CD240 Draft.pdf

ConsensusDoc 240 Supplementary Conditions to Standard Agreement Between Owner and Design Professional

State of West Virginia

{W0090242.1} 1 | P a g e

West Virginia University

Supplementary Conditions to ConsensusDocs 240 Standard Agreement Between Owner and Design Professional

The following Supplementary Conditions modify the Standard Agreement Between Owner and Design Professional, ConsensusDocs 240, 2017 Edition entered into and effective as of Enter Effective Date of Consensus240 Agreement by and between the West Virginia University Board of Governors on behalf of West Virginia University and Enter Contractor Name, located at Enter Address of Contractor, Enter State, Enter City Enter ZipCode,. Where a portion of the General Conditions is modified or deleted by these Supplementary Conditions, the unaltered portions of the General Conditions shall remain in effect.

ANY PROVISION OF THE CONSENSUSDOCS STANDARD AGREEMENT BETWEEN OWNER AND DESIGN PROFESSIONAL

THAT CONFLICTS WITH THESE SUPPLEMENTARY CONDITIONS IS NULL AND VOID.

ARTICLE 2

GENERAL PROVISIONS

Modify the following in Article 2 General Provisions:

§2.5 DEFINITIONS.

Add the following Exhibits in Section 2.5.1.1 after EXHIBIT C:

EXHIBIT D: Design Phase Schedule EXHIBIT E: Services related to Basic Services EXHIBIT F: Other Additional Services EXHIBIT G: Scope of Work for Preconstruction Services EXHIBIT H: Guaranteed Maximum Price (GMP) Development and Subcontractor Bidding EXHIBIT I: Owner’s Budget for Cost of Construction EXHIBIT J: Building Information Modeling

Delete Section 2.5.5 in its entirety and replace with the following:

§2.5.5 “Cost of Construction” means the cost to the Owner to complete all of the construction designed or specified by the Design Professional including all items included in the Constructor’s Guaranteed Maximum Price (GMP). The Cost of Construction does not include the cost of fixtures, furniture, or equipment unless expressly stated in the Owner’s Program. Cost of Construction does not include design costs, pre-construction costs, Owner contingency, or Site acquisition costs. The Owner shall provide a Budgeted Cost of Construction as Exhibit I attached to this Agreement. After the Construction Contract is awarded, the Owner’s Budgeted Cost of Construction may be modified in the sole discretion of the Owner.

ARTICLE 3

DESIGN PROFESSIONAL’S RESPONSIBILITIES

Modify the following in Article 3 Design Professional’s Responsibilities:

§3.1 GENERAL RESPONSIBILITIES.

Delete Section 3.1.1 in its entirety and replace with the following:

§3.1.1 PROJECT REQUIREMENTS. Design Professional, in order to determine the requirements of the Services, shall, within (5) Business Days, 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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Add the following Section 3.1.6:

3.1.6 The Design Professional recognizes that the Project must be designed within the limits of the Owner’s budget for the Cost of Construction as described in Exhibit I: Owner’s Budget for Cost of Construction. In the event the Design Professional finds, in its opinion, that the probable Cost of Construction will potentially exceed the budgeted Cost of Construction, the Design Professional shall immediately give written notice to the Owner. The Owner will either revise the budget to increase the budgeted Cost of Construction, or work with the Design Professional and Constructor (if applicable) to propose revisions to the design, scope or quality of the Project, as required to bring the probable Cost of Construction within the budgeted Cost of Construction. If the Owner, accepts the proposed revisions, the Owner will direct the Design Professional to revise or redraft any and all documents necessary to reduce the probable Cost of Construction to meet the budgeted Cost of Construction. The Design Professional shall promptly revise the documents in a timely manner, without additional compensation.

§3.2 BASIC SERVICES.

Delete Section 3.2 in its entirety and replace with the following:

§3. 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 and as described in Exhibit J. 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.

Delete Section 3.2.2 in its entirety and replace with the following:

§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, upon reasonable request by Owner, and 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.

Delete Section 3.2.7.1 in its entirety and replace with the following:

3.2.7.1 If the lowest bona fide bid or negotiated proposal exceeds the final approved estimate of the Cost of Construction 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. This subsection shall not apply if estimates are prepared by or are the responsibility of Constructor or Others.

Delete Section 3.2.8 in its entirety and replace with the following:

§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, and (c) prepare design documents in connection with change

3 | P a g e V e r s i o n : F e b 2 0 2 2 orders, (d) respond to Constructor requests for information. 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.

§3.8 FINANCIAL INFORMATION.

Delete Section 3.8 in its entirety.

ARTICLE 4

OWNER’S RESPONSIBILITIES

Modify the following in Article 4 Owner’s Responsibilities:

§4.1 INFORMATION AND SERVICES PROVIDED BY OWNER.

Delete Section 4.1.1 in its entirety and replace with the following:

§4.1.1 To the extent Owner has obtained the information and services identified below, Owner shall provide them to Design Professional upon request. Unless otherwise specified by Owner in writing, Design Professional shall not be entitled to rely on the accuracy of such information and services..

ARTICLE 6

COMPENSATION AND PAYMENTS

Modify the following in Article 6 Compensation and Payments:

§6.2 ADDITIONAL SERVICES AND REIMBURSABLE EXPENSES.

Delete Section 6.2.1 in its entirety and replace with the following:

§6.2.1 The additional services listed in Exhibit F are included in the stipulated sum provided in §6.1. The fee for Additional Services, other than those listed in Exhibit F, and changes in the scope of work shall be negotiated mutually between the Owner and the Design Professional.

§6.3 PAYMENTS.

Delete Section 6.3.6 in its entirety.

ARTICLE 7

INDEMNITY AND INSURANCE

Modify the following in Article 7 Indemnity and Insurance:

§7.1 INDEMNITY.

Delete Section 7.1.2 in its entirety.

§7.2 INSURANCE.

Delete Section 7.2.6 in its entirety and replace with the following:

§7.2.6 Design Professional shall provide such other insurance as may be required by law. Design Professional shall furnish to Owner certificates of insurance evidencing the required coverages listed in this section and a copy of its Professional Liability policy prior to commencement of Services. All insurance carried by Design Professional in connection with the Services shall list Owner as an additional insured and such

4 | P a g e V e r s i o n : F e b 2 0 2 2 insurance, except Professional Liability and Workers Compensation, shall be primary and not contributory as to any other insurance the Owner may have in effect. No policy shall be cancelled or modified without thirty (30) Days’ prior written notice to Owner. Such requirement for prior written notice does not apply to modifications caused by claims made against the policy. Design Professional and its Professional Liability insurance carrier shall notify Owner within thirty (30) Days of any claims made or loss expenses incurred against the Professional Liability policy.

Owner shall have the right to notify directly Design Professional’s Professional Liability insurance carrier of a claim against the policy. The Professional Liability policies shall be continued in effect for three (3) year(s) following completion date of the Project. The insurance company(ies) providing the above described coverage shall have an AM Best Rating of no less than (A-) excellent. Owner does not express any opinion as to the sufficiency of the liability limits set forth above. The insurance required hereunder is not a limitation of any liability of Design Professional.

ARTICLE 8

TERMINATION

Modify the following in Article 8 Termination:

§8.2. TERMINATION BY OWNER FOR CONVENIENCE.

§8.2 Delete Section 8.2 in its entirety and replace with the following:

§8.2 8.2 TERMINATION BY OWNER FOR CONVENIENCE. Upon seven (7) Days’ written notice, Owner may, without cause, terminate this Agreement with Design Professional. If this Agreement is terminated pursuant to this section, Design Professional may recover from Owner payment for Services performed to the date of termination, in accordance with this Agreement.

ARTICLE 9

DISPUTE MITIGATION AND RESOLUTION

Modify the following in Article 9 Dispute Mitigation and Resolution:

§9.3 MITIGATION.

Delete Section 9.3 in its entirety.

Delete Section 9.3.1 in its entirety.

Delete Section 9.3.2 in its entirety.

§9.4 MEDIATION.

Delete Section 9.4 in its entirety and replace with the following:

§9.4 9 MEDIATION. If direct discussions pursuant to §9.2 do not result in resolution of the matter, the Parties may, upon mutual agreement, endeavor to resolve the matter by mediation through the current Construction Industry Mediation Rules of the American Arbitration Association, or the Parties may mutually agree to select another set of mediation rules. The administration of the mediation shall be as mutually agreed by the Parties. The mediation shall be convened within thirty (30) Days of the matter first being discussed and shall conclude within forty-five (45) Business Days of the matter first being discussed. Either Party may terminate the mediation at any time after the first session by written notice to the non-terminating Party and mediator. The costs of the mediation shall be shared equally by the Parties.

§9.5 BINDING DISPUTE RESOLUTION.

Delete Section 9.5.1 in its entirety.

Delete Section 9.5.1.1 in its entirety.

Delete Section 9.5.1.2 in its entirety.

§9.6 LIEN RIGHTS.

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Delete Section 9.6 in its entirety.

ARTICLE 10

MISCELLANEOUS

Modify the following in Article 10 Miscellaneous:

Delete Section 10.1.3 in its entirety and replace with the following:

§10.1.3 OWNER’S USE OF DOCUMENTS AFTER COMPLETION OF PROJECT. After completion of the Project, Owner may reuse, reproduce, or make derivative works from the Documents solely for the purposes of maintaining, renovating, remodeling, or expanding the Project at the Worksite. Owner’s use of the Documents without Design Professional’s involvement or on other projects is at Owner’s sole risk, except for Design Professional’s indemnification obligations pursuant to §3.9.

Delete Section 10.1.3 in its entirety and replace with the following:

§10.4 ASSIGNMENT. Except for an assignment of proceeds, neither Owner nor Design Professional shall assign its interest in this Agreement without the written consent of the other Party. If such assignment occurs, Design Professional shall execute any consent reasonably required. In such event, the wholly owned subsidiary or lender shall assume Owner’s rights and obligations under the contract documents. If either Party attempts to make such an assignment, that Party shall nevertheless remain legally responsible for all obligations under this Agreement, unless otherwise agreed by the other Party.

Add the following Section 10.11:

§10.11 DESIGN ACCORDING TO LEED. The LEED Green Building Rating System and other similar environmental guidelines (collectively "LEED") utilize certain design and usability recommendations on a project in order to promote an environmental friendly and energy efficient facility. In addressing these guidelines, Design Professional shall perform its services in accordance with the Standard of Care. The Owner acknowledges and understands, however, that LEED is subject to various and possibly contradictory interpretation. Furthermore, compliance may involve factors beyond the control of Design Professional including, but not limited to, the Owner’s use and operation of the completed project. Notwithstanding anything contained in this Agreement or any Exhibit, Design Professional does not warrant or represent that the Project will actually achieve LEED certification or the equivalent thereof. Design Professional shall use reasonable care consistent with the foregoing standard in interpreting and designing in accordance with LEED. Design Professional shall not be responsible for Constructor’s failure to adhere to the Documents and any applicable laws, codes, and regulations incorporated therein, nor for any changes to the design made by the Owner without the direct participation and written approval of the Design Professional. Likewise, Design Professional shall not be responsible for any environmental or energy issues arising out of the Owner’s use and operation of the completed Project.

Add the following Section 10.12:

§10.12 MODIFICATIONS AND AMENDMENTS This Agreement may be modified at any time upon mutual consent in writing of both Parties and signed by both Parties hereto. Any proposed change must be made in writing, delivered in person or by registered mail to the other party, and must be accepted in writing before it will be given effect.

Add the following Section 10.13:

§10.13 APPROVAL BY WEST VIRGINIA ATTORNEY GENERAL The Parties hereby understand and agree that, pursuant to West Virginia Code §18B-5-4, this Agreement must be approved by the West Virginia Attorney General. The Parties will move forward pursuant to the terms of this Agreement and work in good faith and fair dealing to address any modifications required by the Office of the West Virginia Attorney General.

END OF SUPPLEMENTARY CONDITIONS TO AIA DOCUMENT CONSENSUSDOCS 240

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Any provisions of the Contract Documents that conflict with these Supplementary Conditions shall be null and void unless they have been approved in writing by the applicable State purchasing officer and the Attorney General and are clearly identified as such in the bid documents.

The Owner and Design Professional hereby agree to the full performance of the covenants contained herein.

IN WITNESS WHEREOF, the Owner and Design Professional have entered into this Agreement as of the effective date as stated in the ConsensusDoc 240 Agreement.

Owner: West Virginia University Design Professional

By:

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Title:

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Date:

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