Innovation September-October 2013

Installation of newer types of building components, such as green roofs and rain gardens, may give rise to unforseen or hidden costs.

against liability claims on the basis that it established and complied with a reasonable inspection policy. However, such policies should be reviewed and reconsidered when circumstances have changed, particularly where infrastructure has been constructed with materials or elements that vary from those with known and established performance capabilities. For example, the frequency at which a traditional concrete sidewalk is inspected for trip hazards may not be reflective of the frequency at which inspections should be carried out for sidewalks constructed from a rubberized compound. The reasonable inspection schedule set out by policy serves as a standard against which a municipality’s operational conduct may be tested against in a liability assessment. So, in the event that a damage claim arises in a situation where fewer inspections than required by policy were performed (perhaps because innovative product use reduced the number of required inspections), it could be argued that the municipality was negligent in not complying with its documented practice. To foreclose this argument, it would be prudent that the policy be updated to reflect current practice. Future Maintenance Obligations Installation of newer types of building components, such as green roofs and rain gardens, may give rise to unforseen or hidden costs, whether they be administrative or financial in nature. Despite the environmental benefits offered by such greener alternatives, they also have potentially unforeseen performance issues which may require owners to absorb costs of unwarranted maintenance, replacement or repair. For a municipal owner, the key is to ensure that such unforeseen risks are properly allocated up-front where possible, particularly where relatively innovative

materials are used but do not have a developed and tested performance history to rely upon. The performance characteristics of many engineering materials such as concrete and asphalt are very well established and their wear and tear and other performance measures are more predictable. However, where such materials are modified or replaced with innovative products, the projected performance parameters may not materialize with the same certainty as their predecessors. Where uncertainty exists, municipal owners may want to consider negotiating extended warranty periods, incorporating a period for acceptance testing before warranty periods

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