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In an effort that would warm
the cockles of Al Gore’s heart, albeit in a carbon neutral fashion, the AIA
Contract Documents Committee has modified the most recent iteration of the
AIA Electronic Contract Documents to impose an affirmative requirement upon
all architects to discuss the feasibility of incorporating environmentally
responsible design elements into the Owner’s project, such as
environmentally friendly building materials or LEED certified building
systems. While the new 2007 edition of the Owner Architect contract now
requires the architect to advocate environmentally responsible design, it
does not require the Owner to pay any heed to that advice. That being said,
by walking the walk, as well as talking the talk, the AIA has created a new
standard of care that must be met by the entire design team in order to meet
the requirements of this new contract clause.
The old AIA Form
B-151 (Standard Form of Agreement Between Owner and Architect) is now the
B-101. The Schematic Design clauses of this new document contain the
relevant contract clauses. Article 3.2.3 of that document reads as
follows:
§ 3.2.3 The Architect
shall present its preliminary evaluation to the Owner and shall discuss
with the Owner alternative approaches to design and construction of the
Project, including the feasibility of incorporating environmentally
responsible design approaches. The Architect shall reach an
understanding with the Owner regarding the requirements of the Project.
Article 3.2.5.1 of that document reads as
follows:
§ 3.2.5.1 – The Architect shall consider
environmentally responsible design alternatives, such as material
choices and building orientation, together with other considerations
based upon program and aesthetics, in developing a design for the
project that is consistent with the Owner’s program, schedule and budget
for the Cost of the Work. The Owner may obtain other environmentally
responsible design services under Article 4.
New Jersey landscape architects are
held to the same standard of care as New Jersey architects, namely:
Architects represent that they have and will use
the degree of knowledge, skill, judgment and taste ordinarily possessed and
used by the average architect in the profession. Further the conduct of an
architect must be measured by the standard practice, in the same or similar
communities, at the time the architect was performing their services. Thus,
architects have the duty to have and to use that degree of judgment,
knowledge, skill and taste which architects of ordinary ability possess and
exercise, in the same or similar communities, at the time they perform their
services.
One way that a standard of care
arises is by contract. Now that architects are required, by contract, to
discuss sustainable design with their clients, that obligation devolves upon
all members of the architect’s “design team”, including landscape
architects, whether you realize it or not. In order to meet the applicable
standard of care when it comes to “green design”, you need to meet this new
contractual obligation to discuss sustainable design options with Owners.
Accordingly, unless you are positive that the architects that you are
working for are routinely striking these sustainable design clauses from
their form contracts, you need to be aware of those sustainable design
provisions in the new AIA contract documents, and make sure that you are
meeting the sustainable design obligations set forth therein.
First, you must document that
you are “discussing with the Owner alternative approaches to design and
construction of the Project, including the feasibility of incorporating
environmentally responsible design approaches” concerning the landscape
design aspects of your projects. How do you do that? We suggest using the
site design sections of the United States Green Building Council’s Project
Checklist for LEED Homes for your
residential projects, or any of the other relevant USGBC checklists for
commercial or school projects. Many of those checklists can be found
here:
http://www.usgbc.org/displaypage.aspx?cmspageid=222
By using these checklists, you can
be reasonably comfortable that you and the Owner are discussing the
“environmentally responsible design approaches” which are required to meet
the “sustainable design” review obligation and to obtain LEED
certification. A copy of one of those checklists is attached to this
article.
Second, you must document that you
have “reached an understanding with the Owner regarding those requirements
of the Project”. We suggest that you do so by having the Owner
acknowledge, in writing, having reviewed this checklist with you and by
having the Owner check off those sustainable design features that the Owner
desires to incorporate into the Project.
While the intention of the AIA
Contract Documents Committee is certainly laudable, we do not believe that
this clause was well thought out. This clause raises many new liability
issues, i.e.
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Which options do you have to discuss with
your client?
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What happens if you leave one out?
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How do you document your “understanding”?
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Now, you will need another agreement, just
to address your “understanding” and limit your liability for “green
building” issues.
That being said, unless the prime
professional architect strikes these new clauses from the underlying
Owner/Architect agreement, landscape architects will have to start
addressing this new obligation in order to avoid liability for what is
certain to become a fruitful liability claim field to be plowed by
plaintiff’s counsel. Check the prime design professional agreements on all
of your consulting projects, today.
Last, we have not addressed the
myriad potential new liabilities that may arise as a result of specifying
novel and proprietary “green” products and systems. Due to the constraints
of space, that task awaits the next installment of this article.
Lawrence Powers, Esq. is the Co-Partner in
charge of the Construction Law Group
at the New Brunswick, New Jersey based law
firm,
Hoagland Longo Moran Dunst & Doukas, LLP.
Mr. Powers is counsel to AIA-NJ, NJSPE and
NJASLA.
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