The American Institute of Architects Releases New Sustainable Project

On May 17, 2012, the American Institute of Architects (the "AIA") released five new construction documents relating to sustainable project construction, or "green" related projects, and an updated scope of services documents for LEED^® Certification.

The Sustainable Project (the "SP") documents are the 2007 versions of standard AIA contracts that have been modified to address the unique elements of sustainable design and construction. The SP documents may be used for various types of sustainable construction projects, including those seeking LEED^® certification.

The new SP AIA Contract Documents include:

1. A101™–2007 SP, Standard Form of Agreement between Owner and Contractor, for use on a Sustainable Project where the basis of payment is a Stipulated Sum
2. A201™–2007 SP, General Conditions of the Contract for Construction, for use on a Sustainable Project
3. A401™–2007 SP, Standard Form of Agreement Between Contractor and Subcontractor, for use on a Sustainable Project
4. B101™–2007 SP, Standard Form of Agreement Between Owner and Architect, for use on a Sustainable Project
5. C401™–2007 SP, Standard Form of Agreement Between Architect and Consultant, for use on a Sustainable Project
6. B214™–2012, Standard Form of Architect’s Services: LEED^® Certification

Below is a sampling of the significant features of the AIA SP contracts.¹ The contract provisions are not reproduced in their entirety, but are summarized or paraphrased. For a complete understanding of the various issues, the entire contracts should be reviewed.

1. A101™–2007 SP, Standard Form of Agreement between Owner and Contractor, for use on a Sustainable Project where the basis of payment is a Stipulated Sum

• The only substantial change is the addition of § 9.1.7 ("The Sustainability Plan"). This section allows the parties to "[i]dentify the document or documents that compromise the Sustainability Plan by title, date and number of pages, and include other identifying information."

2. A201™–2007 SP, General Conditions of the Contract for Construction, for use on a Sustainable Project ◦

• Definitions- The major changes in A201 – 2007 SP are the additions of the new SP definitions. Interestingly, the AIA, did not choose to define "sustainable;" however, the updated version does contain the definitions paraphrased below:
  • Sustainable Objective – Owner’s goal to achieve certain certifications or other benefits to environment, health, or energy efficiency. §1.1.9.1
  • Sustainable Measure – Design or construction elements to achieve objectives. §1.1.9.2
  • Sustainability Plan – Describes sustainable objectives, measures and strategies and specifies roles of Owner, Architect, Contractor and others in achieving. §1.1.9.3
  • Sustainability Certification –Third party sustainable or green certification such as LEED®, Green Globes™, Energy Star etc. § 1.1.9.4
  • Sustainability Documentation – Documentation relating to sustainable objectives and measures including the submissions to third party Certifying Authority. §1.1.9.5
  • Certifying Authority– Third party that establishes sustainable criteria and grants certification, such as the United States Green Building Council (the "USGBC"). §1.1.9.6
• Highlights of Contract Provisions
  • The Contractor must meet with the Owner and Architect to discuss alternatives, if either the Owner or Architect recognize a condition that could impact the achievement of a Sustainable Measure or the Sustainable Objective. Also, if any condition is discovered that will negatively affect the Contractor's achievement of a Sustainable Measure, the Contractor must notify the Architect and meet with the Architect and Owner to discuss alternatives. §3.2.2.1
  • Nothing in the Contractor's warranty shall be construed as a guarantee or warranty by the Contractor that the Project will achieve the Substantial Objective. §3.5.2
  • If the Contractor's design professional proposes using materials or equipment that has had limited testing or verification of its performance, the Contractor must discuss with the Architect and Owner the effects on the Sustainable Objective if the materials or equipment fail to perform. The Owner will provide a written decision about whether to proceed with the proposed materials or equipment. If the Owner elects to use them, the Contractor and Architect shall be permitted to rely on the manufacturer's or supplier's representations and will not be liable for damages possibly arising from their failure. §3.12.10.1
  • The Contractor must prepare and provide the Architect and the Owner a construction waste management plan for salvaging, recycling, or disposing waste from the Project. §3.15.2
  • The Architect must inform the Owner if a proposed change may impact a Sustainable Objective or Measure. §4.2.8
  • The Contractor must submit all of its required Sustainability Documentation by the date of Substantial Completion. The Project achieving the Sustainable Objective is not a condition precedent to the issuance of a Certification of Substantial Completion and is not be a condition precedent to the issuance of the final Certificate for Payment. §9.8.1 and §9.10.1
  • Owner and Contractor mutually waive damages from failure to achieve Sustainable Objective, energy savings, tax incentives, etc. §15.1.6.3

3. A401™–2007 SP, Standard Form of Agreement Between Contractor and Subcontractor, for use on a Sustainable Project

• Cleaning Up – §4.4
  • The Subcontractor must "recycle, reuse, remove or dispose of materials as required by the Contract Documents." §4.4.1
  • The Subcontractor must also prepare and submit to the Contractor a "construction waste management and disposal plan" for handling construction waste generated by the Project. §4.4.2
• Warranty – No performance by the Subcontractor of the Sustainable Measures will constitute a guarantee or warranty by the Subcontractor that the Project will achieve the Sustainable Objective. §4.5.2

4. B101™–2007 SP, Standard Form of Agreement Between Owner and Architect, for use on a Sustainable Project

• Project Completion – The achievement of the Sustainable Objectives is not a condition precedent to the Architect's issuance of a Certificate of Substantial Completion. §3.2.5.6.1
• Scope of Architect's Sustainability Services – §3.3
  • This describes additional SP related services that the Architect must provide, including:
  1. Sustainability Certification Agreements – If the Sustainable Objectives contain a Sustainability Certification , the Architect must provide the Owner with copies and review. §3.3.2
  2. Sustainability Workshop – Before end of the Schematic Design Phase, the Architect must conduct a Sustainability Workshop where the parties review the "Sustainability Certification; establish the Sustainability Objective; discuss potential Sustainable Measures to be targeted; examine strategies for implementation of the Sustainable Measures; and discuss the potential impact of the Sustainable Measures on the Project schedule and the Owner's program and budget." §3.3.3
  3. Sustainability Plan Services - Architect must prepare the plan based on the Sustainable Objective and Measures. §3.3.4.1
  • Design Phases – §3.3.5
  1. The Architect must prepare the design and construction documents that "incorporate the Sustainable Measures identified in the Sustainability Plan . . . ." §3.3.5
  2. The Architect must discuss the proposed use of materials or equipment that may have had limited testing with the Owner. The Owner must provide a written decision about whether to use such materials or equipment. If the Owner chooses to use the materials or equipment, the Architect will not be responsible for damages arising from the failure of the material or equipment to perform in accordance with the manufacturer's or supplier's representations. §3.3.5.2
  • Construction Phase – §3.3.6
  1. The Architect must advise the Owner of the progress of achieving the Sustainable Measures of the Project and notify the Owner of any deviations from the design and deficiencies in the Work that "will impact achievement of Sustainable Measures." §3.3.6.1
  2. If the Architect believes that a proposed change will impact a Sustainable Measure or the Sustainable Objective, the Architect must notify the Owner. §3.3.6.2
  • Project Registration and Submissions of Sustainability Documentation to Certifying Authority – The Architect must prepare and submit the application and any required supporting documentation to the Certifying Authority in accordance with the Sustainability Plan. §3.3.7.5
• Claims and Disputes – The mutual waiver of the Architect and Owner for consequential damages includes those consequential damages from failure of the Project to achieve the Sustainable Objective or from the failure to achieve one or more Sustainable Measures. §8.1.3.1
• Warranty – The Architect does not warrant or guarantee that the Project will achieve the Sustainable Objective. §10.9
• Incentive Programs - Owner must list the incentive programs it intends to pursue and the deadlines required for receiving the incentives. §A.1.7

5. C401™–2007 SP, Standard Form of Agreement Between Architect and Consultant, for use on a Sustainable Project

• Most revisions to the C401 expand the responsibility of the Consultant to Sustainability Services or Measures with the Project.
• If the Architect requests, the Consultant must attend the Sustainability Workshop. §3.1.6
• The Consultant does not provide a "guarantee that the Project will achieve the Sustainable Objective." §10.7

6. B214™–2012, Standard Form of Architect’s Services: LEED® Certification

• This document is an update to AIA Document B214-2007 and is the scope of services that establishes the duties and responsibilities when the Owner seeks certification from the LEED® program.
• This document may also be used to provide the scope of services for a prime architect who is providing the LEED® certification services, or for an architect that is providing services as a consultant.
• B214-2012 is not a stand-alone document and must be incorporated into an owner-architect agreement. But, B214-2012 should not be used with the AIA's SP documents, as those agreements already contain the applicable provisions.

The new AIA SP documents provide owners, contractors, subcontractors, architects, and consultants with an approach to manage the often complex or novel difficulties that may characterize a sustainable project.

For more information, please visit the AIA Press Release at: http://www.aia.org/press/AIAB094809 or a FAQ of the new agreements at: http://www.aia.org/groups/aia/documents/pdf/aiab093496.pdf.

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¹This is only a highlight of some of the significant changes, but is not intended to be an exhaustive list.