In recognition of the growing number of legal issues created through new sustainable and green construction methods, the American Institute of Architects (AIA) has released its D503-2011, which serves as a way of addressing some of these issues before the next generation of agreements are released in 2017. This guide is available as a free download here.
This D503-2011 provides suggested language and techniques to be used while parties continue to use their 2007 based agreements to cover 2011 sustainability issues. Further, it is anticipated that the language for these issues will be incorporated into the next generation of AIA agreements and serves as a 'preview' of how certain green construction obligations will be delegated.
Some of the green construction issues addressed in this guide include:
- Various certification systems
- Incorporation of green construction techniques without need for certification
- Newly defined terms, such as “Sustainable Objective” and “The Sustainability Plan”
- Implications on the architect for failure to obtain certification status
- Provision for consequential damages
The scope of new and modified language needed to address these green construction issues is wide-ranging and diverse. And like construction itself, a one-size-fits-all approach to these issues may not work for every project at every location. As new legal issues are created through sustainable building practices and materials, the intent of this language is to 'plug the gaps' left through the use of traditional agreements.
The result of several modified clauses, however, is to shift certain LEED (Leadership in Energy & Environmental Design) obligations from the architect to the contractor. Particularly in the area of substitutions, where the contractor shall include a written representation identifying any potential effect the substitution may have on project's ability to achieve a Sustainable Measure or the Sustainable Objective. Further, the architect is expressly entitled to rely on these representations by the contractor.
Another noteworthy change under these agreements is in the area of consequential damages. Although some form of waiver to consequential damages has been standard between the owner and the architect for many years now, these provisions have been revised to also expressly include any consequential damages which may arise from 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.
These are only two of the numerous shifts in obligations addressed in the proposed agreements. A thorough review and analysis of any proposed sustainable construction project is called for to ensure that the parties involved have a clear understanding of their rights and responsibilities.
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The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (516)462-7051
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.