OWNER-ARCHITECT/ENGINEER AGREEMENT

Engineering Services for Plum Point Lane Bridge Rehabilitation

This OWNER-ARCHITECT/ENGINEER AGREEMENT (“Agreement”) is made and entered into as of the ____ day of ____________, 20___, by and between the County of Orange, a municipal corporation and county of the State of New York, with principal offices at 255 Main Street, Goshen, New York 10924 (“County” or “Owner”) and ________________________________________________, a ________________________________, with principal offices at __________________________________________________________ (“Architect/Engineer”) for Engineering Services for Plum Point Lane Bridge Rehabilitation

(“Project”) as described in the following documents annexed to, incorporated in, made a part of, and marked as Attachment A to this Agreement:

(a) County’s request for proposals entitled RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto] with attachments; and

(d) Architect/Engineer’s proposal submitted in response to County’s request for proposals entitled RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto].

Owner and Architect/Engineer agree as set forth below.

ARTICLE 1 ARCHITECT/ENGINEER’S RESPONSIBILITIES

§1.1 ARCHITECT/ENGINEER’S SERVICES.

§1.1.1 Architect/Engineer’s services consist of those services performed by Architect/Engineer, its employees and consultants as enumerated in Article 2 and Article 3 (as applicable) of this Agreement and in the documents comprising Attachment A to this Agreement, as may be modified pursuant to §11.28 of this Agreement, for the Project.

§1.1.2 Time is of the essence and 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 Architect/Engineer’s performance must be governed by sound professional practices.

Architect/Engineer shall submit for Owner’s approval, a schedule for the performance of 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 Owner’s review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by Owner shall not, except for reasonable cause, be exceeded by Architect/Engineer, or Owner.

§1.1.3 Architect/Engineer shall, in accordance with the accepted standard of care, review laws, codes, and regulations applicable to Architect/Engineer’s services. 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 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, Architect/Engineer shall be compensated for such changes to its design in accordance with §3.2.2.2.

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

§1.1.5 Architect/Engineer shall diligently render services in accordance with the Project Schedule specified in Attachment B to this Agreement, as may be modified from time to time upon written agreement of Owner and Architect/Engineer. The Project Schedule excludes any approval time per service phase for Owner to review and comment on documents prepared and includes one (1) week per service phase for Architect/Engineer to incorporate any changes and obtain final Owner approval for the given service phase, except where such changes involve substantial Project revisions, which may require additional time for Architect/Engineer to incorporate into the drawings.

§1.1.6 As part of Basic Services, at minimum, Architect/Engineer shall provide cost estimates to Owner, for Owner’s review, at the following points, per phase, if applicable to the Project, in accordance with the Project schedule:

.1 upon completion of stabilization concept plans; and

.2 upon 60% completion during the Evaluation, Reporting, and Stabilization Design Service Phase; and

.3 upon completion the Evaluation, Reporting, and Stabilization Design Service Phase; and

.4 upon 75% completion of the Stabilization Construction Documents and Bidding Service Phase (no cost estimates required at this point); and

.5 upon 90% completion of the Stabilization Construction Documents and Bidding Service Phase.

.6 upon completion of the Stabilization Construction Documents and Bidding Service Phase.

§1.1.7 Unless otherwise provided in this Agreement, Architect/Engineer and its 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 its consultants or their directors, officers, agents, employees, or other representatives. In the event that 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 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 Owner 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. Architect/Engineer’s “Basic Services” consist of those services described in §2.2 through §2.6 of this Agreement, and any other services identified elsewhere in this Agreement as being part of Basic Services, and those services described as being part of Basic Services in the Specifications portion of RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto], which is annexed to, incorporated in, and made a part of, and marked as Attachment A to this Agreement, and include normal structural, mechanical, and electrical engineering services.

§2.2 EVALUATION, REPORTING, AND STABILIZATION DESIGN SERVICE PHASE. In addition to those items listed in Section 3(a) of the Specifications portion of RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto], Architect/Engineer shall perform the tasks set forth below in this section.

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

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

§2.2.3 Architect/Engineer shall review with Owner alternative approaches to stabilization design and stabilization construction and provide stabilization plans and initial cost estimates to Owner for review.

§2.2.4 Based on the mutually agreed Project, schedule, and stabilization construction budget requirements, Architect/Engineer shall then prepare, for approval by 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 Evaluation, Reporting, and Stabilization Design Service Phase and mutually agreeable to Owner and Architect/Engineer; Architect/Engineer shall provide stabilization design studies for Owner’s review.

§2.2.6 Upon completion of the Evaluation, Reporting, and Stabilization Design Service Phase, Architect/Engineer shall provide all necessary drawings, outline specifications, cost estimates and other documents for Owner’s approval of the stabilization design. Architect/Engineer shall compare and reconcile their cost estimates for Owner’s approval.

§2.2.7 Based on the approved stabilization design documents and any adjustments authorized by Owner in the Project, schedule, or stabilization construction budget, Architect/Engineer shall prepare stabilization design development documents for Owner’s approval. The design development documents shall be based upon data and estimates prepared by Architect/Engineer and shall 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.

§2.2.8 At intervals mutually agreeable to Owner and Architect/Engineer, Architect/Engineer shall provide drawings and other documents which depict the then-current status of stabilization design development for Owner’s review.

§2.3 STABILIZATION CONSTRUCTION DOCUMENTS AND BIDDING SERVICE PHASE. In addition to those items listed in Section 3(b) of the Specifications portion of RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto], Architect/Engineer shall perform the tasks set forth below in this section.

§2.3.1 Based on the approved stabilization design development documents and any further adjustments authorized by Owner in the scope or quality of the Project or in the stabilization construction budget, Architect/Engineer, utilizing data and estimates provided by Architect/Engineer, shall prepare, for approval by Owner, stabilization construction documents consisting of drawings and specifications setting forth in detail the requirements for the Project.

§2.3.2 At 75% completion, Architect/Engineer shall provide the stabilization drawings and specifications for Owner’s review. At 90% completion, Architect/Engineer shall provide the stabilization drawings and specifications and cost estimates for Owner’s review.

§2.3.3 Upon Owner’s approval of the stabilization drawings and specifications, Architect/Engineer shall provide stabilization construction documents for Owner’s approval, to include, as necessary, revised versions of the stabilization drawings and specifications, and cost estimates. Architect/Engineer shall provide Owner with complete sets of the final stabilization drawings and specifications, including contract scoping for bidding and stabilization construction under the Wick’s Law, if applicable to the Project, for Owner's preparation of “front end” bidding documents.

§2.3.4 Architect/Engineer shall assist Owner in the preparation of the necessary bidding information and bidding forms, and supplemental conditions, as necessary. Architect/Engineer shall assist Owner in issuing bidding documents and conducting pre-bid conferences with prospective bidders.

Architect/Engineer shall assist Owner in responding to questions from prospective bidders.

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

§2.3.6 Unless otherwise required by this Agreement, Architect/Engineer shall provide ten (10) hard copies of the final stabilization drawings and specifications to Owner for review and approval before the bidding commences.

§2.3.1 Architect/Engineer, following Owner’s approval of the stabilization drawings and specifications and other bidding documents, and of the latest reconciled estimate of stabilization construction cost, shall assist Owner in obtaining bids, reviewing bidders’ proposed substitutions, and preparing responses to questions for addenda.

§2.3.2 Upon Owner's request, Architect/Engineer shall provide to Owner up to ten (10) hard copies of the Owner-approved stabilization drawings and specifications and other bidding documents, ready for mailing through United Parcel Service, for distribution to prospective bidders during the bidding process.

Additional copies may be obtained from Architect/Engineer at Owner’s expense.

§2.4 STABILIZATION CONSTRUCTION CONTRACT ADMINISTRATION SERVICE PHASE. In addition to those items listed in Section 3(c) of the Specifications portion of RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto], Architect/Engineer shall perform the tasks set forth below in this section.

§2.4.1 Architect/Engineer’s responsibility to provide Basic Services for the stabilization construction phase of the Project under this Agreement commences with the date of full execution of the first contract awarded to a successful bidder for work on the Project and terminates at the later of the issuance to the Owner of the final project certificate for payment or ninety (90) days after the date of substantial completion of the Project, unless otherwise extended by a written amendment, in the Owner's sole discretion, or earlier terminated as provided in this Agreement. Each successful bidder awarded a contract for work on the Project may be individually and collectively referred to herein as “Contractor” and each such contract awarded may be individually and collectively referred to as “Contract.”

§2.4.2 Architect/Engineer shall provide administration of Contractor’s Contract as set forth below and in the general conditions to the Contract (“General Conditions”), which will be incorporated in and made a part of said contract. References to the Contract herein include the General Conditions.

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

§2.4.4 Architect/Engineer shall be a representative of and shall advise and consult with the Owner (i) during construction until final payment to Contractor is due, and (ii) at the Owner’s direction from time to time during the correction period described in Contractor’s Contract. 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 signed by the Owner.

§2.4.5 In addition to attendance at weekly Project meetings for each Project phase, as applicable to the Project, by a representative of Architect/Engineer, Architect/Engineer shall visit the Project 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 Contractor’s Contract. However, Architect/Engineer shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. Using its on-site observations as an architect, 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 hereof.

§2.4.6 With respect to each Contractor’s own work, 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 Contract. Architect/Engineer shall not be responsible for Contractor’s schedule or failure to carry out the work in accordance with the Contract, excepting Architect/Engineer’s negligence in failing to advise the Owner of observed work that appears grossly not in accordance with the Contract. Except as otherwise provided in this Agreement, Architect/Engineer shall not have control over or charge of acts or omissions of Contractor, its subcontractors, agents, or employees, or any other persons performing portions of the work not directly employed by Architect/Engineer.

§2.4.7 Architect/Engineer shall, at all times, have access to the work wherever it is in preparation or progress.

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

§2.4.9 Based on Architect/Engineer’s observations and evaluations of Contractor’s application for payment submitted through a Project application for payment, assembled by Contractor, Architect/Engineer shall review and certify the amounts due to Contractor by submission of a Project certificate for payment to the Owner.

.1 Architect/Engineer’s Project certificate for payment shall constitute a representation to the Owner, based on Architect/Engineer’s observations at the site as provided in §2.4.5, on the recommendations of Contractor’s Project application for payment and on the data comprising Contractor’s application for payment, that, to the best of 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. The foregoing representations are subject to an evaluation of the work for conformance with the Contract upon substantial completion, to results of subsequent tests and inspections, to minor deviations from the Contract correctable prior to completion and to specific qualifications expressed by Architect/Engineer. The issuance of a Project certificate for payment shall further constitute a representation that Contractor is entitled to payment in the amount certified.

.2 The issuance of a Project certificate for payment shall not be a representation that Architect/Engineer has (i) made exhaustive or continuous on-site inspections to check the quality or quantity of the work, (ii) reviewed construction means, methods, techniques, sequences or procedures, (iii) reviewed copies of requisitions received from Contractor’s subcontractors and material suppliers and other data requested by the Owner to substantiate Contractor’s right to payment, and/or (iv) ascertained how or for what purpose Contractor has used money previously paid on account of the contract sum specified in the Contract.

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

§2.4.10 Architect/Engineer shall have the authority, upon approval of Owner, to reject work which does not conform to the requirements of the Contract. Whenever Architect/Engineer considers it necessary or advisable for implementation of the intent of the Contract, 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, whether such work is fabricated, installed or completed.

However, neither this authority of 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 Architect/Engineer to Contractor or its subcontractors, material and equipment suppliers, their agents or employees or other persons performing portions of the work.

§2.4.11 Architect/Engineer shall review and approve or take other appropriate action upon Contractor’s submittals such as shop drawings, product data and samples, but only for the limited purpose of checking on conformance with information given and the design concept expressed in the Contract.

Architect/Engineer’s action shall be taken with such reasonable promptness as to cause no delay in the Contractor’s work or in construction by the Owner’s own forces, while allowing sufficient time in 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 Contractor, all of which remain the responsibility of Contractor to the extent required by the Contract. Architect/Engineer’s review shall not constitute approval of safety precautions or, unless otherwise specifically stated by Architect/Engineer, of construction means, methods, techniques, sequences or procedures. 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, 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.

§2.4.12 Architect/Engineer shall prepare, review and sign or take other appropriate action on change orders and construction change directives for the Owner’s approval and execution in accordance with the Contract.

§2.4.13 The Architect/Engineer may authorize minor changes in work not involving an adjustment in the contract sum specified in Contractor’s Contract, or an extension of Contractor’s Contract time, which are not inconsistent with the intent of the Contract. Such changes shall be effectuated by written order approved by the Owner and issued through Architect Engineer.

§2.6.14 Upon receipt of the punch list prepared by Architect/Engineer, Architect/Engineer 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. Architect/Engineer shall forward to the Owner, warranties and similar submittals required by the Contract and assembled by Contractor. Architect/Engineer shall prepare and issue a final Project certificate for payment upon compliance with the requirements of the Contract.

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

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

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

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

§2.4.19 Architect/Engineer’s decisions on claims, disputes or other matters, including those in question between the Owner and Contractor, except for those relating to aesthetic effect as provided in §2.4.17, shall be subject to litigation unless another form of dispute resolution is approved by Owner in writing pursuant to §11.2 hereof, as provided in this Agreement and in the Contract.

§2.4.20 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 Contractor.

§2.5 CONCEPTUAL PLANS FOR FUTRE USE WITH COST ESTIMATES SERVICE PHASE. Architect/Engineer shall perform those tasks identified in Section 4 of RFP-PAR02-26 Engineering Services for Plum Point Lane Bridge Rehabilitation [, as modified by the addenda issued thereto] as part of Basic Services under this Agreement.

ARTICLE 3 ADDITIONAL SERVICES

§3.1 GENERAL.

§3.1.1 The services described in Article 3 hereof are not included in Basic Services unless so identified in Attachment A, as may be amended, or elsewhere in this Agreement or a modification thereto, 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 (“Additional Services”) 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 Architect/Engineer. If the Owner indicates in writing that all or part of such Additional Services are not required, 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 C to this Agreement, as may be amended, Architect/Engineer shall supply the Owner with no less than three (3) written quotations 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 this Agreement and/or Attachment A, the tasks set forth in this section shall be considered Additional Services.

§3.2.1 If more extensive representation at the site than is described in §2.4.5 and Attachment A is required, 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 Architect/Engineer, and Architect/Engineer shall be compensated therefore as agreed by the Owner and 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, 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 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 Project budget;

.2 requested by the Owner after the Owner has approved Stabilization Construction Documents and Bidding Service Phase plans, drawings and specifications because the approved, reconciled stabilization construction cost estimate prepared by Architect/Engineer exceeds the Owner’s budget; including, in accordance with §1.1.3 of this Agreement, where changes are due to a substantial, unforeseeable change in applicable laws and regulations after Owner’s approval of Stabilization Construction Documents and Bidding Service Phase plans, drawing and specifications; but excluding any change initiated by 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 schedule, or the method of bidding or negotiating and contracting for stabilization construction, except for services required under §5.2.3 hereof.

§3.2.4 Preparing drawings, 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 Contractor 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 Contractor, by major defects or deficiencies in the work of Contractor, or by failure of performance of either the Owner or Contractor under the Contract.

§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 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. Architect/Engineer’s services under §2.5 of this Agreement do not fall within the purview of this subsection.

§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 Architect/Engineer’s consultants for the 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 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 RESPONSIBILITIES

§4.1 The Owner shall provide full information regarding requirements for the Project, including the Owner’s objectives, schedule, constraints and criteria, 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 Architect/Engineer, which shall include the stabilization construction cost, the Owner’s other costs and reasonable contingencies related to all these costs.

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

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

§4.5 The proposed language of certificates or certifications requested of Architect/Engineer or Architect/Engineer’s consultants shall be submitted to 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.

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

§4.7 The Owner shall furnish Architect/Engineer copies of written communications with the Contractor.

ARTICLE 5 CONSTRUCTION COST

§5.1 DEFINITION.

§5.1.1 The stabilization construction cost, which includes labor, materials, Contractor’s profit, and contingency, of the Project (“Construction Cost”) will be determined using cost estimates provided by Architect/Engineer, with Architect/Engineer’s stabilization construction documents design staying within the budget of Construction Cost approved by the County.

§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 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 Architect/Engineer, plus a reasonable allowance for 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 Architect/Engineer and Architect/Engineer’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 hereof.

§5.2 RESPONSIBILITY FOR CONSTRUCTION COST.

§5.2.1 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 Architect/Engineer when prepared by Architect/Engineer or its subconsultant(s). However, Architect/Engineer shall exercise 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. Architect/Engineer 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 hereof 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 hereof, 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 hereof, Architect/Engineer, without additional charge, shall cooperate with the Owner as necessary to bring the Construction Cost within the fixed limit. Architect/Engineer shall be entitled to no additional fee for this service, however, reimbursable expenses as set forth in §9.2 hereof, if incurred, shall be compensated.

ARTICLE 6 INSTRUMENTS OF SERVICE

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

§6.2 Upon execution of this Agreement, Architect/Engineer grants to the Owner an exclusive license to reproduce 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. Architect/Engineer shall obtain similar exclusive licenses from its consultants for Owner's use consistent with this §6.2.

§6.3 Except for the licenses granted in §6.2 hereof, 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 the Project without the prior written agreement of Architect/Engineer and/or its consultants.

However, any use of the instruments of service shall be at the Owner’s sole risk and without liability to Architect/Engineer and its consultants. The Owner agrees to waive any and all claims against Architect/Engineer and to defend, indemnify and hold 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 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 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 Architect/Engineer of the problem. 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 Architect/Engineer for the Project.

§6.4.3 In accepting and utilizing any drawings, specifications, reports and data on any form of electronic media generated and furnished by Architect/Engineer, the Owner agrees that all such electronic files are instruments of service of 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 Architect/Engineer and electronic files, the signed or sealed hard-copy Contract documents shall govern.

§6.5 Notwithstanding the foregoing, Architect/Engineer may retain one (1) 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 of the Project, unless extended by with a written amendment at the Owner's sole discretion.

§7.2 This Agreement may be terminated by the Owner upon not less than seven (7) days’ written notice should 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 Architect/Engineer if the Project is permanently abandoned.

§7.4 In the event of termination not the fault of Architect/Engineer, Architect/Engineer shall be compensated for services performed up to the date of termination, together with reimbursable expenses, if any, then due.

§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 Articles 9 and 10, 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 payment for undisputed services rendered or reimbursable expenses incurred is not received within sixty (60) days of the receipt of such invoice, Architect/Engineer shall provide written notice to the Orange

County Commissioner of Finance, the Orange County Department of Public Works, and the Orange County Attorney, 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, Architect/Engineer has the right to stop work.

§7.7 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.

ARTICLE 8 INSURANCE

§8.1 INSURANCE.

§8.1.1 For all the services set forth herein and as hereinafter amended, Architect/Engineer shall maintain or cause to be maintained, in full force and effect during the term of this Agreement, at its expense, Workers’ Compensation insurance, liability insurance covering personal injury and property damage, and other insurance with stated minimum coverages as listed below. Such policies are to be in the broadest form available on usual commercial terms and shall be written by insurers with an A.M.

Best rating of A- or better who have been fully informed as to the nature of the services to be performed. Except for Workers’ Compensation, Disability, and professional liability, the Owner shall be an additional insured on all such policies with the understanding that any obligations imposed upon the insured (including, without limitation, the liability to pay premiums) shall be the sole obligation of Architect/Engineer and not those of the Owner. Notwithstanding anything to the contrary in this Agreement, Architect/Engineer irrevocably waives all claims against the Owner for all losses, damages, claims or expenses resulting from risks that have actually been insured. The provisions of insurance by Architect/Engineer shall not in any way limit Architect/Engineer’s liability under this Agreement.

§8.1.2 Types and Minimum Limits of Coverage.

Type of Coverage Minimum Limit of Coverage Workers’ Compensation Statutory

Disability Statutory

Employer’s Liability $1,000,000 each occurrence or similar insurance

Automobile Liability with $1,000,000 aggregate Bodily Injury and $1,000,000 each occurrence Property Damage

Comprehensive General $1,000,000 aggregate Liability, including $1,000,000 each occurrence Broad Form Contractual Liability, Bodily Injury and Property Damage

Excess Liability $4,000,000 aggregate $4,000,000 each occurrence

Professional Liability/ $5,000,000 aggregate Errors and Omissions $5,000,000 each claim

§8.1.3 Certificates. Architect/Engineer shall provide to the Owner, as a condition precedent to the Owner’s execution of this Agreement, certificates of insurance evidencing Architect/Engineer’s compliance with the requirements set forth in this Article 8. Each policy of insurance shall contain clauses to the effect that (i) such insurance shall be primary without right of contribution of any other insurance carried by or on behalf of the Owner with respect to its interests, (ii) it shall not be cancelled, including, without limitation, for non-payment of premium, or materially amended, without fifteen (15) days prior written notice to the Owner, directed to the Owner’s Risk Management Officer, Division of Risk Management, 255 Main Street, Goshen, NY 10924 and Owner’s Department of Public Works, 2455- 2459 Route 17M, P.O. Box 509, Goshen, NY 10924, Attn: Deputy Commissioner of Infrastructure Services and the Owner shall have the option to pay any necessary premiums to keep such insurance in effect and charge the cost back to Architect/Engineer.

§8.1.4 Claims Made Policies. To the extent it is commercially available, each policy of insurance shall be provided on an “occurrence” basis. If any insurance is not commercially available on an “occurrence” basis, it shall be provided on a “claims made” basis, and all such “claims made” policies shall provide that:

.1 Policy retroactive dates coincide with or precede Architect/Engineer’s start of the performance of this Agreement (including subsequent policies purchased as renewals or replacements);

.2 Architect/Engineer will maintain similar insurance for at least six (6) years following final acceptance of the services;

.3 If the insurance is terminated for any reason, Architect/Engineer agrees to purchase an extended reporting provision to cover the six (6) year period, at the Owner's discretion, to report claims arising from the services performed or goods provided for the Owner; and

.4 Immediate notice shall be given to the Owner, through the Owner’s Risk Management Division and Department of Public Works (to the contacts noted above), of circumstances or incidents that might give rise to future claims with respect to the services performed under this Agreement.

§8.1.5 Architect/Engineer shall cause each of its subcontractors and subconsultants to obtain insurance that meets the requirements of this Article 8.

§8.1.6 Indemnification.

.1 Unless otherwise specified in this Agreement, to the fullest extent permitted by law, Architect/Engineer shall defend, indemnify and hold harmless the County, its officers, employees, contractors, agents, assignees and other representatives, from and against any and all claims, liabilities, expenses, costs, losses, damages and causes of action (including without limitation, reasonable attorneys’ fees and costs of litigation and/or settlement) arising out of, directly or indirectly, the services performed and/or provided by Architect/Engineer, its officers, directors, partners, members, employees, contractors, successors, assigns or other representatives pursuant to this Agreement.

.2 Without limiting the foregoing, to…