Sample Commissioning Agreement (1).pdf

FORM B-210-26

Revised 8-17-04

«ContractNumber»

FINANCE AND ADMINISTRATION CABINET

DEPARTMENT FOR FACILITIES & SUPPORT SERVICES

FRANKFORT, KENTUCKY

COMMISSIONING AUTHORITY’S CONTRACT

SECTION 1

This CONTRACT made and entered into this 17 November 2025 by and between the Commonwealth of

Kentucky hereinafter called the “OWNER” and «VendorName», «VendorAddress», «VendorCityStZip» hereinafter called the “Commissioning Authority”. WITNESSETH THAT, the Owner has a project under renovation defined as follows:

«RFP»

«ProjectDescription1»

«ProjectDescription2»

«ProjectDescription3»

«ProjectDescription4»

«ProjectDescription5» hereinafter called the “Project”, for use by:

«Requesting_Agency» hereinafter called the “Agency”, and WHEREAS, the Owner desires the services of a Commissioning

Authority to render professional Commissioning Services incident to such design and construction of the

Project, all as more fully described hereinafter.

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 Commissioning Authority

ARTICLE 1

REPRESENTATIONS AND WARRANTIES

By executing this Contract, the COMMISSIONING AUTHORITY makes the following express representations and warranties to the Owner.

(A) The COMMISSIONING AUTHORITY is professionally qualified to act as the COMMISSIONING

AUTHORITY for the Project and is licensed to practice architecture or engineering, or both, by all public entities having jurisdiction over the COMMISSIONING AUTHORITY and the Project:

Amanda.Greer Highlight

(B) The COMMISSIONING AUTHORITY shall maintain all necessary registrations, licenses, permits or other authorizations necessary to act as COMMISSIONING AUTHORITY for the Project until the COMMISSIONING AUTHORITY duties hereunder have been fully satisfied;

(C) The COMMISSIONING AUTHORITY will become familiar with the Project site and the local conditions under which the Project shall be designed, constructed, and operated;

(D) The COMMISSIONING AUTHORITY 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 reports, 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;

(E) The COMMISSIONING AUTHORITY 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 COMMISSIONING AUTHORITY and Owner for the Project.

ARTICLE II

The Commissioning Authority shall perform those tasks as outlined in their Commissioning Scope letter attached to this contract.

THE COMMISSIONING AUTHORITY’S SERVICES - GENERAL

The Commissioning Authority will lead the Commissioning Process for each commissioned system for the project. The COMMISSIONING AUTHORITY’s services shall be consistent with those services outlined in the Division of Engineering’s Capital Construction Project Procedures Manual, latest edition, and include the following:

Direction: The Commissioning Authority shall accept directions only from the Project Manager. Requests or desires of the Using Agency made directly to the Commissioning Authority will be immediately brought to the attention of the Project Manager. Any changes to the project scope must be authorized in writing by the Project Manager.

The Commissioning Authority Responsibilities: The Commissioning Authority shall guide the

Commissioning Process for all commissioned systems. The Commissioning Process requires the

Commissioning Authority to perform the following for designated projects:

• Leading the Commissioning Team, (The individuals or entities who, through coordinated action, are responsible for implementing the Commissioning Process)

• Planning the implementation of Commissioning Process activities,

• Developing and maintaining Commissioning Process documents, and

• Acting as the owner’s representative to assure that the project satisfies criteria as described in the Contract Documents.

The Commissioning Authority shall develop and furnish copies of the Commissioning Process instructions, manuals, and other documents to all Commissioning Team members to facilitate coordination of design and construction.

The Commissioning Authority and the Project Manager, in consultation with the Using Agency, shall determine the Commissioning Authority’s scope of responsibility and this effort shall be outlined in a

Commissioning Plan.

The Commissioning Authority shall furnish all services, materials, supplies, equipment, investigations, studies, and travel required in connection with the Commissioning Process for this project as defined by the Commissioning Plan.

The Commissioning Process: The Commissioning Authority executes the Commissioning Process through the writing and review of reports, organization of meetings, organization of tests, demonstrations, and training events per the Contract Documents and Commissioning Plan. The Commissioning Authority shall prepare meeting agendas, maintain attendance lists, arrange for facilities, and provide timely notification to all participants for each Commissioning Process activity. The Commissioning Authority shall be the chair for all Commissioning events and ensure execution of all agenda items.

Commissioning Meetings: The Commissioning Authority shall prepare written minutes of each

Commissioning Process meeting and shall furnish this record within five (5) working days to the Project

Manager with copies to all Commissioning Team members and meeting attendees. The written minutes will include the project name and names of all participants, a paraphrase of all discussions, and listing of issues that require follow-up or response. The Owner may require additional Commissioning Process meetings during the course of the design or construction of the project. The Commissioning Authority may also request additional Commissioning Process meetings subject to the Owner’s approval.

The COMMISSIONING AUTHORITY’s services shall be as outlined in their fee proposal dated July 6, 2015. The COMMISSIONING AUTHORITY shall develop a Commissioning Plan. The Commissioning

Plan documents the way the project and/or systems will be commissioned and further describes the commissioning scope.

ARTICLE III

FEES AND OTHER PAYMENTS

The Owner shall pay to the Commissioning Authority (CxA) for the indicated services the following

Fees and other payments. As full and complete compensation for all of the CxA’s services as provided herein, the Owner shall pay to the CxA the sum of $264,575.00 which sum shall constitute the Total Lump Sum Fee (Price). The Price shall be equitably adjusted in the event the Owner approves an increase or decrease in the scope of project.

(A) OTHER PAYMENTS:

1) For Extra Work Due to Changes

If the COMMISSIONING AUTHORITY (CxA) and their sub-consultants during the preparation of “Record Drawings” or other “Documents”, are required by reason of changes ordered by the Owner, to do extra work by changes to drawings, specifications or estimates previously approved by the Owner, and if such work is authorized in writing by the Owner, the Owner shall reimburse the CxA for any such extra work as described under Paragraph 2 herein.

However, if such work is required by failure of the CxA or any of their sub-consultants to properly and correctly select, indicate, delineate or describe materials or methods of construction or finishes in accordance with applicable codes, regulations, or normal commissioning practices, in such event the Owner is under no obligation to pay the CxA for the extra cost so caused, even though the documents requiring correction or changes bear the approval of design intent of the Owner.

2) Reimbursements to the Commissioning Authority:

Extra payments to the CxA, as required under Paragraphs 1 above, shall be on a negotiated basis between the Owner and CxA, and if Owner and CxA cannot negotiate the extra payments, the CxA shall be entitled to additional, reasonable compensation for the extra work.

COMMISSIONING AUTHORITY CONTRACT

GENERAL PROVISIONS

SECTION II

(A) INDEMNITY:

The COMMISSIONING AUTHORITY shall indemnify and hold harmless the Owner from and against all liability, claims, loss, costs and expense, including defense costs, arising out of, or resulting from, the negligent acts, errors, or omissions of the COMMISSIONING AUTHORITY under this Contract. In the event the Owner is alleged to be liable on account of negligent acts or omissions, or both, by the COMMISSIONING AUTHORITY, the COMMISSIONING AUTHORITY shall defend such allegations and the COMMISSIONING AUTHORITY shall bear all costs, fees

Amanda.Greer Highlight and expenses of such defense, including but not limited to, all attorneys’ fees and expenses, court costs, and expert witness fees and expenses.

(B) PROJECT RECORDS:

All records relating in any manner whatsoever to the Project, or any designated portion thereof, which are in the possession of the COMMISSIONING AUTHORITY shall be made available to the Owner for inspection and copying upon written request of the Owner. Additionally, said records shall be made available, upon request by the Owner, to any state, federal or other regulatory authorities and any such authority may review, inspect and copy such records. Said records include, but are not limited to, all plans, specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, or other writings or things which document the

Project, its design, and its construction. Submission or distribution of documents pursuant to this provision, to meet official regulatory requirements or for similar purposes in connection with the

Project shall not be construed as publication in derogation of the COMMISSIONING

AUTHORITY’s reserved rights.

Said records expressly include those documents which reflect the records of expenses and reimbursable items incurred by the COMMISSIONING AUTHORITY in its performance under this

Contract. The COMMISSIONING AUTHORITY shall maintain and protect these records for no less than seven (7) years after final completion of the Project, or for any longer period of time as may be required by applicable law.

(C) NO THIRD PARTY BENEFICIARIES:

Nothing contained herein shall create any relationship, contractual or otherwise, with, or any rights in favor of, any third party.

(D) SUCCESSORS AND ASSIGNS:

Neither the Owner nor the COMMISSIONING AUTHORITY shall assign its rights hereunder, excepting its right to payment, nor shall it delegate any of its duties hereunder without the written consent of the other party.

Subject to the provision of the immediately preceding sentence, each party hereto binds itself, its successors, assigns and legal representatives to the other and to the successors, assigns and legal representatives of such other party.

(E) APPLICABLE LAW:

The parties agree that any suit, action or proceeding with respect to the Contract may only be brought in or entered by the courts of the Commonwealth of Kentucky situated in Frankfort, Franklin County, Kentucky, or the United States District Court for the Eastern District of Kentucky, Frankfort Division and also hereby irrevocably waive any claim that any such suit, action or proceeding brought in any one of the above-described courts has been brought in an inconvenient forum.

In any such suit, action or proceeding, the parties agree that the laws of the Commonwealth of

Kentucky shall apply.

(F) TERMINATION:

The Owner may terminate this Contract pursuant to 200 KAR 5:312.

(G) OWNERSHIP OF DOCUMENTS:

Project Documents are the sole property of the Owner, whether or not the work for which they are made be executed. Use of the plans and specifications shall be in accordance with KRS Chapter

323 and KRS Chapter 322, and for any use not in connection with this Contract, shall be only with the written authorization of the COMMISSIONING AUTHORITY.

(H) MINIMUM INSURANCE REQUIREMENTS

The COMMISSIONING AUTHORITY shall maintain the following or equivalent insurance policies at no less than the limits shown below

Coverage Limits

Professional Liability $1 million per occurrence, $2 million aggregate

General Liability

(Insurance Services Office Form CG 00 01)

$1 million per occurrence, $2 million aggregate

Worker’s Compensation Statutory

Employer’s liability $ 500,000.00

The policies above shall contain the following conditions:

1. The Commonwealth shall be named as an additional insured in the COMMISSIONING

AUTHORITY’s general liability policy.

2. The COMMISSIONING AUTHORITY’s general liability shall be primary to any insurance or self-insurance retained by the Commonwealth.

3. The Commonwealth shall be provided at least 30 days notice in the event any of the required policies are canceled or non-renewed.

4. Professional Liability (Errors and Omission) policies shall be maintained for a minimum of three years beyond the completion date of the project, to the extent commercially available.

If not commercially available, the COMMISSIONING AUTHORITY shall notify the Owner and obtain similar insurance that is commercially available and acceptable to the Commonwealth.

5. A copy of the certificate of insurance shall be provided by the COMMISSIONING

AUTHORITY to the Owner upon execution of this Contract. Said coverage shall be written by insurers acceptable to the Owner and shall be in a form acceptable to the Owner. Additional insurance coverage and amounts required, if any, are stated below:

None

(I) CERTIFICATION OF CONTRACT AND FUNDS:

The Contract is not effective and binding against the Owner until its applicable encumbrance document, “Purchase Contract,” (Form DOA-39) has been approved and issued by the Finance and Administration Cabinet and unless and until three copies of the Contract are filed with the

Legislative Research Commission, with each such copy being accompanied by documentation of the need for such service and by documentation that State personnel are not available to perform such service. The COMMISSIONING AUTHORITY acknowledges and understands that no payment may be made under this Contract before completion of the review procedure provided for by KRS 45A.705 unless and until alternate actions occur as set out in KRS 45A.695 (7).

(J) EXPEDITION OF WORK/SCHEDULE:

It is agreed that the COMMISSIONING AUTHORITY shall be in position to commence work on the services involved, within FIVE DAYS receipt of written authorization, without delay or interruption. Should the COMMISSIONING AUTHORITY fail or refuse to commence said services as directed by the Owner, the Owner shall thereupon have the right to terminate this contract for cause, subject to Paragraph F. Nothing in this Section and nothing set forth in this

Contract shall be construed to relieve the COMMISSIONING AUTHORITY of liability for damages sustained by the Owner by virtue of any breach of this Contract by the COMMISSIONING

AUTHORITY.

After notice to proceed by the Owner, within ten (10) working days the COMMISSIONING

AUTHORITY shall provide the Owner with a proposed project schedule. Such schedule, if approved by the Owner, shall constitute the schedule for performance of its duties hereunder by the COMMISSIONING AUTHORITY.

(K) STATE EMPLOYEE:

It is agreed by and between the parties hereto that the COMMISSIONING AUTHORITY shall observe the rule of State Government and shall not solicit or employ State Employees in conjunction with his work under the Contract without the approval of the head of any department from which employees are sought to be obtained, nor without the approval of the Owner.

(L) CONFLICT-OF-INTEREST LAWS AND PRINCIPALS:

By his signature, the COMMISSIONING AUTHORITY certifies that it is legally entitled to enter into this contract with the Commonwealth of Kentucky, and by holding and performing this contract shall not be violating either any conflict of interest statutes (KRS 45A.330-45A.340-

45A.990, 164.390), or KRS 11A.040 of the Executive Branch Code of Ethics, relating to the employment of former public servants.

(M) OWNER’S REPRESENTATIVE:

For the purpose of the Contract, the Commissioner, Department for Facilities Management and

Support Services, Finance and Administration Cabinet, is hereby designated as the representative of the Owner with full authority to act in all matters pertaining to this Contract for and in the name of the Owner, and may delegate such authority to such other representatives of the Department for Facilities Management and Support Services as he deems in the best interest of the Commonwealth for the proper administration of the project. The Owner and the

COMMISSIONING AUTHORITY hereby agree to the full performance of the covenants herein.

(N) SUCCESSORS AND ASSIGNS:

Owner and COMMISSIONING AUTHORITY each binds himself, his partners, successors, legal representatives and assigns to the other party, to this Contract and to the partners, successors, legal representatives and assign of such party in respect to all covenants of the Contract. Upon written notification to the Secretary of the Finance and Administration Cabinet, the

COMMISSIONING AUTHORITY may assign a portion of his financial interest to a recognized financial institution for underwriting operations covered by this Contract.

(O) PERSONNEL:

The Architect/ Engineer shall assign only qualified personnel to perform any service concerning the Project. At the time of execution of this Contract, the parties anticipate that the following named individuals shall perform those functions indicated:

Name/Function Name/Function

So long as the individuals named above remain actively employed or retained by the

Commissioning Authority, they shall perform the functions on this project indicated next to their names.

(P) SOCIAL SECURITY: (check one)

The parties are cognizant that the state is not liable for social security contributions, pursuant to 42 U.S. Code, section 418, relative to the compensation of the second party for this contract.

The parties are cognizant that the state is liable for social security contributions, pursuant to

42 U.S. Code, section 418, relative to the compensation of the second party for this contract.

(Q) VIOLATION OF TAX AND EMPLOYMENT LAWS:

KRS 45A.485 requires the Contractor and all subcontractors performing work under the contract to reveal to the Commonwealth, prior to the award of a contract, any final determination of a violation by the Contractor within the previous five (5) year period of the provisions of KRS chapters 136, 139, 141, 337, 338, 341, and 342. These statutes relate to corporate and utility tax, sales and use tax, income tax, wages and hours laws, occupational safety and health laws, unemployment insurance laws, and workers compensation insurance laws, respectively

To comply with the provisions of KRS 45A.485, the Contractor and all subcontractors performing work under the contract shall report any such final determination(s) of violation(s) to the

Commonwealth by providing the following information regarding the final determination(s): the

KRS violated, the date of the final determination, and the state agency which issued the final determination.

KRS 45A.485 also provides that, for the duration of any contract, the Contractor and all subcontractors performing work under the contract shall be in continuous compliance with the provisions of those statutes, which apply to their operations, and that their failure to reveal a final determination, as described above, or failure to comply with the above statutes for the duration of the contract, shall be grounds for the Commonwealth's cancellation of the contract and their disqualification from eligibility for future state contracts for a period of two (2) years.

(R) Contractor must check one:

The Contractor has not violated any of the provisions of the above statutes within the previous five (5) year period.

The Contractor has violated the provisions of one or more of the above statutes within the previous five (5) year period and has revealed such final determination(s) of violation(s).

Attached is a list of such determination(s), which includes the KRS violated, the date of the final determination, and the state agency which issued the final determination.

ENTIRE AGREEMENT

The Contract constitutes the entire an exclusive agreement between the parties with reference to the

Project and supersedes any and all prior communications, discussions, negotiations, understandings, or agreements.

IN WITNESS THEREOF they have executed this Agreement the day and year first above written

«VendorName»

BY:

(Name of Architect, Engineer or Firm) Date

Title:

(Position in firm)

COMMONWEALTH OF KENTUCKY

BY:

(Commissioner, Department for Facilities & Support Services) Date

EXAMINED FOR FORM AND LEGALITY

BY:

(Attorney, Finance and Administration Cabinet) Date