By Jessyca Henderson, Esq., Owner, The Law Office of Jessyca L. Henderson LLC
August 16, 2022
The AIA E204-2017 Sustainable Projects Exhibit was developed to incorporate seamlessly into the various agreements offered by AIA Contract Documents, where the owner has targeted sustainable design objectives for the project. The Exhibit sets forth obligations for the Architect, Contractor, and Owner related to the Sustainable Objective for the project, based on Sustainable Measures as fully outlined in a Sustainability Plan, no matter the structure of the underlying agreement. For owners, architects, and contractors alike, the AIA E204-2017 Exhibit provides a reliable and approachable method for incorporating sustainable design into contract documents so that they are not overlooked or lost in translation. Each member of the team bears responsibility for completing the Sustainable Measures assigned to it in the Sustainability Plan and thereby contributing to achievement of the Sustainable Objective. Below is a summary of the main areas of responsibility for each party.
The Architect.
The Architect is expected to take the lead on developing the design of the project, and that includes sustainability aspects. The Architect’s Scope of Sustainability Services set forth in the E204. Performance of those services is based on the Owner’s Initial Information. The Architect coordinates the Sustainability Certification process(es) and agreements required for the project.
The Architect is expected to hold a workshop (or if needed, a series of meetings) to focus the various parties involved in the project on the Sustainable Objective and examine strategies for implementation of the Sustainable Measures. Following the workshop, the Architect develops the Sustainability Plan for review and approval by the Owner. During the design phases, the Architect consistently coordinates with the project team to determine any issues that may affect the Sustainable Objective, cost, and schedule of the project. Likewise, during construction, the architect provides construction observation and coordination to help identify any issues affecting the Sustainable Objective. The architect also directs any registrations and submissions for the project to Certifying Authorities.
The Contractor.
The Contractor has primary responsibility for performance of the Sustainability Measures assigned to it in the Sustainability Plan. The Contractor must identify, coordinate and seek approval for alternatives and substitutions that may affect the Sustainable Outcomes. Along the way, the Contractor documents the performance of the Sustainability Measures and communicates discrepancies and issues back to the Architect and Owner. Construction waste management is also under the purview of the Contractor, who is best positioned to control waste. This starts ideally in the design phase, if the contractor has been identified, where they may identify issues with availability of certain materials, provide quantity takeoffs, projected lead-times, and a plan for waste management and disposal in collaboration with the Owner and Architect, and as required by the contract documents.
The Owner.
The Owner as the driver of the project sets the goals for the project and approves the Sustainability Plan, providing all relevant information related to the Sustainable Objective requested by the Architect and the Contractor. The owner agrees to comply with the requirements of any Certifying Authorities reviewing the project for certification that relate to the ownership, operation and maintenance of the project during and after completion, and takes care of pursuing any appeals that must be made to the Certifying Authority related to revocation or reduction of an awarded Sustainability Certification.
The Owner also procures the services of a commissioning agent or engages the Architect to commission the project. Building commissioning is a desirable path for the verification of the performance of Sustainable Objectives. It is the process of measuring and ensuring that a building performs in accordance with the design intent, contract documents, and operations.
A highly flexible tool.
The responsibilities outlined above will naturally be tailored to the specific project. Fortunately, the clear structure and opportunity to fully define each party’s obligations provided by the AIA E204-2017 Sustainable Projects Exhibit allows for unlimited possibilities for customization. No matter the project or the underlying agreement, this powerful tool will help to clarify the obligations of the parties, which in turn will reduce the risks of ambiguity and misunderstanding that can lead to claims.
Jessyca Henderson is an attorney and architect based in Maryland, providing legal services related to sustainable design, building science, and environment. www.jlhlawoffice.com
AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.