Attachment H - Supplemental General Conditions for Tyler Building Renovation.pdf

SUPPLEMENTAL GENERAL CONDITIONS

The Commonwealth of Virginia Terms and Conditions of the A/E Contract, Form DGS-30-018 (CO-3a), are modified and supplemented as hereinafter described.

1. DEFINITIONS

The noted definitions are deleted and replaced with the following:

A/E Change Order: A document (CO-11ae) issued on or after the effective date of the A/E

Contract which is agreed to by the A/E and approved by the Owner, and which authorizes an addition, deletion, or revision in the A/E Services, including any adjustment in the Total Contract

Amount, Design-not-to-Exceed Budget, and/or the schedule for the A/E Services. An A/E Change

Order, once signed by all parties, is incorporated into and becomes a part of the A/E Contract.

Agency: The Virginia State Corporation Commission (also referred to as “Owner”).

Owner: The Virginia State Corporation Commission (also referred to as “Agency”).

SWaM/SDV Business: Any or all of the following entities: Employment Services Organization, Military Family-Owned Businesses, Minority-Owned Business, Micro Business, Service Disabled

Veteran-Owned Business, Small Business, and Women-Owned Business.

The following new definitions are added:

Agency Head: For purposes of the Project unless otherwise specified, the Chief Administrative

Officer for the Owner.

Certificate of Insurance: A document issued by the insurance company that serves as proof that the A/E or Contractor has an active insurance policy and which must include the following information, at a minimum: name of insurer, policyholder’s name, type of coverage, policy limits, deductibles or self-insured retentions, effective and expiration dates, and names of additional insureds.

Employment Services Organization: An organization that meets the definition of “Employment services organization” set forth in the Code of Virginia. Code of Virginia, § 2.2-4310(F).

Military Family-Owned Business: A business that meets the definition of “Military family-owned business” set forth in the Code of Virginia. Code of Virginia, § 2.2-4310(F).

SWaM Procurement Plan: The plans submitted by the A/E with its proposal on the form provided as Attachment B to the Request for Proposals for A/E Services for Renovation of the Tyler

Building, RFP # SCC-26-001-FAC, and incorporated into the A/E Contract as submitted by the

A/E.

6. DEBARMENT STATUS

Section 6, Debarment Status, is deleted and replaced with the following:

By entering into this A/E Contract, the A/E certifies that it is not currently debarred or enjoined by the Commonwealth of Virginia from submitting bids or proposals on contracts for the type of goods and/or services covered by this A/E Contract, nor is it an agent, affiliate, or subsidiary of any Person that is currently so debarred or enjoined.

11. CODE AND REGULATORY COMPLIANCE

Add the following new sentence at the end of paragraph 3 of Section 11, Code and Regulatory Compliance:

In the event of a conflict between or among the responses, the A/E shall notify the Owner, in writing, and provide the Owner with a reasonable opportunity to resolve the conflict among the opining entities and to provide further written guidance to the A/E.

12. A/E PROFESSIONAL LIABILITY INSURANCE

The third paragraph of Section 11, A/E Professional Liability Insurance, is deleted and replaced with the following:

The A/E shall maintain insurance coverage for a period of not less than five (5) years after Final

Completion of the Work under the Contract Documents.

15. RECORDS RETENTION

Section 15, Records Retention, is deleted and replaced with the following:

The A/E shall retain record copies of its design calculations, BIM, Plans, Specifications, bid/contract documents, addenda, field orders, clarifications, and responses to Requests for

Information, approved shop drawings and submittals, inspection/observation reports, fiscal records, Instruments of Service, and other documents relative to the A/E Contract for five (5) years after

Final Completion of the Work. Should the A/E cease its business prior to that time, the A/E will provide those Project related documents to the Owner.

16. OWNERSHIP OF DOCUMENTS AND MATERIALS

The second paragraph of Section 16, Ownership of Documents and Materials, is deleted and replaced with the following:

Instruments of Service may be subject to public inspection in accordance with Code of Virginia, §

12.1-19(C). Trade secrets or proprietary information submitted by a bidder, offeror, or contractor in connection with a procurement transaction shall not be subject to disclosure under the Virginia

Public Procurement Act provided the bidder, offeror, or contractor invokes the protections of Code of Virginia, § 2.2-4342(F), prior to or upon submission of the data or other materials, identifies the data or materials to be protected, states the reason why the protection is necessary, and properly limits its designation of materials as proprietary or trade secrets.

20. MODIFICATION OF THE A/E CONTRACT (A/E CHANGE ORDERS)

Section 20, Modification of the A/E Contract (A/E Change Orders), is deleted and replaced with the

The Owner may issue written modifications to the A/E Contract using CO-11ae. The language of

Code of Virginia, § 2.2-4309(A) and Chapter 3, Section 3.2.6 of the A/E Manual requiring prior approval of the Governor or Governor’s designee for modifications does not apply to the A/E

Contract or Contract Documents. In making any A/E Change Order, the resulting increase or decrease in cost shall be accompanied by adequate consideration in accordance with Code of

Virginia, § 2.2-4309(A).

23. AUDIT

Section 23, Audit, is deleted and replaced with the following:

The A/E agrees to the authority of the Owner and any of the Commonwealth of Virginia’s auditors and any other authority with jurisdiction to conduct audits and investigations in connection with any invoices or charges submitted to the Owner by the A/E and any payments made to the A/E by

Owner. The audit and investigation rights include access to and rights to examine, audit, excerpt and transcribe any pertinent books, documents, working papers and records of the A/E relating to or arising out of the A/E Services and the A/E Contract. A/E will fully cooperate with and provide all assistance requested by the Owner or other authority in the conduct of such audits or investigations, including providing all records within five (5) days of request. These audit and investigation rights include auditing invoices requesting payment for services provided on a cost reimbursement or hourly rate basis, including those submitted by Subcontractors, Consultants and associates of the A/E.

Compensation paid to the A/E is subject to adjustment based on the results of any audit or investigation. Notwithstanding the requirements of Section 15, the A/E, by signing the A/E

Contract, agrees to retain all books, records, and other documents relative to the A/E Contract for five (5) years after Final Completion of the Work. The Owner, its authorized agents, and/or the

Commonwealth of Virginia’s auditors shall have full access to and the right to examine any of the materials during said period.

32. CONTRACTUAL CLAIMS (Code of Virginia, § 2.2-4363)

Section 32, Contractual Claims (Code of Virginia, § 2.2-4363), is deleted, renamed, and replaced with the

32. EXTRA SERVICES, CLAIM AND DISPUTES

a. Extra Services due to CPSM or A/E Manual Updates

Many of the changes, additions, or deletions made in revisions to the A/E Manual are necessary to keep abreast with codes, statutes, or regulations related to the Project. They require immediate compliance by the A/E.

If the A/E determines that Extra Services will be needed to incorporate the requirements of the latest edition of the CPSM or any A/E Manual revision issued after the date of the A/E Contract, the A/E shall notify the Owner of same within sixty (60) days of the date of revision distribution and shall provide an itemized list of the Extra Services required.

After consultation with DEB, the Owner shall provide direction to the A/E regarding the effort necessary to incorporate the requirements of the revision. If appropriate, the Owner shall issue a Change Order to the A/E Contract for Extra Services.

The Owner expects that revisions issued prior to the date of approval of the preliminary submittal shall be incorporated with minimal, if any, Extra Services.

If the A/E fails to notify the Owner within sixty (60) days after the date of distribution of an

A/E Manual revision that the revision will require Extra Services, the A/E waives the right to make claims for Extra Services provided to address the requirements of the revision.

b. Claims

i. Written notice of the A/E’s intention to file a claim must be given to the Owner’s Project

Manager and Procurement Manager of the time of the occurrence or beginning of the A/E

Services upon which the claim is based. Such notice shall state that it is a “notice of intent to file a claim” and include a written statement describing the act or omission of the Owner or its agents that allegedly caused or may cause damage to the A/E and the nature of the claimed damage. The filing of a timely notice is a condition precedent to recovery. Failure to submit such notice of intent within the time and in the manner required shall be a conclusive waiver of the claim by the A/E.

Oral notice, the Owner’s actual knowledge, or a written notice given after the time of the occurrence or beginning of the A/E Services upon which the claim is based, shall not be sufficient to satisfy the notice requirements of this Section 32.

ii. Design Completion Delays. Claims for relief for a delay to Design Completion are subject to the following additional requirements and conditions precedent:

(a) Owner was the sole and proximate cause of the delay.

(b) For a delay of six (6) months or less, relief is limited to an extension of the

Contract Completion Date for a period of time equivalent to the length of time that Design Completion directly was delayed by Owner’s actions or inactions, as determined by Owner.

(c) For a delay more than six (6) months, in addition to consideration of an extension to the Contract Completion Date per Section 32(b)(ii)(b), Owner may consider adjustment of the A/E Rates for services after the six

(6) month period of delay in an amount not exceeding the change in the

Bureau of Labor Statistics, Producer Price Index by Industry:

Architectural, Engineering and Related Services (PCU54135413) during the period of delay, as calculated and applied by the Owner.

iii. Claims, whether for money or other relief, shall be submitted in writing to the Owner’s

Procurement Manager no later than sixty (60) days after final payment; however, written notice of the A/E’s intention to file such claim must be given to Owner’s Project Manager and Procurement Manager at the time of the occurrence or beginning of the work upon which the claim is based and shall clearly state that it is a “notice of intent to make a claim.” A claim shall clearly state that it is a “claim” and set forth the relief sought by the

A/E, including any additional costs or damages claimed by the A/E, and the basis for the relief requested, including the specific contractual basis upon which the A/E believes it is entitled to the relief requested. Failure to timely submit a notice of intent to make a claim, or to submit a claim, shall preclude any relief to the A/E.

Owner’s Procurement Manager shall render a final decision in writing within ninety (90) days after its receipt of the A/E’s written claim or within ninety (90) days after final payment, whichever date is later. The failure of Owner’s Procurement Manager to respond or to timely respond to a claim shall be deemed a denial of the claim.

If the A/E’s claim is denied in whole or in part by the Owner’s Procurement Manager, the

A/E may request an administrative review of the final decision pursuant to Part II of the

SCC’s Procedure for Administrative Review of Procurement Decisions, dated October 6, 2015, attached as Attachment J to the A/E Contract. The A/E may not invoke review under these procedures prior to receipt of the decision on the claim by the Owner’s

Procurement Manager unless she fails to timely render a decision.

iv. The A/E’s remedies shall be limited to recovery of monetary damages and interest as may be allowed by law. In no event shall the A/E’s remedies include the right to terminate any

A/E Services or the A/E Contract.

v. The existence of a claim or an ongoing dispute resolution process shall not excuse the A/E from continuing performance under the A/E Contract or from promptly complying with any A/E Change Orders.

33. INFORMAL ALTERNATIVE DISPUTE RESOLUTION

Section 33, Informal Alternate Dispute Resolution, is deleted and replaced with the following:

Pursuant to Code of Virginia, § 2.2-4366, Alternative Dispute Resolution, the Owner may enter into an agreement with the A/E to submit disputes arising from the performance of this A/E

Contract to mediation and other alternative dispute resolution procedures. However, any such procedures engaged in by the Owner shall be nonbinding.

34. APPLICABLE LAW AND COURTS

Section 34, Applicable Law and Courts, is deleted and replaced with the following:

The A/E Contract shall be governed in all respects by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought in the Supreme Court of Virginia, as required by Virginia law.

In performing any Services under the A/E Contract, the A/E shall comply with applicable federal, state, and local laws and regulations.

37. USE OF STANDARD FORMS AND FORMATS

The first two paragraphs of Section 37, Use of Standard Forms and Formats, are deleted and replaced with the following:

The A/E shall incorporate in every Construction Contract the applicable CO-7 (General Conditions) and CO-7a (Instructions to Bidders), which may be found at http://forms.dgs.virginia.gov. These forms shall not be retyped or modified in any way. If changes are required to either, the changes shall be made in the form of “Supplemental General Conditions” or “Supplemental Instructions to

Bidders” (collectively, “Supplements”). Such Supplements shall be approved by the Owner and the

Director of DEB prior to their incorporation into the Construction Contract.

The A/E shall use the applicable Capital Outlay Forms and the standard DEB forms which are available electronically for viewing and download from the DGS Forms Center, available at http://forms.dgs.virginia.gov. The wording on the forms shall not be modified or altered without the specific written approval of the Owner and the Director of DEB. Where spaces are provided for insertion of information, or italics signify information to be modified, the size of the space may be adjusted to accommodate the information being inserted.

38. PARTICIPATION OF SMALL BUSINESSES

Section 34, Participation of Small Business, is deleted and replaced with the following:

a. Periodic Progress Reports

The A/E shall report on the involvement of SWaM/SDV Businesses with each periodic invoice submitted to the Owner. The report shall be provided on the form attached to the A/E Contract as

Attachment I and shall identify each Subcontract or agreement with a SWaM/SDV Business, including the total contract value, and state the total amounts paid to each SWaM/SDV Business in connection with the A/E Contract as of the report date. The report shall provide this information separately for each type of SWaM/SDV Business and shall clearly include those SWaM/SDV

Businesses which were identified in Parts II and III of the SWaM Procurement Plan. The A/E shall provide two (2) copies of each periodic report to the Owner. Failure to submit the report with each invoice will result in the invoice being rejected by the Owner without payment.

b. Final Compliance Report

Prior to or with its final invoice for payment, the A/E shall certify and report on its compliance with its SWaM Procurement Plan (the “Final Compliance Report”). In this Final Compliance Report, the A/E shall:

i. Provide a written explanation to the Owner of any variances between the SWaM

Procurement Plan and the actual participation of SWaM/SDV Businesses in the A/E’s performance of the A/E Contract; and

ii. Report on the involvement of other SWaM/SDV Businesses in the A/E’s performance of the A/E Contract.

For each SWaM/SDV Business, the Final Compliance Report shall include the total contract value for that business, the type of SWaM/SDV Business, a comparison of the actual amount paid with the planned amounts shown on the SWaM Procurement Plan, the total amount paid to each type of

SWaM Business, and a calculation of the percentage of the Total Contract Amount paid to

SWaM/SDV Businesses.

The Final Compliance Report shall be provided on the form attached to the A/E Contract as

Attachment I. The Owner may withhold final payment to the A/E until the A/E has complied with the requirements of its SWaM Procurement Plan submitted.

42. A/E BASIC SERVICES

A new provision is added to Section 42, A/E Basic Services, as item number 8 in the subsection

Construction Phase Services Required to be Performed by the A/E (Submittal Review and Construction

Administration Services):

(8) The A/E shall evaluate all Construction Change Order requests to confirm the

Contractor’s entitlement to the change as well as assess the reasonableness of the costs and schedule impacts requested by the Contractor.

45. CONFLICTS; ORDER OF PRECEDENCE

Section 45,Conflicts; Order of Precedence, is deleted and replaced with the following:

The A/E shall report any conflicts between the A/E Contract, the A/E Manual, the VUSBC, or any law, regulation, or technical code to the Owner in writing and allow Owner a reasonable time to clarify the Project requirements prior to A/E preparing Contract Documents.

The A/E Contract Documents are intended to be complementary and interpreted harmoniously to avoid any conflict between or among the words and phrases used in them. In the event of a conflict between or among the provisions of the A/E Contract Documents, the conflict shall be resolved by giving precedence to the A/E Contract Documents in the following order: (1) any applicable A/E

Change Order; (2) the A/E Contract; (3) the MOU; (4) the Supplemental General Conditions; and

(5) the Terms and Conditions of the A/E Contract.