AE Agreement.doc

Owner-Architect/Engineer Agreement for Projects with a Construction Manager Architectural and Engineering Services Facilities Master Plan Phase I RFP Number RFP-OCCC-2027-08 Agreement made as of the ____ day of __________ in the year 20__

Between the Owner:

Orange County Community College 115 South Street Middletown, NY 10940 and the Architect/Engineer:

[name and address] for the following Project:

Architectural and Engineering Services for Facilities Master Plan Phase I and further described in RFP-OCCC-2027-08 including all appendices, attachments and addenda ("RFP") incorporated as Attachment A to this Agreement.

The Owner and Architect/Engineer agree as set forth below.

ARTICLE 1

ARCHITECT/ENGINEER’S RESPONSIBILITIES

§1.1 ARCHITECT/ENGINEER’S SERVICES

§1.1.1 The Architect/Engineer’s services consist of those services performed by the Architect/Engineer, Architect/Engineer’s employees and Architect/Engineer’s consultants as enumerated in Articles 2, 3 and Attachment A of this Agreement and Architect/Engineer's Proposal in response to Owner's RFP ("Proposal") incorporated as Attachment B to this Agreement.

§1.1.2 The Architect/Engineer’s services shall be provided in conjunction with the services of a Construction Manager as described in the Agreement Between Owner and Construction Manager.

§1.1.3 Time is of the essence and the Architect/Engineer’s services shall be performed as expeditiously as is consistent with the professional skill and care and the timely progress of the Project. However, Owner recognizes that the Architect/Engineer’s performance must be governed by sound professional practices. The Architect/Engineer shall submit for the Owner’s approval and the Construction Manager’s information, a schedule for the performance of the Architect/Engineer’s services which may be adjusted, with Owner’s approval as the Project proceeds, and shall include allowances for periods of time required for the Owner’s and Construction Manager’s review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect/Engineer, the Construction Manager or the Owner.

§1.1.4 The Architect/Engineer shall, in accordance with the accepted standard of care, review laws, codes, and regulations applicable to the Architect/Engineer’s services. The Architect/Engineer shall respond in the design of the Project to requirements imposed by any and all governmental authorities having jurisdiction over the Project, and prepare all Instruments of Service in conformance with applicable laws and regulations in force at the time of design including, but not limited to, the New York State Uniform Fire Prevention and Building Code, the New York State Energy Conservation Construction Code and the Americans with Disabilities Act. The Architect/Engineer is required to change its design, at no cost to the Owner, if the design is not in accordance with all such applicable laws and regulations. It is understood, however, that various codes and regulations, including without limitation the ADA, are subject to varying and sometimes contradictory interpretation. Architect/Engineer shall exercise its professional skill and care consistent with the generally accepted standard of care to provide a design that complies with such regulations and codes. If the required changes to the Architect/Engineer's design are substantial and unforeseeable given publicly noticed updates to such codes or regulations, the Architect/Engineer shall be compensated for such changes to its design in accordance with §3.2.2.2.

§1.1.5 The Architect/Engineer shall identify and disclose to the Owner the need for surveys, tests, reports, permits, inspections or certificates necessary or proper for carrying out the Work and completing the Project.

§1.1.6 The Architect/Engineer shall diligently render services in accordance with the Project Schedule specified in the incorporated Attachment C, as may be modified from time to time upon written agreement of the Owner, the Architect/Engineer and any Construction Manager. The Project Schedule excludes any approval time per Service Phase for the Owner to review and comment on documents prepared and includes one week per Service Phase for the Architect/Engineer to incorporate any changes and obtain final Owner approval for the given Service Phase, except where such changes involve substantial programmatic revisions, which may require additional time for the Architect/Engineer to incorporate into the drawings.

§1.1.7 As part of Basic Services, at minimum, the Architect/Engineer shall provide Cost Estimates to the Owner and Construction Manager for review and the necessary Instruments of Service to the Construction Manager for the Construction Manager’s preparation of Cost Estimates to be provided to Architect/Engineer and Owner for review and reconciliation between the Architect/Engineer and the Construction Manager for the Owner’s review at the following points, per Project Phase, if applicable to the Project, in accordance with the Project Schedule:

.1 upon completion of Concept Plans; and .2 upon completion of the Schematic Design Phase; and

.3 upon 60% completion during the Design Development Phase; and

.4 upon 75% completion of the Construction Documents (no Cost Estimates required at this point); and

.5 upon 90% completion of the Construction Documents.

.6 upon completion of the Construction Documents.

At each point where Cost Estimates are provided, Architect/Engineer shall reconcile its Cost Estimates with Cost Estimates of the Construction Manager and all Costs Estimates and reconciliations shall be submitted to Owner for review.

§1.1.8 Unless otherwise provided in this Agreement, Architect/Engineer and Architect/Engineer's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any form, including, but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. This provision shall not limit Architect/Engineer’s or Architect/Engineer’s consultants’ liability for negligent handling of any such hazardous materials by Architect/Engineer or Architect/Engineer’s Consultants or their directors, officers, agents, employees, consultants or other representatives. In the event that the Architect/Engineer or any other party encounters asbestos or hazardous or toxic materials, or should it become known in any way that certain materials may be present that may affect the performance of the Architect/Engineer’s services, Architect/Engineer may, at its option and without liability for consequential or any other damages not resulting from Architect/Engineer’s negligence, suspend performance of service on the Project until the County retains appropriate specialist consultants or contractors to identify, abate and/or remove the asbestos or hazardous or toxic material, and warrant that the job site is in full compliance with applicable laws, codes, rules and regulations.

ARTICLE 2

SCOPE OF Architect/Engineer’s BASIC SERVICES

§2.1 DEFINITION

the Architect/Engineer’s Basic Services consist of those described in §2.2 through §2.6 and any other services identified in this Agreement or its attachments as part of Basic Services, and include normal structural, mechanical and electrical engineering services.

§2.2 SCHEMATIC DESIGN SERVICE PHASE

§2.2.1 The Architect/Engineer shall review the program, schedule and construction budget furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner.

§2.2.2 The Architect/Engineer shall review with the Owner and Construction Manager proposed site use and improvements; selection of materials, building systems and equipment; and methods of Project delivery.

§2.2.3 The Architect/Engineer shall review with the Owner and Construction Manager alternative approaches to design and construction of the Project and provide Concept Plans and initial Cost Estimates to Owner and Construction Manager for review. Architect/Engineer and Construction Manager shall compare and reconcile their Cost Estimates for Owner’s approval.

§2.2.4 Based on the mutually agreed upon program, schedule and construction budget requirements, the Architect/Engineer shall then prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components.

§2.2.5 At intervals appropriate to the progress of the Schematic Design Phase and mutually agreeable to the Owner, Construction Manager and Architect/Engineer; the Architect/Engineer shall provide schematic design studies for the Owner’s review and the Construction Manager’s information.

§2.2.6 Upon completion of the Schematic Design Phase, the Architect/Engineer shall provide all necessary drawings, outline specifications, Cost Estimates and other documents for the Construction Manager’s information and the Owner’s approval of the Schematic Design Phase. Architect/Engineer and Construction Manager shall compare and reconcile their Cost Estimates for Owner’s approval.

§2.3 DESIGN DEVELOPMENT SERVICE PHASE

§2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect/Engineer shall prepare Design Development Documents for the Construction Manager’s review and the Owner’s approval. The Design Development Documents shall be based upon data and estimates prepared by the Construction Manager and shall consist of drawings and other documents that establish and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate.

§2.3.2 At intervals mutually agreeable to the Owner, Construction Manager and Architect/Engineer, the Architect/Engineer shall provide drawings and other documents which depict the current status of design development for the Owner’s review and the Construction Manager’s information.

§2.4 CONSTRUCTION DOCUMENTS SERVICE PHASE

§2.4.1 Based on the approved Design Development Documents and any further adjustments authorized by the Owner in the scope or quality of the Project or in the construction budget, the Architect/Engineer, utilizing data and estimates provided by the Construction Manager, shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project.

§2.4.2 At 75% completion, the Architect/Engineer shall provide Drawings and Specifications for the Owner’s and Construction Manager’s review. At 90% completion, the Architect/Engineer shall provide Drawings and Specifications, and Cost Estimates for the Owner’s and Construction Manager’s review. Architect/Engineer and Construction Manager shall compare and reconcile their Cost Estimates for Owner’s approval.

§2.4.3 Upon completion of the Construction Documents Phase, the Architect/Engineer shall provide Construction Documents for the Owner’s approval and the Construction Manager’s information, to include, as necessary, revised versions of drawings, specifications and documents required by §2.4.2. The Architect/Engineer will provide the Owner with two complete sets of drawings and technical specifications, including contract scoping for bidding and construction under the Wick’s Law, if applicable to the Project, for forwarding to the Construction Manager for the Construction Manager’s and Owner's preparation of “front end” bidding documents.

§2.4.4 The Architect/Engineer shall assist the Owner and Construction Manager in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contracts, and the forms of Agreement between the Owner and the Contractors. The Architect/Engineer shall assist the Construction Manager and Owner in issuing bidding documents to bidders and conducting prebid conferences with prospective bidders. The Architect/Engineer, with the assistance of the Owner and any Construction Manager, shall respond to questions from bidders, and shall issue addenda.

§2.4.5 The Architect/Engineer shall assist the Owner and Construction Manager in connection with the Owner’s responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project.

§2.4.6 Unless otherwise required by this Agreement, the Architect/Engineer shall provide ten (10) hardcopies of the final drawings and other Contract Documents, as applicable, to the Owner for review with the Construction Manager and approval by the Owner before the Bidding and Negotiation Phase commences.

§2.5 BIDDING OR NEGOTIATION SERVICE PHASE

§2.5.1 The Architect/Engineer, following the Owner’s approval of the Construction Documents and of the latest reconciled estimate of Construction Cost, shall assist the Construction Manager and Owner in obtaining bids or negotiated proposals, review of bidders' proposed substitutions, and preparing responses to questions for addenda and contracts for construction.

§2.5.2 Upon Owner's request, the Architect/Engineer shall provide up to [number](#) hardcopies of the Owner-approved Construction Documents, for each Project Phase or the Project, as applicable, ready for mailing through United Parcel Service, to the Owner for distribution to bidders during the Bidding and Negotiation Phase. Additional copies may be obtained from Architect/Engineer at Owner’s expense.

§2.6 CONSTRUCTION SERVICE PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT

§2.6.1 The Architect/Engineer’s responsibility to provide Basic Services for the Construction Phase of each Project Phase, or the Project, as applicable, under this Agreement commences with the execution of the first Contract for site work or construction and terminates at the later of the issuance to the Owner of the final Project Certificate for Payment or 90 days after the date of Substantial Completion of the Work for each Project Phase, or the Project, as applicable, unless any delay in Final Payment or Substantial Completion is due to no fault, in whole or in part, of the Architect/Engineer or the Architect/Engineer’s consultants or unless the Owner, at its sole discretion, has agreed in writing to the earlier termination of the Architect/Engineer’s responsibility to provide Basic Services.

§2.6.2 The Architect/Engineer shall provide administration of the Contract(s) for Construction in cooperation with the Construction Manager, as applicable, as set forth below and in the General Conditions ultimately included in the Owner-Contractor Agreement for construction of the Project.

§2.6.3 Duties, responsibilities and limitations of authority of the Architect/Engineer shall not be restricted, exceeded, modified or extended without written consent of the Owner and Architect/Engineer.

§2.6.4 The Architect/Engineer shall be a representative of and shall advise and consult with the Owner (1) during construction until Final Payment to the Contractors is due, and (2) at the Owner’s direction from time to time during the correction period described in the Contract Documents. The Architect/Engineer shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument.

§2.6.5 In addition to attendance at weekly project meetings for each Project Phase, as applicable to the Project, by a representative of the Architect/Engineer, the Architect/Engineer shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect/Engineer in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a manner indicating that the Work when completed will be in accordance with the Contract Documents. However, Architect/Engineer shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of on-site observations as an architect, the Architect/Engineer shall keep the Owner informed of the progress and quality of the Work and shall endeavor to guard the Owner against defects and deficiencies in the Work. (More extensive site representation may be agreed to as an Additional Service, as described in §3.2.1)

§2.6.6 With respect to each Contractor’s own Work, the Architect/Engineer shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor’s responsibility under the Contracts for Construction. The Architect/Engineer shall not be responsible for a Contractors’ schedules or failure to carry out the Work in accordance with the respective Contract Documents, excepting the Architect/Engineer’s negligence in failing to advise the Owner of observed work that appears grossly not in accordance with the Contract Documents. The Architect/Engineer shall not be responsible for the performance by the Construction Manager of the services required by the Construction Manager’s agreement with the Owner. Except as otherwise provided in this Agreement, the Architect/Engineer shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons performing portions of the Work not directly employed by the Architect/Engineer.

§2.6.7 The Architect/Engineer shall at all times have access to the Work wherever it is in preparation or progress.

§2.6.8 Communications by and with the Architect/Engineer’s consultants shall be through the Architect/Engineer.

§2.6.9 Based on the Architect/Engineer’s observations and evaluations of each Contractor’s Application for Payment submitted through a Project Application for Payment, assembled by the Construction Manager, the Architect/Engineer shall review and certify the amounts due the respective Contractors by submission of a Project Certificate for Payment to the Owner.

.1 The Architect/Engineer’s Project Certificate for Payment shall constitute a representation to the Owner, based on the Architect/Engineer’s observations at the site as provided in §2.6.5, on the recommendations of the Construction Manager’s Project Application for Payment and on the data comprising the Contractor’s Application for Payment, that, to the best of the Architect/ Engineer’s knowledge, information and belief, the Work has progressed to the point indicated and the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Architect/Engineer. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified.

.2 The issuance of a Project Certificate for Payment shall not be a representation that the Architect/Engineer has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor’s right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum.

.3 The Architect/Engineer may withhold certification pursuant to the applicable provisions of the General Conditions.

§2.6.10 The Architect/Engineer shall have the authority, after notification to the Construction Manager, and upon approval of Owner, to reject Work which does not conform to the requirements of the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect/Engineer will have authority, upon written authorization from the Owner, to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect/Engineer, nor a decision made in good faith either to exercise or not to exercise such authority, shall give rise to a duty or responsibility of the Architect/Engineer to the Construction Manager, Contractors, Subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the Work.

§2.6.11 The Architect/Engineer shall review and approve or take other appropriate action upon Contractor’s submittals such as Shop Drawings, Product Data and Samples, that have been approved by the Construction Manager, but only for the limited purpose of checking on conformance with information given and the design concept expressed in the Contract Documents. The Architect/Engineer’s action shall be taken with such reasonable promptness as to cause no delay in the Contractors’ Work or in construction by the Owner’s own forces, while allowing sufficient time in the Architect/Engineer’s professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractors, all of which remain the responsibility of the Contractors to the extent required by the Contract Documents. The Architect/Engineer’s review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect/Engineer, of construction means, methods, techniques, sequences or procedures. The Architect/Engineer’s approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents.

§2.6.12 The Architect/Engineer shall review and sign or take other appropriate action on Change Orders and Construction Change Directives prepared by Construction Manager for the Owner’s approval and execution in accordance with the Contract Documents.

§2.6.13 The Architect/Engineer may authorize minor changes in Work not involving an adjustment in a Contract Sum, or an extension of a Contract Time, which are not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order issued through the Construction Manager.

§2.6.14 Upon receipt of the Punch List prepared by the Construction Manager and the Architect/Engineer; the Architect/Engineer, assisted by the Construction Manager, shall conduct inspections to determine whether the Work or designated portions thereof are substantially complete and prepare a Certificate of Substantial Completion for the Owner’s and Contractor’s review and acceptance. The Architect/Engineer shall forward to the Owner, warranties and similar submittals required by the Contract Documents and assembled by the Contractors which have been received from the Construction Manager. The Construction Manager will forward to the Architect/Engineer a final Project Application for Payment and the Architect/Engineer shall issue a final Project Certificate for Payment upon compliance with the requirements of the Contract Documents.

§2.6.15 The Architect/Engineer shall interpret and decide matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect/Engineer’s response to such requests shall be made with reasonable promptness and within any time limits agreed upon.

§2.6.16 Interpretations and decisions of the Architect/Engineer shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretation and initial decisions, the Architect/Engineer shall endeavor to secure faithful performance by both Owner and Contractors, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith.

§2.6.17 The Architect/Engineer’s decisions on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents, and Owner’s approval.

§2.6.18 The Architect/Engineer shall render written decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractors relating to the execution or progress of the Work as provided in the Contract Documents.

§2.6.19 The Architect/Engineer’s decisions on claims, disputes or other matters, including those in question between the Owner and Contractors, except for those relating to aesthetic effect as provided in §2.6.17, shall be subject to litigation unless another form of dispute resolution is approved by Owner in writing pursuant to §11.2, as provided in this Agreement and in the Contract Documents.

§2.6.20 Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked-up prints, drawings and other data furnished by Contractors.

ARTICLE 3

ADDITIONAL SERVICES

§3.1 GENERAL

§3.1.1 The services described in Article 3 are not included in Basic Services unless so identified in Attachment B, as may be amended, or elsewhere in the Agreement or modification thereof, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under §3.2 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Additional Services in §3.2 are required due to circumstances beyond the Architect/Engineer’s control, the Architect/Engineer shall notify the Owner prior to commencing such services. If the Owner deems that such services described under §3.2 are not required, the Owner shall give prompt written notice to the Architect/Engineer. If the Owner indicates in writing that all or part of such Additional Services are not required, the Architect/Engineer shall have no obligation to provide those services.

§3.1.2 For Additional Services that involve the performance of work by other than Architect/Engineer or subconsultants whose rates are specified in Attachment D, as may be amended, Architect/Engineer shall supply the Owner with written quotations, preferably a minimum of three, for review and written approval of the pricing and subconsultant/subcontractor by the Owner before such Additional Services are authorized.

§3.2 ADDITIONAL SERVICES

Unless specified as included in Basic Services in Attachment A, the following shall be considered Additional Services:

§3.2.1 If more extensive representation at the site than is described in §2.6.5 and Attachment A is required, the Architect/Engineer shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities.

.1 Project Representatives shall be selected, employed and directed by the Architect/Engineer, and the Architect/Engineer shall be compensated therefore as agreed by the Owner and the Architect/Engineer. Owner reserves the right to approve, reasonably reject and request an alternate Project Representative(s). The duties, responsibilities and limitations of authority of Project Representatives shall be as described in an amendment to this Agreement.

.2 Through the observations by such Project Representatives, the Architect/Engineer shall endeavor to provide further protection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect/Engineer as described elsewhere in this Agreement.

§3.2.2 Making revisions in Drawings, Specifications, or other documents when such revisions are:

.1 inconsistent with approval or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner’s program or Project budget;

.2 requested by the Owner after the Owner has approved Construction Documents Phase plans, drawings and specifications because the approved, reconciled Construction Cost estimate prepared jointly by Architect/Engineer and Construction Manager exceeds the Owner’s budget; including, in accordance with §1.1.5, where changes are due to a substantial, unforeseeable change in applicable laws and regulations after Owner’s approval of Construction Documents Phase plans, drawing and specifications; but excluding any change initiated by the Architect/Engineer in scope, capacities of basic systems, or the kinds and quality of materials, finishes or equipment;

.3 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents; or

.4 due to changes required as a result of the Owner’s failure to render decisions in a timely manner.

§3.2.3 Providing services required because of significant changes in the Project including, but not limited to, changes in size, quality, complexity, the Owner’s or Construction Manager’s schedule, or the method of bidding or negotiating and contracting for construction, except for services required under §5.2.3.

§3.2.4 Preparing Drawing, Specifications, and other documentation and supporting data, in connection with Change Orders and Construction Change Directives.

§3.2.5 Providing services in connection with evaluating substitutions, other than approved equals, proposed by Contractors and that result in making subsequent revisions to Drawings, Specifications and other documentation.

§3.2.6 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work.

§3.2.7 Providing services made necessary by the termination or default of Construction Manager or a Contractor, by major defects or deficiencies in the Work of a Contractor, or by failure of performance of either the Owner or Contractor under a Contract for Construction.

§3.2.8 Providing services in evaluating an extensive number of litigation claims submitted by a Contractor or others in connection with the work.

§3.2.9 Providing services in connection with a Post-Construction arbitration proceeding or legal proceeding except where the Architect/Engineer is a party thereto.

§3.2.10 Providing financial feasibility or other special studies.

§3.2.11 Providing planning, surveys, site evaluations or comparative studies of prospective sites.

§3.2.12 Providing special surveys or environmental studies required for approvals of governmental authorities or others having jurisdiction over the Project.

§3.2.13 Providing services relative to future facilities, systems and equipment.

§3.2.14 Providing services to verify the accuracy of drawings or other information furnished by the Owner and not prepared by Architect/Engineer or the Architect/Engineer’s consultants for this Project under or for this Agreement or any other agreement between Architect/Engineer and Owner.

§3.2.15 Providing coordination of construction performed by the Owner’s own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner.

§3.2.16 Providing services in connection with the work of separate consultants retained by the Owner.

§3.2.17 Providing detailed quantity surveys or inventories of material and equipment.

§3.2.18 Providing analyses of owning and operating costs.

§3.2.19 Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment.

§3.2.20 Providing services for planning tenant or rental spaces.

§3.2.21 Making inventories of materials or equipment, or valuations and detailed appraisals of existing facilities.

§3.2.22 Outside of the Architect/Engineer’s assistance in the initial commissioning or other testing, adjusting and balancing of the systems in the constructed and/or renovated facilities upon completion of the Work; providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing; preparation of operation and maintenance manuals; training personnel for operation and maintenance; and consultation during operation.

§3.2.23 Providing services after issuance to the Owner of the final Project Certificate for Payment, or in the absence of a final Project Certificate for Payment, more than ninety (90) days after the date of Substantial Completion of the Work; unless any delay in Final Payment or Substantial Completion is due in whole or in part to Architect/Engineer or Architect/Engineer’s Consultants.

§3.2.24 Providing services of consultants for other than architectural, structural, mechanical and electrical, and data/communications engineering portions of the Project included as part of Basic Services.

§3.2.25 Providing any other services not otherwise included in this Agreement, including its Attachments, or not customarily furnished in accordance with generally accepted architectural practice.

ARTICLE 4

OWNER’S RESPONSIBILTIES

§4.1 The Owner shall provide full information regarding requirements for the Project, including a program which shall set forth the Owner’s objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems, and site requirements.

§4.2 The Owner shall establish and update an overall budget for the Project based on consultation with Construction Manager and the Architect/Engineer, which shall include the Construction Cost, the Owner’s other costs and reasonable contingencies related to all of these costs.

§4.3 If requested by the Architect/Engineer, the Owner shall furnish evidence that financial arrangements have been made to fulfill the Owner’s obligations under this Agreement.

§4.4 The Owner shall designate a representative authorized to act on the Owner’s behalf with respect to the Project. The Owner, or such authorized representative, shall render decisions in a timely manner pertaining to documents submitted by the Architect/Engineer in order to avoid unreasonable delay in the orderly and sequential progress of the Architect/Engineer’s services.

§4.5 The Owner shall retain a Construction Manager to administer the Project. The Construction Manager’s services, duties and responsibilities shall be described in the Agreement Between Owner and Construction Manager. The agreement between the Owner and Construction Manager shall be furnished to the Architect/Engineer and this Agreement shall be furnished to the Construction Manager. The Architect/Engineer shall not be responsible for actions taken by the Construction Manager.

§4.6 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures, adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a Project benchmark.

§4.7 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Architect/Engineer.

§4.8 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests; tests for hazardous materials, as necessary; and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents.

§4.9 The Owner shall furnish all legal, accounting and insurance counseling services as may be required by the Owner for the Owner at any time for the Project, including auditing services the Owner may require to verify the Contractors’ Applications for Payment or to ascertain how or for what purposes the Contractors have used the money paid by or on behalf of the Owner.

§4.10 The services, information, surveys and reports required by §4.6 through §4.9 shall be furnished at the Owner’s expense. The Architect/Engineer shall be entitled to rely upon the accuracy and completeness of such services, information, surveys and reports that were provided directly by Owner and not through Architect/Engineer or Architect/Engineer’s consultants. Such reliance requires that the Architect/Engineer shall review the information provided directly by Owner and give timely notice to the Owner of any apparent deficiencies or inconsistencies.

§4.11 Prompt written notice shall be given by the Owner to the Architect/Engineer and Construction Manager if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents.

§4.12 The proposed language of certificates or certifications requested of the Architect/Engineer or Architect/Engineer’s consultants shall be submitted to the Architect/Engineer for review and approval at least fourteen (14) days prior to execution. The Owner shall not request certifications that would require knowledge or services beyond the scope of this Agreement.

§4.13 The Owner shall furnish the required information and services and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the Architect/Engineer’s services and Work of the Contractors.

§4.14 The Owner shall furnish the Architect/Engineer copies of written communications with the Construction Manager and Contractors.

ARTICLE 5

CONSTRUCTION COST

§5.1 DEFINITION

§5.1.1 The Construction Cost (labor, materials, contractor’s profit, and contingency) of the Project designed by Architect/Engineer should stay within a budget of [number] Dollars ($###.00).

§5.1.2 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect/Engineer and approved by Owner within the budget set forth in §5.1.1.

§5.1.3 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and materials and equipment designed, specified, selected or specially provided for by the Architect/Engineer, plus a reasonable allowance for the Contractor’s labor, materials, overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction.

§5.1.4 Construction Cost does not include the compensation of the Architect/Engineer and Architect/Engineer’s consultants, the Construction Manager and Construction Manager’s consultants, the costs of the land, rights-of-way, financing, furniture, technology, permitting or other costs which are the responsibility of the Owner as provided in Article 4.

§5.2 RESPONSIBILITY FOR CONSTRUCTION COST

§5.2.1 The Architect/Engineer’s review of the Owner’s Project budget and of preliminary estimates of Construction Cost or detailed estimates of Construction Cost prepared by the Construction Manager is solely for the Architect/Engineer’s guidance in the Architect/Engineer’s preparation of the Construction Documents. Accordingly, the Architect/Engineer cannot and does not warrant the accuracy of any Cost Estimates prepared by the Construction Manager, or warrant or represent that bids or negotiated prices will not vary from the Owner’s Project budget or from any estimate of Construction Cost or evaluation reviewed by the Architect/Engineer. The Architect/Engineer will not warrant the accuracy of any Cost Estimates prepared by it or its subconsultant(s) and will not warrant and represent that bids or negotiated prices will not substantially vary from the Owner’s Project budget or from any estimate of Construction Cost or evaluation reviewed by the Architect/Engineer when prepared by the Architect/Engineer or its subconsultant(s). However, the Architect/Engineer shall exercise its professional skill and care consistent with the generally accepted standard of care to provide designs and Cost Estimates that are consistent with the Owner's Project budget.

The Architect/Engineer and Construction Manager shall prepare Construction Cost estimates independently of each other and shall cooperate to arrive at a single, reconciled Construction Cost estimate for Owner's review and approval.

§5.2.2 If the fixed limit of Construction Cost set forth in §5.1.1 is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall, at the Owner’s sole discretion:

.1 give written approval of an increase in such fixed limit:

.2 authorize rebidding or renegotiating of the Project within a reasonable time;

.3 if the Project is abandoned, terminate this Agreement in accordance with Article 7, or

.4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost.

§5.2.3 If the Owner chooses to proceed under §5.2.2.4, Construction Manager and the Architect/Engineer, without additional charge, shall cooperate with the Owner as necessary to bring the Construction Cost within the fixed limit if established as a condition of this Agreement. The Architect/Engineer shall be entitled to no additional fee for this service, however, reimbursable expenses as set forth in §9.2, if incurred, shall be compensated.

ARTICLE 6

INSTRUMENTS OF SERVICE

§6.1 Drawings, specifications and other documents, including those in electronic form, prepared by the Architect/Engineer and the Architect/Engineer’s consultants are Instruments of Service for use solely with respect to the Project. The Architect/Engineer and the Architect/Engineer’s consultants shall be deemed the authors of their respective Instruments of Service.

§6.2 Upon execution of this Agreement, the Architect/Engineer grants to the Owner an exclusive license to reproduce the Architect/Engineer’s Instruments of Service solely for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect/Engineer shall obtain similar exclusive licenses from the Architect/Engineer’s consultants for Owner's use consistent with this §6.2.

§6.3 Except for the licenses granted in §6.2, no other license or right shall be deemed granted or implied under this Agreement. At the conclusion of the Project, the Instruments of Service shall become the property of the Owner and the Owner shall be permitted to use the Instruments of Service for future additions or alterations of this Project without the prior written agreement of the Architect/Engineer and/or the Architect/Engineer’s consultants. However any use of the Instruments of Service shall be at the Owner’s sole risk and without liability to the Architect/Engineer and the Architect/Engineer’s consultants. The Owner agrees to waive any and all claims against the Architect/Engineer and to defend, indemnify and hold the Architect/Engineer harmless from and against any and all claims, losses, liabilities and damages arising out of or resulting from the unauthorized use, reuse or alteration of the Architect/Engineer’s designs, drawings and specifications.

§6.4 Electronic Files:

§6.4.1 Communication and information transfer is being conducted for this project in electronic and other forms. The electronic information and communications may include email, word processing, drawings, and other file transfers.

§6.4.2 Electronic data formats for information to be shared with the Owner will include but not necessarily be limited to Adobe, Microsoft, and AutoCAD formats. Any changes to the electronic data formats by either the Owner or the Architect/Engineer are subject to review and acceptance by the other party. Should the Owner be unable to utilize the file formats listed above, the Owner should at once notify the Architect/Engineer of the problem. The Architect/Engineer will endeavor to transfer the information into a different format, but shall not be responsible at any time to provide the Owner with software needed to read any data of any electronic data format. Should the Owner request that any Instruments of Service, progress or final construction documents, specifications, or correspondence be transmitted in electronic form to the Owner the terms of this agreement shall be extended to any electronic files, CADD or word-processing files, which are produced by the Architect/Engineer for this project.

§6.4.3 In accepting and utilizing any drawings, specifications, reports and data on any form of electronic media generated and furnished by the Architect/Engineer, the Owner agrees that all such electronic files are Instruments of Service of the Architect/Engineer.

§6.4.4 The Owner is aware that differences may exist between the electronic files delivered and the printed hard-copy Contract Documents. In the event of a conflict between the Contract Documents prepared by the Architect/Engineer and electronic files, the signed or sealed hard-copy Contract Documents shall govern.

§6.5 Notwithstanding the foregoing, the Architect/Engineer and the Construction Manager may each retain one record set of the Instruments of Service upon Final Completion of the Project.

ARTICLE 7

TERM, TERMINATION, SUSPENSION OR ABANDONMENT

§7.1 The term of this Agreement shall commence on the date first above written and expire at the later of the issuance to the Owner of the final Project Certificate for Payment or ninety (90) days after Substantial Completion, unless extended by with a written amendment, at the Owner's discretion.

§7.2 This Agreement may be terminated by the Owner upon not less than seven (7) days written notice should the Architect/Engineer fail substantially to perform in accordance with the terms of this Agreement.

§7.3 This Agreement may be terminated by the Owner upon not less than seven (7) days written notice to the Architect/Engineer in the event that the Project is permanently abandoned.

§7.4 In the event of termination not the fault of the Architect/Engineer, the Architect/Engineer shall be compensated for services performed up to the date of termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in §7.9.

§7.5 Any time during the effectiveness of this Agreement, the Owner shall have the right, upon thirty (30) days written notice to the Architect/Engineer, to terminate this Agreement in whole or in part or to suspend or to abandon all or any part of the Project. In the event of such termination, suspension or abandonment, the Owner shall pay the Architect/Engineer, pursuant to §10.5.2, after the Architect/Engineer submits a bill therefore, all amounts due in accordance with this Agreement up to the date of termination, suspension or abandonment, provided the Architect/Engineer shall have delivered to the Owner all Instruments of Service pertaining to the portions of the Project which are terminated, suspended or abandoned and provided further, that Architect/Engineer shall have performed all its obligations under this Agreement to the date of termination, suspension or abandonment.

§7.6 If the Project is suspended for more than six (6) months, the Architect/Engineer’s compensation shall be equitably adjusted.

§7.7 If payment for undisputed services rendered or reimbursable expenses incurred is not received within sixty (60) days of the receipt of such invoice, the Architect/Engineer shall provide written notice to the Patrick Martin, Interim Facilities Director at Orange County Community College, advising Owner that it has fifteen (15) days from the receipt of such notice to cure. If Owner fails to cure such delinquency in that timeframe, the Architect/Engineer has the right to stop work.

§7.8 Termination, suspension or abandonment of the Project, in whole or in part, shall not give rise to any cause of action against the Owner for damages or extra remuneration beyond that described herein.

§7.9 Termination Expenses are in addition to compensation for Basic and Additional Services and include expenses which are directly attributable to termination for which the Architect/Engineer is not otherwise compensated. Termination Expenses shall be computed as a percentage of the total compensation for Basic Services and Additional Services earned up to the date of termination, per Project Phase, if applicable to the Project, as follows:

§7.9 .1 Twenty (20) percent of the total compensation for Basic and Additional Services earned up to the date of termination, if termination occurs before or during the Schematic Design Phase; or

§7.9 .2 Ten (10) percent of the total compensation for Basic and Additional Services earned…