Climate clause

JCT Energy Efficiency and Environmental Obligations

Mary's Clause

Amendments to the JCT standard Design and Build documents to make energy efficiency part of practical completion.

This is a climate clause

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Why use this?

To prioritise energy efficiency in the design and build of a construction project and minimise energy use and waste in the works and the built asset.

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The clauses on this website (and published in our Climate Contract Playbook) have been prepared in good faith on a pro bono basis and are free to download and use. The clauses have been drafted and edited by a variety of lawyers and, as such, the approaches to drafting may not conform to any particular drafting norms. We acknowledge this as a consequence of the collaborative drafting process.

The clauses on this website (and published in our Climate Contract Playbook) are provided on an ‘as is’ basis and without any representation or warranty as to accuracy or that the clauses will achieve the relevant climate goal or any other outcome.

This website (and the Climate Contract Playbook) does not comprise, constitute or provide personal, specific or individual recommendations or advice of any kind, and does not contain legal or financial advice. The clauses are precedents for legal professionals to use, amend and negotiate using their professional skill and judgement and at their own risk.

While care has been taken in the drafting of these clauses, neither The Chancery Lane Project nor any of its contributors owe a duty of care to any party in relation to their preparation and do not accept any liability for any errors or omissions, nor for any loss incurred by any person relying on or using these clauses or any other person. Users should use their own professional judgement in the application of these clauses to any particular circumstance or jurisdiction or seek independent legal advice.

At present, all the clauses are based on the laws of England and Wales. We encourage the conversion of these precedent clauses for use in other jurisdictions.

The clause

JCT Contract Particulars: Incorporation into this Agreement

1.1 The Parties have completed the JCT Contract Particulars in the JCT Design and Build Contract, 2016 edition attached at Annex A. The JCT Contract Particulars shall take effect in this agreement, as completed by the Parties, subject to these amendments.

Definitions

1.2 Add these definitions:

Environmental Requirements”: (a) the protection of the environment (including the prevention of atmospheric and other pollution and the protection of wildlife and wildlife habitats); (b) sustainable construction and development; and (c) energy efficiency, in particular by using all reasonable endeavours to fulfil the environmental and sustainability objectives listed in Annex [A].”

EPC Obligation”: the specific obligation imposed in the Employer’s Requirements requiring the Contractor to achieve an EPC “A” rating in respect of [certain parts of] the Works [as identified therein].”

Compliance with Environmental Requirements

2.1 Add a new sub-clause:

“In performing his obligations under this Contract, the Contractor shall and shall ensure that each of its sub-contractors shall:

2.1.1 comply with the Modern Slavery Act 2015 and the Anti-Slavery Policy;

2.1.2 comply with the Anti-Bribery Policy; and

2.1.3 at all times in carrying out its obligations under this agreement, the Contractor shall seek to [promote] the Environmental Requirements.”

[Note: Alternatively, the Environmental Requirement could be included in the Standards/Compliance with Law’ obligations.]

2.2 Add a new sub-clause:

“Without derogating from any other provision in this Contract, the Contractor warrants to the Employer that it shall use the Standard of Care when:

2.2.1 designing the CDP Works;

2.2.2 selecting goods, materials, plant and equipment for incorporation in the CDP Works; and

2.2.3 complying with the obligation in clause 2.1.3 in respect of the Environmental Requirements.”

EPC Obligation

3.1 Add new clause:

“For the purpose of assessing whether practical completion of the Section or the Works has been achieved, the [Employer/Employer’s Agent/Architect/Contract Administrator] shall not issue any certificate to that effect until such time as the EPC Obligation for such Section or the Works as the case may be has been met or alternatively specific agreement has been reached between the Employer and the Contractor for the urgent achievement of the EPC Obligation during the course of the Rectification Period (which may include the Employer requiring the Contractor to undertake remedial works (such remedial works to include, but not limited to, retrofitting as necessary) to achieve the EPC Obligation or (if not possible) improve the energy performance of the Works, provided that the total aggregate costs (excluding VAT) of such remedial works (which shall be borne by the Contractor) do not exceed [10]% of the Contract Sum.”

3.2 Add to the end of clauses 2.32 and 2.36, before the full stop:

“, provided that the [Employer/Employer’s Agent/Architect/Contract Administrator] shall not be required to issue any Certificate of Making Good earlier than the expiry of the Rectification Period and/or prior to the EPC Obligation for such Section or the Works as the case may be having been met.”

3.3 Add a new clause after clause 2.36:

“Snagging list and defects, shrinkages or other faults remaining at practical completion Clauses 2.35 and 2.36 shall apply, all other things being equal, to:

3.3.1 any items identified on any snagging list issued by the Architect/Contract Administrator at or around practical completion or attached to a Practical Completion Certificate or Section Completion Certificate;

3.3.2 any defects, shrinkages or other faults in the Works at practical completion; and

3.3.3 any incomplete work, forming part of the Works, remaining at practical completion including but not limited to any work required for the purpose of achieving the EPC Obligation.”

Annex A Environmental Requirements

Objectives:

  • To use sustainable materials and avoid the use of environmentally harmful materials;
  • To re-use and recycle materials on site;
  • To employ a site waste management plan which includes zero-to-landfill and a process to minimise waste as far as possible;
  • To adopt environmentally friendly working methods, including minimising energy use through plant and site services;
  • To protect and enhance existing ecological features on site;
  • To minimise air (dust and fumes) and noise pollution;
  • To minimise water use and guard against water pollution;
  • To utilise local suppliers; and
  • To promote green travel to and from the site.

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