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GREEN FACILITY MANAGEMENT CONTRACTSRegulation and action recommendationsfor sustainable building management

02 | Green Facilities Management Contracts

CONTENTS

1. GREEN FACILITY MANAGEMENT – BETWEEN CONTRACT,

CERTIFICATION AND SERVICE PROVISION ............................................... 05

2. BACKGROUNDS AND OBJECTIVES ............................................................... 08

2.1 Sustainability with Changeable Value Creation ..................................... 08

2.2 Continuation of Sustainable Value Creation in the Management

and Use Phase ................................................................................................ 08

2.3 Facility Management as an Indispensable Information Source ........... 09

2.4 Supplementing Recognised Facility Management Processes ...............10

2.5 Recommended Clauses and Action ...........................................................11

3. RECOMMENDED CLAUSES .................................................................................12

3.1 Preliminary Remark on the Facility Management Agreement ............13

3.2 Sustainable Building Management ..............................................................15

3.3 Recognition for Facility Management Services .......................................16


3.4 Provision, Processing and Deletion of Data ............................................21

3.5 Energy Monitoring and Management ....................................................... 24

3.6 Sustainable Use by Tenants ........................................................................ 28

3.7 User and Operator Manuals ...................................................................... 33

3.8 Capping of Consumption-Based Operating Costs ............................... 35

3.9 Commissioning Services in Line with Requirements ........................... 39

3.10 Determining The CO2 Performance of the Building and

of its management and Use .........................................................................41

3.11 Sustainability Committee ............................................................................ 42

3.12 Provision of Sustainable Office Workstations ...................................... 44

3.13 Indemnities and Penalties ............................................................................ 46

3.14 Alignment of the Agreement with Future Certification Systems ..... 47

3.14.1 Future Certification of Facility Management Services ......... 48

3.14.2 Future Certification of Lease Agreements ............................. 50


4. RECOMMENDED ACTION ................................................................................ 52

4.1 Maintenance ................................................................................................... 53

4.2 Measurement and Verification .................................................................. 55

4.3 Environmental Protection and Security.................................................. 57

4.4 Procurement and Structural Measures ................................................... 58

4.5 Tenant Relations ........................................................................................... 59

5. RECOMMENDATIONS FOR

THE CREATION OF A USER MANUAL ............................................................61

6. OUTLOOK ................................................................................................................ 64


1. GREEN FACILITY MANAGEMENT – BETWEEN CONTRACT, CERTIFICATION AND SERVICE PROVISION

Environmental protection and the responsible handling of resources have been an integral part of the property sector for some years now. In addition to the construction of buildings, their management and use are now moving to the fore. As a fur ther development of new building certificates, certification systems therefore assess not only existing buildings but increasingly consider criteria of management and use.

The spectrum of building management usually comprises asset, property and facility management and is characterised by an interdisciplinary collaboration of the parties involved. At an individual building level, operative management is generally included in property and facility management, whereby property management may also include strategic services. By contrast, investment decisions are located on the investment or portfolio level and fall under the heading of asset management. Whilst property management primarily concerns planning, steering and controlling, facility management is responsible for an efficient implementation of the designated strategies in the individual property.

In some cases, instead of using property or facility management companies, parts of operative and strategic management are also provided by the property departments of companies within the framework of corporate real estate management.


With the aim of developing standards for sustainable building management at the level of property management, a working group was set up at the end of 2012 consisting of

■ The international property consultant Cushman & Wakefield,

■ The German certifying body of the BREEAM certification system, DIFNI (Deutsches Privates Institut für Nachhaltige Immobilienwirtschaft), and

■ The international law firm DLA Piper.

This working group was extended at the end of 2013 to include the

■ FM service provider WISAG Facility Management

(referred to in the following as “working group”) with the objective of extending the concept for sustainable property management presented in October 2013 to include the area of facility management. Since facility management is responsible for the on-site operative work, it is essential that it be included in the implementation of the sustainability strategies developed.

The result of the working group is a catalogue of recommended clauses and action both for property management and for facility management. The property management aspect has been presented in summary in a brochure, which has been available since October 2013. The positive resonance to this brochure encouraged the working group to prepare this brochure.

The basic building blocks of sustainable building management for the area of facility management comprise the following:

■ LAW: legally examined green facility management agreement templates,

■ METHOD: a concept oriented to certification, and

■ CONTENT: differentiated and clearly formulated specifications of services and coordinated processes.

1 “Green Property Management Agreements – Recommended clauses and action for sustainable property management” (available at http://information.dla.com/information/published/Green_Property_Management_Brochure.PDF).


In this connection, the terms “sustainable facility management” and “green facility management” are used synonymously and are understood in accordance with the currently applicable sustainability guidelines of the Zentraler Immobilien Ausschuss e.V. (Status March 2013) which are in their 3rd edition. Aspects of environmental friendliness, economic efficiency and social compatibility are to be given equal consideration where possible.

This brochure summarises the results of the working group. In addition to a general explanation of the background and objectives, it offers recommended clauses and action by way of example using which sustainable building management can be implemented and maintained in the long term. Finally, it contains recommendations on the preparation of a user manual which constitutes an important building block for sustainable management and use of buildings.

This brochure is directed in particular at owners, asset, property and facility managers and the providers of so-called operator services, and at users. It is furthermore aimed at the property departments of companies whose core business is not property. The brochure assumes the division of labour between property and facility management frequently to be found on the market and as explained in the introduction, but does not rule out other constellations. This is also associated with the distribution of individual areas of responsibility usual on the market. The commercial management of buildings is therefore the responsibility of property management whilst the technical and infrastructure aspects of the building are usually the responsibility of facility management. The entire operative and parts of strategic management of buildings are presented in this brochure and in the property management brochure which was published in October 2013. Depending on distribution of tasks between property and facility management, either the property or the facility management brochure is to be used as reference. For reasons of clarity, cross referencing has been avoided here.


2. BACKGROUNDS AND OBJECTIVES

2.1 SUSTAINABILITY WITH CHANGEABLE VALUE CREATION

The creation of value with respect to commercial properties is subject to decisive changes. It depends on the life cycle of the buildings and the requirements of the users: whilst subjects such as financing, marketing and yield are initially paramount, issues of operation, management and leases then become important in direct succession. By contrast, sustainability requires the integration of economic, ecological and social qualities in every phase of the life cycle. In view of these shifting interests, the dependency of value creation on ecological and social qualities must be constantly reassessed. Planned sustainability is already being implemented in new buildings in many respects. However, if it is not continued during the management and use phase, its potential cannot be used in full.

2.2 CONTINUATION OF SUSTAINABLE VALUE CREATION IN THE MANAGEMENT AND USE PHASE

In order to ensure sustainability on a permanent basis, it is necessary to define suitable processes and content. The aim is to unite the qualities of sustainability in the operative management of buildings with economic interests such that they become an integral and constant part of value creation. Complex diverging interests must be understood and harmonised.

Property management generally has a key position as a coordinating party between owners, operators and users. Facility management supplements the situation with detailed knowledge at the level of the building and the users. This usually leads to the following process:

1. Facility management collects and provides the requisite data for the assessment of sustainability.


2. These data are summarised and analysed by facility management in consultation with property management.

3. The conclusions drawn from this assessment are incorporated in the secondary processes of facility management.

The repeated application of this process and the operative implementation of the findings thus obtained by facility management serve to set into motion a continuous process of improvement in an effort to achieve the greatest possible sustainability.

2.3 FACILITY MANAGEMENT AS AN INDISPENSABLE INFORMATION SOURCE

Facility management has an important role in the structured organisation of data management. The loss of information – for example when facility management handovers take place – is a basic problem of poor management of buildings. In view of the fact that customers are increasingly insisting on specific proof of core process sustainability, the working group places value on the organisation of continuous data capture and transfer processes as a condition for sustainable value creation in operative building management. The survey procedures of internationally recognised certification methods have been used here.


2.4 SUPPLEMENTING RECOGNISED FACILITY MANAGEMENT PROCESSES

The individual services of facility management may touch all three dimensions of sustainability simultaneously: economic efficiency, environmental friendliness and social compatibility. Whilst these recommended clauses and actions deliberately forgo a division of the catalogue of services in accordance with the traditional triad, all dimensions are equally considered in the individual services. The overall package thus created combines qualitative indicators and ratios with respect to sustainability management and performance.

In order to seamlessly follow traditional facility management processes, the working group structured the concept presented here in accordance with recognised performance levels (so-called service levels) in order to create and maintain an integrated sustainability structure for operative building management by clearly specifying content and procedures. A further objective of the working group was to base the form and content of the building blocks on given industrial standards (for example GEFMA 160). The working group therefore supplements existing approaches in this brochure and does not therefore pursue any special path of its own.


2.5 RECOMMENDED CLAUSES AND ACTION

The area of sustainability is very complex and subject to constant change in the property industry. This also applies to building management which is faced with great challenges due to the constant pressure of costs and high fluctuations in service providers at an individual building level. This brochure addresses the currently relevant points which are necessary to achieve environmentally friendly and cost-efficient building management which also takes social aspects into consideration.

Even if these recommended clauses and action have been developed in accordance with Part 2 of the BREEAM Certification System for existing buildings, they have been deliberately formulated in an open manner. They are also conceivable in connection with other certification systems or without a current or aspired-to certification. These recommended clauses and action are not restricted to premium properties but are intended to achieve building management which is as sustainable as possible irrespective of the state of repair of a building. A decisive criterion of the working group in formulation and selection was the quality required for sustainable management of individual buildings and not the actual availability of data.


3. RECOMMENDED CLAUSES

The Green Facility Management Agreement is usually a standard contract which has been extended by individual provisions to achieve sustainability (“Green Facility Management Agreement”). These clauses are to be found both in the contractual wording of a facility management agreement and in the specifications attached to the agreement.

The following recommended clauses are individual contractual clauses of a facility management agreement which are aimed at achieving sustainable management. They are to be understood as a supplement to established rules and regulations designed to promote sustainability standards (for example, DIN EN ISO standards) and the facility management specimen agreement of the industrial association GEFMA. The sustainability criteria of the GEFMA guidelines 160 – which are currently at the draft stage – are further specified by the following recommended clauses and the recommended action presented in Chapter 4 of this brochure.

The contractual clauses suggested here have a special importance because so far there are no comprehensive statutory requirements to finally regulate sustainability in the area of building management. However, this is not a catalogue set in stone which must be implemented in its entirety. Rather, the intention is to provide an overview of individual exemplary clauses. The parties are at liberty to decide which individual clauses they wish to agree to what extent and in which form. Adjustments may be necessary to align the Facility Management Agreement with the specific characteristics of the individual building and the interests of the parties and of the user. Sustainable facility management services do not just affect the contracting parties. Frequently tenants, users, property management companies or other third parties are affected by them. Their economic, ecological and social interests must similarly be incorporated in order to achieve sustainable building management.


As is always the case when contractual clauses are used which are intended for several contracting parties and which have not been individually agreed with the other party, it must be considered that they are subject to a more stringent efficacy control in accordance with the law pertaining to the General Terms and Conditions of Business pursuant to Sections 305 et seq. German Civil Code (BGB). Also when drafting facility management agreements aimed at sustainable building management it should be ensured that clearly formulated provisions are used which do not lead to the contracting partner of the user of the clauses being inappropriately disadvantaged. Otherwise, individual clauses may become null and void. Since the area of sustainable building management is only at the start of a development, it is not as yet possible to draw on pertinent court rulings.

3.1 PRELIMINARY REMARK ON THE FACILITY MANAGEMENT AGREEMENT

The following recommended clauses use the definitions usual in the drafting of agreements. This is to be borne in mind even in the preliminary remark. In addition to the definition of the contracting parties and the property to be managed, information on the type of use, any certificates and other recognitions of the property and of the facility management company can be included here:


RECOMMENDED CLAUSE 1:

“PRELIMINARY REMARK

The [name of the party commissioning the facility management services] (“Principal”) is [owner/property management company] of the property with the address [♦ ] (“Property”). On [♦ ] a [designation of the pertinent certificate] with [name of the pertinent certificate class (e.g. three points)] was issued for the Property erected in the year [♦ ]. The Property is in a [♦ ] state of repair and is used as [♦ ]. The [name of the provider of the facility management services] (“Facility Manager”) is commissioned with the management of the Property.

Optional for recognition or certification of the facility management company:

The Facility Manager has received recognition [a certificate] from [name of the respective certifying body] for the services offered. These recognised [certified] services form a part of the catalogue of services to be provided in accordance with this Agreement.

Now, THEREFORE, the parties agree the following:”


3.2 SUSTAINABLE BUILDING MANAGEMENT

It is advisable to directly follow the preliminary remark in the agreement by an introductory programme clause which stipulates the common understanding of the parties of the term “sustainable building management”. So far there is no statutory definition of the term of sustainability. Therefore, this clause sets out an interpretation criterion according to which the Green Facility Management Agreement including the specifications are to be interpreted:

RECOMMENDATION CLAUSE 2:

“The Parties intend to orient this contractual relationship to criteria of sustainable management as far as possible. In this context, ecological, economic and social aspects shall be taken into consideration equally (“Sustainable Building Management”). In particular, the Parties shall use resources and energy in an environmentally compatible and economical manner, regularly cooperate in a constructive way – possibly also incorporating the respective property management company for the Property (“Property Management Company”) – and also consider innovative paths to achieve higher standards of sustainability. In this context, they shall observe the principle of economic efficiency and shall also strive to involve the users of the Property to the greatest possible extent.

The highest priority shall be afforded to the aspects of sustainable building management in the areas of technical, infrastructure and commercial building management.”

The objective contained in this recommended clause of incorporating users as far as possible takes account of the fact that the direct exchange between the facility management company and users is frequently inadequate. Particularly if the property is not used by the owner himself but is let, the facility management company and the tenants are basically not in a direct contractual relationship with each other. This causes the direct communication and coordination between the two to suffer but without them comprehensive sustainable building management cannot be achieved. Ideally, both the Facility Management Agreement and the leases will pick up on this topic and will contain mirrored provisions.


3.3 RECOGNITION FOR FACILITY MANAGEMENT SERVICES

The extent and quality of the facility management services offered on the market differ greatly in some respects. One possibility of assessment is to examine and analyse the degree of user satisfaction. In addition, the recognition for facility management services by way of auditing by an independent certifying body of a certification system guarantees compliance with quality standards. Otherwise, the recognition will neither be awarded for the first time nor re-awarded after expiry of the period of applicability or even withdrawn.

So far, there is no certification system on the German market which assesses the facility management services themselves and awards a certificate to the provider of the services – and not to the building – if specific requirements are met. However, there is the possibility for providers of building management services, i.e. both property and also facility management services, to have their services assessed within an established building certification system and to receive recognition for this.

The so-called Badge of Recognition, which is granted by DIFNI in accordance with Part 2 of the BREEAM DE certificate to suppliers of building management services irrespective of the sustainability standard of the respective structure and user behaviour, is an example of a recognition of this type. In implementation of its guidelines 160, GEFMA is planning a certification system for sustainable facility management services. However, the “Badge of Recognition” is currently the only recognition system on the German market for sustainable building management services.

The following recommended clauses address the incorporation of the recognised services and the resultant rights and duties of the parties.



“The Facility Manager shall provide the services def ined in the specif ication of services (“Sustainable Facility Management Services”) attached hereto as Annex [♦ ].”

In addition to incorporating the recognised service catalogue, the parties should clarify that the services were recognised and which rights of use exist to the associated logos, brands and protected titles:

RECOMMENDED CLAUSE 4 A):

“The Facility Manager has had the Sustainable Facility Management Services assessed by [♦ ] (“Certifying Body”) and has obtained the recognition (“Badge of Recognition”) in [possibly naming the recognition class] for these services. This recognition entitles the Facility Manager to use the word mark “[♦ ]” (“Word Mark”) and the seal (“Seal”) shown in Annex [♦ ] in connection with the provision of its Sustainable Facility Management Services.”


RECOMMENDED CLAUSE 4 B):

The Badge of Recognition shall also include the right of the Facility Manager to permit the parties to contracts which agree Sustainable Facility Management Services in a binding manner to use the Word Mark and the Seal in connection with the reference to the Facility Manager.

The Facility Manager shall permit the Principal to use the Word Mark and Seal such that it is recognisable to a third party that the Principal has received the Badge of Recognition from the Facility Manager and the Word Mark and Seal are used in connection with the naming of the Facility Manager and that this is recognisable literally or from the circumstances.

A corresponding declaration of the Certifying Body is attached for reasons of clarity as Annex [♦ ].”

The following recommended clause regulates the duty of the contracting parties to do everything necessary to ensure that the conditions of recognition continue to be met during the term of the agreement:


“As part of their respective obligations under this Facility Management Agreement, the Parties must at all times take any necessary action to ensure that the Sustainable Facility Management Services can be provided entirely in order to ensure that all requirements for the awarding of the Badge of Recognition are satisfied during the term of this Facility Management Agreement. In particular, the Parties shall support the Certifying Body or a third party named by it in their annual audits (“Audits”). Above all, the Parties shall provide suitable evidence within an appropriate period set by the Certifying Body and shall provide it access to the Property after prior arrangement.”

In addition, the facility management company usually grants authority to market the recognition to the owner. When entering into an agreement with the certifying body, it should be ensured that the facility management company is authorised to pass on the rights of use to the respective owners of the properties for which the services are provided:


The area of building certificates and therefore also of other recognitions which follow building certification systems are subject to constant change, in particular as a result of technical progress and tighter statutory provisions. It is therefore recommended that it be regulated in the agreement whether the contractual relationship is to be adjusted to the stricter requirements of the certifying body. The following alternatives are conceivable:


(Static alternative – adjustment of the contractual arrangements to future stricter requirements not desired)

“However, the Parties are not obliged to take measures to comply with any future (in particular stricter) requirements which may be necessary in the future for the awarding of the Badge of Recognition by the Certifying Body.”


(Dynamic alternative – adjustment of the contractual arrangements to future stricter requirements desired)

“The Parties are obliged to take measures to satisfy any future (in particular stricter) requirements which may be necessary in future for the awarding of the Badge of Recognition in [possibly naming the recognition class] by the Certifying Body. This obligation shall apply unless this is not f inancially acceptable to the respective party. Furthermore, this duty shall apply only to a period of [♦ ] years after conclusion of the Facility Management Agreement. After expiry of this period, the Parties shall renegotiate this clause.


If future requirements for the awarding of the Badge of Recognition require the incorporation of new duties into this Facility Management Agreement and the Parties in accordance with the above paragraph of this paragraph [reference to recommended clause 5b)] are obliged to incorporate into this Agreement, the Parties shall agree the new Catalogue of Services in an addendum to this Facility Management Agreement in return for appropriate remuneration of the Facility Manager which takes into consideration the costs for the awarding of the Badge of Recognition.”

The Parties can furthermore agree to secure compliance with the recognition requirements by an extraordinary right of termination:


“The Parties agree that a good reason to terminate this Facility Management Agreement without notice by way of exception shall in particular also exist if culpable actions or failures to act of the other Party mean that the Sustainable Facility Management Services are no longer provided or can no longer be provided by the Facility Manager in whole or in part and the Badge of Recognition is withdrawn by the Certifying Body or is not awarded anew. A right of termination shall only exist in this case, however, if the terminating Party has set the other Party an appropriate period to desist or take action with respect to the actions substantiating termination and this period has passed fruitlessly or a warning has not been headed.”


The facility management company contractually undertakes towards the certifying body to enter into facility management agreements which have the recognised services as subject matter, naming the principal and the address of the property. This duty to provide information should be reflected in the Green Facility Management Agreement to avoid breaches of the confidentiality duties:

3.4 PROVISION, PROCESSING AND DELETION OF DATA

The collection, storage and processing of data play a large role in the management of property. The facility management company is usually responsible here for the collection and analysis of information and for developing concepts for sustainable building management on this basis in accordance with the objectives.


“The Principal shall release the Facility Manager from the duty to maintain confidentiality towards the Certifying Body insofar as the Facility Manager is authorised to disclose to the Certifying Body the conclusion of this Facility Management Agreement, name and address of the Principal and of the Property as well as the provision of this Agreement in which the Sustainable Facility Management Services are agreed. Insofar as no corresponding duty of the Certifying Body exists in accordance with the underlying contractual relationship, the Facility Manager shall obligate the Certifying Body in writing in advance to keep these data confidential.”



“The Principal shall support the Facility Manager to the necessary extent in the provision of the services under this Agreement during the term of this Facility Management Agreement. In particular, the Principal shall provide the Facility Manager with all information, documents, contracts (in particular lease, maintenance and supply agreements) ( jointly referred to as “Data”) which are required for the provision of the services set out in the specification of services contained in Annex [♦ ] in a suitable form (electronically if available) within [♦ ] months of signing this Facility Management Agreement. Data obtained by the Principal after signing this Facility Management Agreement shall be passed on to the Facility Manager immediately.

These Data shall include, in particular, consumption data, energy certificates and other property data which have been collected by all providers of services or works in connection with the Sustainable Building Management in the past or which will be obtained in the future. The same shall apply to Data which is relevant to Sustainable Building Management and which is available for past or current users of the Property, provided that the Principal has access to this Data under the terms of the respective lease agreements.”

However, this can only be provided by the facility management company if it has access to all data. This applies in particular to data collected by companies which were commissioned with building management at an earlier date and users. The following recommended clause takes this fact into consideration:



“If the Principal fails to provide the Data also within a period of grace set by the Facility Manager or not in the form required for the provision of services, the Facility Manager shall make the Principal suggestions, including offers for the creation of the Data anew, and shall commission such after approval in the name of and for the account of the Principal.”

The following recommendation regulates the duty of the facility management company to return all data to the owner at the end of the agreement. The facility management company furthermore undertakes to delete all data records in its system. If there is a duty to delete, it must be ensured that this only exists at a time when the data are no longer required by the facility management company to assert or defend against claims in connection with the Facility Management Agreement:


“The Facility Manager shall only store and analyse the Data provided to him and the Data collected by him in the context of the management of the Property. On expiry of this Facility Management Agreement, the Facility Manager is obliged to return the Data to the Principal in suitable form. After expiry of a period of [three years] after the end of this Facility Management Agreement, the Facility Manager is obliged to irrevocably delete all data from his own system.”

It is important to regulate that the facility management company can procure the data itself if need be if the owner fails to satisfy his duty to cooperate in the transmission of data:


The following may also be agreed for the purposes of an inter-property analysis and the development of benchmarks:


“The Facility Manager is entitled to use the Data obtained in connection with this Facility Management Agreement for the purpose of comparative analysis of various data sets related to various properties. In such cases, the Facility Manager shall render the Data anonymous prior to use which shall be done by irrevocably deleting any personal data. The stored Data rendered anonymous shall be used by the Facility Manager exclusively for the purpose of optimising the management of properties. The Facility Manager undertakes towards the Principal to refrain from combining the Data rendered anonymous with other personal data regarding the Principal. In such cases, the above obligation to delete upon expiry of this Facility Management Agreement pursuant to the above paragraph [reference to the last sentence of the recommended clause 10] shall not apply.”

3.5 ENERGY MONITORING AND MANAGEMENT

The use and management of buildings is responsible for a considerable part of global energy consumption and greenhouse gas emissions (approx. 32 per cent of energy consumption and approx. 19 per cent of greenhouse gas emissions, see Fifth Assessment Report, Intergovernmental Panel on Climate Change, June 2014).

Careful energy monitoring and management permit the savings potential in buildings to be used and improved. In addition, environmental burdens and energy costs can also be increasingly reduced in this way. The agreement of the so-called PDCA cycle is advisable here in which the facility management company firstly prepares an energy concept (“Plan”) tailored to every individual property. Energy is then monitored during the entire term of the agreement (“Do”). The energy concept and the actual consumption figures are checked regularly (“Check”) using benchmarks. Finally, the owner and the facility


management company regularly agree improvement measures to achieve new objectives (“Act”). The property management company which is entrusted with higher ranking monitoring tasks can provide support here where necessary. There is frequently no direct contractual relationship between facility and property management companies. In this case, on concluding the Green Property Management Agreement the owner must ensure that a corresponding cooperation duty on the part of the property management company is agreed.


“For a lead time of [♦ ] months from the start of the Agreement (“Lead Time”) the Facility Manager shall comprehensively determine and document the energy consumption of the Property (“Actual Status”). The Principal shall provide him the best possible support here. In particular, the Principal must notify the Facility Manager immediately after the start of the Agreement about times in which the energy consumption in the Property is highest, for example due to high level of visitors, use of space and other circumstances known to him which are relevant to determine the Actual Status.

Within a further month, the Facility Manager shall make the Principal [and the company commissioned with the Property Management of the Property (“Property Management Company”)] a proposal for a concept to save energy in accordance with the specimen attached hereto as Annex [♦ ] (“Proposed Concept”) on the basis of these consumption figures and the documents and information provided by the Principal pursuant to paragraph [reference to recommended clause 8]or itself in accordance with paragraph [reference to recommended clause 9].“


There are two alternatives (“Plan”) for the preparation of the energy concept. Either the facility management company can determine the content itself at its due discretion, or the contracting parties prepare this concept together with the involvement of the property management company where applicable. The following recommended clauses are as follows:


(Alternative – Discretion of the Facility Management Company with respect to the preparation of the Energy Concept)

“Within two weeks of receipt of the Proposed Concept, the Principal [and the Property Management Company] shall have the opportunity to send proposed changes to the Facility Manager. Within a further two weeks, the Facility Manager shall adjust his Proposed Concept – possibly under consideration of the proposed changes of the Principal [and of the Property Management Company] at its due discretion (“Energy Concept”) and send a copy to the Principal [and the Property Management Company] for acknowledgment.”


(Alternative – Agreed drafting of the Energy Concept by the Parties possibly consulting the Property Management Company)

“Within two weeks of receipt of the Proposed Concept, the Principal [and the Property Management Company] shall have the opportunity to send proposed changes to the Facility Manager. Within a further four weeks the Facility Manager, the Principal [and the Property Management Company] shall make every effort to bring about a mutual agreement. On the basis of this agreement, the Facility Manager shall adjust his Proposed Concept and shall send a copy of the final energy concept (“Energy Concept”) to the Principal [and the Property Management Company] for acknowledgement.“



“The Energy Concept shall be agreed in a binding manner between the Parties for the residual term of this Agreement unless it is adjusted on the basis of the following provisions. The Facility Manager shall implement the Energy Concept within the framework of Sustainable Building Management, whereby the Principal [and the Property Management Company] shall provide best possible support. In particular, the Principal must notify the Facility Manager immediately about changes to the circumstances set out in paragraph [reference to recommended clause 12 (1) Sentence 3].

The Facility Manager shall examine the Energy Concept and its implementation every [♦ ] months using the stipulated benchmarks and/or recognised benchmarks and send reports to the Principal [and the Property Management Company] – possibly sending the proposed improvements for the adjustment of the Energy Concept (“Proposed Adjustment“).”

A continuous energy monitoring (“Do”) is advisable for the implementation of the energy concept and the determination of suggested improvements using the stipulated benchmarks (“Check”).


(Alternative – Discretion of the Facility Management Company with respect to the adjustment of the Energy Concept

“Within two weeks of receipt of a Proposed Adjustment, the Principal [and the Property Management Company] shall have the possibility to send proposed amendments to the Facility Manager. Within a further two weeks the Facility Manager shall amend his Proposed Adjustment – possibly under consideration of the proposed amendments of the Principal [and the Property Management Company] at his due discretion and send a copy to the Principal [and the Property Management Company] for acknowledgement.”

Analogue to the preparation of the energy concept, two alternatives are conceivable here for a proposed adjustment (“Act”). The following recommended clause contains the adjustment of the energy concept by the principal and possibly also the property management company:



(Alternative – Agreed preparation of an adjustment of the Energy Concept by the Parties – involving the Property Management Company where applicable)

“Within two weeks of receipt of a Proposed Adjustment, the Principal [and the Property Management Company] shall have the possibility to transmit proposed amendments to the Facility Manager. Within a further four weeks, the Facility Manager, the Principal [and the Property Management Company] shall make every effort to agree on an adjustment to the Energy Concept for the Property. On the basis of this agreement, the Facility Manager shall alter his Proposed Adjustment and send a copy of the adjusted Energy Concept to the Principal [and the Property Management Company] for acknowledgement.”

If the facility manager is to be included in the preparation of the proposed adjustment, the following recommended clause is advisable:

3.6 SUSTAINABLE USE BY TENANTS

Individual provisions and content of sustainable facility management services may extend beyond the spheres of interest of the contracting parties. It should be clarified here whether these provisions affect separate sets of contracts (leases, property management agreements, supply and service agreements with third parties).



“In addition to Sustainable Building Management, the Parties aim at achieving the greatest possible sustainable use of the Property by the tenants in accordance with the understanding of sustainability set out in paragraph [reference to recommended clause 2] (“Sustainable Use”).

The Principal shall seek to conclude lease agreements which contain provisions serving the sustainable equipping, management and use of the Property (“Green Leases”). In the agreement of Green Leases, the Principal shall be guided by the specimen clauses attached hereto as Annex [♦ ] which must similarly be adjusted to the respective individual case, in particular under consideration of the tenant and the characteristics of the rental property.”

All agreements aimed at sustainable building management and use should be harmonised with each other. If there are no direct contractual relationships between individual parties involved, for example between the facility management company and tenants, duties – in particular communication and cooperation duties – should be agreed in the existing contracts.

The following recommended clauses contain proposals for the shaping of the triangular relationship between owner and tenant on the one hand and owner and facility management company on the other. It is assumed that there are corresponding provisions in the respective leases:


The facility management company can provide support both to owners and tenants when entering into and implementing Green Leases in view of its knowledge of the property and expertise in the area of sustainable building management. This requires the principal to inform the facility management company about all provisions aimed at achieving sustainability in leases and to involve this facility management company in direct communication with the tenants:


“Immediately after concluding or amending Green Leases, the Principal shall inform the Facility Manager about the provisions agreed therein to achieve a Sustainable Use and shall in particular announce any deviations from the specimen clauses attached hereto as Annex [♦ ]. Furthermore, the Principal shall involve the Facility Manager in the communication with the tenants such that a direct exchange between the Facility Manager and the tenants is ensured, in particular on matters of Sustainable Management and Sustainable Use.”


The following recommended clause furthermore contains a catalogue of duties of the facility management company with respect to sustainable use:


“In order to promote the greatest possible Sustainable Use of the Property and within the meaning of an optimisation of Sustainable Building Management, the Facility Manager shall support the Principal as best possible. In particular, he shall provide the following services after expiry of a lead time:

a) The Facility Manager shall provide one employee as contact partner on site for the tenants of the Property for issues concerning Sustainable Building Management and Sustainable Use. The contact data of the contact partner must be provided by [a notice in ♦ of the Property].

b) The Facility Manager shall be at the disposal of the employees of the tenants of the Property for regular training on subjects of Sustainable Building Management and Sustainable Use directly after the start of the respective contractual term of the Green Lease and for up to [♦ ] hours per quarter. In these cases the Facility Manager shall not only provide information on general subjects of Sustainable Building Management and Sustainable Use, but also specifically on possible optimisation of the rented areas including an improvement of the CO

2 performance in accordance with paragraphs [reference to the recommended clauses 25 and 26].

c) Furthermore, the Facility Manager shall support the tenants in the implementation of the User Manual explained in the following paragraph [reference to recommended clause 19]. This may take place within the framework of the training set out in lit. b) above. As required, the Facility Manager must, however, support the tenants through further suitable measures.


d) The Facility Manager shall report to the tenants in writing on a quarterly basis about the current energy consumptions of the respective tenants, potential savings which can still be achieved up to the end of the respective contractual accounting period and other sustainability topics referring to the Property.”

Furthermore, a bonus may be agreed for proven higher tenant satisfaction:


“The Principal [the Property Management Company] shall conduct tenant surveys on user satisfaction in accordance with the questionnaire attached hereto as Annex [♦ ]. If this increases user satisfaction by [♦ ] per cent compared with the previous year, the Facility Manager is entitled to a bonus of EUR [♦ ]. The bonus must be paid by the Principal within 30 days of receiving an invoice from the Facility Manager.”

The Principal is obliged to pay even if it fails to conduct the tenant surveys in breach of its duty and does not send the questionnaires to the tenants of the Property at annual intervals.”


Finally, a higher motivation of the employees of the facility management company has a decisive influence on the satisfaction of the tenants. The agreement of the following recommended clause creates further incentives here:


“The Facility Manager is obliged to pay [♦ ] per cent of the bonus to his employees on a pro rata basis.”

3.7 USER AND OPERATOR MANUALS

The property-related supplementation of the user manual which is usually to be prepared by the property management company and the preparation of an operator manual are further aspects of the Green Facility Management Agreement.

Whilst the user manual serves as an information source for users as to how they can influence the sustainability of building management through their actions, the operator manual concentrates and explains the core functions of sustainable building management for all parties directly involved in the operative activities with respect to the property (property and facility management companies as well as third companies etc.). It is aimed at achieving a common understanding of all parties. Chapter 5 of this brochure contains recommendations on the preparation of a user manual.



“In order to promote Sustainable Building Management and Sustainable Use, the Property Management Company shall prepare a manual in agreement with the specimen attached hereto as Annex [♦ ] (“User Manual”) in agreement with the Facility Manager.

The Principal shall at least provide the User Manual to the tenants. If possible, the User Manual shall also be agreed with them in a binding manner as an integral part of the leases pursuant to the above paragraphs [reference to recommended clauses 14, 15 and 16].”


Furthermore, the Facility Manager shall prepare a property-specif ic guideline on Sustainable Building Management in accordance with the specimen (“Operator Manual”) attached hereto as Annex [♦ ]. The Operator Manual shall be addressed to all companies commissioned with the management of the Property.”

The following recommended clauses address rights and duties of the parties with respect to the user and operator manuals. It is, of course, up to the parties to agree further powers or duties of the facility management company with respect to the preparation, implementation and revision of the user and operator manuals:


3.8 CAPPING OF CONSUMPTION-BASED OPERATING COSTS

Consumption-based operating expenses in commercial properties are rising continuously particularly due to the steady increase in energy prices. Heating and electricity costs rose steeply once again in 2013 compared to the previous year by 3 and 5 per cent respectively2.

The following recommended clause is a suggestion for the shaping of the caps to consumption-based operating costs, which has been a subject of much discussion in recent years. More and more tenants favour an agreement of this nature in the leases but meet with opposition from the owners.

Owners are usually dependent on the facility management company for the agreement of cost or consumption caps of this nature in leases; on the one hand so as not to endanger the competitiveness of the rented areas through excessively high flatrates or caps and on the other so as not to have to bear the substantial operating costs of the tenants themselves.

If the facility management company assumes responsibility for observing the cost and consumption limits, it is advisable to agree a lead phase in order to become acquainted with the special features of the property. It is furthermore strongly advised that the owner guarantees that the tenants follow the rules of conduct prepared by the facility management company and provide corresponding evidence of this. If any misconduct becomes evident here, the facility management company should then be released from its responsibility for adhering to the cost or consumption caps. Depending on the wording of the lease agreements, costs which exceed the limit stipulated by the facility management company after expiry of the lead phase must be borne by the owner or the tenants.

2 JLL, OSCAR 2013; http://www.presseportal.de/pm/62984/2557824/oscar-2013-von-jones-lang-lasalle-bueronebenkosten-steigen-wieder-staerker-an-muenchen-ueberholt; Download 03.07.2014



(Alternative – Agreement of operating cost flatrates in leases)

“On the basis of the Calculation [plus a security markup of ♦ per cent], the Principal shall account for the consumption-based operating costs not in accordance with the actual consumption but shall agree flatrates (“Operating Cost Flatrates”). [On 1 January of every calendar year, the Operating Cost Flatrates shall automatically increase or decrease by the same per centage ratio by which the [index for energy prices for Germany, for example the producer price index] as determined by the [Federal Statistics Office] (in each


“After expiry of the lead phase, the Facility Manager shall calculate the expected [consumption-based] operating costs of the Property in accordance with Section 2 of the applicable version of the German Operating Costs Ordinance [with the exception of costs for [♦ ] before conclusion of a lease for the fixed term agreed therein but for a maximum of 5 accounting periods (“Calculation”). The Facility Manager assumes a certain user behaviour (“Rules of Conduct”) and a vacancy rate of the Property of a maximum of [♦ ] per cent (“Vacancy Rate”). The Facility Manager shall provide the Principal with the Calculation and Rules of Conduct in good time before concluding a lease.”

The following recommended clauses take account of these opposing interests:

Agreements come into consideration in particular in which the facility management company is responsible for ensuring that – assuming a prescribed behaviour of the tenant – either certain flatrates to be paid by the tenant cover costs or that consumption ratios are not exceeded. The following alternatives are conceivable here:


case the most up-to-date base year, currently [♦ = 100] has altered since the start of this Facility Management Agreement or vis-a-vis the status decisive for the last adjustment of the Operating Cost Flatrates.

The Facility Manager is obliged to manage the Property within the meaning of Sustainable Building Management such that the Operating Cost Flatrates cover costs and the agreed quality standards are observed.

The Facility Manager guarantees by way of an independent warranty that the Operating Cost Flatrates agreed with the tenants on this basis cover costs. In return, the Principal is obliged to impose the Rules of Conduct on the tenants in a binding manner and to obligate the tenants to provide suitable proof of compliance [the observation of which is permanently monitored by the technical installations in the Property]. If suitable proof is not sent to the Facility Manager or is not sent in good time [if the analyses of the technical installations in the Property show infringements of the Rules of Conduct], the warranty contained in this paragraph [reference to this recommended clause 22 a)] shall no longer apply. The additional expenses attributable to a breach of the Rules of Conduct and/or the Vacancy Rate must be borne by the Principal or by the tenants in the case of a corresponding contractual agreement.”


RECOMMENDED CLAUSE 22 B)

(Alternative – Agreement of consumption ratios in leases)

“On the basis of the Calculation [plus a security markup of ♦ per cent], the Principal shall agree consumption ratios (“Consumption Ratios”) for the consumption-based operating costs with the tenants of the Property. The Principal shall account for the consumption-based operating costs with the tenants in accordance with the actual consumption, and shall agree compliance with these Consumption Ratios.

The Facility Manager is obliged to manage the Property within the meaning of Sustainable Building Management such that the Consumption Ratios are complied with and the agreed quality standards are observed.

The Facility Manager guarantees by way of an independent warranty that the Consumption Ratios agreed with the tenants on this basis are complied with. In return, the Principal is obliged to impose the Rules of Conduct on the tenants in a binding manner and to obligate the tenants to provide suitable proof of compliance [the observation of which is permanently monitored by the technical installations in the Property]. If suitable proof is not sent to the Facility Manager or is not sent in good time [if the analyses of the technical installations in the Property show infringements of the Rules of Conduct], the warranty contained in this paragraph [reference to this recommended clause 22 a)] shall no longer apply. The additional expenses attributable to a breach of the Rules of Conduct and/or the Vacancy Rate must be borne by the Principal or by the tenants in the case of a corresponding contractual agreement.”

Contrary to the agreement of flatrates for the costs, cost savings can continue to benefit tenants if consumption ratios have been agreed and therefore motivate them to engage in sustainable behaviour as far as possible. This only applies, however, if the maximum limits in the respective lease have not been set so low that they are exceeded by the tenant himself even if he uses the property in an extremely sustainable manner:



“The Parties seek to commission the Facility Manager in line with requirements as far as possible. Within the meaning of Sustainable Building Management, they wish to ensure that all services requested by the tenant [by the tenants] are provided and that any services which are not necessary are avoided. For this purpose, the Facility Manager shall coordinate with a contact partner of the tenant [of the tenants of the Property] every week/month on the actual requirements (“Provision of services in line with requirements”).

Insofar as services are requested by the tenant [by the tenants] in writing [in text form/electronic form] which are not explicitly mentioned or not mentioned in the requisite number in the Annex [♦ ] (“Additional Services”), the Facility Manager must provide these services [after prior approval] through the Principal if they extend the scope of an explicitly mentioned contractual duty or are closely related thereto and the activities of the Facility Manager are directed at services of this type (“Additional Closely Related Services”). The Facility Manager can only be entrusted with services other than these (“Additional Non-Related Services”) with the approval of the Principal.”

3.9 COMMISSIONING SERVICES IN LINE WITH REQUIREMENTS

The following recommended clause is aimed at management in line with requirements which promotes the satisfaction of the tenants and avoids the superfluous provision of services on the part of the facility management company.

The following recommendation is a proposal for a regulation on the commissioning of services in line with requirements in the Facility Management Agreement through direct communication between tenant and the facility management company. A corresponding provision in the lease is assumed:



“The foundation for the remuneration of Additional Closely Related Services is provided by Annex [♦ ]. The remuneration for Additional Non-Related Services can be freely agreed. The Principal shall only pay remuneration if it has approved the Additional Services in advance. For this purpose, the Facility Manager must provide a cost estimate for the remuneration to be expected for these services (“Additional Costs”) to the Principal before the provision of services. The approval shall be viewed to have been given if the Principal does not reject the inquiry within 3 working days or signalises a need for coordination and sends suggestions for a date of a meeting, i.e. within the next 14 days. The Parties shall make every effort to jointly bring about an agreement.

If the provision of services in line with requirements leads to a substantial reduction in the scope of services agreed by the Parties in accordance with Annex [♦ ], the remuneration of the Facility Manager shall similarly be reduced in accordance with Annex [♦ ] (“Savings”).

The Facility Manager shall provide the Principal [and the tenant] with monthly lists of Savings and Additional Costs as a result of the provision of services in line with requirements and shall account for such on an annual basis.”

A commissioning of services in line with requirements can be expediently achieved by agreeing in the leases that cost savings will directly benefit the tenants and additional costs will be directly imposed on the tenants within the scope of the operating cost account.

The remuneration of the facility management company and a transfer price model for additional non-related services could take the following form:



“The Parties are agreed that a balanced CO2 performance is advisable for the purposes of the greatest possible Sustainable Building Management and Sustainable Use of the building. After expiry of the lead phase, the Facility Manager shall determine the entire CO

2 performance of the structure of the Property and of the former management and use (“CO2 Due Diligence”). The Facility Manager is obliged to conduct a CO2 Due Diligence on an annual basis. The Principal shall provide best possible support to the Facility Manager in conducting the CO

2 Due Diligence.

Within two months of expiry of the lead phase or of the respective contractual year, the Facility Manager shall provide the Principal, the Property Management Company [other operators of the Property] and the tenants with the results of the CO

2 Due Diligence and provide specific improvement suggestions. The Parties shall make every effort to achieve agreement as to which improvement suggestions are to be implemented and shall agree such in a binding manner within a further month in an addendum to this Facility Management Agreement.”

3.10 DETERMINING THE CO2 PERFORMANCE OF THE BUILDING AND OF ITS MANAGEMENT AND USE:

The facility management company can provide valuable support in determining and improving the CO2 performance of the property and of its management and use:


The following clause is recommended for the greatest possible involvement of tenants in the improvement of the CO2 performance:


“In return for appropriate remuneration, the Facility Manager shall offer the tenants of the Property to annually implement a CO

2 Due Diligence with respect to their user behaviour and to make suggestions on improving their CO2 performance [which go beyond the recommendations in the User and Operator Manual]. The Principal shall provide the best possible support to the Facility Manager in this and shall aspire to ensuring in the Green Leases that the tenant has an annual CO

2 Due Diligence conducted by the Facility Manager.”


“The Parties shall set up a sustainability committee which consists of proxies of the Principal, of the Facility Manager, third parties involved in property management and, if possible, every tenant of the Property (“Sustainability Committee”). Meetings of the Sustainability Committee shall take place quarterly/semi-annually/as required, but at least [♦ ].

3.11 SUSTAINABILITY COMMITTEE

Only through regular communication between owner, property and facility management companies, providers of operating services and ideally the tenants can the entire potential of a property be exploited to achieve a sustainability standard. The creation of a sustainability committee meeting is expedient, particularly in the case of larger properties with several tenants:


The responsibilities of the Sustainability Committee shall be

a) to observe the compliance with all duties of the Parties under this Facility Management Agreement with respect to Sustainable Business Management and to the Sustainable Use of the Property (including compliance with the duties under the User and Operator Manual) and to monitor the enforcement of any agreed penalties for violations;

b) to record and analyse complaints of tenants and to discuss appropriate measures;

c) to communicate the provisions set out in the User and Operator Manual and to consult on any revision of the User and Operator Manual;

d) to consult on further ways of optimising Sustainable Building Management and Sustainable Use of the entire Property;

e) to coordinate possibilities of joint marketing of achieved sustainability standards of the Property including aspects of Sustainable Building Management and Sustainable Use;

f ) to draft a yearly sustainability report (“Sustainability Report”) which in particular contains a summary and assessment of the Sustainable Business Management and the Sustainable Use of the entire Property for the previous year and a forecast for the following year.

The Parties are obliged to implement the recommendations of the Sustainability Committee set out in the Sustainability Report within a reasonable period of time in accordance with this Facility Management Agreement.”


Ideally, all Facility Management Agreements and Lease Agreements of a property are harmonised with respect to the aspired-to sustainability standard. This is because all provisions apply only between the contracting parties who have also agreed them. If several agreements provide for the creation of a Sustainability Committee, it is to be clarified who is responsible for the organisation.


“The business operations of the Principal include [in addition to the provision of closed rental units] the granting of rights to use individual office workstations in the Property [on the areas of the Property marked in Annex [♦ ]] in accordance with the specimen agreement attached hereto as Annex [♦ ] (“Office Use Concept”). Contracting parties to the Principal shall in particular be entitled to use

– workstations together with desks and chairs,

– PCs including monitors,

– internet access,

– communal kitchens,

– WCs and

– conference rooms.

3.12 PROVISION OF SUSTAINABLE OFFICE WORKSTATIONS

In order to be equipped for changes in the economic environment, users of office space increasingly place value on flexibility and are calling for provisions in leases which permit them to extend and return space also during the current lease. Accordingly, there is no longer just a demand for closed office space, but increasingly also for individual workstations in addition to the accompanying equipment, such as filing and meeting rooms, as well as services such as secretariat and IT. The facility management company can exert a decisive influence to ensure that these workstations are sustainably equipped, managed and used. The following recommended clause deals with this issue:


After expiry of the lead phase, the Facility Manager shall provide the following services with respect to the Office Use Concept in additional to the Sustainable Facility Management Services set out in Annex [♦ ]:

The Facility Manager is obliged to equip the spaces marked in Annex [♦ ] for the first time in accordance with the furnishing plans attached hereto as Annex [♦ ] and to maintain them at a high equipment quality level throughout the term of this Facility Management Agreement. To this end, the Principal shall provide the Facility Manager at the start of the Agreement with a budget in an amount of [♦ ] euros (in words: [♦ ] euros) and from the 2nd contractual year with an annual budget of [♦ ] euros (in words: [♦ ] euros). Starting from the [♦ ] contractual year, the Parties shall renegotiate the amount of the budget.

Furthermore, after expiry of the lead phase, the Facility Manager shall provide the Principal with market analyses every 6 months for the Office Use Concept in accordance with the specimen attached hereto as Annex [♦ ]. If desired by the Principal, the Facility Manager shall be available to the Principal for discussions about these market analyses and any possible improvements and about any extension or reduction in the Office Use Concept within the Property.

The Facility Manager shall provide the services set out in Annex [♦ ] for the operation of the secretariat and the reception, and for the management of the conference rooms of the Office Use Concept and the maintenance of the IT network including the internet access.

In addition, the Facility Manager shall support the Principal [the Property Management Company] in the contractual management with the users of the Office Use Concept and in particular during appointments to hand over and return the respective office workstations.

The Facility Manager is entitled to provide the above-mentioned services, in particular services to operate the secretariat and the reception, and to manage conference rooms of the Office Use Concept, and to maintain the IT network including the internet access, itself or through third parties it has commissioned.”


3.13 INDEMNITIES AND PENALTIES


“For all [wilful or grossly negligent] breaches of one of the duties regulated in this Facility Management Agreement in paragraphs [reference to individual or all provisions dealing with sustainable management], the Party complying with the Agreement is entitled to demand from the other Party the payment of a contractual penalty in an amount of up to EUR [♦ ] in addition to the replacement of any damage in accordance with the general rules and regulations. The amount of the contractual penalty shall be determined by the Party complying with the Agreement at its discretion (Section 315 German Civil Code – BGB). The claim to performance and Section 343 BGB shall not be affected.”

Binding contractual rules are essential if the sustainability concept is to be effective. The amount of damage is frequently difficult to quantify if it arises from a breach of regulations which are aimed at sustainable building management. Therefore, it may be advisable to supplement with a penalty system.

It is up to the parties to decide for which breaches of contractual duty and to which degree of fault a contractual penalty is to be paid (only in the case of wilful intent or gross negligence, for example):


The parties can express the aspects of environmental friendliness and social compatibility of sustainability in particular by the following clause:


“The Party complying with the Agreement must donate the amount collected as contractual penalty to a charitable organisation and/or use it for environmental protection measures (for example to purchase regulated emission certificates to compensate the CO

2 emissions. On request, the Party complying with the Agreement shall provide the other Party with suitable proof of use.”

3.14 ALIGNMENT OF THE AGREEMENT WITH FUTURE CERTIFICATION SYSTEMS

The working group expects that the certification trend will continue in the property sector in the coming years. Certification systems have already been checking not only the sustainability qualities of new buildings but also those of existing properties and of building management and use for a long time. In a further development of the building certificates, there will be systems for facility management processes in the future. Due to the absence of statutory requirements for this area, only the examination by an independent certifying body creates the transparency, comparability and quality assurance demanded by the market.

Furthermore, the involvement of the users will become increasingly important because otherwise substantial sustainability potential will go unused. The past years have shown that non-binding declarations of intent on sustainability in leases are not very effective. The working group expects the introduction of certification systems for user behaviour which will make a considerable contribution to increasing the sustainability performance of properties.


3.14.1 FUTURE CERTIFICATION OF FACILITY MANAGEMENT SERVICES

On introduction of a certification system after conclusion of agreement, the contracting parties agree in the following clause that the facility management services are to be certified in accordance with this system. In this case, they will also include further duties of the facility management company in the agreement.

The facility management company is usually dependent on the cooperation of the principal here. In addition to agreeing a new or extended specification of services, the principal must adjust the contractual relationships with any third parties in connection with the management and/or use of the property. These are, for example, other providers of operator services, utility companies and tenants:


“The Parties agree that the Facility Management Services to be provided under this Agreement shall be assessed under a certification system for Building Management Services or any other similar certification system that will be introduced by [certifying body of a certification system] after the conclusion of this Facility Management Agreement. In such an event, the Parties shall, in accordance with their responsibilities under the general provisions of this Facility Management Agreement, do whatever is necessary to comply with any criteria for the first time which have to be met in order to obtain the aspired-to certificate. This obligation shall not apply insofar as its compliance would be economically unreasonable for the respective Party. Furthermore, this duty shall only apply for a period of [♦ ] years after conclusion of the Facility Management Agreement. After expiry of this period, the Parties shall renegotiate this clause.”


The principal remunerates the facility management company at conditions usual on the market in return for the extension of the catalogue of services to be provided by the facility management company:


“As far as a certification requires the incorporation of new obligations in this Facility Management Agreement and the Parties are obliged to incorporate these in this Agreement in accordance with paragraph [reference to recommended clause 31] above, the Parties shall agree on the new catalogue of services in a further amendment to this Facility Management Agreement that is legally binding and against reasonable remuneration of the Facility Manager considering the cost incurred for the granting of a certificate.”

A certification of the facility management services also has an added value for the owner of the property. The inspection of the services by an independent certification organisation facilitates comparability, transparency and quality assurance. This in its turn positions the owner advantageously towards, for example, co-investors, insurance and finance companies as well as tenants. Therefore, it is also important for the owner to be able to market the certificate of the facility management company it has commissioned. The following recommended clause takes this into account:


“In the case that a certif icate is granted, the provision in the above paragraph [reference to recommended clauses 4a) and 4b)] shall apply accordingly. In particular, the Facility Manager shall make every effort to grant the Principal corresponding user rights with respect to any Word Marks and Seals of the certif icate.”


3.14.2 FUTURE CERTIFICATION OF LEASE AGREEMENTS


“In the case where a certification system that certifies the use of a property by the tenants is introduced after the conclusion of the Agreement, the Facility Manager shall in accordance with its responsibilities assist the Principal in the certification process under the general provisions of this Facility Management Agreement. In addition, he shall provide documentation, determine potential for optimisation and coordinate the process with the tenant and the Certifying Body. These obligations shall not apply insofar as their compliance would be economically unreasonable for the Facility Manager. Furthermore, this duty shall only apply to a period of [♦ ] years after conclusion of the Facility Management Agreement. After expiry of this period, the Parties shall renegotiate this clause.”

Sustainable building management is characterised amongst other things by the fact that the facility management company is directly involved in coordination processes with the tenants. The management of tenants, i.e. the conclusion, termination or extension of leases and correspondence with tenants, is usually the responsibility of the property management company as part of commercial building management. However, in view of its comprehensive knowledge of the property, the facility management company can provide valuable input to optimise the management and use of the rented spaces. This should not go unused.

In a process to obtain a lease certificate, the facility management company can provide support both to the landlord and to the tenant, possibly in close coordination with the property management company:


The principal remunerates the facility management company at conditions usual on the market in return for the extension of the catalogue of services to be provided by the facility management company:


“Insofar as paragraph [reference to recommended clause 34] above requires the incorporation of new duties in this Facility Management Agreement and this is economically reasonable for the Facility Manager, the Parties shall agree on the revised catalogue of services in a further amendment to this Facility Management Agreement that is legally binding and against reasonable remuneration of the Facility Manager.”


4. RECOMMENDED ACTION

Sustainable building management requires the implementation of individual measures aimed at sustainability. In facility management, these measures of sustainable operation are reflected in a specification of services. The specification of services therefore represents a foundation of sustainable building management and is attached to the Green Facility Management Agreement. This chapter provides recommendations on preparing and implementing a specification of services of this type.

In the same way as the Green Property Management specification of services, the Green Facility Management specification of services is divided into the following five categories:

■ Maintenance

■ Measurement and verification

■ Environmental protection and security

■ Procurement and structural measures

■ Tenant relations.

A classification of this type is intended to guarantee that the same understanding of sustainable building management exists between all providers of sustainable building management services and the owner and that interface issues and problems of understanding are prevented.

It is advisable for specific individual requirements for each category to be agreed between the principal (for example the property management company or owner) and the facility management company which may be assigned to the description of services set out below as excerpts and examples. In this way, an important condition for the measurability of sustainable building management is satisfied.


4.1 MAINTENANCE

The development and extension of an appropriate maintenance strategy (“maintenance strategy”) are essential for efficient building operations. Furthermore, strategies must be developed which facilitate an adjustment of the building to future requirements.

The consideration and implementation of the following aspects within the framework of the specification of services would appear to be advisable with respect to the maintenance strategy:

■ Methodical requirements and procedures for correct auditing under consideration of safety, accident prevention, health and hygiene requirements, operational safety ordinances, auditing ordinances of the Länder as well as requirements of the German Insurance Association (Gesamtverband der Deutschen Versicherungswirtschaft e.V.);

■ Description of maintenance duties on expiry of the warranty period with respect to buildings components, structural elements, technical installations and equipment under consideration of the maintenance strategy selected;

■ Description of operative procedures to ensure the adaptability of the property to altered climatic, functional and use-related requirements;

■ Description of checks to determine the tightness of media-carrying installations and distribution systems (water, air), specifying the requirements placed on the documentation of leaks and agreement of communication duties and deadlines (for example within three calendar days);

■ Securing of operational readiness of safety-related installations and/or installations with environmentally relevant substances (for example of light liquid separators in underground car parks/parking spaces or fat interceptors in [large] kitchens) under consideration of statutory requirements;


■ Description of procedures to optimise water consumption;

■ Regular documentation on the implementation of the maintenance strategy. This proof also comprises content and methodical adjustment of strategic requirements under consideration of the needs of the respective property;

■ Systematic assessment of the state of repair of the building and presentation of any need to take action under consideration of the maintenance strategy in accordance with the following:

– Support in the updating of the assessment of the overall property by an expert;

– Implementation of an update interval of at least five years;

– Updating on the basis of the initial assessment of state of repair under consideration of the respective use;

■ Drafting of service and operational flow charts to secure a technically perfect operation with reference to the following aspects:

– Securing of energy reduction by efficient workflows and energy monitoring;

– Identification of the relevant installations and components of the technical building equipment;

– Promotion of regular service work on the basis of the maintenance strategy to extend the life cycle of the installations.

Furthermore, a selective use of sustainable materials for repair measures is desirable. The specification of services could contain the following in this respect:

■ Information on reducing and possibly completely avoiding VOC emissions through the use of low-emitting materials and products. This also applies to servicing and to structural changes (such as repairs);

■ Concept for a property-related maintenance strategy geared to the state of repair as developed in accordance with DIN 31051 in the sense of predictive servicing and preventive measures and their annual updating. The maintenance strategy serves here to maintain or restore the target state of repair of building components, structural elements, technical installations and equipment.


Using a building consumes valuable resources such as energy and water. Therefore, it is essential to measure the impact of building use in order to control facility management processes with the objective of achieving sustainable building management.

It is advisable to formulate the following requirements in particular for the preparation of the specification of services with respect to energy consumption:

■ Regular meter readings to determine energy consumption according to building zones and additional identification of the respective main, special and end consumers.

■ Annual analysis of the meter readings to obtain consumption data which serve as benchmarks for the agreed energy efficiency objectives.

■ Presentation of the energy performance of the building using a procedure which has been regulated by law or standardised in a different manner (for example procedure to create energy certificates).

Provisions should be incorporated in the specification of services to promote the checking and control of water consumption:

■ Development of a strategy and of an implementation concept for the efficient handling of water which is coordinated with the owner and/or the property management company and the tenant concerned;

■ Regular meter readings and additional identification of the respective specific main, special and use-specific end consumers and furthermore a comparison with the water bills and actual use of rain and grey water;

■ Active monitoring of water consumption;

■ Preparation of the meter readings using flowcharts to determine the main consumer groups;

4.2 MEASUREMENT AND VERIFICATION


■ Integration of the meter readings in a strategy to minimise water consumption, for example in the use of the bathrooms, tea kitchens, canteens, for cleaning purposes and further implementation by the optimum setting of technical installations such as heating and room ventilation technology;

■ Presentation of the reduced water consumption in the developed strategy for the handling of water;

■ Development and submission of a separate strategy on handling water if this has not already been taken into consideration in guidelines or an environmental management system;

■ Annual transmission of data in digital form and comparison of the property-related performance ratios with recognised benchmarks under consideration of the objectives of the strategy and the systematic identification of efficiency enhancing measures (so-called Capex Recommendations).

In addition to the responsible handling of resources, sustainable building management is aimed at increasing user comfort. A healthy and productive indoor climate is an important prerequisite here. Therefore, the following tasks of the facility management company should be agreed in the specification of services:

■ Regular checks and preparation of proof of compliance with statutory requirements placed on ambient air parameters such as temperature, humidity, carbon dioxide, carbon monoxide and nitrogen concentration if the technical building equipment provides suitable measuring equipment;

■ Identification of workstation zones and definition of the air quality aspired to (target situation) under consideration of statutory requirements;

■ Functional description of the control of ventilation at the workplace, for example by opening windows or mechanical ventilation systems supplemented by datasheets and photographic documentation;

■ Coordination with the owner and/or the property management company about the target and actual situation;

■ Regular (annual) measurement and documentation of the actual situation, of the deviation analysis and development of a catalogue of measures.


This chapter in the specification of services should in particular contain requirements on compliance with environmental and social standards such as structural and technical precautions for fire, water and atmosphere protection.

Furthermore, the following regulations are advisable to also motivate the users to sustainably use the building in an environmentally friendly manner:

■ Support in the development and implementation of an environmental management system for the structured stipulation of operational environmental objectives. The following services to be provided by the facility management company in coordination with the respective user can be specifically agreed here:

– Collection of data and stipulation of objectives to reduce energy and water consumption;

– Collection of data and definition of objectives to reduce waste and increase recycling;

– Measures and objectives to enhance the overall environmental performance, for example by reducing CO

2 emissions and a supply chain management directed at sustainability;

– Stipulation of duties to provide evidence as well as monitoring and optimisation mechanisms;

– Provision of evidence on compliance with requirements of applicable national laws (for example requirements of the Water Act, Federal Immission Control Act, Federal Soil Protection Act, Federal Nature Conservation Act and the Act on the Transportation of Hazardous Goods), regional acts, legal ordinances, constitutions of municipalities and administrative requirements;

4.3 ENVIRONMENTAL PROTECTION AND SECURITY


The following duties can be incorporated in the specification of services to promote the procurement of sustainable materials, products and services in connection with sustainable building management and including maintenance measures:

■ Drafting and verification of procurement guidelines for materials, products and services which take into consideration the location of the property and contain the following in particular:

– Strategy for the handling and avoidance of VOC emissions as part of the maintenance guidelines;

– Statements of terms and conditions of the supply agreements;

■ Reduction in CO2 emissions through optimisation of means and paths of transport for material procurement;

■ Proof of environmental compatibility of materials by test seals and certificates;

■ Provisions on the safety of products and materials;

■ Purchase of VOC-reduced materials/substances (for example low-solvent or water-based paints, adhesives, cleaning agents etc.), proven by the corresponding product datasheets;

– Provision of proof of compliance with other technical instructions and guidelines;

– Provision of proof required for a certification (such as ISO 14001) and/or validation (EMAS, for example) of the environmental management system;

■ Establishment of a committee which is freely accessible to users (Sustainability Committee) to address and solve property-related environmental issues and introduce a standardised procedure for the recording, analysis and initiation of corrective measures.

4.4 PROCUREMENT AND STRUCTURAL MEASURES


■ Efficiency requirements for the first time procurement and the replacement of sanitary installations;

■ Regular reporting on location-related use of the procurement guidelines and the implementation of the efficiency requirements with respect to the sanitary installations.

4.5 TENANT RELATIONS

The following can be regulated in the specification of services to determine and implement measures which are aimed at promoting tenant satisfaction and increase tenant acceptance for sustainable building management:

■ Conducting of tenant surveys usually by a commissioned third party;

■ Membership and participation in the Sustainability Committee:

– Identification of sustainable and in particular ecological aspects which fall within the area of responsibility of the facility management company and may be influenced by the tenant;

– Target definition, development of areas for action and regulations on approval by the owner and/or the property management company;

– Implementation and monitoring.

■ Complaints management:

– Provision and implementation of a system to record and track tenant complaints (“trouble ticket system”);

– Processing of complaints and implementation of short-term measures;

– Analysis of complaints and coordination of objectives.


■ Transparent environmental performance through planning (stipulation of objectives, measures, content, communication paths and platforms) and coordination with the owner and/or the property management company.

In particular, the following points could be the subject matter of communication:

– Energy certificate;

– Energy consumption within a specific period;

– Covering of energy requirements through renewable energies;

– Information on water and energy saving measures conducted;

– Excerpts from the environmental management strategy of the property;

– Intelligent lift concept for energy saving;

– Location of the next public transport stop;

– Processing of complaints and implementation of short-term measures.


The recommended action presented above clearly shows that the objective of sustainable building management cannot be fully achieved without incorporating the user. It is therefore evident that the user should be provided with information about sustainable building operations and the aspired-to objectives and should be actively involved in the management processes.

A suitable instrument here is the training of users. Alongside this, a property-related user manual should be created and the users trained in its use. A user manual is created and instructions provided on its use are based on cooperation between property and facility management companies. The user manual is continuously updated.

Some confusion frequently surrounds the terms of user and operating manual. Whilst both have the common aim of promoting and ensuring sustainable building management including safety aspects, they are aimed at different readerships: the operating manual describes different scenarios for the service providers responsible for operations, i.e. facility management company and other operators, whilst the user manual serves to provide users with information and recommendations as to the behaviour in the building which leads to a reduction in the consumption of resources. Furthermore, the user manual usually contains information on personal safety.

5. RECOMMENDATIONS FOR THE CREATION OF A USER MANUAL


The following list provides examples of the content of a user manual:

■ Sustainability objectives of the building, of management and use;

■ Situation, surroundings and important contacts;

■ Reaching the property, i.e.

– Car and parking possibilities and

– Public transport;

■ Building, property such as

– Access via the main entrance,

– General access times/manning of the reception,

– Behaviour in the case of fire/evacuation, escape routes etc.;

■ Building technology and equipment such as

Recommendations on the use of heating, ventilation and cooling, for example:

“All office, conference, kitchen and canteen areas are conditioned using heating/cooling ceilings. The heating and cooling cannot be regulated individually, i.e. there is no individual room control.”

– Electricity and IT supply;


■ Building operation:

– Copiers, printers;

– Telephone;

– Delivery/information for the suppliers;

– Mail;

– Canteen;

– Waste disposal and information on the waste concept:

“Paper, residual waste, organic waste and special waste are separated in the building. Therefore, waste is separated in accordance with the following criteria:

[♦ ]”;

– Conference room booking/training rooms;

– Cleaning;

– Office furniture;

– IT support;

– Coffee points;

– Smoking in the building.


This brochure contains basic building blocks using which sustainable building management may be realised at the level of facility managment. It is primarily aimed at owners, asset and property managers, providers of operator services and property departments of companies whose core business is not property with the objective that they align their cooperation with the requirements of LAW, METHOD and CONTENT using the services of a facility management company.

The working group selected this format for its concept of a sustainable property management (see brochure “Green Property Management Agreements” – Recommended clauses and action for sustainable property management”) and has kept this format here in the knowledge that the dynamism of the market and the perception of the subject of sustainability will also continue to change. It is therefore to be expected that some of the recommended clauses and action will become less important whilst others will have a greater practical impact. The results presented in this brochure are by no means to be understood as an unalterable set of regulations but as a contribution on the path towards comprehensive sustainable building management. The working group is planning to adjust the current building blocks or to supplement with further building blocks whenever the market calls for new contractual clauses and/or service content.

The members of the working group would like to encourage you, the readers of these recommendations, to become actively involved in the discussion surrounding the further development of sustainable building management. We would be delighted to receive your suggestions and comments. Please write to [email protected].

6. OUTLOOK


Nina Jansen Kaiserswerther Straße 229 40474 Düsseldorf T +49 211 90 808 300 [email protected] www.cushwake.com

Simone Lakenbrink MRICS Myliusstraße 14 60323 Frankfurt am Main T +49 69 21 00 54 51 [email protected] www.breeam.de

The following contact partners are also personally at your disposal:


Ralf Pilger MRICS Rebstöcker Straße 35 60326 Frankfurt am Main T +49 69 973 807 7001 [email protected] www.wisag.de

Christiane Conrads LL.M. Hohenzollernring 72 50672 Köln T +49 221 277 277 251 [email protected] www.dlapiper.com www.dlapiperREALWORLD.com

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