AIA Document E234–2019, Sustainable Projects Exhibit, Construction Manager as Constructor Edition, has been developed for use on sustainable projects when there is a construction manager as constructor as a project participant. E234–2019 is based on E204™-2017 but it has been tailored to address the risks, responsibilities, and opportunities unique to projects involving substantial elements of sustainable design and construction when there is a construction manager involved in the preconstruction phase and also performing the construction. E234–2019 is not a stand-alone document but is intended to be attached as an exhibit to an existing AIA construction management as constructor agreement on a project that includes a Sustainable Objective. E234–2019 is intended to replace the Sustainable Projects documents included in the Construction Manager as Constructor family of AIA Contract Documents. For document details and record of changes, see the summary »
Project. Describe the Project by including (1) the official name or title of the facility, and (2) the location or address, if known.
Article 1 – General Provisions
§ 1.2 Definitions. AIA Document E234–2019 includes a number of defined terms specific to sustainable projects, including Sustainable Objective, Sustainable Measure, Sustainability Plan, Sustainability Certification, Sustainability Documentation and Certifying Authority. These concepts are important to the process described in the Exhibit, and to the outcome of a sustainable project.
§ 1.4 AIA Document E234–2019 is intended to be incorporated into an existing agreement between the parties for design services or construction. By completing E234–2019 and incorporating it into such an agreement, the completed E234–2019 becomes binding on the parties. By incorporating E234–2019 into other agreements used on the Project, all parties can ensure that they are following the same contractual framework and obligations with respect to the Sustainable Objective.
Article 2 – Architect
§ 2.2 Sustainability Certification Agreements. If the Project includes achievement of a Sustainability Certification, such as LEED®, the Certifying Authority may require that the person registering the Project consent to a number of agreements with the Certifying Authority as part of the registration and certification processes. E234–2019 assumes that the Architect will register the Project on behalf of the Owner. The Architect will provide any agreements required by the Certifying Authority to the Owner for review; and the Owner agrees to execute all documents required by the Certifying Authority to establish the Architect as the agent of the Owner for purposes of certifying the Project.
§ 2.3 Sustainability Workshop. This section requires that the Architect conduct a Sustainability Workshop with the Owner, the Construction Manager, and the Owner’s, Construction Manager’s, and Architect’s consultants, as requested by the Architect, to establish the Sustainable Objective and discuss potential Sustainable Measures for the Project. It is important to note that the Sustainability Workshop could be one meeting or a series of meetings as necessary to clearly establish the sustainability goals for the Project.
§ 2.4 Sustainability Plan Services
§ 2.4.1 Following the Sustainability Workshop, the Architect will develop a Sustainability Plan that will act as a roadmap that identifies and describes: the Sustainable Objective; the Sustainable Measures targeted; implementation strategies selected to achieve the Sustainable Measures; the Owner, Architect, and Construction Manager’s roles and responsibilities associated with achieving the Sustainable Measures; the specific details about design reviews, testing or metrics to verify achievement of each Sustainable Measure; and the Documentation for Certification required for the Project. Once completed, the Sustainability Plan is submitted to the Owner for approval.
§ 2.4.2 The Architect will provide its Sustainability Plan Services in concert with its Basic Services as set forth in the owner-architect agreement to which E234–2019 is incorporated. E234–2019 requires the Architect to submit the Sustainability Plan as part of its Schematic Design Documents submission to the Owner.
§ 2.4.3 E234–2019 requires the Architect to submit an updated Sustainability Plan as part of its Design Development Documents submission to the Owner and advise the owner of any adjustments made to the Sustainability Plan.
§ 2.4.4 The Sustainability Plan may allocate responsibility for certain Sustainable Measures to the Architect. This provision requires the Architect to perform the Sustainable Measures identified as its responsibility.
§ 2.4.5 The Sustainability Plan is an evolving document that may require adjustment as the design and construction of the Project progresses. The Architect is required to revise the Sustainability Plan based on changes approved by the Owner.
§ 2.5 Design Phases
§ 2.5.1 The requirements of the Sustainability Plan are ultimately incorporated into the Schematic Design Documents, Design Development Documents and Construction Documents for the Project, as appropriate. The Sustainability Plan becomes a Contract Document forming, in part, the basis of the Construction Manager’s performance. The Owner, too, may have certain responsibilities under the Sustainability Plan. Certain aspects of the Sustainability Plan may not lend themselves to incorporation into the Drawing and Specifications, such as an Owner requirement to provide energy use information to a Certifying Authority.
§ 2.5.2 The Owner’s Sustainable Objective or other Project requirements may necessitate use of untested materials and equipment on the Project. The Architect may be unable to confirm a track record of reliability for the materials or equipment. If the materials or equipment fail to perform in accordance with the manufacturer’s representations, the Project may fail to achieve the Sustainable Objective. It is important that the Architect discuss the proposed use of such materials or equipment with the Owner and inform the Owner of any potential impact on the Sustainable Objective that may occur if the product fails to meet the manufacturer’s representations. If the Owner chooses to use the product, the language included in this section may limit the Architect’s liability for a failure of the product to perform in accordance with the manufacturer’s representations.
§ 2.6 Construction Phase
2.6.1 The Architect has a duty to keep the Owner apprised of the Project’s progress toward achievement of the Sustainable Measures and any defects or deficiencies in the Work that the Architect recognizes will impact achievement of the Sustainable Measures. If such a condition is recognized, the Owner, Architect and Construction Manager are required to meet to discuss alternatives to remedy the condition.
2.6.2 Because of the significant impact a change could have on achievement of the Sustainable Measures or the Sustainable Objective, the Architect is required to notify the Owner of proposed changes that will materially affect achievement of a Sustainable Measure or the Sustainable Objective. The Owner may then authorize the Architect to further investigate the change and provide recommendations regarding the proposed change.
2.6.3 Under Article 3, the Construction Manager is required to provide a representation with any substitution request describing how the substitution may affect achievement of a Sustainable Measure. In order to make this representation, the Construction Manager may request additional information from the Architect describing how the product, material or equipment was intended to satisfy the requirements of a Sustainable Measure or the Sustainable Objective. This section requires the Architect to provide this information to the Construction Manager.
§ 2.7 Project Registration and Submissions of Sustainability Documentation to the Certifying Authority
§ 2.7.1 Section 2.7 sets forth specific services the Architect will perform if the Sustainable Objective or Sustainable Measures require achievement of a Sustainability Certification. The Architect will register the Project; collect the Sustainability Documentation and submit the Sustainability Documentation to the Certifying Authority; and prepare and submit the application for certification to the Certifying Authority. It is important to note that each of these services is performed as an agent for the Owner. An agency relationship creates certain legal rights that may differ based on the jurisdiction where the Project is located. Users are urged to consult with an attorney regarding the specific legal implications of this relationship.
§ 2.7.2 The Architect is required to register the Project with the Certifying Authority. Acting as the Project registrant can have ramifications which are explored in greater detail in AIA Document D503, Guide for Sustainable Projects, which can be downloaded free of charge.
§ 2.7.3 The Architect is required to collect Sustainability Documentation from the party responsible for producing it in accordance with the Sustainability Plan, and submit the Sustainability Documentation to the Certifying Authority. Submissions beyond the limitations set forth in Section 2.9.2 will be compensated as Additional Services.
§ 2.7.4 Section 2.7.4 addresses the appeal of credit or point rulings under the various Sustainability Certifications. Provided the Architect has received timely notice of denial of a credit or point necessary to achieve the Sustainability Certification, the Architect will prepare and file the appeal of the credit or point ruling to the Certifying Authority. Appeals to the Certifying Authority are performed as part of the Architect’s Basic Services subject to a limitation on the number of appeals under Section 2.9.2. Any appeals in excess of the number set in section 2.9.2 will be compensated as an Additional Service. In addition, it should be noted that the Architect’s obligation under Section 2.7.4 does not extend to prosecuting appeals to the Certifying Authority, or taking any other actions determined by the Owner to be necessary or desirable, arising from the revocation or reduction of an awarded Sustainability Certification.
§ 2.7.5 The Architect is required to prepare and submit the application for certification to the Certifying Authority. This activity can have ramifications that are explored in greater detail in AIA Document D503, Guide for Sustainable Projects, which can be downloaded free of charge.
§ 2.7.6 The Architect is required to prepare responses and submit additional documentation required by comments or questions received from the Certifying Authority, subject to the limitations set forth in Section 2.9.2.
§ 2.7.7 This provision makes clear that any certification, declaration or affirmation the Architect makes to the Certifying Authority does not create a warranty or guarantee to the Owner or the Construction Manager.
§ 2.8 Copyrights and Licenses
§ 2.8.1 For sustainable projects where a Sustainability Certification is sought, the Owner may be required to submit certain of the Architect’s Instruments of Service to the Certifying Authority in order to comply with the documentation requirements. The Owner’s license to use the Architect’s Instruments of Service, therefore, must be expanded to include transmission of the Architect’s Instruments of Service to the Certifying Authority to comply with the requirements of the Certifying Authority. In addition, the Architect grants to the Owner a license to allow the Certifying Authority to publish the Architect’s Instruments of Service as required by the Certifying Authority.
§ 2.8.2 This section recognizes that the Owner may submit the Architect’s Instruments of Service to the Certifying Authority without violating the Architect’s reserved rights to the Instruments of Service.
§ 2.9 Additional Services
§ 2.9.1 In addition to the possible Additional Services listed in the Owner-Architect Agreement, E234–2019 identifies two more potential Additional Services that may arise during the course of the Project with a Sustainable Objective. Section 184.108.40.206 adds changing or editing previously prepared Instruments of Service, including the Sustainability Plan, necessitated by changes in the requirements to achieve the Sustainability Certification for the Project. Section 220.127.116.11 adds assisting the Owner or Construction Manager with the preparation of the Sustainability Documentation for which the Owner or Construction Manager are responsible under the Sustainability Plan.
§ 2.9.2 Section 2.9.2 allows the Architect to place a limit on certain tasks that are performed pursuant to E234–2019. Those tasks include revisions to the Sustainability Plan; meetings during the Design and Construction Phase to define, develop, and incorporate the Sustainable Measures; submittals to the Certifying Authority; responses to the Certifying Authority’s comments and questions; appeals to the Certifying Authority; and meetings with the Owner and Construction Manager to discuss remedial options regarding achievement of Sustainable Measures or the Sustainable Objective.
Article 3 – Construction Manager
§ 3.1 The success of sustainable projects depends on each party performing the Sustainable Measures assigned to that party in the Sustainability Plan. This section requires the Construction Manager to perform those Sustainable Measures identified as the responsibility of the Construction Manager in the Sustainability Plan.
§ 3.2 Preconstruction Phase
§ 3.2.1 The Construction Manager provides a preliminary evaluation of the Owner’s anticipated Sustainable Objective.
§ 3.2.2 Sustainability Workshop
The Construction Manager is required to attend the Sustainability Workshop and provide recommendations on the items to be considered.
§ 3.2.3 Sustainability Documentation
The Construction Manager is required to prepare and submit to the Architect, the Sustainability Documentation required from the Construction Manager by the Sustainability Plan.
§ 3.2.4 Consultation
§ 18.104.22.168 As part of the Construction Manager’s consultation services in accordance with the Owner-Construction Manager as Constructor Agreement, the Construction Manager discusses the requirements of the Sustainability Plan with the Owner and Architect and provides recommendations consistent with the Sustainability Plan.
§ 22.214.171.124 The Construction Manager includes items that could affect the timely achievement of the Sustainable Objective, and specific milestone dates related to the requirements of the Sustainability Plan, in the Project schedule.
§ 3.2.5 Cost Estimates
§ 126.96.36.199 The Construction Manager includes the anticipated Sustainable Objective in the preliminary estimates of the Cost of the Work.
§ 188.8.131.52 In its updates of the Cost of the Work, the Construction Manager allows for the further development of the Sustainability Plan.
§ 3.2.6 Extent of Responsibility
This section provides that the Construction Manager is not required to ascertain that the Sustainability Plan is in accordance with applicable laws, statutes, ordinances, codes, rules, and regulations, lawful orders of public authorities, or requirements of the Certifying Authority, but the Construction Manager must promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager.
§ 3.2.7 Guaranteed Maximum Price Proposal or Control Estimate
§ 184.108.40.206 The Construction Manager is required to provide for anticipated further development of the Sustainability Plan and Contract Documents in the Guaranteed Maximum Price or Control Estimate.
§ 3.3 Construction Phase
§ 3.3.1 The Construction Manager is required to record the progress toward achievement of the Sustainable Objective, and include this information in its written progress reports.
§ 3.3.2 If the Owner or Architect recognizes a condition that might affect achievement of the Sustainable Objective, the Construction Manager is required to participate in meetings with the Owner and Architect to discuss alternatives to correct the condition. It also places a responsibility on the Construction manager to report such conditions that are discovered or made known to the Construction Manager.
§ 3.3.3 Because substitutions can potentially affect achievement of a Sustainable Measure or the Sustainable Objective, this section creates a process through which such effects can be identified. The Construction Manager is required to include, with a substitution request, a written representation identifying any potential effect the substitution may have on achievement of a Sustainable Measure or the Sustainable Objective. The Construction Manager may request that the Architect provide information describing how the product, material or equipment for which a substitution is proposed was intended to satisfy the requirements of a Sustainable Measure or contribute toward achievement of the Sustainable Objective.
§ 3.3.5 The Owner’s Sustainable Objective or other Project requirements may necessitate use of untested materials and equipment on the Project. The Construction Manager’s design professionals may be unable to confirm a track record of reliability for the materials or equipment. If the materials or equipment fail to perform in accordance with the manufacturer’s representations, the Project may fail to achieve the Sustainable Objective. It is important that the Construction Manager discuss untested products proposed by its design professionals with the Owner and Architect and inform the Owner and Architect of any potential impact on the Sustainable Objective that may occur if the product fails to meet the manufacturer’s representations. If, after discussion with the Construction Manager about the potential impacts on the Sustainable Objective, the Owner chooses to use the product, the language in this section may limit the Construction Manager’s and Architect’s liability for a failure of the product to perform in accordance with the manufacturer’s representations.
§ 3.3.7 Because of the importance of construction waste management on a sustainable project, this section requires the Construction Manager to prepare a construction waste management and disposal plan that sets forth the procedures and processes for salvaging, recycling or disposing of construction waste generated from the Project.
§ 3.3.8 Substantial Completion. This section states the important distinction between Substantial Completion and achievement of the Sustainable Objective, particularly if the Sustainable Objective is tied to a Sustainability Certification, by noting that Substantial Completion is not conditioned on verification of, or actual achievement of, the Sustainable Objective. This language does not relieve the Construction Manager of its obligation to correct defective Work; particularly defective Work that might be an impediment to achieving the Sustainable Objective.
§ 3.3.9 Final Completion. This section states that the Construction Manager must provide all Sustainability Documentation required from the Construction Manager by the Contract Documents to the Architect before final payment or final release of retainage may occur. It also clarifies that verification of, or actual achievement of, the Sustainable Objective is not a condition precedent to issuance of a final Certificate for Payment. This language does not relieve the Construction Manager of its obligation to correct defective Work, particularly defective Work that might be an impediment to achieving the Sustainable Objective.
Article 4 – Owner
§ 4.1 The success of sustainable projects depends on each party performing those tasks assigned to the party in accordance with the Sustainability Plan. Section 4.1 places an obligation on the Owner to perform those Sustainable Measures identified as the obligation of the Owner in the Sustainability Plan.
§ 4.2 Sustainable projects may require additional information about the Project site or existing construction. Section 4.2 requires the Owner to provide relevant and necessary information upon the Architect’s or Construction Manager’s request.
§ 4.3 Because the various Sustainability Certifications may place requirements specifically on the Owner in addition to those related to the design and construction of the Project, such as the requirement to provide utility bills, this section states that the Owner will comply with the requirements of the Certifying Authority before and after construction.
§ 4.4 Section 4.4 obligates the Owner to pursue any appeals or other actions with the Certifying Authority necessitated by the revocation or reduction of a Sustainability Certification.
§ 4.5 Commissioning is an important aspect of sustainable design and construction. E234–2019 assumes that the Owner will provide a commissioning agent for the Project.
Article 5 – Claims and Disputes
Because new types of consequential damages may be claimed on sustainable projects, this section specifically waives any consequential damages resulting from the failure of the Project to achieve the Sustainable Objective.
Article 6 – Miscellaneous Provisions
§ 6.1 This section clarifies that the Architect and Construction Manager cannot guarantee or warrant that the Project will achieve the Sustainable Objective. This language reinforces the notion that the success of a sustainable project is dependent on the work of all participants and cannot be guaranteed by any one party.
Article 1 – General Provisions
§ 1.3 The parties should identify any incentive programs related to the Sustainable Objective. Many jurisdictions and the federal government are offering incentives for projects that incorporate sustainable design and construction measures. Incentives may include expedited permitting; tax rebates, deductions, and credits; or other financial or project incentives. Some incentives are available exclusively to the Owner while others are available directly to the Architect or Construction Manager. The parties should understand from the very beginning of the Project what incentive programs the Owner intends to pursue if those incentives are based on the achievement of a certain Sustainable Objective. This will allow the parties to take steps to meet the requirements of the authority granting the incentive.
Article 2 – Architect
§ 2.9.2 Insert an agreed-upon number in each of the spaces provided.
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