Instructions: E204™–2017, Sustainable Projects Exhibit

Synopsis. 

AIA Document E204–2017, Sustainable Projects Exhibit, has been developed for use on a wide variety of sustainable projects, including those in which the Sustainable Objective includes obtaining a Sustainability Certification, such as LEED® (Leadership in Energy and Environmental Design), or those in which the Sustainable Objective is based on incorporation of performance-based sustainable design or construction elements. E204–2017 addresses the risks, responsibilities and opportunities unique to projects involving substantial elements of sustainable design and construction (sustainable projects). E204–2017 is not a stand-alone document, but is intended to be attached as an exhibit to an existing agreement on a project that includes a Sustainable Objective. E204–2017 is intended to replace the Sustainable Projects documents included in the Conventional (A201) family of AIA Contract Documents. For all document details and a record of changes, see the summary  »

 

Using E204–2014.

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 E204–2017 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 E204–2017 is intended to be incorporated into an existing agreement between the parties for design services or construction. By completing E204–2017 and incorporating it into such an agreement, the completed E204–2017 becomes binding on the parties. By incorporating E204–2017 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. E204–2017 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, and the Owner’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 Contractor’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 E204–2017 is incorporated. E204–2017 requires the Architect to submit the Sustainability Plan as part of its Schematic Design Documents submission to the Owner. 

§ 2.4.3 E204–2017 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 Contractor’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 Contractor 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 Contractor 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 Contractor 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 Contractor. 

§ 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.

§ 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.

§ 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. 

§ 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 included 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, E204–2017 identifies two more potential Additional Services that may arise during the course of the Project with a Sustainable Objective. Section 2.9.1.1 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 2.9.1.2 adds assisting the Owner or Contractor with the preparation of the Sustainability Documentation for which the Owner or Contractor 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 E204–2017. 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 Contractor to discuss remedial options regarding achievement of Sustainable Measures or the Sustainable Objective. 

Article 3 – Contractor

§ 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 Contractor to perform those Sustainable Measures identified as the responsibility of the Contractor in the Sustainability Plan. . 

§ 3.2 If the Owner or Architect recognizes a condition that might affect achievement of the Sustainable Objective, the Contractor 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 Contractor to report such conditions that are discovered or made known to the Contractor. 

§ 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 Contractor 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 Contractor 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. 

§ 3.5 The Owner’s Sustainable Objective or other Project requirements may necessitate the use of untested materials and equipment on the Project. The Contractor’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 Contractor 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 Contractor about the potential impacts on the Sustainable Objective, the Owner chooses to use the product, the language in this section may limit the Contractor’s and Architect’s liability for a failure of the product to perform in accordance with the manufacturer’s representations. 

§ 3.7 Because of the importance of construction waste management on a sustainable project, this section requires the Contractor 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. 

§ 3.8 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 Contractor of its obligation to correct defective Work; particularly defective Work that might be an impediment to achieving the Sustainable Objective. 

§ 3.9 Final Completion

This section states that the Contractor must provide all Sustainability Documentation required from the Contractor 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 Contractor of its obligation to correct defective Work, particularly defective Work that might be an impediment to achieving the Sustainable Objective. 

§ 3.9 Final Completion

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 Contractor’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. E204–2017 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 Contractor 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. 

 

Completing E204–2014. 

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 Contractor. 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 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 1 – Architect

§ 2.9.2 Insert an agreed-upon number in each of the spaces provided.

 

Important.

Modifications. Particularly with respect to professional or contractor licensing laws, building codes, taxes, monetary and interest charges, arbitration, indemnification, format and font size, AIA Contract Documents may require modification to comply with state or local laws. Users are encouraged to consult an attorney before completing or modifying a document.

Reproductions. This document is a copyrighted work and may not be reproduced or excerpted from without the express written permission of the AIA. There is no implied permission to reproduce this document, nor does membership in The American Institute of Architects confer any further rights to reproduce this document. For more information, see the document footer and the AIA Contract Documents® Terms of Service.

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