Climate clause

Green Lease Clauses for Irish Commercial Leases: Promoting Co-operation Between Landlords and Tenants Concerning the Environmental Performance of Buildings

Odhran's Clause

Clauses for Irish commercial leases promoting co-operation between landlords and tenants in relation to the environmental performance of buildings, data sharing and metering energy use.

This is a net zero clause

This clause aligns with Paris Agreement goals, Race to Zero requirements and the Oxford Principles for Net Zero Aligned Carbon Offsetting. For tools and support to use this clause, use our toolkit or join one of our events.

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Why use this?

A green lease can do more than reduce a building’s carbon footprint, running costs and futureproof owners/occupiers against the transition risk of incoming regulation. It can also improve a business’ reputation in the market, command higher rent or sale prices and attract talent drawn by climate-conscious values.

The clause

Additional definitions 

BER shall have the meaning set out in the EPB Regulations and all references to BER shall mean any BER in respect of the [Demised Premises/ [and/or the] Building].

BER Certificate shall have the meaning set out in the EPB Regulations.

BREEAM means Building Research Establishment Environmental Assessment Method, which is an international environmental assessment method and building rating system.

BREEAM Certification means the BREEAM certification [obtained/ to be obtained] in respect of the [Demised Premises/ [and] the/ Building] [being a[n] [Acceptable/ Pass/ Good/ Very Good/ Excellent/ Outstanding] rating].

Building Management Forum has the meaning given to it in clause [5.1].

Building Management Forum Protocol means [●] attached to this Lease at Appendix [●].

Certification means [LEED Certification/ BREEAM Certification]* [and/or any other accredited sustainability or green building rating in place from time to time in respect of the [Demised Premises/ [and/or the] Building]].**

* [Drafting note: Insert relevant certification. Consider what parts of the Demised Premises and/or the Building are certified (e.g. shell and core or fit-out), and tailor relevant clauses accordingly.]

** [Drafting note: The words in square brackets are intended to futureproof the Lease, but may give rise to future cost or obligations which are unquantifiable at the date of the Lease. It will be a matter for negotiation in each case whether to include this optional wording.]

Efficiency Objective means that, in relation to the occupation, operation and use of the [Demised Premises/ [and/or the] Building], the parties will work together to:

(a) maximise energy efficiency in the [Demised Premises/ [and/or the] Building];

(b) achieve the sustainability performance targets of the [Landlord’s]/[Tenant’s] sustainability-linked loan;

(c) reduce the GHG Emissions associated with the [Demised Premises/ [and/or the] Building] [to help the parties achieve their Net Zero Targets];

(d) Offset any Residual Emissions related to the [Demised Premises/ [and/or the] Building];

(e) use sustainable materials and avoid the use of materials that increase the Embodied Carbon;

(f) reuse and recycle materials to ensure that they are salvaged or otherwise saved from landfill;

(g) adopt environmentally friendly working methods, including minimising energy use through plant and site services;

(h) protect and enhance existing ecological features on site;

(i) minimise air (dust and fumes) and noise pollution;

(j) minimise water use;

(k) utilise local suppliers; and

(l) promote green travel to and from the Demised Premises (including walking, cycling or using public transport).

[Drafting note: The definition of Efficiency Objective gives a menu of objectives which should be considered with the benefit of appropriate technical advice, bearing in mind the nature of the Building and the parties’ objectives and sustainability targets. These clauses do not set out how the Efficiency Objective is to be measured. The parties may wish to consider agreeing targets or performance metrics but this will generally be a separate matter to be dealt with outside the Lease.]

Embodied Carbon means:

(a) in relation to building materials, the GHG Emissions that occur through their extraction, manufacture and transportation; and

(b) in relation to the [Demised Premises/ [and/or the] Building], the GHG Emissions that occur when it is built, repaired, renovated, deconstructed and disposed of.

Environmental Consultant means an [energy/ environmental/ sustainability] expert or consultant appointed by the Landlord in connection with:

(a) obtaining, maintaining and/or renewing the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises/ [and/or the] Building];

(b) assessing the effect (whether potential or actual) of the Tenant’s alterations to the Demised Premises (whether proposed or otherwise) on the Certification, Environmental Performance and/or the BER of the [Demised Premises/ [and/or the] Building] [and/or whether such alterations would be contrary to the Efficiency Objective/ the objectives set out in the Environmental Performance Plan]; 

(c) considering or assessing the Tenant’s Reports; and/or

(d) assessing compliance by the Tenant with the Green Clauses.

Environmental Performance means all or any of the following arising from the occupation, operation or use of the [Demised Premises/ [and/or the] Building]: 

(a) [achieving the Tenant’s [or Landlord’s] Net Zero Target;]

(b) energy consumption;

(c) water consumption and discharge;

(d) waste generation and management (including waste recycling and reuse of resources);

(e) generation and/or emission of GHGs; and/or

(f) other adverse environmental impacts.

Environmental Performance Data means data relating to the Environmental Performance of the [Demised Premises/ [and/or the] Building] [and any other information reasonably required by the Landlord to monitor energy and resource consumption for the purposes expressed in clause [insert clause number for access, data sharing and metering].

Environmental Performance Plan* means the document or documents [attached to this Lease at Appendix [●] [Drafting note: Include where the Environmental Performance Plan is already in place and is to be appended to the Lease]]/[agreed pursuant to clause [insert clause number for environmental performance plan (where plan not yet in place)] and any updated document or replacement document [as may be notified to the Tenant in writing/ agreed between the Landlord and Tenant] containing the energy efficiency strategy and proposed Improvement in Environmental Performance measures and targets for the [Demised Premises/ [and/or the] Building]. [Drafting note: In a multi-tenanted building, it should be clear whether the plan relates just to the Demised Premises or to the entire Building and, if the latter, what impact that has on the Demised Premises.]

* [Drafting note: In a new multi-tenanted building, the Landlord will ideally prepare the Environmental Performance Plan prior to granting any leases. Any existing Environmental Performance Plan should be produced at Heads of Terms stage and appended to the Lease to ensure the parties are aligned on approach and targets and potential future works and upgrades and liability for costs of same. In other cases, the Landlord may wish to collaborate with the Tenant to formulate and agree an Environmental Performance Plan. This document contains alternative clauses for each of these circumstances and the definition of Environmental Performance Plan should be adapted to match the clause selected for each building.]

EPB Regulations means the European Union (Energy Performance of Buildings) Regulations 2012 (S.I. 243/2012).

GHG Emissions means emissions of GHGs from all sources, categorised as scope 1, 2 and 3 emissions by The Greenhouse Gas Protocol: A Corporate Accounting and Reporting Standard, Revised Edition 2015 as updated periodically. [Drafting note: Scope 1, 2 and 3 emissions are defined on page 27 of the GHG Protocol.]

Green Clauses means clauses [insert relevant clause and subclause numbers]. 

Greenhouse Gases (GHGs) means the gases that trap thermal radiation in the earth’s atmosphere specified by the United Nations Framework Convention on Climate Change (UNFCCC) in Annex A to the Kyoto Protocol as updated periodically.

Improvement in Environmental Performance includes all or any of the following:

[Drafting note: These clauses do not set out how Improvement in Environmental Performance is to be measured. The parties may wish to consider agreeing targets or performance metrics but this will typically be a separate matter to be dealt with outside the Lease.]

(a) reduction in or improved efficiency of energy consumption, including selection of alternative sources of energy with a lower environmental impact;

(b) reduction in generation and/or emission of GHGs;

(c) reduction in or improved efficiency of water consumption or discharge;

(d) reduction in waste generation;

(e) improvement in the rate or efficiency of waste recycling or reuse of resources; and

(f) reduction of other adverse environmental impacts,

in each case, taking into account any changes in the use or intensity of use of the [Demised Premises/ [and/or the] Building] (and ‘improve the Environmental Performance’ shall be construed in a like manner).

Landlord Access Protocol means the protocol to be observed by the Landlord when entering the Demised Premises for the purposes set out in clauses [insert clause numbers for access, data sharing and metering and extending the landlord’s rights of access and to do works] and attached in Appendix [●]. 

[Drafting note: The Landlord Access Protocol can contain parameters around entry such as: 

  • reasonable prior notice [in writing] to be given by the Landlord to the Tenant in advance of such proposed entry;
  • the installation of metering/ equipment not adversely affecting the Tenant’s beneficial use and occupation of the Demised Premises [to any material extent]; and
  • the Landlord making good, at its own expense, promptly and in a good and workmanlike manner, any damage to the Demised Premises caused by the carrying out of such works.

The above can be incorporated into any general landlord access protocol in the Lease.]

LEED means Leadership in Energy and Environmental Design which is an international green building rating programme that recognises best-in-class building strategies and practices in accordance with the guidelines of the U.S. Green Building Council.

LEED Certification means the LEED certification [obtained/ to be obtained] in respect of the [Demised Premises/ [and]/ the Building], being a LEED [Platinum/ Gold/ Silver/ Certified] rating, [LEED BD+C: Core and Shell/ LEED BD+C: New Construction/ LEED O+M: Existing Buildings/ LEED ID+C: Commercial Interiors] [LEED v4.1]. [Drafting note: LEED v4.1 is the current version (as of January 2023). The applicable rating and version should be inserted.]

Net Zero Target means a target to reduce and remove GHG Emissions, including by offsetting Residual Emissions, to achieve a balance between the [Landlord] [and Tenant]’s sources and sinks of GHGs by [2050/ insert specific date before 2050][, which aligns with the goals of the Paris Agreement].

Offset means buying carbon credits from a project:

(a) that has been verified by [insert name of voluntary standard] or the UNFCCC clean development mechanism [or successor UNFCCC mechanism] [Drafting note: Article 6.4 of the Paris Agreement replaces the clean development mechanism by 2026. New rules implementing this were agreed at COP26, the 26th UN Climate Change Conference of the Parties, a decision-making body responsible for monitoring and reviewing the UNFCCC. The COP meets annually];

(b) where the emissions of GHGs avoided, reduced or removed by the project are additional;

(c) [that prioritises removing GHGs from the atmosphere rather than avoiding or reducing third party emissions of GHGs;]

(d) that, for GHG removals, uses storage methods with a low risk of reversal over millennia; and

(e) that takes account of a just transition and addresses wider social and ecological goals.

Paris Agreement means a legally binding international treaty on climate change adopted by 196 nations and territories at COP21 in Paris on 12 December 2015 and entered into force on 4 November 2016.

Race to Zero means the UN-backed global campaign rallying non-state actors – including companies, cities, regions, financial and educational institutions – to take rigorous and immediate action to halve global emissions by 2030 and deliver a healthier, fairer zero carbon world in time.

Residual Emissions means the GHG Emissions that are emitted after all reasonable efforts have been made by the [Landlord] [and Tenant] to reduce GHG Emissions.

Tenant Access Protocol means the protocol to be observed by the Tenant when entering the [Common Areas/ Retained Parts] for the purposes set out in clause [insert clause number for tenant rights of entry/ to carry out remedial works/ compliance with notices] and attached in Appendix [●]. 

[Drafting note: The Tenant Access Protocol can contain parameters around entry such as: 

  • reasonable prior notice [in writing] to be given by the Tenant to the Landlord/ Management Company/ Managing Agent in advance of such proposed entry;
  • the installation of metering/ equipment not adversely affecting the Landlord’s/ Management Company’s/ other tenants’ beneficial use of the [Common Areas/ Retained Parts] [to any material extent]; and
  • the Tenant making good, at its own expense, promptly and in a good and workmanlike manner, any damage to the [Common Areas/ Retained Parts] caused by the carrying out of such works.

The above can be incorporated into any general tenant access protocol in the Lease.]

Tenant’s Reports has the meaning given to it in clause [6.2(a)].

[Drafting note: Capitalised terms relate to either a defined term in these clauses or a defined term in the main lease that these clauses are designed to be inserted into.]

 

Additional clauses 

1. Sustainability and environmental performance

[Drafting note: The alternative clauses in this clause [1] provide for the parties to agree to work together in relation to environmental matters, not necessarily to agree to any particular strategy.]

1.1 Net Zero [Drafting note: This may be included as a recital to the Lease]

The Landlord and Tenant [have signed up to the Race to Zero and] acknowledge their common intention to achieve their respective organisational net zero targets and align with the ultimate objectives of the Paris Agreement (in particular pursuing efforts to limit global temperature increase to 1.5 degrees Celsius above pre-industrial levels and achieving net zero or net negative emissions by 2050 or sooner) [Drafting note: This may require updating if, as at the date of the Lease, the Paris Agreement is replaced or superseded, or the climate change objectives change], in a manner that promotes a just transition to a low carbon economy and that results in at least a 7% reduction of GHG Emissions year on year.  

[OR]

The Landlord and Tenant acknowledge their common intention to achieve their respective organisational net zero targets and align with the national climate objective in the Climate Action and Low Carbon Development Acts 2015 to 2021 which bind Ireland to achieve net zero emissions by 2050 [Drafting note: This may require updating if, as at the date of the Lease, the Climate Action and Low Carbon Development Acts are replaced or superseded, or the climate change objectives change].  

1.2 Efficiency Objective 

The parties acknowledge that in complying with their obligations under this Lease, each will use [reasonable] endeavours to act in accordance with the Efficiency Objective.

[OR]

1.2 Co-operation 

The Landlord and Tenant:

(a) confirm that [wherever reasonably practicable] they wish to promote and improve the Environmental Performance of the Demised Premises and the Building; and

(b) agree [to use [reasonable] endeavours] to co-operate with each other to identify appropriate strategies for the improvement of the Environmental Performance of the Demised Premises and the Building.

[OR]

1.2 Environmental Performance

The Tenant acknowledges the Landlord’s ambition to improve the Environmental Performance of the Building and the Tenant shall reasonably consider any Landlord request to partake in such measures.   

2. Environmental Performance Plan (where plan not yet in place) 

[Drafting note: The Tenant should consider any costs and/or impact (either direct or indirect) on the operation of their business arising from the implementation of and ongoing compliance with the Environmental Performance Plan.]

2.1 As part of an effort to improve the Environmental Performance of the Demised Premises [and the Building] the Landlord and Tenant agree that they shall comply with the following provisions in this clause [2].

2.2 Co-operation and working together

(a) Improving Environmental Performance

The Landlord and Tenant shall use [reasonable] endeavours to co-operate with each other to identify appropriate strategies to improve the Environmental Performance of the Demised Premises [and the Building] including, but not limited to, implementing and complying with the Environmental Performance Plan. [Drafting note: In each clause referencing reasonable endeavours, consider the standard of endeavours required, e.g. reasonable, all reasonable, or [all] reasonable but commercially prudent endeavours.]

(b) Improvements to services

[The Landlord and Tenant shall use [reasonable] endeavours to agree improvements to the services provided by the Landlord [and/or the Management Company] or the managing agent for the Building which could [reasonably] improve the Environmental Performance of the Demised Premises [and the Building].] [Drafting note: This is an optional clause which could alternatively be incorporated into the Service Charge provisions of the Lease.]

(c) Managing waste

The Landlord and Tenant shall measure and monitor waste from the Demised Premises [and the Building] in an effort to minimise waste and maximise diversion of waste from landfill and incineration (i.e. towards recycling and reuse) in accordance with waste hierarchy* and circular economy principles.**

* [Drafting note: The foundation of EU waste management is the five-step ‘waste hierarchy’ established in the EU Waste Framework Directive. It establishes an order of preference for managing and disposing of waste.]

** [Drafting note: While there is no single accepted definition of a ‘circular economy’, it is generally understood that the ‘transition to a circular economy’ entails a reduced demand for natural resources, and the materials that are derived from them. The European Commission adopted the new Circular Economy Action Plan in March 2020 as one of the main building blocks of the European Green Deal. In Ireland, The Circular Economy and Miscellaneous Provisions Act 2022 underpins Ireland’s shift from a ‘take-make-waste’ linear model to a more sustainable pattern of production and consumption, that retains the value of resources in its economy for as long as possible with the aim of significantly reducing its GHG emissions.]

(d) Sharing data

The Landlord and Tenant shall use [reasonable] endeavours to share the Environmental Performance Data they hold relating to the Demised Premises [and the Building] with each other on a regular basis, but not more frequently than [monthly/ quarterly/ bi-annually/ annually]. At the direction of the Landlord, the Tenant shall share the Environmental Performance Data it holds relating to the Demised Premises with the Management Company and/or any managing agent appointed by the Landlord [and/or any Environmental Consultant] and/or any [energy/ environmental] assessor appointed in connection with assessing, reporting on and authorising the issuing of the [Certification and/or] BER Certificate in respect of the [Demised Premises/ [and/or the] Building].

(e) Environmental Performance Plan

The Landlord and Tenant shall use [reasonable] endeavours to agree an Environmental Performance Plan within [●] months of the Term Commencement Date.

(f) Tenant’s employees etc.

The Tenant shall familiarise its employees[, under-lessees*] and, where appropriate, its contractors, servants, agents, licensees or invitees or any person under its or their control, with the content of the Environmental Performance Plan and instruct them to comply with the provisions contained therein.

* [Drafting note: This may be covered by the alienation covenant of the Lease which requires any sub-lease to contain the same covenants and conditions as the head lease.]

(g) Reviewing the Environmental Performance Plan

The Landlord and Tenant shall review the Environmental Performance Plan [on a regular basis/ every twelve (12) months] and adjust it where necessary.

Provided always that it is hereby acknowledged and agreed that:

(i) The Tenant shall not be obliged to share commercially sensitive information with the Landlord in furtherance of this clause [2]; and

(ii) The Landlord shall not be responsible for the compliance by any tenant or occupier of the Building with any Environmental Performance Plan or any energy efficiency strategy, measures or targets [and the Landlord shall not be obliged to take any steps to procure such compliance by any tenants or occupiers] [Drafting note: This is less onerous wording to cover off that the Landlord is not required to ensure that tenants comply with the Environmental Performance Plan][; and

(iii) The Tenant acknowledges that there are other tenants in the Building and that the Landlord will not be in a position to agree anything which another tenant (who may be affected) will not agree to, that tenants may change their approach and that the tenants in the Building will change from time to time] [Drafting note: Optional clause to cover off the dynamic nature of a shared building structure].

3. Environmental Performance Plan (where plan already in place) 

3.1 The Landlord will provide to the Tenant an Environmental Performance Plan [before entering into this Lease] to promote the sustainable use and management of the Demised Premises [and the Building] [and reserves the right to review the Environmental Performance Plan and its implementation [on a regular basis/ every 12 months] and adjust it where necessary].

3.2 [At the request of the Tenant, the Landlord shall: 

(a) discuss the aims of the Environmental Performance Plan, including how such aims are to be carried out, and, 

(b) where the Tenant has ideas to promote the sustainable use and management of the Demised Premises [and the Building], take such ideas into consideration.] [Drafting note: Optional clause for the Landlord and Tenant to discuss the Environmental Performance Plan and agree approach.]

3.3 The Tenant shall [use all reasonable endeavours to] comply with all [proper and reasonable] requirements imposed by the Landlord in relation to the implementation of the Environmental Performance Plan to achieve the stated aims of the Environmental Performance Plan. 

3.4 [The Tenant shall familiarise its employees[, under-lessees*] and, where appropriate, its contractors, servants, agents, licensees or invitees or any person under its or their control with the content of the Environmental Performance Plan and instruct them to comply with the provisions contained therein.]

* [Drafting note: This may be covered by the alienation covenant of the Lease which requires any sub-lease to contain the same covenants and conditions as the head lease.]

3.5 [The Tenant acknowledges that there are other tenants in the Building and that the Landlord will not be in a position to agree anything which another tenant (who may be affected) will not agree to and that tenants may change their approach and that the tenants in the Building will change from time to time.] [Drafting note: Optional clause to cover off the dynamic nature of a shared building structure.]

3.6 The Landlord will not [unreasonably] impose requirements under this clause which materially restrict the rights of the Tenant under this Lease [and/or which are unreasonably onerous].

3.7 It is agreed that the Landlord shall not be responsible for the compliance by any tenant or occupier of the Building with any Environmental Performance Plan or any energy efficiency strategy, measures or targets [and the Landlord shall not be obliged to take any steps to procure such compliance by any tenants or occupiers.] [Drafting note: Less onerous wording covering off that the Landlord is not required to ensure that tenants comply with the Environmental Performance Plan.]

3.8 If any provisions of the Environmental Performance Plan are at variance to any provisions of this Lease, the provisions of the Lease shall prevail.

4. Confidentiality 

4.1 Save where they are under a statutory obligation of disclosure, the Landlord and Tenant shall keep confidential the Environmental Performance Data shared under this Lease, and shall only use such data for the purposes of:

(a) monitoring and improving the Environmental Performance of the [Demised Premises/ [and/or the] Building]; 

(b) measuring the Environmental Performance of the [Demised Premises/ [and/or the] Building] against any agreed targets, including, but not limited to, any targets contained in an Environmental Performance Plan [or the Efficiency Objective]; 

(c) obtaining, maintaining and/or renewing the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises/ [and/or the] Building];

(d) enabling an Environmental Consultant appointed under this Lease to carry out any and all of their functions and obligations in accordance with the terms of this Lease; and/or

(e) establishing the extent of compliance by the Landlord and Tenant with their respective obligations under the Green Clauses.

4.2  The Landlord will procure that the Management Company [and/or any managing agent appointed by the Landlord and/or any Environmental Consultant and/or any [energy/ environmental] assessor] is placed under a similar obligation to that set out in clause [4.1] to keep any shared Environmental Performance Data confidential and to use it only for the purposes listed in that clause.  

4.3 Where the Landlord or Tenant discloses any shared Environmental Performance Data to a third party, they shall procure that that third party is placed under a similar obligation to that set out in clause [4.1] to keep any shared Environmental Performance Data confidential and to use it only for the purposes listed in that clause.

4.4 The Landlord and Tenant undertake to observe all Applicable Laws with regard to the possession or use of any Environmental Performance Data.

5. Building Management Forum

5.1 Building Management Forum

The Landlord [has provided/ will provide] a forum for the Landlord and tenants of the Building to:

(a) consider the adequacy of Environmental Performance Data and agree strategies to improve the sharing of Environmental Performance Data;

(b) review the Environmental Performance of the Demised Premises and/or the Building; and

(c) agree targets and strategies to improve the Environmental Performance of the Demised Premises and/or the Building on a regular basis,

(the Building Management Forum), which will operate for so long as there are two (2) or more tenants occupying any part of the Building.  

5.2 The Building Management Forum [takes/ may take] the form of a building management group which meets in person, but alternative appropriate means of communication and/or exchange of views shall be acceptable.

5.3 [The Landlord and current tenants of the Building have nominated a suitable person to participate on their behalf in the Building Management Forum. The Landlord agrees to use [reasonable] endeavours to ensure that its nominee attends or participates in any Building Management Forum meetings or discussions of which appropriate advance notice has been given.] [Drafting note: Where the Forum has already been established and the Landlord and tenants of the Building have nominated a suitable person to participate on their behalf.]

5.4 The [Landlord and]* Tenant will [each] nominate a suitable person to participate on their behalf in the Building Management Forum, and will use [reasonable] endeavours to ensure that their nominee attends or participates in any Building Management Forum meetings or discussions of which appropriate advance notice has been given.

* [Drafting note: Where this is the first lease of part of the Building or the first lease where the Landlord commits to providing a Building Management Forum and the Landlord has not yet appointed its nominee.]

5.5 The Landlord and Tenant may agree that third parties may participate in the Building Management Forum for a specified period and/or for a specified purpose. 

5.6 The Landlord will use reasonable endeavours to ensure that a representative of [the Management Company and/or] the managing agent for the Building as appointed by the Landlord from time to time attends or participates in any Building Management Forum meetings or discussions of which appropriate advance notice has been given.

5.7 Where any of the issues considered or reviewed in the Building Management Forum relate exclusively to the Demised Premises, either the Landlord or the Tenant may request that these are also discussed directly between the Landlord and Tenant and their authorised agents.

5.8 The Landlord confirms that it has and will continue to use [reasonable] endeavours to negotiate the inclusion of clauses similar to the above clauses [5.1] to [5.7] in other leases of the Building (mutatis mutandis), it being acknowledged by the Tenant that membership of the Building Management Forum is not mandatory and the role of the Building Management Forum is one of discussion, consultation and recommendation.  

[OR]

5. Building Management Forum

[Drafting note: This clause is more detailed than the previous clause in terms of the role of the Building Management Forum and how it is to be formed. It also requires a Building Management Forum protocol to be established. However, it does not propose to place any positive obligation on the parties.]

Landlord’s Environmental Representative means [●] or such replacement representative as may be notified in writing from time to time.

Tenant’s Environmental Representative means [●] or such replacement representative as may be notified in writing from time to time.

5.1 The Landlord [has provided/ will provide] a forum for the Landlord and tenants of the Building to:

(a) consider the adequacy of Environmental Performance Data and agree strategies to improve the sharing of Environmental Performance Data;

(b) review the Environmental Performance of the Demised Premises and/or the Building; and

(c) agree targets and strategies to improve the Environmental Performance of the Demised Premises and/or the Building on a regular basis,

(the Building Management Forum).

5.2 The Building Management Forum [is/ will be] made up of the Landlord’s Environmental Representative and the environmental representatives of the tenants of the Building, including the Tenant’s Environmental Representative (collectively described as the Tenants’ Representatives) and will operate for so long as there are two (2) or more tenants occupying any part of the Building.

5.3 The Landlord’s Environmental Representative and the Tenant’s Environmental Representative do not need to be accredited experts or hold specialist qualifications but will have the competence and the authority of the respective parties to:

(a) properly and effectively administer the respective obligations of the Landlord’s Environmental Representative and the Tenant’s Environmental Representative as they relate to the Building Management Forum;

(b) make decisions on behalf of the relevant party within the scope of the Building Management Forum’s functions and responsibilities;

(c) issue information and notices and communicate on behalf of the relevant party in the context of the Building Management Forum; and

(d) take action on behalf of the relevant party to facilitate performance by the Building Management Forum of its functions and responsibilities.

5.4 For the avoidance of doubt, the parties agree that the role of the Building Management Forum is one of discussion, consultation and recommendation.  The Landlord’s Environmental Representative and the Tenant’s Environmental Representative are not entitled to exercise any legal rights or remedies of the parties under this Lease including, but not limited to:

(a) any approval or variation of the Environmental Performance Plan;

(b) enforcing the rights and remedies of the relevant party;

(c) binding the relevant party to doing or refraining from doing anything;

(d) engaging in any remedial action; or

(e) determining the position of a party in relation to any difference or dispute which may arise under this clause.

5.5 Nothing in clause [5.3] is to be construed as entitling the persons performing the role of the Tenant’s Environmental Representative and the Landlord’s Environmental Representative to bind the respective parties unless those persons:

(a) are also the nominated representatives of the respective parties under the Lease in a capacity other than as the Landlord’s Environmental Representative and the Tenant’s Environmental Representative; and

(b) are empowered to bind the respective parties by virtue of other provisions of the Lease.

5.6 The Building Management Forum will meet [quarterly] or as otherwise recommended by the Landlord’s Environmental Representative and the Tenants’ Representatives for the purposes of addressing any matters or issues which arise under this clause. A preliminary protocol for the Building Management Forum is [attached at [Appendix [●]]/ contained in the Tenant Handbook] and this will apply until it is otherwise varied by agreement between the Landlord’s Environmental Representative and the Tenants’ Representatives.

5.7 The parties agree that it is essential to maintain all information, including Environmental Performance Data for the [Demised Premises/ [and/or the] Building], plans, documents, maintenance contracts, specifications, maintenance reports and maintenance schedules necessary to: 

(a) enable an [energy/ environmental] assessor to assess, report on and authorise the issuing of the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises/ [and/or the] Building];

(b) [as far as reasonably practicable, ]enable an Environmental Consultant appointed under this Lease to carry out any and all of their functions and obligations in accordance with the terms of this Lease; and

(c) establish the extent of compliance by the Landlord and Tenant with their respective obligations under the Green Clauses. 

5.8 The Landlord and Tenant will: 

(a) approve the location for the storage of the reports and other information held by the Building Management Forum;

(b) take all necessary steps to ensure the security of those reports and information; and 

(c) keep those reports and information confidential except to the extent necessary to:

(i) comply with a statutory obligation of disclosure;

(ii) enable the parties to perform their roles and obligations under the Lease and to establish the extent of their compliance with their respective obligations under the Green Clauses; 

(iii) enable an Environmental Consultant to exercise their powers and perform their role and obligations under this Lease; or

(iv) obtain, maintain and/or renew the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises [and/ or the] Building].

5.9 The Landlord and Tenant will provide or give access to the reports and information required under this clause to the Building Management Forum to the extent that it is practicable for each party to do so. This clause does not require the parties to disclose information which would otherwise be confidential. [An indicative list of the reports typically required to be provided to the Building Management Forum is included in the [Building Management Forum Protocol/ Tenant Handbook].]

5.10 [The Landlord and Tenant shall bear their own costs in connection with the establishment and operation of the Building Management Forum and will not pass on to each other directly or indirectly the costs for which they are each responsible under this clause [5].]

[Drafting note: In a new building, the cost of establishing and operating the Building Management Forum could be included in the Service Charge. However, in an existing building, where the Service Charge does not include such costs, the parties should consider who will bear the costs and may include this clause if the parties are to bear their own costs.]

5.11 [The Landlord confirms that it has used (and will continue to use) reasonable endeavours to negotiate the inclusion of clauses similar to this clause in other leases of the Building (mutatis mutandis), it being acknowledged by the Tenant that membership of the Building Management Forum is not mandatory and the role of the Building Management Forum is one of discussion, consultation and recommendation.] 

6. Access, data sharing and metering

6.1 Landlord right of access and metering to measure Environmental Performance 

[Subject to the Landlord Access Protocol, the]* [The] Tenant agrees to permit the Landlord and/or its agents and all persons authorised by the Landlord [at all reasonable times on giving reasonable prior written notice to the Tenant (save in cases of emergency where no notice is required)]* to enter and remain on the Demised Premises (with or without workmen, contractors, materials and equipment) for any of the following purposes:

* [Drafting note: Include where the Lease contains a Landlord Access Protocol.]

(a) measuring the Environmental Performance of the [Demised Premises/ [and/or the] Building] and undertaking environmental surveys and/or meter readings at the Demised Premises to prepare reports on the Environmental Performance  of the [Demised Premises/ [and/or the] Building];

(b) reviewing or measuring the Tenant’s energy and water use and its waste generation and waste management, save where up-to-date information in this respect has already been provided to the Landlord by the Tenant; and

(c) carrying out [at the Landlord’s expense]* works [which are agreed by the Tenant (acting reasonably) and are] intended to improve the Environmental Performance of the [Demised Premises/ [and/or the] Building].

* [Drafting note: Alternatively, such works may be included in the schedule of Services so that the costs of such works are included in the Service Charge.]

6.2 Data sharing and reporting

(a) The Tenant shall provide to the Landlord [and/or the Building Management Forum], and/or (at the direction of the Landlord) [the Management Company,] any managing agent appointed by the Landlord[, [and/or any  Environmental Consultant] [and/or any [energy/ environmental] assessor appointed in connection with assessing, reporting on and authorising the issuing of the Certification and/or such other accredited sustainability or green building rating certificate and/or BER Certificate in respect of the [Demised Premises/ [and/or the] Building]]:

(i) [quarterly/ half-yearly/ annual] reports on its usage of Utilities (to include usage of any permitted sub-tenant or licensee), [detailing any reductions in such usage over the past [●] [months]/ [years]]; 

(ii) [quarterly/ half-yearly/ annual] reports detailing the quantum and type of waste generated at the Demised Premises and the method of disposal;

(iii) [quarterly/ half-yearly/ annual] reports on the Environmental Performance of the Demised Premises]; and

(iv) any Environmental Performance Data which the Landlord may require in connection with compliance with any Applicable Laws,

together called the Tenant’s Reports.

(b) On the expiration or earlier determination of the Term, the Tenant shall, if requested, provide any Environmental Performance Data reasonably required by the Landlord.

(c) [Subject, where necessary, to the provision of all required information by the tenants of the Building, including but not limited to the Tenant’s Reports, to the Landlord, the]* [The] Landlord shall provide to the [Tenant and/or the Building Management Forum]:

(i) [quarterly/ half-yearly/ annual] reports on the usage of Utilities in connection with the [Common Areas/ Retained Parts/ Building/ the provision of the Services] [detailing any reductions in such usage over the past [●] [months]/ [years]]; and 

(ii) [quarterly/ half-yearly/ annual] reports detailing the quantum and type of waste generated in connection with the [Common Areas/ Retained Parts/ Building/ the provision of the Services] and the method of disposal; and

(iii) [quarterly/ half-yearly/ annual] reports on the Environmental Performance of the [Common Areas/ Retained Parts/ Building.]

* [Drafting note: Include the wording in square brackets where the Landlord is to produce reports in respect of the Building (not just the Common Areas/ Retained Parts) on the basis that such reports may be required to enable the Landlord to produce the reports in respect of the Building.]

(d) The [Landlord or the Building Management Forum] shall determine the format of the reports referenced in this clause [6.2].**

(e) All reports will be written reports and a complete copy will be provided to: 

(i) the Landlord (where the report is prepared by or for the Tenant);

(ii) the Tenant (where the report is prepared by or for the Landlord); 

(iii) [the Building Management Forum (where the report is prepared by or for the Tenant or the Landlord or otherwise for the purpose of [this Lease/ clause(s) [insert relevant clause number(s)]);] and

(iv) at the direction of the Landlord (where the report is prepared by or for the Tenant), the Management Company and/or any managing agent appointed by the Landlord [and/or any  Environmental Consultant].

(f) The costs of preparing the reports will be borne by the party responsible under [this Lease/ clause(s) [insert relevant clause number(s)]] for preparing them and will not be passed on to the other party directly or indirectly.

** [Drafting note: The parties may wish to consider listing the type of information to be included in these reports in an appendix to the Lease or in any tenant handbook. Such information could include:  

  • an assessment or description of the progress and performance of the party/ parties against the relevant target, strategy or plan arising from the respective obligations under the Lease;
  • how the progress and performance was monitored over the relevant reporting period;
  • if progress or performance has not met the target, strategy or plan (or it appears that the annual target, strategy or plan will not be met), reasons for this failure, and detailed explanation of how this will be rectified and progress and performance improved;
  • measures to be taken during the next reporting period to ensure targets, strategies and plans are achieved;
  • if the target, strategy or plan is due to be revised a suggested new target, strategy or plan that where feasible and practicable improves on the previous target, strategy or plan, if possible drawing on experience detailed in the report and previous reports;
  • any cost savings that have been achieved for that reporting period; and
  • any other information relevant to the parties’ performance against the target, strategy or plan.]

6.3 Metering (Landlord’s option) 

(a) The Landlord may [at its own cost] install equipment (whether fiscal meters, sub-meters or check meters or other equipment) to measure the [supply of Utilities supplied to the Demised Premises/ Environmental Performance of the [Demised Premises/ [and/or the] Building]] and [subject to compliance with the Landlord Access Protocol,] the Landlord and/or its agents shall have the right to enter and remain on the Demised Premises (with workmen, contractors, and necessary equipment) at reasonable times in order to carry out such works.

(b) The Landlord (acting reasonably and in accordance with the principles of good estate management) shall be entitled to install separate metering of Utilities used in the Common Areas [and to recoup the cost thereof from the Service Charge]. 

6.4 Metering (Tenant’s option)

The Tenant may request the Landlord to install (at the Tenant’s expense) a sub-meter or check meter to monitor the supply of Utilities supplied to the Demised Premises. The Landlord shall, where the installation is [reasonably] practicable, and the Tenant has made available the necessary funds, carry out or procure the carrying out of such works within a reasonable time and in a good and workmanlike manner.

[OR]

The Tenant may install (at its own expense) within the Demised Premises a sub-meter or check meter to monitor the Utilities supplied to the Demised Premises.

[OR]

[Subject to the Landlord’s prior written consent (not to be unreasonably withheld or delayed), and subject to compliance with the Tenant Access Protocol, the Tenant may enter and remain on the Common Areas to install separate metering of the Utilities used in the Demised Premises.]

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