CD240 Agreement Owner Design Professional.pdf

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

ConsensusDocs® 240

STANDARD AGREEMENT BETWEEN OWNER AND DESIGN PROFESSIONAL

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ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

ConsensusDocs® 240

STANDARD AGREEMENT BETWEEN OWNER AND DESIGN PROFESSIONAL

TABLE OF ARTICLES

1. AGREEMENT

2. GENERAL PROVISIONS

3. DESIGN PROFESSIONAL’S RESPONSIBILITIES

4. OWNER’S RESPONSIBILITIES

5. TIME

6. COMPENSATION AND PAYMENTS

7. INDEMNITY AND INSURANCE

8. TERMINATION

9. DISPUTE MITIGATION AND RESOLUTION

10. MISCELLANEOUS

ARTICLE 1 AGREEMENT

This Agreement is made this [_____] Day of [_____] in the year [_____], by and between the

OWNER, [_____]

and the

DESIGN PROFESSIONAL, [_____]

Tax identification number (TIN) [_____] License Identification for the state of the Project [_____] for services in connection with the following

PROJECT [_____]

ARTICLE 2 GENERAL PROVISIONS

2.1 STANDARD OF CARE Design Professional shall furnish or provide the architectural and engineering Services necessary to design the Project in accordance with Owner’s requirements, as outlined in Owner’s Program and other relevant data defining the Project, which are attached as Exhibit A. The Services shall include Basic Services plus any Additional Services as may be authorized by Owner.

Services shall be performed in accordance with the standard of professional skill and care required for a project of similar size, location, scope, and complexity, during the time in which the Services are provided.

2.2 RELATIONSHIP OF THE PARTIES Design Professional will cooperate and exercise the skill and judgment required above in performing Services. Design Professional represents that it possesses the skill, expertise, and licensing to perform the Services. The Parties each agree to work together in good faith and fair dealings, and shall take actions reasonably necessary to enable each other to perform this

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Agreement in a timely, efficient, and economical manner. The Parties shall each endeavor to promote harmony and cooperation among all Project participants.

2.3 Neither Design Professional nor any of its agents or employees shall act on behalf of or in the name of Owner except as provided in this Agreement or authorized in writing by Owner.

2.4 ETHICS The Parties shall each perform their obligations with integrity, so that, at a minimum each: (a) avoids conflicts of interest; and (b) promptly discloses to the other Party any conflicts of interest which may arise. Each party warrants to the other Party that it has not and shall not pay nor receive any contingent fees or gratuities to or from the other Party, including its agents, officers, and employees, subconsultants, or others for whom they may be liable, to secure preferential treatment.

2.5 DEFINITIONS

2.5.1 “Agreement” means this ConsensusDocs 240, Standard Agreement Between Owner and Design Professional, as modified, and exhibits and attachments made part of this Agreement upon its execution.

2.5.1.1 The following exhibits are part of this Agreement:

EXHIBIT A: Project and Worksite information, including Owner’s Program, other relevant data defining the Project, and information as set forth in §4.1.1 dated [_____], [_____] pages.

EXHIBIT B: Direct Personnel Expense Rates, dated [_____], [_____] pages.

EXHIBIT C: Key Project Personnel, dated [_____], [_____] pages.

EXHIBIT D: Reimbursable Expenses, dated [_____], [_____] pages.

EXHIBIT E: Schedule of Worksite visits, dated [_____], [_____] pages.

EXHIBIT F: Services related to Basic Services.

EXHIBIT G: Other Additional Services.

2.5.2 “Business Days” are all Days, except weekends and official federal or state holidays where the Project is located.

2.5.3 “Constructor” means the person or entity retained by Owner to perform Work for the Project and includes Constructor’s Representative.

2.5.4 “Consultant” is a person or entity that contracts with Design Professional to provide professional architectural, engineering, or other consulting services for this Project.

2.5.5 “Cost of Construction” means Owner’s total cost of Project components. In the event the Project is not completed, Cost of Construction shall mean the final approved estimated cost of Project components.

2.5.6 “Day” means a calendar day.

2.5.7 “Design Professional” is the person or entity identified in ARTICLE 1 and includes Design Professional’s representative.

2.5.8 A “Hazardous Material” is any substance or material identified as hazardous under any federal, state, or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal, or clean-up.

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2.5.9 “Laws” mean federal, state, and local laws, ordinances, codes, rules, and regulations applicable to the Services and with which Design Professional must comply that are enacted as of the Agreement date.

2.5.10 “Others” mean other contractors, suppliers, and persons at the Worksite who are not employed by Constructor or Subcontractors.

2.5.11 “Owner” is the person or entity identified in ARTICLE 1 and includes Owner’s representative.

2.5.12 “Owner’s Program” means an initial description of Owner’s objectives that shall include budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements.

2.5.13 “Parties” mean Owner and Design Professional collectively.

2.5.14 The “Project,” as identified in ARTICLE 1, is the building, facility, or other improvements to be designed by Design Professional for which Constructor is to perform Work under the agreement between Owner and Constructor. It may also include construction by Owner, or Others.

2.5.15 The “Schedule of the Work” is the document prepared by Constructor that specifies the dates on which Constructor plans to begin and complete various parts of the Work, and the Project, including dates on which information and approvals are required from Owner.

2.5.16 “Services” mean the services provided by Design Professional or by consultants retained by Design Professional for the Project, including coordination of design services of subcontractors who may be procured by Constructor or Subcontractors. The Services include basic services and Additional Services as may be authorized by Owner.

2.5.17 A “Subcontractor” is a person or entity retained by Constructor as an independent contractor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work. The term Subcontractor does not include Design Professional or Others.

2.5.18 A “Subsubcontractor” is a person or entity who has an agreement with a Subcontractor to perform any portion of the Subcontractor’s Work.

2.5.19 “Work” means the construction and services necessary or incidental to fulfill Constructor’s obligations for the Project in conformance with the agreement between Owner and Constructor.

2.5.20 “Worksite” means the geographical area of the Project location as identified in ARTICLE 1 where the Work is to be performed.

ARTICLE 3 DESIGN PROFESSIONAL’S RESPONSIBILITIES

3.1 GENERAL RESPONSIBILITIES

3.1.1 PROJECT REQUIREMENTS Design Professional, in order to determine the requirements of the Services, shall conduct a preliminary evaluation of the information set forth in Exhibit A. Design Professional shall confirm its understanding of such requirements with Owner and shall assist Owner to refine or make clarifications to Owner’s Program for the Project.

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3.1.2 Design Professional shall not proceed with the development of successive design documents until receiving written approval from Owner. Design Professional shall promptly revise without additional compensation:

3.1.2.1 those documents which have not been previously approved by Owner and to which Owner has reasonable objections;

3.1.2.2 those documents identified by Constructor and reasonably accepted by Owner as presenting constructability problems; and

3.1.2.3 those documents needing revisions to reflect clarifications and assumptions and allowances on which a guaranteed maximum price is based. To the extent that any design documents approved by Owner deviate from the requirements of Owner’s Program, the approved design documents shall govern.

3.1.3 Design Professional shall have reasonable access to the Worksite at all times.

3.1.4 Design Professional shall assist Owner with filing required documents with governmental authorities having jurisdiction over the Project, including filing documents required to obtain permits necessary for construction of the Project.

3.1.5 Design Professional shall not be responsible for the acts or omissions of Owner, Constructor, and Subcontractors, and their respective agents or employees, or any other persons or entities performing work on the Project who are not under the direct control or authority of Design Professional.

3.2 BASIC SERVICES Design Professional’s Basic Services consist of any Services provided pursuant to §3.1 and §3.2 Design Professional shall identify in Exhibit F: (a) other Services included in Basic Services; (b) the specific design disciplines included in Basic Services; (c) those portions of the Project design to be furnished by Owner, Constructor, or Others; and (d) design services that are required to comply with elected green measures and green status identified in Owner’s Program. If additional services are required (i.e., serving as a green building facilitator), such services shall be included as Additional Services. Documents generated by Design Professional shall be in a format consistent with Owner’s articulated intended use. If applicable, BIM use shall be governed by the ConsensusDocs 301 BIM Addendum or a separate addendum: If professional design services are to be furnished by Owner, Constructor, or Others, Design Professional shall indicate all performance and design criteria to be satisfied in accordance with Owner’s Program, and Owner, Constructor, or Others shall not be responsible for the adequacy of such performance and design criteria. Whenever a license is required, Design services furnished by a party other than Design Professional shall be obtained from licensed design professionals, who shall affix their signature and seal on all drawings, specifications, calculations, and submittals prepared by them, and Design Professional shall be entitled to rely upon the adequacy, accuracy, and completeness of such design services.

3.2.1 COST ESTIMATES Except when estimates are the responsibility of Constructor retained to provide preconstruction services as part of the Work, Design Professional shall prepare for Owner’s review and approval (a) a preliminary estimate of the Cost of Construction utilizing area, volume, or similar conceptual estimating techniques and based upon Owner’s Program and other relevant information in Exhibit A, and (b) updated estimates of the Cost of Construction at the completion of the Schematic Design Documents, the Design Development Documents, and the Construction Documents, except when construction commences before the completion of such documents. If at any time Design Professional’s estimate exceeds Owner’s previously approved estimate, Design

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

Professional shall make recommendations to Owner describing ways to proceed within Owner’s budget described in Owner’s Program for Owner’s written approval.

3.2.2 PROJECT SCHEDULE Design Professional shall prepare for Owner’s review and approval a preliminary Project schedule that shall show the timing and sequencing of the design and construction required to meet the time criteria set forth in Owner’s Program. The Project schedule shall be updated for Owner’s review and approval at the completion of Schematic Design Documents, Design Development Documents, and Construction Documents, except when construction commences before the completion of such Documents. If Constructor has been retained to provide preconstruction services as part of the Work, Design Professional shall coordinate and update the Project Schedule with the Schedule of the Work prepared by Constructor. Design Professional shall make appropriate recommendations if any Project Schedule shows a deviation from previously approved Project Schedules.

3.2.3 SCHEMATIC DESIGN DOCUMENTS Based on Owner’s Program, including any approved refinements or clarifications, Design Professional shall prepare, for Owner’s review and approval, Schematic Design Documents consisting of drawings, outline specifications, and other documents illustrating the Project’s basic elements, scale, and their relationship to the Worksite. Schematic Design Documents shall include, as applicable, conceptual plans of the site and structures;

preliminary sections and elevations; approximate areas, volumes, and dimensions; and preliminary selections of materials and systems. Unless documents are required to be transmitted in electronic form, two printed sets and one reproducible set of Schematic Design Documents shall be provided to Owner. When Design Professional submits the Schematic Design Documents, Design Professional shall identify in writing for Owner’s approval all material changes and deviations that have taken place from Design Professional’s approved preliminary estimate of the Cost of Construction and Project Schedule.

3.2.4 DESIGN DEVELOPMENT DOCUMENTS Based on the approved Schematic Design Documents and the updated estimate of the Cost of Construction and Project Schedule, Design Professional shall prepare, for Owner’s review and approval, Design Development Documents. The Design Development Documents shall further define the Project, including drawings and outline specifications fixing and describing the Project size, character, and site relationships, and other appropriate elements describing the structural, architectural, mechanical, and electrical systems.

Design Development Documents shall include, as applicable, plans, sections, and elevations; criteria and sizing of major components; equipment sizes and capacities and approximate layouts, including required spaces and clearances; typical details; materials selections and general quality levels. When Design Professional submits Design Development Documents, Design Professional shall identify in writing for Owner’s approval all material changes and deviations that have taken place from the Schematic Design Documents and the previously approved estimate of the Cost of Construction and Project Schedule. If requested by Owner, Design Professional shall prepare alternate bid documents.

Unless documents are required to be transmitted in electronic form, two printed sets and one reproducible set of Design Development Documents shall be provided to Owner.

3.2.5 CONSTRUCTION DOCUMENTS Based on the approved Design Development Documents and updated estimate of the Cost of Construction and Project Schedule, Design Professional shall prepare, for Owner’s review and approval and the approval of governmental authorities, Construction Documents, including any revisions necessary to secure such approvals, setting forth in detail the quality levels of and the requirements for construction of the Project, and consisting of drawings and specifications that comply with Laws. When Design Professional submits the Construction Documents, Design Professional shall identify in writing for Owner’s approval all material changes and deviations that have taken place from the Design Development Documents and the previously approved estimate of the Cost of Construction and Project Schedule. The Construction Documents

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shall describe all work necessary to bid and construct the Project. Unless documents are required to be transmitted in electronic form, two printed sets and one reproducible set of the Construction Documents shall be provided to Owner.

3.2.6 DESIGN COORDINATION Design Professional shall coordinate the services of all design consultants for the Project, who are or will be: [_____]. Design Professional shall promptly report any known errors or omissions to Owner. However, unless retained by Design Professional or a Consultant, Design Professional does not assume an affirmative responsibility to detect errors, omissions, or inconsistencies in a design consultant’s services.

3.2.7 BIDDING OR NEGOTIATION ASSISTANCE Design Professional shall assist Owner in obtaining bids or negotiated proposals from contractors by providing up to six (6) sets of drawings, specifications, and any addendum, attending pre-bid and pre-award meetings, clarifying the scope and intent of the Construction Documents, and, if appropriate, evaluating proposed subcontractors and suppliers for portions of the Work. Design Professional shall issue any required addenda or clarifications promptly in writing.

3.2.7.1 If the lowest bona fide bid or negotiated proposal exceeds the final approved estimate of the Cost of Construction by [_____] percent ([_____]%) or more, and Owner, in its sole discretion, elects not to accept such bid or proposal or elects to rebid or renegotiate the Project, Design Professional, without additional compensation, shall work with Owner to make the necessary modifications to the Construction Documents to reduce the Cost of Construction to an amount less than or equal to the sum of the final approved estimate of the Cost of Construction plus the percentage stated above. This subsection shall not apply if estimates are prepared by or are the responsibility of Constructor or Others.

3.2.8 CONSTRUCTION PHASE SERVICES The Construction Phase will commence upon the issuance of a written notice from Owner to the Constructor to proceed with the Work, with contemporaneous notification to Design Professional. Design Professional shall (a) review and advise Owner as to the accuracy and sufficiency of the schedule of values submitted by Constructor for the Work, (b) coordinate the Project Schedule with the Schedule of the Work submitted by Constructor and approved by Owner, (c) prepare design documents in connection with change orders, (d) respond to Constructor requests for information, and (e) prepare alternate bid documents after completion of schematic design documents. Design Professional shall furnish to Owner and, if directed, to Constructor interpretations and clarifications of the drawings and specifications, by means of additional drawings, addenda, or otherwise, as are necessary for the proper execution and progress of the Work. All such interpretations and clarifications shall be consistent with the intent of the Construction Documents and reasonably inferable from them.

3.2.8.1 SUBMITTALS Design Professional shall review Constructor’s submittals, including shop drawings, product data, and samples, and make approvals of or recommendations about such submittals to Owner within ten (10) Business Days of receiving the submittals from Constructor, unless mutually agreed otherwise by Design Professional, Constructor, and Owner. Design Professional shall check Constructor’s submittals for conformance with the design and the scope of the Project and for compliance with the Construction Documents. Design Professional’s review shall not extend to Constructor’s means, methods, techniques, sequences, or procedures, unless such means, methods, techniques, sequences, or procedures have been specified by Owner or Design Professional.

3.2.8.2 Design Professional shall assist Owner in the evaluation and processing of requests for changes in the Work. Based on its evaluation, Design Professional shall make appropriate recommendations to Owner.

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3.2.8.3 Design Professional shall visit the Worksite at appropriate intervals, but not less than [_____] ([_____]) times or pursuant to such schedule as the Parties may establish by attachment of Exhibit E to this Agreement, to become generally familiar with the quality of the Work and to determine in general if the Work is proceeding in accordance with the Construction Documents. After each Worksite visit, Design Professional shall promptly provide Owner with a written report. If Design Professional becomes aware of any defects or deficiencies in the Work, or failure of the Work to progress in conformity with the Schedule of the Work, Design Professional shall provide prompt notice, followed by written confirmation, to Owner. If, in Design Professional’s opinion, special testing or inspection of the Work is needed, Design Professional shall recommend to Owner such testing or inspection procedures and appropriate consultants. Design Professional shall not be responsible for construction means, methods, techniques, sequences, and procedures, unless they are specified by Design Professional, or for ensuring that the Work is in accordance with the Construction Documents.

3.2.8.4 SAFETY Design Professional shall not be responsible for Constructor’s safety precautions and programs. However, if Design Professional has actual knowledge of safety violations, Design Professional shall give prompt written notice to Owner.

3.2.8.5 Design Professional shall attend up to [_____] ([_____]) meetings with Owner and Constructor upon reasonable request of Owner.

3.2.8.6 Design Professional shall assist Owner in conducting up to [_____] ([_____]) inspections to determine the date or dates of Constructor’s Substantial Completion of the Work. Such assistance shall include compiling a list of items to be completed or corrected so that Owner may occupy or utilize the Work or a designated portion for its intended use, without unscheduled disruption.

3.2.8.7 Design Professional shall assist Owner in conducting up to [_____] ([_____]) inspections to determine Constructor’s final completion of the Work.

3.2.8.8 COMMISSIONING Design Professional shall assist with the implementation of formal commissioning.

3.2.8.9 If requested by Owner, Design Professional shall make up to two (2) visits to the Worksite during Constructor’s one-year correction period to assist Owner in evaluating the need for any corrective measures.

3.2.8.10 Design Professional shall prepare record drawings from marked-up prints, drawings, or other documents that incorporated changes made during the Construction Phase.

3.2.9 HAZARDOUS MATERIAL To the extent not identified in this Agreement, if a Hazardous Material is discovered at the Worksite, Design Professional shall not be required to perform Services relating to or in the area of the Hazardous Material without written mutual agreement.

3.2.10 Except as otherwise provided in this Agreement, Design Professional hereby grants a license to use design and construction documents prepared by Design Professional to those retained by Owner or Constructor to perform construction services for the Project.

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3.3 ADDITIONAL SERVICES The following Services shall be provided by Design Professional and paid for as Additional Services if they are authorized in advance by Owner in writing and are not included in Basic Services as set forth in §3.1 and §3.2:

3.3.1 investigation of sources of financing, general business planning, and other information and documentation as may be required to establish the feasibility of the Project;

3.3.2 consultations, negotiations, and documentation supporting the procurement of Project financing;

3.3.3 assistance with the preparation of Owner’s Program and planning surveys;

3.3.4 surveys, site evaluations, legal descriptions, and aerial photographs;

3.3.5 soils, subsurface, and environmental studies, reports, and investigations required for submission to governmental authorities or others having jurisdiction over the Project;

3.3.6 document reproduction exceeding the limits provided for under §3.2;

3.3.7 preparing measured drawings of existing conditions;

3.3.8 Design Professional will assist Owner in processing Constructor’s applications for payment.

Based on its on-site observations and other relevant information, Design Professional shall certify to Owner the amounts due Constructor and that the Work has progressed to the point indicated in the payment application based on the schedule of values submitted by Constructor. Design Professional’s certification for payment shall not be a representation that Design Professional has: (a) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work; (b) reviewed construction means, methods, techniques, sequences, or procedures for Constructor’s Work; (c) reviewed copies of requisitions received from Subcontractors and Material Suppliers and other data requested by Owner to substantiate Constructor’s right to payment; or (d) ascertained how or for what purpose Constructor has used money previously paid. Design Professional shall be entitled to rely on Constructor’s certification as to the application of moneys previously paid;

3.3.9 artistic renderings, models, and mockups of the Project or any part of the Project;

3.3.10 inventories of existing furniture, fixtures, furnishings, and equipment which might be under consideration for incorporation into the Project;

3.3.11 interior design and related services, including procurement and placement of furniture, furnishings, artwork, and decorations;

3.3.12 Other than as provided by §3.2.7.1, making revisions to the Schematic Design, Design Development, or Construction Documents after they have been approved by Owner, and which are due to causes beyond the control of Design Professional;

3.3.13 design, coordination, management, expediting, and other services supporting the procurement of materials to be obtained or work to be performed by Owner, including but not limited to telephone systems, computer wiring networks, sound systems, alarms, security systems, and other specialty systems which are not otherwise required by this Agreement;

3.3.14 estimates, proposals, appraisals, consultations, negotiations, and services in connection with the repair or replacement of an insured loss;

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3.3.15 the premium portion of overtime work ordered by Owner other than that required by Design Professional to maintain the Project Schedule for causes that are the responsibility of Design Professional;

3.3.16 obtaining service contractors and training maintenance personnel; or assisting and consulting in the use of systems and equipment after the initial startup;

3.3.17 services for tenant or rental spaces which are not otherwise required by this Agreement;

3.3.18 except when Design Professional is a party to the proceeding, serving or preparing to serve as an expert witness in connection with any proceeding, legal or otherwise, regarding the Project;

3.3.19 Worksite visits in excess of the number of visits provided for in §§3.2.8.3, 3.2.8.7–3.2.8.9 or the number of visits in a schedule established by attachment to this Agreement;

3.3.20 attending meetings in excess of those provided for in §3.2.8.5;

3.3.21 providing Services relating to Hazardous Material discovered at the Worksite;

3.3.22 consultations and representations before governmental authorities or others having jurisdiction over the Project other than normal assistance in securing building permits;

3.3.23 out-of-town travel by Design Professional in connection with Services, except between Design Professional’s office, Owner’s office, and the Worksite;

3.3.24 services requested by Owner or required by the Work that are not normally part of generally accepted design and construction practice and not otherwise required by this Agreement;

3.3.25 acting as a Green Building Facilitator as identified in the ConsensusDocs 310 Green Building Addendum or separate addenda, which, at a minimum, shall address: (a) coordinating and facilitating the achievement of elected green measures and green status, such as achieving Leadership in Energy and Environmental Design “LEED” certification; (b) identifying, preparing, and submitting necessary documentation for elected green status; and (c) identifying project participants responsible to complete physical and procedural green measures;

3.3.26 furnishing services related to the suspension of construction work;

3.3.27 performing formal commissioning services; and

3.3.28 other additional services as agreed to by the Parties and identified in an attached exhibit.

3.4 QUALIFICATIONS Design Professional warrants and represents that Design Professional and its consultants are duly qualified, licensed, registered, and authorized by law to perform the Services under this Agreement.

3.5 CONSULTANTS Design Professional shall not engage the services of any consultant without first obtaining Owner’s written approval, which approval shall not be unreasonably withheld. Such approval by Owner shall not be deemed to create any contractual relationship between Owner and any such consultant, except that Owner shall be considered the intended third-party beneficiary of the performance of their services. Except for the waivers required under §5.4 and §7.3.2, Design Professional shall not include any limits of liability in its agreements with any Consultants without the prior written approval of

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Owner. Design Professional shall bind its Consultants in the same manner as Design Professional is bound to Owner under this Agreement.

3.6 DESIGN PROFESSIONAL’S REPRESENTATIVE Design Professional’s representative is [_____], who shall possess full authority to receive and act on instructions from Owner, in accordance with this Agreement. If Design Professional changes its representative or the representative’s authority, Design Professional shall immediately notify Owner in writing.

3.7 KEY PROJECT PERSONNEL The key Project personnel whom Design Professional shall assign and their anticipated time percentage each shall devote to Design Professional’s Services shall be set forth in Exhibit C. Such personnel shall not be changed without the written approval of Owner, which approval shall not be unreasonably withheld.

3.8 FINANCIAL INFORMATION Prior to commencement of Services, and thereafter, Design Professional shall have the right, upon written request, to receive from Owner evidence of Owner’s financial ability to pay for Design Professional’s Services. Evidence of Owner’s financial ability to pay for Services shall be a condition precedent to Design Professional commencing or continuing Services. Design Professional shall be notified prior to any material change in Owner’s ability to pay for Services.

3.9 ROYALTIES, PENALTIES, AND COPYRIGHTS Design Professional shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods, or systems selected by Design Professional and incorporated in the design or construction documents prepared by Design Professional. Design Professional warrants that it possesses the copyright or permission to use the copyright of materials, methods, or systems selected by Design Professional and incorporated in the design or construction documents prepared by Design Professional. Design Professional shall defend, indemnify, and hold Owner, Constructor, and Subcontractors harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection.

3.10 CONFIDENTIALITY Design Professional shall treat as confidential and not disclose to any third parties, except as necessary for the performance of this Agreement or as required by law, or use for its own benefit, any of Owner’s confidential information, know-how, discoveries, production methods, and the like that are so identified in writing and disclosed to Design Professional or which Design Professional acquires in performing the Services required by this Agreement. Except for information that Owner obtains through ownership of the copyright, Owner shall treat as confidential information all design systems that may be disclosed to Owner in connection with the performance of this Agreement. Owner and Design Professional shall each specify those items to be treated as confidential and shall mark them as “Confidential.”

ARTICLE 4 OWNER’S RESPONSIBILITIES

4.1 INFORMATION AND SERVICES PROVIDED BY OWNER

4.1.1 To the extent Owner has obtained the information and services identified below, Owner shall provide them to Design Professional with reasonable promptness. Unless otherwise limited by Owner in writing, Design Professional shall be entitled to rely on the accuracy of such information and services:

4.1.1.1 information describing the physical characteristics of the Worksite, including surveys, Worksite evaluations, legal descriptions, existing conditions, subsurface and environmental studies, reports, and investigations all in reasonable detail and as set forth in Exhibit A.;

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

4.1.1.2 inspection reports and testing services conducted during construction as required by law or as mutually agreed;

4.1.1.3 unless otherwise provided in this Agreement, documentation evidencing any necessary approvals, site plan review, rezoning, easements and assessments, fees, and charges required for the construction, use, occupancy, or renovation of permanent structures.

4.1.2 Owner shall promptly report to Design Professional errors, inconsistencies, and omissions it discovers in the Construction Documents; however, nothing in this subsection shall relieve Design Professional of responsibility for its own errors, inconsistencies, and omissions.

4.1.3 Approvals by Owner shall not be deemed to be an assumption of responsibility by Owner for any error, inconsistency, or omission in the drawings and specifications or other documents prepared by Design Professional, its employees, agents, or consultants. Owner shall provide all approvals required under this Agreement in a timely manner.

4.2 OWNER’S REPRESENTATIVE Owner’s representative is [_____]. The Representative shall be fully acquainted with the Project; agrees to furnish the information and services required of Owner pursuant to §4.1 in a timely manner; and shall have authority to bind Owner in matters requiring Owner’s approval, authorization, or written notice, but may not change this ConsensusDocs 240, Standard Agreement Between Owner and Design Professional, as modified by the Parties. If Owner changes its representative or their authority, Owner shall immediately notify Design Professional in writing.

4.3 ROYALTIES, PATENTS, AND COPYRIGHTS Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods, or systems specifically required by Owner to be incorporated in the design and construction documents prepared by Design Professional. Owner warrants that it possesses the copyright or permission to use the copyright of materials, methods, or systems required by Owner to be incorporated in the design documents of Design Professional. Owner agrees to defend, indemnify, and hold Design Professional harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods, or systems required by Owner or used by Constructor but not required by Owner or Design Professional.

ARTICLE 5 TIME

5.1 TIME FOR SERVICES Time is of the essence. Design Professional shall provide the Services required by this Agreement in a timely manner and in conformance with the most recent Project Schedule approved by Owner. Design Professional’s Fee as set forth in §6.1 is based on completion of Construction Documents no later than [_____] ([_____]) Days following execution of this Agreement. If completion of Construction Documents is not achieved within this time through no fault of Design Professional, Design Professional may seek an adjustment to its compensation and time for Services in accordance with this Agreement.

5.2 DELAYS BY DESIGN PROFESSIONAL If the progress or completion of the Project is delayed by reason of any error, inconsistency, or omission of Design Professional which violates its standard of care, Design Professional shall compensate Owner for and indemnify it against all damages that may accrue as a result of such delay, except as otherwise provided in §5.4. In addition, Design Professional shall provide Services at its own cost, including any overtime costs and expenses, required to make up time lost to Owner because of such delay. Owner shall provide prompt written notice to Design Professional of such delay after Owner first recognizes the delay.

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

5.3 DELAYS BY OWNER If Design Professional is delayed in the performance of its Services by any act or omission of Owner, or by changes ordered by Owner which are due to causes beyond Design Professional’s control, or by a delay authorized by Owner pending dispute resolution, then the time allotted in the Project Schedule for Design Professional’s Services shall be extended for the period of such delay or Owner shall authorize and approve Design Professional to work to make up such lost time.

Design Professional may seek an equitable adjustment under this Agreement. Design Professional shall provide prompt written notice to Owner of such delay after Design Professional first recognizes such delay.

5.4 LIMITED MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES

5.4.1 The Parties each waive claims against each other for consequential damages arising out of or relating to this Agreement, whether arising in contract, warranty, tort (including negligence), strict liability, or otherwise, including but not limited to losses of use, profits, business, reputation, or financing, except for those specific items of damages excluded from this waiver, as mutually agreed upon by the Parties and identified below. Owner agrees to waive damages including but not limited to Owner’s loss of use of the Project, any rental expenses incurred, loss of income, profit, or financing related to the Project, as well as the loss of business, loss of financing, loss of profits not related to this Project, loss of reputation, or insolvency. Design Professional agrees to waive damages including, but not limited to, loss of business, loss of financing, loss of profits not related to this Project, loss of reputation, or insolvency. The following items of damages are excluded from this mutual waiver: [_____].

5.4.1.1 The provisions of this subsection shall also apply to the termination of this Agreement and shall survive such termination. The Parties shall each require similar waivers in contracts with their contractors and consultants retained for the Project.

ARTICLE 6 COMPENSATION AND PAYMENTS

6.1 COMPENSATION FOR BASIC SERVICES

6.1.1 For Basic Services as described in §3.1 and §3.2, Owner shall compensate Design Professional on the following basis, including applicable sales taxes (designate only one of the following options):

☐ Stipulated Fee. The amount of [_____] dollars ($[_____]).

☐ Guaranteed Maximum Fee. The actual cost of the following:

a. Design Professional’s personnel at the rates listed in Exhibit B.

b. Services of consultants and subcontractors at a multiple of [_____] ([_____]) times the amount billed to Design Professional for such services.

c. Reimbursable Expenses incurred in connection with Basic Services.

☐ Other basis of fee as follows: [_____]

6.2 ADDITIONAL SERVICES AND REIMBURSABLE EXPENSES

6.2.1 Design Professional shall be compensated for Additional Services as described in §3.3 on the following basis: [_____].

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other

6.2.2 Design Professional shall be compensated for the Reimbursable Expenses described in Exhibit D at their actual cost, unless otherwise provided in §6.1.1.

6.3 PAYMENTS

6.3.1 Design Professional shall submit to Owner for its approval monthly applications for payment for Basic and Additional Services and Reimbursable Expenses, if any, with reasonable supporting detail.

Owner shall pay approved amounts no later than thirty (30) Days after Design Professional has submitted its applications for payment. No matter how computed in §6.1, payments for Basic Services either:

6.3.1.1 shall not exceed the following percentages of the total Fee for Basic Services at the completion of each Phase of Design Professional’s Services:

Schematic Design Documents [_____]% Design Development Documents [_____]% Construction Documents [_____]% Bidding or Negotiation Assistance [_____]% Construction Phase [_____]%

TOTAL [_____] 100%

or

6.3.1.2 shall not exceed the following lump sum amounts for each Phase of Design Professional’s Services:

Schematic Design Documents [_____] dollars ($[_____]) Design Development Documents [_____] dollars ($[_____]) Construction Documents [_____] dollars ($[_____]) Bidding or Negotiation Assistance [_____] dollars ($[_____]) Construction Phase [_____]…