* Who is responsible for delays associated with LEED certification? * Are damages associated with failure to achieve certification considered consequential damages? * Who is responsible for the owner's loss of a tax credit if a contractor makes a substitution of sustainable materials that the owner approves? * Is a public agency solicitation requiring LEED or other green-building certification overly restrictive? Does the solicitation violate public procurement laws and regulations? * Is completion defined as the point in time when the contractor's work is complete and accepted, or when the project is certified? * Who is responsible if decertification occurs? Project Protections In light of these open questions, contractors and subcontractors would be well advised to obtain protections in contracts and subcontracts for sustainable construction projects. Some of these protections should include: * A disclaimer indicating that the contractor and/or subcontractor are making no guarantee that the sustainable objective of the project will be achieved. * A waiver of consequential damages expressly disclaiming liability for failure of certification and decertification. Many standard form contracts and subcontracts contain mutual waivers of consequential damages, but often do not define consequential damages clearly. Most do not address certification-related damages. * A disclaimer that any language addressing the performance of work subject to LEED certification is not a warranty as to the performance of the work for LEED certification purposes. * A limitation of liability for defects or deficiencies with new and/or untested materials and equipment. * Language making it clear that payment is not conditioned in any way upon LEED (or other organization's) certification. * Language making it clear that the contractor and/or subcontractor are not liable for delays associated with certification, including through the assessment of liquidated damages. The takeaway is that contractors and subcontractors should proceed cautiously and prudently when engaging in a project with sustainable construction requirements. 126 * DEEP FOUNDATIONS * SEPT/OCT 2021 Did you know that in addition to the DFI website, there are several ways to stay up to date on DFI and the deep foundations industry? From the home page of www.dfi.org, you can access DFI's Facebook Page, LinkedIn Page and Group, Twitter Feed and YouTube Channel. Or you can visit these social media platforms and search for " Deep Foundations Institute " or @DFI_Tweets on Twitter. Stay Up to Datehttp://www.tectonicengineering.com/site/ http://www.dfi.org