August 5, 2009 Randal Farber Michael K. Kuhn Vytas Petrulis Jackson Walker L.L.P. Houston BOMA Green...

August 5, 2009

Randal FarberMichael K. Kuhn

Vytas Petrulis

Jackson Walker L.L.P.

Houston BOMA

Green Leases and the Legal Aspects of Being “Green”

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WHY ALL THE FUSS ABOUT GREEN LEASING?

• Commercial buildings in the U.S. account for: – 70% of electricity use– 39% of all carbon dioxide emissions– 30% of landfill waste– 12% of potable water consumption

• States (not Texas yet), cities, counties and governmental agencies have enacted various LEED initiatives

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LOCAL GREEN BUILDING INITIATIVES

• Houston– All city-owned buildings and facilities over 10,000 sq.

ft. are to use LEED to the “greatest extent practical and reasonable.”

– Target: LEED Silver.• Harris County

– Partial tax abatement for construction costs for LEED certified buildings:

– “LEED Certified” Building = tax abatement of 1% of construction costs.

– “LEED Platinum” Building = tax abatement of up to 10 percent of construction costs.

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WHY GO GREEN?• Government “carrots” and “sticks”

– Growing use of building code revisions to spur green efforts

• Reduction in operating costs for LEED buildings vs. non-LEED– Energy use: 25 – 30% lower– Water use: 20 – 30% lower

• Higher rents (therefore, higher value)– Higher demand for “green” buildings

• Good corporate citizen– Landlords, Tenants, their staffs and employees are

contributing toward a better environment

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WHAT IS A “GREEN” LEASE?

• No single answer

• BOMA “green” lease adds 15 new provisions to its standard form

• Definition of “green” lease depends on:– Your definition of a “green” building

– What “green” standard are we using? LEED? Energy Star? Other?

– What does each party want to achieve by entering into a “green” lease?

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WHAT IS A “GREEN” BUILDING?

• Broad definition: A “green building” seeks to achieve:– Less energy and water use– Using recycled building materials– Integrated waste management practices (construction

and operation)– Use of certified cleaning products– Avoidance of VOC materials– Location that allows efficient access by public or other

alternative transportation process– Promoting a comfortable, productive and healthy

indoor environment

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“GREEN” BUILDING CERTIFICATION• United States Green Building Council’s

“Leadership in Energy and Environmental Design” or “LEED”– More than 40,000 projects accredited through end of

2007– By 2010, at least 10% of commercial construction

starts expected to be LEED-certified– Different LEED standards for different projects

• EPA’s “Energy Star”– Joint program of EPA and Department of Energy– More than 62,000 buildings in program

• Green Building Initiative’s “Green Globes”– Popular in Canada

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HOW DOES LEED WORK?

• Point-based certification system admin’d by U.S. Green Building Council (not a gov’t agency).

• A “family” of rating systems, not just one.• Six LEED credit categories:

– Including: new construction core & shell, interior construction, existing building O&M.

• Accreditation is through document submittal & review.

• Criticisms: “low hanging fruit”; no ongoing monitoring; little recognition of regional variances.

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CHALLENGES IN GREEN LEASING:

• What “green” standard are we seeking?

• How to obtain & maintain standard? – Being “green” affects numerous aspects of

the lease relationship.

• How are costs of achieving “green” allocated between landlord & tenants?

• How to achieve in an existing building with multiple tenants?

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MORE CHALLENGES IN GREEN LEASING:

• What if “green” standard changes?• What happens if certification is lost due

to landlord’s, contractor’s or tenant’s failure?

• Are the “green” building elements insurable?

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GREEN INITIATIVE COST ALLOCATION BETWEEN

LANDLORD AND TENANT

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TYPE OF LEASE

• Gross – Incentivizes Landlord

• Net – Incentivizes Tenant

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TENANT IS MORE LIKELY TO BEAR THE COSTS UNLESS

• Altruistic Landlord

• Large Tenant

• Government Intervention

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COSTS GENERALLY

• Construction Cost

• Operational Cost

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CONSTRUCTIONCOST INCREASED

• Landlord Costs

• Tenant Build-Out Costs

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LANDLORD COSTS

• Soft costs

• Capital expenditures

• Energy efficient systems/ appliances and other green materials

• Separately metering

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TENANT BUILD-OUT COSTS

• Soft costs • Recycled materials, green systems • Decrease demolition costs • Energy efficient systems/

appliances and other green materials

• Documenting compliance

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OPERATIONAL COST

• More Efficient Building Systems

• More Efficient Designs and Construction

• Landlord/Tenant Behavior

• Green Insurance

• Utilities – Submetering

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WHAT TO INCLUDE IN OE?

• LEED certification/re-certification monitoring, audit & studies cost

• Green capex; costs of retrofitting and retro-commissioning of Building systems/equipment to reduce energy usage

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WHAT TO INCLUDE IN OE? (cont’d)

• Green insurance

• Recycling plan

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ADDITIONALCONSIDERATIONS

• Landlord’s Right to Elect use of Green Power

• Future Carbon Taxes• Base Year• “Comparable Building” or “First

Class” Standard

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TRANSITION TO “GREEN” LEASING

• What Green Standard is Landlord Seeking?

• Creating an Environmental Management Plan (EMP)

• Educating Tenants

• Introducing Green Concepts into Existing Leases

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• What Green Standard is Landlord Seeking?– LEED Existing Buildings: Operation &

Maintenance (EBOM)– LEED Commercial Interiors (CI)– Green Globes Continual Improvement of

Existing Buildings (CIEB)– ENERGY STAR– Other (“User Defined”)

TRANSITION TO “GREEN” LEASING

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• Creating an Environmental Management Plan (EMP)– Setting out Landlord’s Sustainability Practices

for the Building• Desired Certification• Construction and Maintenance Methods and

Procedures• Material Purchases• Disposal of Waste• Recycling Programs

TRANSITION TO “GREEN” LEASING

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• Environmental Management Plan (cont.)• Alternative Transportation Options

• Chemical Use

• Indoor Air Quality

• Energy Efficiency

• Water Efficiency

• Carbon Reduction

• Exterior Maintenance Programs

TRANSITION TO “GREEN” LEASING

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• Environmental Management Plan (cont.)• Systems Upgrades to meet Green Building

Performance Standards for:– Energy– Water– Indoor Air Quality– Lighting

• Data Collection• Assessment and Reporting

TRANSITION TO “GREEN” LEASING

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• Educating Tenants– Green Tenant Manual providing day-to-day

guidelines– Seminars, Meetings and Newsletters

explaining the Building’s Environmental Objectives and how Tenants can contribute

TRANSITION TO “GREEN” LEASING

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• Introducing Green Concepts into Existing Leases– Amend Rules and Regulations

• Incorporate Environmental Management Plan– Building Hours– Recycling Program– Green Cleaning Products (Green Seal)– Approved Supplies (e.g., Energy Efficient Light Bulbs

and Tubes)– Janitorial Service– Space Heaters and other Energy Intensive Equipment

TRANSITION TO “GREEN” LEASING

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• Existing Leases (cont.)– Revise Tenant Construction Standards

• Update Work Letter– Compliance with Rating Criteria (e.g., LEED-CI)

• Update Contractor Rules and Regulations– Indoor Air Quality Management Plan– Housekeeping Practices– Removal of Waste Materials

• Provide Specifications for:– Use of Recycled Materials– Energy Star Appliances

TRANSITION TO “GREEN” LEASING

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• Existing Leases (cont.)• Specifications (cont.)

– Water Sense Plumbing Fixtures– Green Seal Low or No-VOC Paints and Adhesives– CRI Green Label Plus Carpets

• Require Use of LEED or Green Globe Accredited Professional

TRANSITION TO “GREEN” LEASING

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• Existing Leases (cont.)– Use Definition of Building Standard

• “The type, brand, quantity or quality of materials, equipment, services, insurance coverages, methods, scheduling and usages Landlord designates or determines from time to time to be standard for the Building.”

TRANSITION TO “GREEN” LEASING

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• Existing Leases (cont.)– Use Definition of Reserved Rights

• “To take such other measures Landlord deems necessary or advisable for the ongoing operation, maintenance and protection of the Project. Tenant shall fully cooperate with all of such further measures undertaken by Landlord.”

TRANSITION TO “GREEN” LEASING

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• Existing Leases (cont.)– Use Definition of Applicable Law– Use Right to Submeter– Use Landlord Approval Process

• Tenant Alterations• Above Building Standard Services• Third Party Service Providers• Assignments and Subleases

TRANSITION TO “GREEN” LEASING

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VIOLATION OF A“GREEN” LEASE

• What constitutes a “default” of a “green” obligation?

• How is performance determined?– What is the “performance” to be achieved?

– How is “failure” defined?

– What are the detailed specifics that amount to a failure to achieve performance?

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ENFORCEMENT OF THE “GREEN” LEASE

• What is the appropriate remedy for a default of a “green” provision?

• Threshold issues:– What is the “green” objective that gave rise to

obligation?• How important

• How material

– Is the “green” obligations also a legal requirement?

– Single-tenant vs. multi-tenant building?

– Effect on certification?

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REMEDIES• Termination or rescission (by landlord or by

tenant)– Proportionality of remedy to breach

– Landlord’s right to terminate if tenant causes “green” violation resulting in loss of certification

– Tenant’s right to rescind if building isn’t “green”

– What about the lender? Will the lender approve a “green” failure termination right for the offense in question?

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REMEDIES (cont’d)

• Money damages– How would money damages be

calculated?– What should be the result if the violation

actually saves money?– How is tenant injured if landlord’s

violation reduces operating expenses?

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REMEDIES (cont’d)• Injunctive relief

– How practical?

• Self-help– By landlord: Is it practical?

• Materiality and scope?

– By tenant: Is it practical?• What expertise does tenant have?• What problems will landlord allow tenant to remedy?

– Single-tenant vs. multi-tenant– Size of tenant

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REMEDIES (cont’d)

• Liquidated damages– Can a dollar amount be arrived at to fit the

wide range of possibilities?

– Are all “green” violations of equal dignity?

– How would fixed charge be calculated for:–Non-green tenant construction?

–One violation of a “green” building rule?

–Multiple violations of a “green” building rule?

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REMEDIES (cont’d)• Tenant forfeits other “privileges”

– Rights often dependent on tenant not being in “default”:

• Renewal• Early Termination• Right to Expand• Right to Contract• Receipt of tenant improvement allowance• Rent abatement• Is the forfeiture proportionate to the offense?

Michael K. KuhnJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4309mkuhn@jw.com

Michael K. KuhnJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4309mkuhn@jw.com

Vytas PetrulisJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4456vpetrulis@jw.com

Vytas PetrulisJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4456vpetrulis@jw.com

Randal FarberJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4315rfarber@jw.com

Randal FarberJackson Walker L.L.P.1401 McKinney Street, Suite 1900Houston, Texas 77010713-752-4315rfarber@jw.com

THANK YOU!

THANK YOU!