Sample Agreement Owner Architect-REV092024.pdf

Commonwealth of Kentucky Revised September 24, 2024

AGREEMENT BETWEEN OWNER AND ARCHITECT/ ENGINEER P a g e | 1

[PON2-785-##########]

FINANCE AND ADMINISTRATION CABINET

DEPARTMENT FOR FACILITIES & SUPPORT SERVICES

FRANKFORT, KENTUCKY

AGREEMENT BETWEEN OWNER AND ARCHITECT/ ENGINEER

This CONTRACT made and entered into this [Date] by and between the Commonwealth of Kentucky hereinafter called the “OWNER” and [Firm Name and Address], hereinafter called the “ARCHITECT/ ENGINEER” (A/E). It shall be understood that the words “Architect” and “Engineer” as used in this contract are interchangeable. Whichever word is used above in connection with the firm name of the Architect or Engineer shall be accepted as the correct appellation throughout the contract regardless of which word is used hereafter.

WITNESSETH THAT, the Owner is considering the development and construction of a project defined as follows:

RFP-###

Architectural Selection for ProjectDescription ProjectDescription

Hereinafter called the “Project”, for use by [Using Agency], Hereinafter called the “Using Agency”, Note: It is affirmed and understood by all parties to this Agreement that the Using Agency is not a representative of the Owner. The Owner is solely represented in all matters of this Agreement by the Finance and Administration Cabinet, Department for Facilities and Support Services, Division of Engineering and Contract Administration.

and WHEREAS, the Owner desires the services of an Architect/ Engineer to render architectural or engineering services, or both, incident to such development and construction of the Project, as initially defined:

1) by the Request for Proposals used to select the Architect/ Engineer and referenced by RFP number above;

2) The Owner’s standard General Conditions of Contract (published at the time of this Agreement) that will be used in the Construction Documents, where it defines the role and authority of the Architect/ Engineer;

3) by the anticipated physical characteristics of the Owner’s site proposed for the project;

4) by the Owner’s initial budget for the Cost of Construction;

5) by the Owner’s anticipated procurement method;

6) by the Owner’s anticipated dates for commencement of Construction and Substantial Completion of the

Work as set forth hereinafter;

7) by supplemental information provided to the Architect/ Engineer prior to the execution of this Agreement

(see attachments); and

8) all as more fully described hereinafter.

The Owner and the Architect/ Engineer may rely on the initial definition of the project as indicated above. Both parties, however, recognize that such definition may materially change and, in that event, the Owner and the Architect/ Engineer shall appropriately adjust the project definition, the Architect/ Engineer’s Services, and the Architect/ Engineer’s compensation.

The Owner and the Architect/ Engineer recognize that the Owner has the right to modify the procurement method from that anticipated method at the time of this Agreement, to modify the Owner’s budget for the Cost of Construction determined to be necessary by the A/E’s cost analysis and estimates, to modify the dates for commencement of Construction and Substantial Completion of the Work from that anticipated during the course of the design of the project without an adjustment in the Architect/ Engineer’s compensation unless there is sufficient cause to do make such adjustment.

Highlighted Areas Updated per RFP

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The Owner and the Architect/ Engineer recognize that a change in the Project Scope (intent and/or program), a change in the site selected by the Owner for the project, a change in the physical characteristics of the project site discovered to be significantly different than what was expected by subsequent geotechnical subsurface investigations, or other such materially significant modifications to the project may require an adjustment in the Architect/ Engineer’s compensation.

NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Owner and the Architect/ Engineer agree to the terms and conditions contained herein.

The remainder of this Agreement makes provision of the terms and conditions under the following headings:

ARTICLE 1: REPRESENTATIONS AND WARRANTIES OF THE ARCHITECT/ ENGINEER

ARTICLE 2: OBLIGATIONS OF THE ARCHITECT/ ENGINEER TO FOLLOW THE OWNER’S PROCESSES, PROCEDURES AND POLICIES

ARTICLE 3: SCOPE OF ARCHITECT/ ENGINEERS SERVICES

ARTICLE 4: ADDITIONAL SERVICES TO BE PROVIDED

ARTICLE 5: FEES AND OTHER PAYMENTS

ARTICLE 6: CONSULTING ENGINEERS AND SPECIAL CONSULTANTS

ARTICLE 7: COST OF CONSTRUCTION

ARTICLE 8: CLAIMS AND DISPUTES

ARTICLE 9: OWNER’S RESPONSIBILITIES

ARTICLE 10: TERMINATION OR SUSPENSION

ARTICLE 11: GENERAL PROVISIONS

ARTICLE 1: REPRESENTATIONS AND WARRANTIES OF THE ARCHITECT/ ENGINEER

1.1 By executing this Contract, the Architect/Engineer makes the following express representations and warranties to the Owner.

1) The Architect/ Engineer is professionally qualified to act as the professional Architect and/ or Engineer for the Project and is licensed to practice architecture or engineering, or both, by all public entities having jurisdiction over the Architect/ Engineer and the Project;

2) The Architect/ Engineer shall maintain all necessary licenses, permits or other authorizations necessary to act as Architect and/ or Engineer for the Project until the Architect/ Engineer’s duties hereunder have been fully satisfied;

3) The Architect/ Engineer will become generally familiar with the Project site and the local conditions under which the Project shall be designed, constructed, and operated;

4) The Architect/ Engineer shall exercise that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances in preparing all documents required by this Contract including, but not limited to, all contract plans and specifications, and shall exercise usual and customary professional care to conform and comply with all applicable law, codes and regulations in effect at the time of preparation;

5) The Architect/ Engineer shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project and in compliance with the schedule outlined in the initial Project Definitions and as represented in the Architect/ Engineer’s response to the Request for Proposals that resulted in the selection of the Architect/ Engineer for this Project;

6) The Architect/ Engineer has identified a representative or representatives, authorized to act on behalf of the Architect/ Engineer with respect to the Project, in the response to the Request for Proposals that resulted in the selection of the Architect/ Engineer for this Project and shall not change this representative or representatives without written acceptance of the Owner;

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7) The Architect/ Engineer shall, at appropriate times, contact the governmental authorities required to review and approve the Construction Documents and the entities providing utility services to the project.

In designing the project, the Architect/ Engineer shall respond to applicable design requirements imposed by such governmental authorities or utility services providers;

8) The Architect/ Engineer shall assist the Owner in connection with the Owner’s responsibility for filing documents required for approval of governmental authorities having jurisdiction over the Project;

9) The Architect/ Engineer assumes responsibility to the Owner for the negligent acts, errors, and omissions of its consultants or sub-consultants for professional services within the scope of work between Architect/ Engineer and Owner for the Project;

10) The Architect/ Engineer is not responsible for an Owner’s Directive or substitution made without the Architect/ Engineer’s approval;

11) Except with the Owner’s knowledge and written consent, the Architect/ Engineer shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect/ Engineer’s Professional Judgement with respect to this Project.

ARTICLE 2: OBLIGATIONS OF THE ARCHITECT/ENGINEER TO FOLLOW THE OWNER’S

PROCESSES, PROCEDURES AND DOCUMENT SYSTEMS

2.1 OWNER’S PROCEDURES MANUAL

2.1.1 The Architect/ Engineer is obligated to follow the Owner’s Procedures Manual, entitled “Capital

Construction Project Procedures Manual”, as published by the Division of Engineering and Contract Administration, Department for Facilities and Support Services, Finance and Administration Cabinet at the time of this Agreement.

2.1.2 The Architect/ Engineer is obligated to follow the Owner’s Procedures Manual Supplement, entitled “Capital Construction Project Procedures Manual, Technical Guidelines and Specifications”, as published by the Division of Engineering and Contract Administration, Department for Facilities and Support Services, Finance and Administration Cabinet at the time of this Agreement.

2.1.3 The Architect/ Engineer shall cause its employees, consultants, and sub-consultants to become familiar with the Owner’s Procedures Manual by training offered free of charge by attendance at Owner’s sponsored workshops, updates, and training.

2.2 OWNER’S DOCUMENT COLLABORATION SYSTEM

2.1.1 The Architect/ Engineer is obligated to use the Owner’s Document Collaboration System for all official Project Correspondence. This system is the Owner’s web-based document collaboration system that shall be used by all project participants for the submission, transmittal, transfer, review, approval, processing of all documents related to this project. Where the General Conditions, the technical specifications, or the Contract for Construction indicates that a submission of documents is required, this submission shall be through the Owner’s Document Collaboration System.

2.1.2 The Architect/ Engineer shall cause its employees, consultants, and sub-consultants to become familiar with the Owner’s Document Collaboration System by training offered free of charge from the Owner’s Document Collaboration System Provider. This training may also include attendance at Owner’s sponsored workshops, updates, and training.

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ARTICLE 3: SCOPE OF ARCHITECT/ ENGINEER’S SERVICES

3.1 The Architect/ Engineer’s Basic Services consist of those described in the documents which make up the initial Project Definition (outlined in this Agreement) and as described in this Article 3. These Basic Services normally include usual and customary architectural, civil engineering, structural engineering, mechanical engineering, electrical engineering, landscape design and interior design, modified as indicated in the documents referenced above. Services not indicated in the documents referenced above are Additional Services. The Architect/ Engineer shall manage the Architect/ Engineers Basic Services to ensure that all required Basic Services are provided.

3.2 Where Additional Services are required by the Architect/ Engineer and where this Agreement provides for compensation of these Additional Services, the Architect/ Engineer shall manage these Additional Services the same as Basic Services.

3.3 The Architect/ Engineer shall coordinate its services with those services provided by the Owner and/or the

Owner’s Consultants working under a separate Agreement. The Architect/ Engineer shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner and/or the Owner’s Consultants. The Architect/ Engineer shall provide prompt written notice to the Owner if the Architect/ Engineer becomes aware of any error, omission or inconsistency in such services or information.

3.4 The Architect/ Engineer’s services shall be divided into four phases. Each of the last three phases of the

Architect/ Engineer’s services shall be performed only upon written authorization of the Owner. Nothing in this contract shall be construed as placing any obligation on the Owner to authorize the Architect/ Engineer to proceed with any phase of its services beyond the first phase, nor shall the Owner be obligated to pay any fees to the Architect/ Engineer incurred beyond the fees applying to the first phase of his services, without the above-mentioned written authorization. However, the Owner shall not, without the consent of the Architect/ Engineer, employ or retain any other Architect/ Engineer to perform any of the services covered by this contract unless this contract shall have been terminated as set forth in Section III of this document.

3.5 At the time of the execution of this Agreement, the Owner and Architect/ Engineer have agreed to the following schedule for the performance of the Architect/ Engineer’s Services. This initial schedule shall include anticipated time periods (calendar days) for performance of Services, Owner’s Review of Services, Bidding and Award, and Construction.

Phase A Schematic Design [calendar days if known] Phase B Design Development [calendar days if known] Phase C Contract Documents [calendar days if known] Bidding and Award of Construction Contract [calendar days if known] Phase D Construction Administration [calendar days if known] Phase D2 Warranty Period/ LEED Certification [calendar days if known]

3.6 Once this Agreement is executed, time limits established by the schedule shall not, except for reasonable cause, be exceeded by the Architect/Engineer without the Owner’s approval. Between Phases of Services, the Architect/Engineer shall await the Owner’s review and comment of the preceding Phase of Services and shall not proceed with the next Phase of Services without Authorization from the Owner.

3.7 THE FOUR PHASES OF THE ARCHITECT/ ENGINEER’S SERVICES SHALL BE AS FOLLOWS:

3.7.A PHASE A - SCHEMATIC DESIGN AND ESTIMATE:

3.7.A.1 The Owner and the Using Agency will furnish to the Architect/ Engineer, written programming data defining area usage and square footage, total project scope, allowable construction cost, Commonwealth of Kentucky Revised September 24, 2024

AGREEMENT BETWEEN OWNER AND ARCHITECT/ ENGINEER P a g e | 5 together with information on other allowable Project costs. The Owner and the Using Agency will furnish to the Architect/ Engineer, information obtained during the Pre-Design Phase of the Project as outlined in the Owner’s Procedures Manual.

3.7.A.2 The Architect/ Engineer and his consultants shall confer with the Owner and the Using Agency to confirm their understanding of the Owner or Using Agency’s purposes, concepts, desires and requirements (Program) and to determine any Owner or Using Agency preferences with respect to systems and other elements of the Project. The Architect/ Engineer shall also review laws, codes, and regulations applicable to the Project or the Architect/ Engineer’s Services.

3.7.A.3 The Architect/ Engineer shall submit electronically, using the Owner’s Document Collaboration

System, a written preliminary evaluation detailing the Architect/ Engineer’s understanding of the Owner and Using Agency’s Program, schedule, budget for the Cost of Construction, physical characteristics of the Project Site, the proposed procurement or delivery method, other initial Project Information, and its findings of the review of laws, codes, and regulations applicable to the Project within Thirty (30) calendar days of the Initial Project Meeting. This report shall include a review of the written Program data and the allowable Project costs and the Architect/ Engineer’s evaluation of whether the Program furnished is adequate in its description and whether the allowable construction cost is sufficient for the Program. The Architect/ Engineer shall notify the Owner of 1) any inconsistencies discovered in the information gathered and evaluated as a part of this preliminary evaluation and 2) other information or consulting services that may be reasonably needed for the Project.

3.7.A.4 In the event the Using Agency does not have a Program or the Program furnished is inadequate, or exceeds the scope permitted by the allowable construction cost, the Architect/ Engineer shall, at the request of the Owner, provide professional assistance in developing a Program or reprogramming the Project or otherwise assisting in the reconciliation of Program requirements with the allowable construction cost. Should this request be made by the Owner, the Architect/ Engineer is eligible for additional compensation providing that the Architect/ Engineer indicate the additional compensation required for this service prior to commencement of the service.

3.7.A.5 The Architect/ Engineer shall present its preliminary evaluation to the Owner and shall discuss with the Owner and Using Agency alternative approaches to design and construction of the Project, including feasibility of incorporating environmentally responsible design approaches, The Architect/ Engineer shall reach an understanding with the Owner and Using Agency regarding the requirements of the Project.

3.7.A.6 In accordance with the schedule outlined herein for the completion of Phase A Services, commencing on the date of the execution of this Agreement, the Architect/ Engineer shall prepare adequate Phase A - Schematic Design drawings and outline specifications to define the style and type of structure, the type of mechanical systems, controls, lighting, electrical systems and structural systems, for the Project which can be completed within the allowable construction cost.

Together with the electronic submission (using the Owner’s Document Collaboration System) of such drawings and specifications, the Architect/ Engineer shall also submit electronically (using the Owner’s Document Collaboration System) to the Owner in writing a realistic programming estimate of the construction cost for the Project based upon the drawings and specifications submitted and any other decisions reached to date, which estimate shall be within the authorized Project scope. This estimate shall be submitted on the Owner’s Phase A Estimate of Probable Cost form with any supporting data necessary for the Owner’s complete and full review and understanding of the Probable Cost.

3.7.A.7 If at any time during the Architect/ Engineer’s work under Phase A – Schematic Design, after

Program review and adjustment, it should appear evident that the Project scope or allowable

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AGREEMENT BETWEEN OWNER AND ARCHITECT/ ENGINEER P a g e | 6 construction cost will be exceeded, the Architect/ Engineer shall notify the Owner in writing accordingly and shall recommend remedial action to reduce the cost to the authorized scope. In this recommendation, the Architect/ Engineer shall consider the value of alternative materials, building systems and equipment, together with other considerations based on program and aesthetics in developing a design for the Project that is consistent with the Owner’s program, schedule and budget for the Cost of Construction.

3.7.A.8 The Architect/ Engineer shall submit to the Owner a complete Phase A Design Submittal following the requirements of the Owner’s Procedures Manual. This submittal shall be made electronically (using the Owner’s Document Collaboration System). As a part of this submittal, the Architect/ Engineer shall outline in brief written descriptive form any deviations to the Owner’s Procedures Manual Supplement or the Owner’s Program Requirements that the Owner and Using Agency should consider during its review of the Project Phase A Design Submittal.

3.7.A.9 For projects Seeking LEED Certification the Architect/ Engineer shall perform the following during

Phase A:

1) The Architect/ Engineer shall register the project as a LEED project with the USGBC.

2) The Architect/ Engineer shall determine the appropriate LEED checklist relative to the project program, shall identify, with the Owner’s assistance, the LEED credits appropriate for the project, and conduct design activities accordingly to achieve the desired credits. This LEED Checklist shall be submitted as part of the Phase A Design Document submittal.

3) The Architect/ Engineer shall participate in commissioning authority schematic design review process if enhanced commissioning is used. Develop a Basis of Design (BOD) based on the Owner’s Project Requirements (OPR).

4) The Architect/ Engineer shall provide a preliminary energy model as required to document compliance with the required number of points for Energy and Atmosphere Credit 1. This preliminary energy model shall be submitted as part of the Phase A Design Document submittal.

3.7.A.10 At the conclusion of Phase A, and a determination by the owner that the Project will proceed, the Owner shall negotiate with the Architect/ Engineer, a reasonable lump sum fee for those services to be provided as agreed upon between the Owner and Architect/ Engineer. Upon written authorization by the Owner, the Architect/ Engineer shall commence Phase B of its services.

3.7.B PHASE B - DESIGN DEVELOPMENT AND COST ESTIMATE:

3.7.B.1 Based on the Owner’s approval of Phase A – Schematic Design documents, and on the Owner’s authorization of any adjustments in the Project Requirements and the budget for the Cost of Construction, the Architect/ Engineer shall proceed with the services required during Phase B – Design Development following the requirements set forth in the Owner’s Procedures Manual.

3.7.B.2 At the commencement of Phase B, the Architect/ Engineer shall assist the Owner in obtaining a complete site survey showing boundaries, easements, restrictions, topography, streets, utilities, and existing structures, together with reports on subsurface investigations such as soundings, core drilling or soil bearing tests as may be required in order for the Architect/ Engineer and it’s consultants to properly design the structure and related facilities. If the Owner has provided this information as part of the initial Project Information or has provided this information during Phase A, the Architect/ Engineer shall review the information provided to determine if additional site survey or subsurface investigations are required to proceed forward and shall assist the Owner in obtaining the additional information.

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3.7.B.3 In accordance with the schedule outlined herein for the completion of Phase B Services, commencing on the date of the Owner’s written authorization for the Architect/ Engineer to proceed with Phase B - Design Development, the Architect/ Engineer and it’s consultants shall prepare design development drawings and specifications showing and describing, generally, the site plan, utilities, floor plans, elevations, sections, structural systems, materials and finishes. The design development drawings and specifications for the mechanical, electrical and structural portions of the Project shall be prepared by consulting engineers, each licensed in their area of the engineering work. Each drawing shall be imprinted with the seal of the Architect/ Engineer or consultants directly responsible for its preparation.

3.7.B.4 All such drawings and specifications shall be for a Project which can be completed within the limitations prescribed in Phase A.

3.7.B.5 Together with the electronic (using the Owner’s Document Collaboration System) submission of such drawings and specifications, the Architect/ Engineer shall also submit to the Owner a realistic cost estimate based upon the drawings and specifications submitted, any other decisions reached to date, and the most recent and accurate information regarding local material/equipment prices, wage rates (determined by Kentucky Revised Statutes 337.510 and 337.520) and the actual cost of recent similar projects, making appropriate allowance for changes in cost which may reasonably be expected to occur by the time the Project will be bid and constructed. This Phase B Cost Estimate shall be within the allowable construction cost, which is a part of the Owner’s budget for the Cost of Construction. This estimate shall be submitted on the Owner’s Phase B Estimate of Probable Cost form with any supporting data necessary for the Owner’s complete and full review and understanding of the Probable Cost.

3.7.B.6 If at any time during the Architect/ Engineer’s work under Phase B – Design Development, the

Architect/ Engineer shall become aware that the Project cost will exceed the limitations prescribed in Phase A, the Architect/ Engineer shall notify the Owner in writing and shall recommend remedial action which shall reduce the cost to the allowable construction cost.

3.7.B.7 For projects Seeking LEED Certification the Architect/ Engineer shall perform the following during

Phase B:

1) The Architect/ Engineer shall participate in commissioning authority design development review process if enhanced commissioning is used.

2) The Architect/ Engineer shall finalize LEED points being pursued on the project. A Revised LEED

Checklist shall be submitted as part of the Phase B Design Document submittal.

3) The Architect/ Engineer shall provide a revised preliminary energy model as required to document compliance with the required number of points for Energy and Atmosphere Credit

1. This revised preliminary energy model shall be submitted as part of the Phase B Design Document submittal.

3.7.B.8 The Architect/ Engineer shall submit to the Owner electronically (using the Owner’s Document

Collaboration System) a complete Phase B Design Submittal following the requirements of the Owner’s Procedures Manual. As a part of this submittal, the Architect/ Engineer shall outline in brief written descriptive form any deviations to the Owner’s Procedures Manual Supplement or the Owner’s Program Requirements that the Owner and Using Agency should consider during its review of the Project Phase B Design Submittal.

3.7.B.9 For projects where the number of drawings exceeds twenty (20), at the discretion and by request of the DECA Project Manager, the Architect/ Engineer shall provide up to three “half size” printed copies of the Phase B – Design Development drawings at no additional cost of the Owner. These printed copies shall be legible at half size in all aspects, bound with sheets in sequential order.

These printed copies will be used by the Owner and Using Agency to review the drawings in the

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Phase B submittal. However, the Owner will transmit review comments through the Owner’s Document Collaboration System.

3.7.B.10 At the conclusion of Phase B, and a determination by the owner that the Project will proceed, the Owner will approve the Phase B Submittal and authorize the Architect/ Engineer to proceed with Phase C – Contract Documents, the Architect/ Engineer shall commence Phase C of its services. The Owner’s approval of Phase B Submittal shall be defined as approval for design intent and shall not operate to relieve the Architect/ Engineer from providing adequate design under the contract.

3.7.C PHASE C - CONSTRUCTION CONTRACT DOCUMENTS AND FINAL ESTIMATE:

3.7.C.1 Based on the Owner’s approval of Phase B – Design Development documents, and on the

Owner’s authorization of any adjustments in the Project Requirements and the budget for the Cost of Construction, the Architect/ Engineer shall proceed with the services required during Phase C – Contract Documents following the requirements set forth in the Owner’s Procedures Manual.

3.7.C.2 In accordance with the schedule outlined herein for the completion of Phase C Services, commencing on the date of the Owner’s written authorization for the Architect/ Engineer to proceed with Phase C – Contract Documents, the Architect/ Engineer and it’s consultants shall prepare complete and coordinated working drawings and specifications showing and describing with specificity materials, based upon the approved Phase B drawings and specifications and prepared in accordance with normal accepted standards of architectural or engineering practice.

3.7.C.3 The Owner and the Architect/ Engineer acknowledge that in order to construct the Work the

Contractor will provide additional information, including Shop Drawings, Product Data, Samples, and other similar submittals, which the Architect/ Engineer shall require of the Contractor in the Technical Specifications and which the Architect/ Engineer shall review during the Architect/ Engineer’s Phase D – Construction Phase Services. However, the Architect/ Engineer shall not require the Contractor to provide information which normal accepted standards of architectural and engineering practice expects to be provided by the Architect/ Engineer, except in cases where the Architect/ Engineer has obtained expressed written approval to do so from the Owner.

3.7.C.4 For large Projects, as the discretion and direction of the Owner, the Architect/ Engineer shall submit electronically (using the Owner’s Document Collaboration System) a preliminary review set of drawings and cost estimate information at such times when the Phase C – Contract Documents are at a significant level of completeness (typically 25%, 50% and/or 75%). After submission of this preliminary review set, the Architect/ Engineer shall request a presentation meeting with the Owner that will allow the Architect/ Engineer the opportunity to provide the Owner and Using Agency with an update of the current status of the preparation of the Contract Documents and to receive comments and direction from the Owner. The Architect/ Engineer will provide one (1) full size set of the drawings (in progress) at the meeting for use at the meeting. At these meetings, the Architect/ Engineer will update the Owner and Using Agency of the progress in preparation of the Contract Documents and inform the Owner of any material modifications, changes, and/or adjustments to the Project design. The Architect/ Engineer shall also provide a confirmation that the Estimated Probable Cost of Construction is within the amount available for Construction.

3.7.C.5 In the event the Owner desires to divide the Project into two or more construction projects, the

Architect/ Engineer shall prepare the drawings and specifications to clearly show and describe the work covered in each separate project. Where the division of the Project into two or more construction projects is due to the Owner’s desire to do so, and this desire was not indicated at the time of the initial execution of this Agreement, the Architect/ Engineer may be due additional compensation for additional services. However, where the division of the Project into two or more

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3.7.C.6 The Architect/ Engineer and its consultants shall prepare the Technical Specifications and shall, with the assistance of the Owner, prepare lists of principal materials, subcontractors, Special Conditions, Forms of Proposal, and a list of Alternates if any have been authorized. (The Owner shall prepare the General Conditions of Contract, the Invitation to Bidders, the Form of Proposal and other bidding documents, the Form of Contract and Form of Bond). The Architect/ Engineer shall provide all information required by the Owner’s Procedures Manual for “Ready to Advertise” Documents.

3.7.C.7 The title block of the drawings as provided by the Owner, shall be inserted onto each sheet of the drawings, including the Cover Sheet, in the location and of the size dictated by the Owner, unless prior approval is secured for a specific variation of this requirement.

3.7.C.8 The drawings shall be prepared and submitted electronically (using the Owner’s Document

Collaboration System) so that the full scale printed drawings (size 24" by 36" or 30" by 42"), shall have proper line quality, font size, and resolution clarity for reproduction of clear, distinct prints.

3.7.C.9 The specifications shall be submitted electronically (using the Owner’s Document Collaboration

System) so that they can be reproduced in black ink on bond paper for standard 8 ½” x 11" reproductions and be of appropriate quality to allow the printing of specification books.

3.7.C.10 For projects where the number of drawings exceeds twenty (20), at the discretion and by request of the DECA Project Manager, the Architect/ Engineer shall provide up to three “half size” printed copies of the Phase C – Contract Document drawings at no additional cost of the Owner. These printed copies shall be legible at half size in all aspects, bound with sheets in sequential order.

These printed copies will be used by the Owner and Using Agency to review the drawings in the Phase C submittal. However, the Owner will transmit review comments through the Owner’s Document Collaboration System.

3.7.C.11 The Architect/ Engineer shall prepare and submit electronically (using the Owner’s Document

Collaboration System), a rendering suitable for reproduction, and three (3) 11" x 17" glossy prints of the rendering. The Glossy prints shall be delivered to the DECA Project Manager within thirty

(30) calendar days of the Owner’s approval of Phase C.

3.7.C.12 Together with the submission of the drawings, specifications, etc., the Architect/ Engineer shall submit to the Owner electronically (using the Owner’s Document Collaboration System), a final anticipated cost estimate based upon the drawings and specifications submitted and the most recent and accurate cost information, which estimate shall be within the allowable construction cost and shall hereinafter be referred to as the Final Estimate. The Final Estimate shall not be increased or decreased by the Architect/ Engineer unless authorized by the Owner. This estimate shall be submitted on the Owner’s Phase C Estimate of Probable Cost form with any supporting data necessary for the Owner’s complete and full review and understanding of the Probable Cost.

3.7.C.13 If at any time during the Architect/ Engineer’s work under Phase C, the Architect/ Engineer shall become aware that the Project scope or Final Estimate may be exceeded, the Architect/ Engineer shall notify the Owner in writing and shall recommend, in writing, remedial action which shall reduce the cost to the authorized scope. The Owner shall consider the recommendations of the drawings and specifications submitted by the Architect/ Engineer, note corrections to and approval of the recommendations, and direct the Architect/ Engineer of the modifications to be executed.

The Architect/ Engineer shall then make any necessary corrections on the drawings and

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3.7.C.14 At the appropriate time(s) during Phase C, when the Contract Documents are completed enough for the required reviews and when the submission of review is necessary to obtain approvals prior to Bidding, the Architect/ Engineer shall make the required submittal to all governmental authorities having jurisdiction over the Project that require submission of plans and specifications, and/or other documents (I.e., permit applications, coordination documents, notification documents, etc.). Note: the Architect/Engineer will pay Plan Review Submittal Fees to the Department for Housing, Buildings and Construction. The Architect/ Engineer shall provide a copy of the Plan Review Submittal Fee calculation to the Owner electronically (using the Owner’s Document Collaboration System). All other review and submittal fees required should be discussed with the Owner prior to the Architect/ Engineer submitting payment and a determination made as to whether the Owner will pay these fees directly or if the Architect/ Engineer is to pay these fees and to be reimbursed by the Owner under this Agreement.

3.7.C.15 For projects Seeking LEED Certification the Architect/ Engineer shall perform the following during Phase C:

1) The Architect/ Engineer shall provide the final energy model and the resulting number of points for Energy and Atmosphere Credit 1 to the Owner at the completion of construction documents.

2) The Architect/ Engineer shall insure that the contract documents incorporate information including drawings, details and specifications necessary to meet the LEED requirements for credits being pursued. Include Contractor requirements relating to LEED documentation, process, etc. Include commissioning requirements in the contract documents.

3) The Architect/ Engineer shall participate in commissioning authority construction document design review process to be conducted prior to mid-construction documents.

4) The Architect/ Engineer shall prepare and submit the LEED Design Application to the USGBC.

The Owner will be responsible for making the payment of USGBC fees. The Architect/ Engineer shall inform the Owner of the fee payment required.

3.7.C.16 At the conclusion of Phase C, and a determination by the Owner that the Project will proceed, the Owner will approve the Phase C Submittal and authorize the Architect/ Engineer to proceed with the electronic submission of “Ready to Advertise” documents for bidding purposes. The Owner’s approval of Phase C Submittal shall be defined as approval for design intent and shall not operate to relieve the Architect/ Engineer from providing adequate design under the contract.

3.7.C.17 BIDDING AND CONSTRUCTION CONTRACT AWARD PHASE:

3.7.C.17.1 Within five (5) working days after authorization by the Owner (or within a time frame mutually agreed to by the Owner and the Architect/ Engineer), the Architect/ Engineer shall make the “Ready to Advertise” submission electronically (using the Owner’s Document Collaboration System) following the requirements for that submission. None of these documents shall contain any item or facility not previously approved for design intent by the Owner.

3.7.C.17.2 The Architect/ Engineer and its consultants (as necessary) shall attend and participate in any

Pre-Bid Conference required for the Project.

3.7.C.17.3 The Architect/ Engineer and its consultants shall assist the Owner in responding to questions from prospective bidders and providing clarifications and interpretations of the Contract

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Documents to all prospective biddings by the issuance of any necessary Addenda modifying the requirements of the Contract Documents during the Bidding Period.

3.7.C.17.4 The Architect/ Engineer and its consultants shall assist the Owner in obtaining bids, receiving, tabulating and evaluating the bids received and in the award of any contract or contracts for construction of the Project or any part thereof.

3.7.C.17.5 Should it become necessary to reject all bids and to re-bid the Project for any reason which is in the best interest of the Commonwealth, the Architect/ Engineer and its consultants shall participate in the re-bidding process without additional compensation.

3.7.C.17.6 Following its evaluation of the bids received, the Architect/ Engineer and its consultants shall prepare and submit to the Owner electronically (using the Owner’s Document Collaboration System) its recommendations concerning contract award and approval of proposed construction materials/equipment and subcontractors.

3.7.C.17.7 In the event that the Owner elects not to award a construction contract because the low bid or bids exceed the allowable construction cost, the Architect/ Engineer shall, upon the request of the Owner, submit within fourteen (14) days of the Owner’s request, together with appropriate description and explanation, a list of possible changes or revisions to the drawings and specifications, designed to reduce the cost to the Final Cost Estimate while retaining to the maximum extent possible the scope, quality and intent of the original Project requirements.

The Architect/ Engineer shall give careful consideration to and evaluate the probable cost of construction changes and revisions proposed. If then directed by the Owner to make certain changes and revisions for the purpose of reducing the cost to within the allowable construction cost, the Architect/ Engineer and its consultants shall make such changes and revisions without additional cost to the Owner. Written approval for design intent of the documents submitted under Phase C, given prior to receipt of bids for the work, shall not relieve the Architect/ Engineer and its consultants of their obligation to make such changes without additional compensation under the above conditions. Evaluations of the Owner’s Project budget, preliminary Cost Estimates or detailed Cost Estimates prepared by the Architect/ Engineer represent the Architect/ Engineer’s best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect/ Engineer nor the Owner has control over the cost of labor, materials or equipment, over the Contractor’s methods of determining bid prices, or over competitive bidding, market or regulatory conditions. Accordingly, the Architect/ Engineer cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner’s Project budget or from any Cost Estimate or evaluation prepared or agreed to by the Architect/ Engineer. Providing the changes and revisions shall constitute the Architect/ Engineer‘s sole responsibility and Owner’s sole remedy to the adequacy of the preliminary or Final Cost Estimate and shall fulfill the Architect/ Engineer’s liability to the Owner in connection with the Final Cost Estimate.

3.7.C.17.8 Should it become necessary to reject all bids and to re-bid the Project after the modification of the Contract Documents as indicated above, the Architect/ Engineer and its consultants shall participate in the re-bidding process without additional compensation.

3.7.C.17.9 After a construction contract has been signed by the Owner and the Contractor and an Award of Contract Form DOA-39 has been signed, validating the contract, and upon written request of the Owner, the Architect/ Engineer shall commence Phase D of his services.

3.7.D PHASE D - DUTIES, OBLIGATIONS AND RESPONSIBILITIES DURING CONSTRUCTION:

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3.7.D.1 Based on the Owner’s Award of a Construction Contract or Contracts for the Project, and on the Owner’s authorization for the Architect/ Engineer to proceed with Phase D Services, the Architect/ Engineer shall proceed with the services required during Phase D – Construction Administration following the requirements set forth in the Owner’s Procedures Manual.

3.7.D.2 During construction of the Project, and at all times relevant thereto, in addition to its duties, obligations, and responsibilities set forth in the following paragraphs, the Architect/ Engineer shall provide administration of the Contract between the Owner and the Contractor(s), which includes those duties, obligations and responsibilities set forth in the Construction Contract Between Owner and Contractor (“the Construction Contract”) and the “General Conditions of the Contract for Construction” that are specifically designated as duties, obligations and responsibilities of the Architect/ Engineer. If the Owner and Contractor(s) modify their Agreement(s), those modifications shall not affect the Architect/ Engineer’s Services unless the Owner and Architect/ Engineer amend this Agreement.

3.7.D.3 The Architect/ Engineer shall, as contemplated herein, but not otherwise, advise and consult with and act as a representative on behalf of the Owner (only to the extent provided in this Agreement) throughout construction of the Project. Instructions, directions, and other appropriate communications from the Owner to the Contractor shall be given to the Contractor by the Architect/ Engineer.

3.7.D.4 The Architect/ Engineer shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect/ Engineer be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents.

3.7.D.5 The Architect/ Engineer shall be responsible for the Architect/ Engineer’s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts and omissions of the Contractor(s), sub-Contractors, material suppliers, or of any other persons or entities performing portions of the Work.

3.7.D.6 Upon receipt, the Architect/ Engineer shall carefully review and examine the Contractor’s

Schedule of Values, together with any supporting documentation or data which the Owner or the Architect/ Engineer may require from the Contractor. The purpose of such review and examination shall be to exercise that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances to prevent an unbalanced Schedule of Values which allocates greater value to certain elements of the Work than is indicated by such supporting documentation or data, or than is reasonable under the circumstances. If the Schedule of Values is not found to be appropriate, or if the supporting documentation or data is deemed to be inadequate, and unless the Owner directs the Architect/ Engineer to the contrary in writing, the Schedule of Values shall be returned to the Contractor for revision or supporting documentation or data. After making such examination, if the Schedule of Values is found to be appropriate as submitted, or if necessary, as revised, the Architect/ Engineer shall sign the Schedule of Values thereby indicating to the best of the Architect/ Engineer’s knowledge, information and belief, that the Schedule of Values constitutes a reasonable, balanced basis for payment of the Contract Price to the Contractor. The Architect/ Engineer shall not sign such Schedule of Values in the absence of such belief unless directed to do so, in writing, by the Owner.

3.7.D.7 Upon receipt, the Architect/ Engineer shall carefully review and examine the Contractor’s

Construction Schedule, together with any supporting documentation or data which the Owner or the Architect/ Engineer may require from the Contractor. The purpose of such review and examination shall be to exercise that degree of care and skill ordinarily exercised by members of

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AGREEMENT BETWEEN OWNER AND ARCHITECT/ ENGINEER P a g e | 13 the same profession currently practicing under similar circumstances to prevent an unattainable Construction Schedule which is reasonably clear as to its inappropriateness under the circumstances. If the Construction Schedule is not found to be appropriate, or if the supporting documentation or data is deemed to be inadequate, and unless the Owner directs the Architect/ Engineer to the contrary in writing, the Construction Schedule shall be returned to the Contractor for revision or supporting documentation or data. After making such examination, if the Construction Schedule is found to be appropriate as submitted, or if necessary, as revised, the Architect/ Engineer accept the Construction Schedule thereby indicating to the best of the Architect/ Engineer’s knowledge, information and belief, that the Construction Schedule constitutes a reasonable, obtainable schedule for the completion of the Work by the Contractor on or before the Date of Substantial Completion as defined by the Contract Documents. The Architect/ Engineer shall not accept such Construction Schedule in the absence of such belief unless directed to do so, in writing, by the Owner. The Owner and the Architect/ Engineer recognize that the Architect/ Engineer is not responsible for the Contractor’s adherence to the Construction Schedule nor to the accomplishment of the Work by the Date of Substantial Completion.

3.7.D.8 The Architect/ Engineer shall become generally familiar with the progress and quality of the work of the Contractor, and shall visit the site at intervals appropriate to the stage of construction, including, at a minimum, site visits no less frequently than two (2) per month. The purpose of such site visits shall be to determine in general the quality and quantity of the work in comparison with the requirements of the Construction Contract. In making such on site observations, the Architect/ Engineer shall endeavor to protect the Owner from continuing deficient or defective work, from continuing unexcused delays in the schedule and from overpayment to the Contractor. Following each site visit, the Architect/ Engineer shall submit electronically (using the Owner’s Document Collaboration System) a written report of such site visit, together with any appropriate comments or recommendations, to the Owner.