This clause amends the JCT’s standard Design and Build documents to make energy efficiency part of practical completion.
Why use this?
This clause obliges the Contractor to achieve a specific standardised energy efficiency rating on practical completion of new build and renovation projects. This obligation will improve the energy efficiency, value and marketability of built assets and drive decarbonisation in the construction sector.
How to use this clause
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[Drafting note: Capitalised terms relate to either a defined term in this clause or a defined term in the main JCT Design and Build Contract that this clause is designed to be inserted into.]
JCT Contract Particulars and Conditions: 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 and Conditions shall take effect in this Agreement, as completed by the Parties, subject to the following amendments:
1.2 Add these definitions to clause 1.1:
(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 Schedule 8.
EPC Obligation: the requirement for the Contractor to achieve an EPC [‘A’] rating in respect of [certain parts of] the Works [as identified therein].
Compliance with Environmental Objectives
2.1 Add a new clause after clause 2.2:
‘Anti-slavery, anti-bribery and environmental requirements’
2.3 In performing its obligations under this Agreement, the Contractor shall and shall ensure that each of its subcontractors shall:
.1 comply with the Modern Slavery Act 2015 and the Anti-Slavery Policy;
.2 comply with the Anti-Bribery Policy; and
.3 at all times in carrying out its obligations under this Agreement, seek to [promote] the Environmental Objectives.’
2.2 Add a new sub-clause at the end of clause 2.2:
‘.6 Without derogating from any other provision in this Agreement, the Contractor warrants to the Employer that it shall use the Standard of Care when:
.1 designing the Works;
.2 selecting goods, materials, plant and equipment for incorporation in the Works; and
.3 complying with the obligation in clause 2.3.3 in respect of the Environmental Objectives.’
3.1 Add new clauses after clause 2.27:
‘2.28 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 a Practical Completion Statement until such time as:
.1 the EPC Obligation for such Section or the Works, as the case may be, has been met; or
.2 the Employer and Contractor have entered into a specific binding agreement to urgently achieve the EPC Obligation within the Rectification Period.
2.29 If clause 2.28.2 applies, then the agreement between the Employer and the Contractor may include the Employer requiring the Contractor to undertake remedial works (such remedial works to include retrofitting as necessary) to:
.1 achieve the EPC Obligation; or
.2 if clause 2.29.1 is not possible, improve the energy performance of the Works,
provided that the total aggregate cost (excluding VAT) of such remedial works (which shall be borne by the Contractor) does not exceed % 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:
‘2.37 Snagging list and defects, shrinkages or other faults remaining at practical completion clauses 2.35 and 2.36 shall apply to:
.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;
.2 any defects, shrinkages or other faults in the Works at practical completion; and
.3 any incomplete part of the Works remaining at practical completion including any work required for the purpose of achieving the EPC Obligation.’
3.4 Add a new Schedule after Schedule 7:
Schedule 8 – Environmental and sustainability objectives
1. to use sustainable materials and avoid the use of environmentally harmful materials [Drafting note: See [Tristan’s Clause] Construction Materials: Procurement for suggested drafting];
2. to reuse and recycle materials on site;
3. to employ a site waste management plan which includes zero-to-landfill and a process to minimise waste as far as possible [Drafting note: See [Francis’ Clause] Climate Aligned Construction Waste Management for suggested drafting];
4. to adopt environmentally friendly working methods, including minimising energy use through plant and site services [Drafting note: See [Ashkan’s Clause] Sustainable On Site Working Practices for suggested drafting];
5. to protect and enhance existing ecological features on site;
6. to minimise air (dust and fumes) and noise pollution;
7. to minimise water use and guard against water pollution;
8. to utilise local suppliers; and
9. to promote green travel to and from the site.