guid-ance on this issue will be provided upon the release ofLEED for Retail. In the meantime, if this de�nition provesinsu�cient for a potential LEED project, GBCI should becontacted: http://www.gbci.org/customerserv.aspx.

Project Work: See ‘Undertaking the LEED Project’.Regularly occupied spaces: Areas where workers are

seated or standing as they work inside a building. In resi-dential applications, these areas are all spaces exceptbathrooms, utility areas, and closets or other storagerooms. In schools, they are areas where students, teach-ers, or administrators are seated or standing as they workor study inside a building.

Real Property: Land and land alterations that are adirect result of human activities that subsequently sup-port an active land use, including structures of any kind.


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Schematic Design: The initial phase of architecturalwork that establishes the scope and physical outline of theproject.

Substantial Completion of Construction: The pointat which work on the building project is su�cientlycomplete in accordance with all construction contract docu-ments, and any strategies that the project is receiving rec-ognition for under LEED are fully implemented, except foroperations-related strategies (such as a thermal comfortsurvey).

Typical Physical Occupancy: The state in whichnormal building operations are underway and the build-ing is being used by the average number of full timeequivalent occupants for which it was designed.

Undertaking the LEED Project: All design, construc-tion, and development work that contribute to the cre-ation of the LEED project building.

There are some ways to minimize risk for the propertyowner. Documents are now taking on tinges of green. Forall sustainable building-related agreements (including butnot limited to, development agreements, loan documents,leases, property management agreements, service agree-ments, professional agreements, and insurance policies)the next iterations will need to include speci�c referencesto sustainable building policies and requirements and ap-portion risk among the parties relating to those agree-ments for them to be worthwhile. Practitioners will needto be cognizant of these issues and plan accordingly intheir drafting.

Up until now, all the players in the conventional build-ing world have contracted with each other for fairly typi-cal and customary projects. But now, with an extra ele-ment in design and construction we have to all think aboutthe GREEN LAYER which takes a run-of-the mill projectthat engineers, architects, contractors used to be able todo in their sleep and make it one that requires careful at-tention to detail and added risks.

As an example of what can go wrong without properdrafting, let's take a fairly typical hypothetical. Let's saywe have a property owner who we'll call Property Owner.And let's say we have a contractor called Contractor. Prop-erty Owner hires Contractor to retro�t one of its buildings


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with energy star equipment. The intent is to reduce energyconsumption and to save the related costs. It is also goodPR for Property Owner because they are “greening” all oftheir buildings. A secondary reason to upgrade the equip-ment is governmental regulations that will requirebenchmarking energy consumption, reporting and moni-toring the same, and a mandatory reduction in energyusage.

Based on Manufacturer's speci�cations that the equip-ment would be much more energy e�cient with a higherenergy star rating than the equipment being replaced, theengineer speci�ed the appropriate equipment and Contrac-tor installed them. It was a $4,000,000 project. After eachof the units were in place and turned on, they soundedgreat. However, three months after installation of the lastunit, the property's electrical bill showed, instead of adecrease from the same period for the prior year, therewas an increase. Who do you think will be sued by theproperty owner?

Well, the �rst answer is EVERYONE. The manufacturerwill be sued for breach of its promised speci�cations, theengineer will be for negligence in recommending a productthat did not live up to promised expectations, the Contrac-tor will for failure to install the equipment properly andall will assert a defense that Property Owner did not oper-ate the equipment appropriately and that was the reasonfor poor equipment performance. And the lawsuit fromProperty Owner for breach of contract is only thebeginning. There are consequential damages PropertyOwner will try to claim from everyone. Why? They have atenant which rents 1/3 of the building who signed a 15-year lease for an green energy-e�cient building andbecause of the failure to reduce energy costs, the tenanthas a right of termination in its lease. Similarly, PropertyOwner alleges that they purchased the equipment tocomply with local municipal energy reduction require-ments and now faces city sanctions for an increase inenergy consumption. At this point we can easily see the li-ability picture. But how could the liability and risk factorhave been ameliorated?

How does LEED v 3.0 increase the liability factor forproperty owners of certi�ed buildings? We need to recog-nize that getting green is only part of the problem. Too


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many in the green building world think the �nish line isgetting green or in the case of LEED, certi�ed. Until now,we all focused on a building ground-up construction ormajor retro�t that was earmarked for LEED certi�cationfor the certi�cation brass ring. But this is no longer true.Everyone involved in the green building world is respon-sible for a property to stay green. But it all depends on thecontracts they execute as to who will ultimately bear theburden of risk.

New Challenges, New Responsibilities. Our focus mustnow be on not only the contracts that got us green (or inthe case of USGBC, certi�ed), but also those agreementsthat keep the buildings green. An examination of some ba-sic agreements helps in this discussion.

A. Owner/Contractor agreements. The Owner/Contractorform agreements printed by the American Institute ofArchitects (“AIA”), as revised in 2007, do not yet have thecontractor address sustainable building practices. This isa problem as when a property owner wants to retro�t herbuilding, this contract does not even speak tosustainability. For her, a practitioner will need to incorpo-rate sustainable provisions into this document.

B. Owner/Architect/Engineer. The AIA B101 formcontract which was the �rst step in connecting the dots forthe owner and its architect to the world of sustainability,did not do more than have the architect “encourage” thedeveloper to consider sustainable building design andbuilding systems. The AIA B-214 went the next step byproviding for the architect to work with the owner andcontractor to help deliver a LEED certi�ed project andthis form is devoted entirely to LEED. This agreement isactually very useful for the property owner who is in theworld of V3.0 and this is true whether they are pursuing anew certi�cation, a renewal or in fact an upgrade.

C. There are other very green contracts between prop-erty owner and third-party consultants, such as LEED Ac-credited Professionals, which will also assist in the LEED2009 framework.

D. But there are other agreements which for the prop-erty owner dealing with LEED v 3.0 will be paramount.The Owner/Service Provider (janitorial maintenancecontracts, water metering, energy provider, energy meter-


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ing, property manager, etc.) contracts will have a pivotalrole in minimizing risk for the property owner. Thesecontracts which were once devoid of any sustainable-language now have such provisions incorporated in them(either in part of the agreement, or throughout its body).To give you an idea of what is cropping up in propertymanagement agreements, see the following “green provi-sion” used in a New York City Property ManagementAgreement:

“Section X.XX Maintenance and Repair of Property.(a) Manager shall, as an expense of the Property and con-

sistent with approved budgetary guidelines, maintain thebuildings, appurtenances and common areas of the Propertyin good condition according to the Technical Standards forMultifamily Building Operators as set forth by the BuildingPerformance Institute, Inc. (“BPI”) and, in any event, in ac-cordance with the standards and conditions reasonablyspeci�ed by Owner from time to time. Maintenance andrepair items shall include but shall not be limited to,interior and exterior cleaning and sanitation services inconformance with LEED v3.0 standards, exterior groundsand landscaping services, repairs and alterations to existingimprovements shall similarly comport with LEED certi�ca-tion standards for the Property, water and energy use evalu-ation, plumbing, parking areas, electrical systems, painting,carpentry, preventive and regular maintenance and repairof mechanical systems and upgrades shall be performedwith the most current requirements of the LEED Ratingsystem in which the Property is certi�ed. Manager agreesto review periodically with Owner all expenses and anyreserves therefore, and other services rendered in connec-tion with the Property.

(b) Manager shall operate the Property in accordance withthe Energy Reduction Plan (“EPP”) in place at the com-mencement of the Management Term and de�ned by theNew York State Energy Resource and Development Author-ity (“NYSERDA”) under the terms of the Property's partici-pation in NYSERDA'S Multifamily Performance Program.Manager shall also use reasonable e�orts to coordinate withOwner's designated commissioning agents to ensure theProperty's Performance Target as de�ned by NYSERDAand same shall take priority in all maintenance e�orts andshall be directly overseen by Certi�ed Personnel as de�nedin Section X.XX of this Agreement.”

E. The Green Lease, which was discussed earlier, nowhas a pivotal role in sustainable buildings continuing


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compliance with LEED v 3.0 (primarily from amaintenance/commissioning point of view). Here it isinteresting to note which party directs the greening andwhy, whether it be the tenant or the landlord. Negotiationpostures di�er depending upon the nature of the transac-tion (new lease or renewal), size of tenant (large or notlarge), Green or Not Green (tenant or landlord) and how amix of the above may determine the “green” e�ect takenon by a property and maintained by same. The green leaseprovisions in a green landlord building may include: Neg-ative Use covenants (for tenant “not to use or operate thePremises in any manner that will cause the Building orany part thereof not to conform with LL's sustainabilitypractices or the certi�cation of the Building”, operatingexpense sub-provisions which may require any systemreplacements to be with Energy Star equipment, recom-missioning for recerti�cation and meeting reporting, main-tenance and managing requirements for the applicablerating system of a building or the local municipalityregulations.

Other lease provisions such as landlord sustainablebuilding practices are devoted to expansive policies. Theservices and utilities section of a lease now may providefor purchase of green or renewable energy. Also, cleaningby LL done during the day instead of at night (which oftenwastes electricity by having lights on primarily for thecleaning crew has been addressed. In the alterations sec-tion, now all tenant improvements will have to be per-formed in conformance with any rating system for theBuilding and have tenant a�rmative obligations that thetenant will engage a 3rd party LEED or Green Globe Ac-credited Professional to review plans, material procure-ment, demolition, construction, waste management, etc.

Another hot button for tenants is the restorationprovision. Here the changes are seen by requiring the ten-ant at the expiration or earlier termination of the lease todispose of its alterations, �xtures and furniture in anenvironmentally friendly manner and to salvage, recycleor reuse such materials in accordance with landlord'ssustainability practices. Reporting requirements are alsoincluded. Where landlord consent is required, this is an-other greening portion of the lease.

In some leases there are no explicit restrictions against


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assignments or sublets to tenants whose use or operationof the Premises would cause the Building or any partthereof not to conform with the green building clauses inthe lease. Similarly, with building recycling and wastemanagement policies, failure to comply with these ruleswould constitute a default under the lease. The easiestcatch-all for a green landlord to promulgate sustainablefeatures into its leases is through its Building Rules andRegulations where it is quire easy to prohibit items suchas space heaters due to their excess energy consumption.The rules and regulations section also often has the ten-ant acknowledgment of LL's sustainability practices andcompliance therewith. Lastly, the Contractor Rules andRegulations exhibit to the lease contains many additionalsustainability requirements set forth by the landlord.

Yet owner/contractor or owner/architect agreements,property management agreements, janitorial servicecompany agreements are not the only contracts that areturning green to help keep the property owner in LEEDcompliance and the property owners must take care thatthey provide for other protections. For example, manygreen insurance endorsements have cropped up in the in-surance world and it is here that the property owner isnow able to minimize her risk even more. Marsh prints anannual brochure on the coverages now available for thesustainable building world. Environmental coverage nowa�ords reductions in premiums for green buildings. Thereare also Property Coverages available where replacementto LEED certi�ed properties is possible and it is with theseinsurance products that the property owner is given someprotection.

Another area a�ected by sustainable buildings is withlending practices. Although it began with regional lend-ers, some major lenders have signed on to a “preferentiallending practice” for green projects. The bene�ts could beanywhere from increased loan-to-value ratios to reducedinterest rates. The change in economic landscape hashelped green developers because lenders are now gettingup to speed on green building practices and their numer-ous bene�ts (both to the bottom line in lower operatingcosts and higher occupancy rates, but also with reduced li-ability as recognized by the insurance industry). The loandocuments of today are taking on the “green tinge” and as


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time goes on, more and more lenders will require propertyowners to embrace sustainability. However, the bene�t/burden analysis continues. If a developer neglects toobtain the lenders required LEED rating, it could be adefault under the loan and the results for the developercould be disastrous.

Green building legislation — new laws and regulationsare being promulgated all the time, revised, and furtherrevised. Even New York City took the bull by the hornsand in December its City Council adopted legislation thatrequires owners of buildings greater than 50,000 squarefeet to perform energy audits once every ten years and toconduct upgrades and detailed maintenance to buildingoperations and maintenance systems which includesinstalling or replacing weather stripping and insulatingsteam pipes.

So though existing buildings are the key to the kingdombecause the majority of building stock in the world is ofexisting buildings, this is where those project certi�edunder prior versions face the greatest challenge. Whatwas acceptable a few years ago under Version 2.2 will notbe acceptable under Version 3.0 and the followingiterations. How USGBC handles this is as yet unknown.And it is also in this area where litigation may play a role.But with LEED compliance, we are only sometimes halfway there.

Governmental regulations will and already do requireproperty owners to adopt sustainable building practiceswhether they like it or not or they will face penalties. Andthose penalties may include not only �nes from the localjurisdiction, but also loss of a building's certi�cation rat-ing, an automatic default in a loan agreement, litigationwith tenants over obligations that those tenant's neverenvisioned when their leases were executed, etc. In thiscase, the lease will probably be the principal documentused by the Landlord to comply with the laws “greeningrequirements”.


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