When reviewing these types of policies, therefore, it’s important to bear in mind that obtaining a “green” endorsement will not cover guarantees to meet certain sustain- able third party certification. Claims When claims in green projects arise, they generally allege breach of contract, negligence, and mis- representation (“Greenwashing”). These claims generally allege fail- ure to meet or diligently pursue a green certification (such as failure to meet a LEED certification), failure of a product to provide the desired result (such as a bamboo roof that leaks), or failure to timely construct the green project (due to green products/materials delays). Parties seeking to limit damag- es may try to contractually limit the timing of when claims can be filed and thus help to mitigate the unknown long-term performance risks. Parties may also seek to limit liability up to the level of insur- ance coverage or to the level of fees. Furthermore parties may also agree to mutually waive conse- quential damages resulting from, e.g., termination of leases, breach of loan agreements, or the loss of tax credits, profits or reputation. Experienced teams support successful sustainable projects Finally, what can parties do to reduce and manage the risks dis- cussed above? Certainly educating the key players early and often is paramount as it helps to secure the owner’s buy in and maintains the project team engagement. Carefully choosing the best project delivery method, the proper allocation of risks, selecting the appropriate cer- tification consultant and the com- missioning and re-commissioning avenue are all necessary. Lastly, parties can also reduce their risks by ensuring timely notice and opportunities to cure and properly document issues that arise. In the end retaining the right team experi- enced in executing a well-integrat- ed approach to every aspect of the green project can often prove to be the most critical factor in a success- ful sustainable project. –––––––––– Daniel A. Dorfman is Chair of the Construction Law Practice at Fox, Swibel, Levin & Carroll LLP, a full- service boutique business law firm based in Chicago, Ill. Daniel has a national practice representing own- ers/developers, design professionals, general contractors, subcontractors, specialty trades, and construction suppliers on their most important construction projects – both on the front end in drafting and negotiating complex construction agreements, and on the back end litigating and trying to verdict (when necessary) commercial construction disputes of all kinds when they arise. Daniel, a LEED® Green Associate, also has a focus in sustainable (“green”) build- ing and the renewable energy mar- kets. Daniel can be reached by email at ddorfman@foxswibel.com. BUSINESS FEATURE –––––––––––––––––––––––––––––––––––––––––––––––––– 68 TileLetter | August 2018