In a prior blog entry here, we provided an introduction and overview of the newly released American Institute of Architects (AIA) Document D503-2011, “Guide for Sustainable Projects”. This blog entry focuses on application of the “Guide for Sustainable Projects” from the Architect’s perspective.
The AIA B101-2007 Owner-Architect Agreement does not contain a defined process for (1) establishing sustainable project goals; (2) incorporating the steps necessary to achieve those goals into the contract documents; (3) allocating responsibility for achieving those goals among the project team members; and (4) addressing the question of what damages, if any, may flow from the failure to achieve the sustainable project goals. The Guide for Sustainable Projects aims to fill these gaps by providing model contract language that may be incorporated into the B101-2007 to help add definition to these issues. The model contract provisions outlined in the Guide include the following:
- Special Definitions—New definitions include “Sustainable Objective”, “Sustainable Measure”, “Sustainability Plan”, “Sustainability Certification”, “Documentation for Certification”, and “Certifying Authority”. In essence, the “Sustainability Objective” is the defined sustainable goal for the project, which could include third-party certification or other sustainable goals not involving project certification or registration. Once the “Sustainability Objective” is defined, the “Sustainable Measures” are identified, including specific design elements or construction means or methods that are necessary to achieve the “Sustainability Objective”. The “Sustainability Plan” is the document that specifically identifies and describes the “Sustainability Objective” and that allocates roles and responsibilities for individual achievement of the “Sustainable Measures”.
- Additional Services for the Architect—Using the Special Definitions as a framework, the Guide for Sustainable Projects provides model contract language that can be incorporated into the AIA B101-2007 under Section 4.4 as Additional Services for the Architect. The model language contemplates that the Architect will be responsible for working with the Owner to define the Sustainable Objective and to prepare the Sustainability Plan that identifies and describes the individual Sustainable Measures. Compensation for these Additional Services should be addressed in Section 11.2, as well as adding provisions to Section 11.8.1 to include language relating to reimbursable expenses relating to the Sustainable Objective. The Guide contains model language for these issues as well.
- Substantial Completion—The Guide for Sustainable Projects emphasizes the importance of Architects educating Owners on situations where the achievement of the Sustainable Objective (including a Sustainability Certification) may not align with the timing provided under the standard definition of “Substantial Completion”. To assist in this education process, the Guide includes model language that may be inserted in Section 3.6.6.1 to clarify that “Substantial Completion does not include award of the Sustainability Certification or verification or certification that the Sustainable Objective has been met.”
- Warranties, Guarantees and Damages—Architects should know by now that there are legal perils awaiting design professionals that attempt to “warrant” or “guarantee” achievement of sustainable project goals, including LEED certification. The Guide addresses some of these potential legal pitfalls, and further includes model language to clarify that the Architect does not warrant or guarantee that the Project will be granted LEED certification. Further, the Guide has model language to add to the mutual waiver of consequential damages in Section 8.1.3.1 to make clear that the waiver includes damages resulting from the failure of the Project to achieve the Sustainable Objective or one or more Sustainable Measures including unachieved energy savings, unintended operational expenses, lost financial or tax incentives, or unachieved gains in worker productivity.
Like any guide document with model contract language, there is no “one size fits all” solution for all project scenarios. Architects should familiarize themselves with the Guide and work with legal counsel to prepare a contract form that sufficiently addresses the unique aspects that may be present in these types of sustainable projects.