In May 2012, the American Institute of Architects issued a new series of documents for use on sustainable projects. The five new documents—bearing the “SP” designation—are based on the 2007 conventional versions of the A101 Owner-Contractor Agreement, A201 General Conditions for the Contract for Construction, A401 Subcontractor Agreement, B101 Owner-Architect Agreement, and C401 Architect-Consultant Agreement. The new sustainable project documents offer a contractual framework to assist owners, contractors, and design professionals to establish a project’s sustainability goals and effectively allocate roles, responsibilities, and risk that could arise from those elements of a project.
The AIA Sustainable Project documents are not limited to any single green-standard, code, or certification and are equally applicable to projects that do not intend to seek certification. Sustainable projects may seek to achieve increased building performance through decreased energy or water use, decreased operating costs, and use of sustainable materials. The concepts incorporated into the AIA Sustainable Project documents include special definitions, allocations of risks and responsibilities, new scope of service items, and integration with other documents in the sustainable project document family. Pursuant to the new documents, a sustainability plan is required to be prepared by the architect. The sustainability plan is intended to become a contract document and describes the sustainable objectives and measures that will be used by the project participants as well as each party’s roles and responsibilities.
Sustainable projects raise a number of legal issues. Design professionals, for example, typically require the owner to agree that they do not guarantee or warrant that the project will meet any specific sustainability objective or certification. Professional liability insurance coverage, like on conventional projects, will be tied to the professional standard of care. However, establishing the standard of care for sustainable projects, which often employ new and innovative (and continuously evolving) equipment, technologies, and designs, presents a moving target for the industry. Further, the sustainable project documents expand the conventional mutual consequential damages waiver to include damages that the owner may incur as a result of the project’s failure to achieve the intended sustainability objectives that may result in unachieved utility cost savings, operating expenses, and lost financial incentives. Similarly, owners typically craft contracts for sustainable projects to insure they are not left with a project that fails to meet the required certification level or building performance goals, leaving the owner with an asset that does not meet sustainability requirements of the owner’s lease or the applicable local and state building codes or environmental permits.
As with most AIA documents, the standard agreements present a starting point for owners, contractors, and design professionals on which contracts responsive to the particular needs of the parties, the project, and the geography may be crafted. The AIA Sustainable Project documents provide an excellent starting point for creating effective legal documents for sustainable projects that are quickly becoming the industry standard.