Schedule D - Sample Contract Terms for Turnkey Purchase.docx

Design and Construction Consultant (D/CC) Energy Performance R 08/01/2013

STATE OF MICHIGAN

DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET

This contract authorizes the Design and Construction Consultant (D/CC) to provide professional services. (Authority: 1984 PA 431)

CONTRACT FOR PROFESSIONAL DESIGN/CONSTRUCTION CONSULTANT SERVICES

THIS CONTRACT, authorized this day of in the year two-thousand and ninteen (2019), by the State Administrative Board/Director, Department of Technology, Management and Budget, BETWEEN the STATE OF MICHIGAN acting through the STATE FACILITIES ADMINISTRATION, DESIGN AND CONSTRUCTION DIVISION of the DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET, First Floor, Stevens T. Mason Building, Lansing, Michigan, hereinafter called the State, and hereinafter called the Design and Construction Consultant (D/CC), WHEREAS, the Department of Technology, Management and Budget State Facilities Administration (SFA), Design and Construction Division (DCD) [The Department] proposes securing Design and Construction Consultant services for the following project:

Solar/Renewable Energy Performance Project –

NOW THEREFORE, the State of Michigan and the D/CC in consideration of the covenants of this Contract agree as follows

The D/CC shall provide the professional services for the Project in the sequence outlined in this Contract in accordance with the Department’s approved and attached Appendix - Project/Program Statement, including Request for Proposal Addendum No. 1 and supplemental Exhibit “A” and be solely responsible for such services. The D/CC services shall be performed in strict accordance with this Contract.

The State of Michigan shall compensate the D/CC for providing services according to the Project scope as outlined in the terms and conditions of this Contract.

IN WITNESS, WHEREOF, each of the parties has caused this Design and Construction Consultant Services Contract (Contract) to be executed by its duly authorized representatives on the dates shown beside their respective signatures, with the Contract to be effective upon the date on which the D/CC received a copy executed by the authorized State of Michigan representative(s) by regular, registered, or certified mail or by delivery in person.

FOR THE DESIGN AND CONSTRUCTION CONSULTANT:

Firm Name Federal Identification (I.D.) Number

Signature Date Title

FOR THE STATE OF MICHIGAN:

Director, Department of Technology, Management and Budget Date NOW THEREFORE, the Department and the D/CC, in consideration of the covenants of this Contract, agree as follows:

WHEREAS, this Contract constitutes the entire agreement between the parties, any Contract Modification of this Contract and the Department’s approved and attached Project/Program Statement must be in writing, signed by duly authorized representatives of the parties, and shall be in such format and detail as the State may require. No Contract Modification may be entered into to compensate the D/CC for correcting, or for responding to claims or litigation for, the D/CC’s Contract Documents, design errors, omissions, or neglect on the part of the D/CC.

The term of this Contract is measured beginning with the date this Contract was approved by the Director, Department of Technology, Management and Budget and as indicated above. This Contract covers those services necessary to complete an on-site survey of various buildings at the State of Michigan, Department of Natural Resources and to prepare an Solar/Renewable Energy Project Design and Performance Proposal for these facilities. This Contract is effective and binding upon both parties immediately upon its execution by DTMB. The D/CC shall complete the Solar/Renewable Energy Project Design and Performance Proposal within four (4) months from the date of a Project Kickoff Meeting. This Kickoff Meeting will be scheduled by DTMB at a time agreeable to all parties and after Contract execution.

Should a decision be made by the State of Michigan to proceed with implementation of the D/CC’s recommended Energy Conservation Measures (ECM’s), this contract may be extended by Change Order for a period not to exceed fifteen (15) years, measured beginning with the Commencement Date, See Section 1.3(c). The period from Contract execution until the Commencement Date shall be known as the "Interim Period". All energy savings achieved during the interim period will be fully credited to Agency.

The D/CC, their sub-contractors, and their consultants shall provide all professional and construction services, technical staff, and support personnel necessary to achieve the Project, in the best interest of the State, and be within the D/CC’s not-to-exceed fee(s) authorized by the State. The Department shall provide Project objectives of scope, program, schedule, constraints, criteria, funding, and budget as promptly as practicable.

Project services shall comprise, without exception, every professional design/build construction discipline and expertise necessary to meet all the requirements of the Department’s approved and attached Appendix ‑ Project/Program Statement, be within the amount authorized by the State, and be in accordance with the industry-accepted standards for professional design/build construction practice and services.

Information: The Department will make available information known to the Department which may be needed to fulfill the professional responsibility of the D/CC. This information may include, but is not limited to: prints of existing construction or record drawings and Department or Client Agency standards, regulations, schedules, and guides. Such documents shall be the most recent and accurate available. The use of any such data by the D/CC shall be without contractual or legal significance, unless otherwise established elsewhere in this Contract. However, the Department’s provision of information shall not relieve the D/CC from the responsibility of conducting a field survey to verify existing conditions.

Principal-In-Charge: The D/CC shall designate a principal-in-charge for this Project, to whom the Department will address questions and concerns regarding this Contract and the D/CC’s performance.

Substitution: No substitution of any “Key Principal Personnel/Employee” identified in the D/CC attached Proposal or of any of the D/CC’s contractors or consultants will be allowed without written consent from the Project Director and a completed and approved Professional Services Contract Modification form (DMB-410).

Project Director: The Department will designate an individual to serve as the Project Director who shall be the State of Michigan’s primary representative in the Project Team and have the authority and responsibility to render Project decisions and furnish information.

The D/CC is responsible solely to the Project Director for the adequacy and timeliness of their services.

If the Department or Client Agency observes or otherwise becomes aware of any Defective Work or other fault or defect in the Project, the Department or Client Agency will notify the Project Director who will provide prompt notice thereof to the D/CC.

The Project Director, or the Owner’s Field Representative, has the authority to require the D/CC to respond to and resolve design related problems, construction field problems, and to attend Project related meetings. Unless delegated by specific written notice from the Department, the Owner’s Field Representative does not have any authority to order any changes in the scope of work or authorize any adjustments in Contract price or Contract time. The Project Director has that sole authority.

Department’s Field Representative: The Department will designate an individual or individuals to serve as the Owner’s Field Representative (OFR) under the direction of the Project Director. The OFR’s primary duty is to monitor the coordination and progress of the D/CC’s services and the Construction Contractor(s)’ work. The OFR also acts as the liaison between, the D/CC, the Client Agency, any of the Department’s consultants or contractors, and the Project Director. The OFR may be full or part-time, at the Department’s discretion.

First Interpreter: The D/CC acknowledges the Project Director is the first interpreter of the D/CC’s performance under this Contract.

Standard of Reasonable Care, Legal Responsibility: The D/CC shall perform all of its services in conformity with the standards of reasonable care and skill of the profession, notwithstanding any other provision herein. The D/CC shall be responsible for the performance of persons retained by them and states that its employees, agents, officers, consultants, and subcontractors possess the experience, knowledge, licensure, and character to properly perform their duties.

Professional Qualifications: Professional services shall be performed by members of the profession involved, who practice under the authority of and who are governed by the license(s) issued under PA 299 of 1980 (Michigan Occupational Code).

Understanding of Project Scope: The D/CC acknowledges having a clear understanding of the requested Project Scope of work, as contains in the attached Project Statement and the professional architectural and/or engineering study, design, construction, and construction administration services required to provide them.

Completeness: The D/CC shall provide all services, technical staff, and support personnel necessary to achieve the Project, in accordance with: the Appendices to this Contract, any applicable sections of the Michigan Compiled Laws, any applicable state rules and regulations, any applicable federal and local statutes, ordinances, rules, and regulations, and in accordance with the D/CC’s Project Study, Design and Proposed Construction Schedule, as provided in the D/CC’s Proposal.

Sufficiency: The D/CC agrees the terms and conditions of this Contract provide adequate compensation to provide the requested services; furthermore, any modification to the terms and conditions of this Contract will be requested in writing.

Subcontracts and Consultants: The D/CC may use Subcontractors and Consultants upon written approval by the Department or by their inclusion in the Proposal. Consultants or Contractors to the D/CC shall not be construed to have a contractual relationship between the Department and said consultant/subcontractor. The D/CC holds the professional and contractual responsibility for any work performed or delivered under this Contract, regardless of whether the D/CC or a consultant provided the work. Subcontracts for services under this Contract shall provide that work performed under such Subcontract shall be subject to provisions of this Contract and shall also provide that any duty or responsibility pertaining thereto, shall be accomplished to the benefit of the Department. Upon request, an electronic copy of each such Subcontract shall be furnished to the Department.

Understanding of Construction General Conditions: The D/CC shall review and become familiar with the current MICHSpec General Conditions of the Contract for Construction and shall provide services and work consistent with these General Conditions. It is preferred that the D/CC uses these General Conditions for its subcontracts for construction. The D/CC may submit an alternate form of General Conditions for review by the Department. If approved, the D/CC may use that alternate form of General Conditions.

Consultant: The D/CC shall not employ nor consult with any firm(s) in completing its obligations who it anticipates will be a construction Bidder for the Project or any part thereof, unless specifically authorized, in writing, by the Department.

Cooperation with Department’s Consultants: The D/CC agrees to cooperate with any Consultant retained by the Department.

Cooperation and Coordination with State Employees: The Project Director, the OFR, or other State employee(s) may perform duties or activities analogous or parallel to the D/CC’s services outlined under this Contract. Notwithstanding these activities, the D/CC shall provide all the services required under this Contract.

Construction Means and Methods: The D/CC, through its subcontracts or by self-performing construction activities, shall be responsible for construction means, methods, techniques, sequences, procedure, and supervision or for safety precautions and programs in conjunction with the Project. The D/CC is responsible for its internal safety policies, procedures, equipment, and precautions.

Increased Compensation for Additional Project Scope: The D/CC shall immediately inform the Department whenever it believes the scope of services included in this Contract would be exceeded. The D/CC’s base services fee may be increased only upon an accepted and approved Contract Modification (DMB-410)

Increased Compensation for Bulletins and Change Orders: The D/CC’s base services fee will be increased for the preparation of Bulletins and Contract Change Orders resulting from increases in the scope of work or previously unknown field conditions, as approved by the Project Director, on an hourly billing rate basis. This compensation shall not exceed seven and half percent (7.5%) of the Construction Contractor’s quotation for the Bulletin or Contract Change Order, or an amount mutually agreed upon by the D/CC and the Project Director.

Addenda and Bulletins: Upon notice or discovery, and as directed by the Project Director through issue of a Bulletin Authorization, the D/CC shall perform the required services to issue Addenda to the Bidding Documents, or Bulletins to the Contract Documents, to correct or clarify errors, omissions, or ambiguities, without additional compensation.

Coordination and Communication: Coordinate the D/CC’s staff, Consultants, and all other Project related resources. Preside at all Project related construction meetings. Prepare and distribute copies of minutes of all meetings, correspondence, memoranda, records of telephone or other conversations and communications, and reports of all on-site visitations. Where essential or significant information is established or evaluated, where critical problems are identified, and/or where critical decisions are made outside meetings, incorporate a record of such into the next meeting record or provide and distribute written record to the Department and participants within two (2) business days following the date of occurrence. Otherwise meeting minutes shall be distributed within five (5) business days, as the Department may direct.

The D/CC’s study and design/build construction schedule shall be detailed, dated, and time sequence related for all services appropriate for the scope of work.

The D/CC shall field check and verify the accuracy of all drawings and any data furnished by the Department, the State/Client Agency, or any other Project related source.

Professional Services and Instruments of Service Review: The Department shall review and accept or reject the D/CC’s submittal of the respective phases of study or design services, Instruments of Service, and/or construction services, for conformance with the provisions of this agreement. The Department may require a written response to all questions and concerns raised regarding such services. The Department’s review and any acceptance of the D/CC’s submittals does not relieve the D/CC of its responsibilities. The Department will perform reviews and respond with comments, direction, or decisions promptly. The Department will coordinate Client Agency and Department staff comments prior to issuance.

Construction Inspection and Construction Administration: Where the D/CC’s Contract includes provision and administration of construction contracts, the D/CC shall use the Department’s “DMB-460 Project Procedures” package of forms and documents as included in the attached appendices.

Final Design/Build Bidding Documents and Review: At a minimum, The D/CC shall provide their Bidding Documents for review to the Project Team at 50 and 90 percent (%) completion, or as required by the Project Director, and incorporate all required modifications and comments. If the final design appears to exceed the Project Budget, review with the Department cost reduction options and incorporate them with the Department’s concurrence. Determine and confirm, in writing, the final design/build can be achieved within the Project Budget. Obtain written approval of the final Bidding Documents from the Department.

Code Compliance: The D/CC’s Contract Documents shall comply with the State of Michigan Construction Code, 1972 PA 230, as amended, the State of Michigan Energy Code, the Americans With Disabilities Act (ADA) Accessibility Guide requirements, the State of Michigan Barrier-Free Access Code requirements, and any other Project related construction code requirements, in effect at the time of award of this Contract. The D/CC shall advise and assist the Department with decisions on the Americans with Disabilities Act accessibility compliance. Assist the Department in obtaining approval of the Project and its design by appropriate governmental regulating and/or code enforcement authorities. Where required, Soil Erosion and Sedimentation Control plans/drawings will be submitted to the Department, no later than at the final design, 90 percent completion submittal stage. Submit documents to the Department of Labor and Regulatory Affairs (LARA) for review in a timely manner allowing appropriate time for review/permitting processes by respective authorities, such that the Project schedule is not unnecessarily delayed. Assist the State/Client Agency to secure any appropriate construction code waivers. Incorporate all required modifications into the Contract Bidding Documents. Follow through to ensure issuance of the construction codes and permits approvals. Secure all required design approvals before proceeding to construction. Any approval secured does not relieve the D/CC from complying with the construction field Inspections review/enforcement requirements. Design code compliance and plan review approval fees shall be paid by the D/CC and will be compensated by the Department to the D/CC as an authorized Contract reimbursable expense.

Hazardous Materials: Where the Project involves work in an existing building and/or utility system, assist the Department to determine the scope of potential hazardous materials contamination that may require testing, abatement, and/or removal, prior to the renovation and/or during the new construction work of the Project. Hazardous materials testing and removal will be performed by the Department, with other Professionals, by separate Contract, who are licensed and insured to perform this service. Coordinate the services of this Contract with any hazardous material removal services required to implement this Project.

Sustainable Design and Construction: Sustainable Design and Construction practices shall be used wherever possible by the D/CC.

Specifications: Performance specifications shall be used when feasible. If performance specifications are not feasible, the D/CC shall name at least three (3) acceptable materials, products, or systems; and the specifications shall contain an "or equal" clause. Whenever possible, recycled materials and/or products produced in the State of Michigan, shall be named and given first preference. Proprietary specifications or allowances may be permitted, with the Department's acceptance and written approval, but only for special, unavoidable conditions. Provide specifications, when requested by the Department, for purchasing or construction bidding items necessary to be pre-purchased through existing State Contracts, direct Bid materials, or equipment. Copies of the latest “State of Michigan Building Products List” may be obtained through the “Contract Connect” internet web site at http://www.michigan.gov/buymichiganfirst/0,1607,7-225-48676-209976--,00.html.

Checking Contract Documents: Check and coordinate all Contract Documents for completeness and accuracy. Cross‑check and coordinate the requirements of all Contract Documents, including specifications, between the design disciplines for completeness, accuracy, and consistency.

Construction Bidding and Contracting Procedures: The D/CC shall prepare and distribute Bidding Documents and instructions as required to accommodate predetermined construction Bid packages and/or Phases, conduct pre-bid meetings, and issue complete preconstruction Addenda to all qualified construction Bidders as required. Exert every practical means to obtain several, qualified, construction Bidders for every Construction Contract. The Department will make its online bidding advertisement system available. The D/CC’s construction bidding and contracting services are not complete until: (1) The lowest responsive, responsible, qualified construction Bidder’s Bid has been selected and accepted by the Department; and (2) The lowest responsive, responsible, qualified construction Bidder's Construction Contract has been fully executed by the construction Bidder and the D/CC.

Construction Bid Evaluation and Recommendation of Construction Contract Awards: Monitor, review, evaluate, and provide the Department with written recommendations for the apparent lowest responsive, responsible, qualified, construction Bidder within five (5) business days of the date of the Department’s construction Bid opening. Exempt from recommendation any firm that the D/CC has business association with this Project, and any firm(s) having any Consultant the D/CC has used in preparing the final Contract Documents or for any estimating work related to the Project. The D/CC shall conduct pre-contract meetings with responsive, responsible, qualified, construction Bidder(s) to review, at minimum, the following items: (1) The design intent of the D/CC’s final Contract Documents; and (2) To advise and assist the Construction Contractor(s) in understanding the requirements of the General Conditions, scope of work, and its Construction Contract award procedures. If applicable, the D/CC firm shall use the current MICHSPEC (Long Form) during the Project Construction Bidding and the Construction Contract Award.

Safety: In observed cases, which may involve danger to human life, immediate safety hazards to personnel, existing or impending damage to the Project, to State/Client Agency property, or to other property; as may be impacted by the Project, the D/CC shall inform the Construction Contractor(s) of the situation and their observations. The D/CC shall immediately record and report such situations to the Department and certify any accrued Project costs in writing.

The D/CC shall have access to the Construction Contractor(s) work at all times.

Establish and maintain effective construction Phase administration, office procedures, systems, and records to progressively, and exclusively, manage and control the D/CC’s obligations, commitments, achievements, and expenditures under this construction Phase administration.

Monitor the quality and progress of the Project construction Phase work. Maintain all necessary Project records, provide on-site visitation reports, and provide all administrative office action as may be necessary to inform the Construction Contractor(s), in writing, with respect to their compliance with the design intent of the D/CC’s Phase 500 - Final Design Contract Documents/architectural and engineering drawings and specifications requirements.

Final Design/Build Correction Procedures: Correct, at no additional cost to the Department, any final design/build errors or omissions and/or other Project related deficiencies identified during the Construction Phase. All reproduction costs for design interpretation clarifications and Bulletins related to the D/CC’s final design/build errors or omissions and similar, or avoidable costs shall be accounted as part of the D/CC firm’s calculated mark-up. Provide design clarifications and interpretations of the Contract Documents requirements necessary to: (1) Adequately describe the Project work; (2) Adapt final design/build documents to accommodate on-site field conditions identified during construction; (3) Refine design details that are not feasible and identified during construction; and (4) Comply with current construction/building codes, and all other Project related design and construction matters, as may be necessary to produce a complete Project.

Design Interpretations and Clarifications: For elements of construction having no respective change in cost to the State, the D/CC will provide instructions, and/or design interpretations and clarifications for design details within five (5) business days of the Construction Contractor's request, record same, in writing; and revise the D/CC firm’s original final design/build drawings and specifications as appropriate to the Project scope. Marking and initialing of drawings is not an acceptable form of written instruction.

Shop Drawings/Submittals/Approvals: Monitor, evaluate, and provide administrative action, as necessary, to achieve timely processing of shop drawings and such other submittals and approvals that are the responsibility of the D/CC. Maintain a record of all required, received, rejected, and approved submittals of shop drawings, color/material samples, finishes, and other items requiring the D/CC’s approval. Notify the Construction Contractor(s), in writing, (copy to the Department) of delinquent submittals, the consequences of such delays, and prescribe a time schedule for their submittal/resubmittal which will not jeopardize the Project completion date.

No design revisions will be made as part of the D/CC’s review and approval of shop drawings, or other submittals. In addition to all other functions, the D/CC’s approval of shop drawings shall verify the submittals furnished conforms to the design intent of the Contract Documents. Provide written approval or rejection of shop drawings within ten (10) business days of receipt. Provide and distribute approved submittals as directed by the Department.

Construction Schedule Progress: Monitor, evaluate, and provide timely action, as necessary, to achieve the Project on time and on schedule. Advise and assist the Department in taking all practical steps necessary to address and complete the Project in the event of performance delays or defaults by the Construction Contractor(s). Evaluate any documentable impact on the Project construction schedule claimed by the Construction Contractor(s) arising from Bulletin work. Provide appropriate and timely action, under terms allowable under the Construction Contract, to implement any Bulletin work which the D/CC and the Department consider critical to the Project construction schedule, but whose cost is disputed.

Within ten (10) business days of its receipt, evaluate and provide the Department with appropriate written recommendations, along with an analysis of any request by the Construction Contractor(s) for a time extension of their Construction Contract completion date.

No recommendation for a Construction Contract time extension may be submitted to the Department which is not substantiated by the D/CC’s technical review and evaluation showing critical path work, noncritical path work, and float time for the complete Project and any work at issue and having such detail as to clearly document the Construction Contractor's claim. Any recommendation for a time extension of the Construction Contractor’s Contract completion date must include a complete analysis of all direct and indirect costs of the Construction Contractor, the D/CC, and the Department regarding the time extension.

Construction Testing Program: Monitor, evaluate, and provide timely action in response to the results of the construction quality control and material testing program. In circumstances where the testing is not provided by the Department, evaluate and approve/disapprove the Construction Contractor(s) work plan for providing all construction test reports. Provide the Construction Contractor(s) and the Department with written evaluation of all construction test reports, copies of construction test reports, marked with the D/CC’s approval or disapproval within five (5) business days of receipt of the report. Direct the Construction Contractor(s), in writing, to take appropriate, corrective, or replacement measures within a prescribed time period for any construction test reports not meeting the Construction Contract requirements. Follow up, as appropriate, to require the Construction Contractor(s) to achieve the design intent of the D/CC’s final design Contract Documents, drawings, and specifications and avoid delays to any element of work which may, in the D/CC’s opinion, result in a delay in the Construction Contract completion date. Notify the Construction Contractor, in writing, of any delinquent corrections/replacement and take administrative action in accordance with the Construction Contractor performance text.

Construction Management and Inspection: The D/CC shall provide and record sufficient field Inspections of the Project to administer the Project, as directly related to the degree of Project complexity and scope of work, up to and including full-time field Inspections. The construction field Inspections shall occur as the construction on-site field conditions and the Project may require and during the regularly scheduled progress and payment meetings. The D/CC shall use only personnel having such professional expertise, experience, authority, and compatibility with departmental procedures as the Department may approve. The D/CC agrees that such characteristics are essential for the successful completion of the Project. Such individuals shall be replaced for cause where the Department determines and notifies the D/CC, in writing, of their unacceptable performance.

All construction progress Inspections shall be recorded in the form of a written report to the Department and the Construction Contractor within five (5) business days of the Project construction progress Inspection. The purpose of such Inspection/visitations includes, but is not limited to: (1) Achieve and maintain a working familiarity with the status, quantity, and quality of the Project construction work in place; (2) Determine if the actual Project construction schedule progress is in accordance with the approved schedule; (3) Review the installation and determine the acceptability of preparations for, and installation of, pending critical components and activities; and (4) The Inspection of Project construction work completed or in progress by the Contractor to determine and verify, in writing, to the Project Director and Owner’s Field Representative that the quantity and quality of all Project construction work is in accordance with the Contract Documents.

The D/CC shall review the Project construction work in place and that which is sequentially planned. The D/CC shall determine whether the actual Project construction schedule progress appears to be in accordance with the approved construction schedule and whether the quality of the work appears to be in accordance with the design intent of the Contract Documents, and is without apparent defects or deficiencies. No on-site advertising by, or of, the D/CC or Project signs other than those appropriate to locate an approved field office will be permitted.

Problem Solving Meetings: Conduct and record problem solving meetings between the D/CC and its Consultants, the Construction Contractor(s), their subcontractors, the Department, Project Director, and their Owner’s Field Representative, and any construction managers and other affected parties, on-site or elsewhere to assess the construction work progress. Provide design interpretation decisions to resolve problems affecting the construction work. These problem solving meetings shall be scheduled as the construction field conditions and the Project requirements may require, and/or shall be at such time as the Construction Contractor(s), the D/CC, the Department, Project Director, Owner’s Field Representative, and any construction manager agree is appropriate to the Project work progress. Non-scheduled or emergency meetings shall be held at such time as necessary to maintain the schedule of various work items and to avoid delays in the Contract completion date.

Progress Meetings: Conduct and record monthly scheduled Project construction progress meetings with the Department, Project Director, Field Representative, the State/Client Agency, the Construction Contractor(s), and any construction manager. Assess work progress and provide timely action as necessary to maintain the work schedule and respond to and resolve all design related and construction items affecting the Project cost and be in compliance with the Contract Documents.

Final Project Inspection: Conduct final construction field Inspections of the Project, in concert with the Construction Contractor(s), the Department, Project Director, Field Representative, the State/Client Agency, and any construction manager. Final Project field Inspections shall be conducted to witness and record equipment start-up and all testing, verify, in writing, each Construction Contractor has achieved Substantial Completion, prepare Punch List(s) items, and determine the status of any part of the Project work where the Department intends to take beneficial use or occupancy. Verify to the Project Director and OFR, in writing, the completeness and accuracy of the Construction Contractor’s as-built drawings and identify any corrections required.

Construction Contractor Performance: Monitor and evaluate the Construction Contractor(s) performance and provide timely action to cause the Construction Contractor(s) to correct their construction deficiencies. With the Department's concurrence, the D/CC may direct, in writing, the exposure and testing of any Project construction work, already in place or covered, which the D/CC, and/or the Department, believes may not meet the design intent of the D/CC’s final design requirements.

Notify the Construction Contractor, and the Department, in writing, within five (5) business days its identification of any aspect of the Construction Contractor's performance which is inconsistent with the Contract Documents requirements or which, in the D/CC’s opinion, is inconsistent with the design intent of the Contract Documents. Prescribe a reasonable time for correction which will not jeopardize the Project construction schedule completion date. Exert all practical means necessary to require the Construction Contractor to perform, as required by their Construction Contract, the design intent of the Contract Documents.

Deficient Performance: Upon identification of deficient performance, where the Construction Contractor fails to provide timely or acceptable performance, the D/CC shall proceed as follows: (1) Notify within three (3) business days the Department, the Construction Contractor, and any affected surety, in writing and by registered mail delivery, of the potential for the Construction Contractor’s default action and the D/CC’s recommendation; (2) Identify applicable Construction Contract references, with design interpretation of such references, and clearly explain where the Construction Contractor's performance fails to meet the design intent of the D/CC’s final design drawings and specifications requirements; and (3) Specify a time and date for the Construction Contractor to begin active and continuous work towards Contract compliance with a specific time and date for completion.

Bulletin Authorization: Request authorization to issue each individual Bulletin. The D/CC 's Bulletin Authorization request will: (1) Identify the problem requiring the change; (2) Describe clearly if such problem arises from the final design/build errors or omissions; (3) Identify the anticipated design cost and the estimated construction cost to implement the change(s); and (4) Describe clearly in the D/CC’s opinion which part, if any, of the design and/or construction costs are the obligation of the State, the D/CC or the Construction Contractor. Include a Contract Modification request for any work outside the scope of work. Identify any anticipated schedule implications.

Bulletins: All reproduction costs for design interpretations and clarifications and Bulletins related to the D/CC’s final design/build errors or omissions and similar, or avoidable costs shall be accounted as part of the D/CC’s calculated mark-up. Describe, by Bulletin, design revisions necessary to correct the final design/build errors or omissions, to address previously unidentified on-site field design conditions, to reduce costs, and for all other matters approved by the Department involving costs or credit to the State. Postponement of action on items in order to accumulate multi-item Bulletins is not permitted.

Prepare and issue Bulletins within ten (10) business days of receipt of the Department's authorization. Bulletins shall be in such form and detail as the Department may prescribe. All Bulletin revisions shall be incorporated, by the D/CC, into the appropriate originals of all applicable Contract Documents. Revised drawings and specifications shall be issued as part of any Bulletin. Each Bulletin shall prescribe a schedule for the Construction Contractor's response. Provide copies of each Bulletin to the Department and distribute as the Department may direct.

Evaluate the Construction Contractor's price quotation(s). Review and attempt to negotiate with the Construction Contractor to provide the Department with costs that are consistent with the value of the Project Bulletin(s). Recommend appropriate action to the Department regarding the Construction Contractor's quotations within five (5) business days of receipt thereof.

Payment Procedures: Monitor, evaluate, and provide timely administrative action, as necessary, to certify or reject, as appropriate, and process the D/CC’s subcontractors and consultants schedule of costs and monthly submitted payment requests.

The D/CC will certify or reject all submitted payment requests from its subcontractors and consultants, in writing, within ten (10) business days of receipt in the D/CC’s office. The D/CC shall determine and certify to the Department, in writing, the dollar amount to be due in the subcontractor/consultant’s monthly payment request. or the D/CC shall return the payment request, with explanation, rejecting the payment request certification. If a payment request is rejected, the request shall be returned to the submitting party accompanied by a written explanation, and a copy shall be given to the Department’s Project Director. If a payment request is returned to the subcontractor or consultant, that entity shall make the necessary corrections and resubmit that payment request to the D/CC.

The D/CC will issue a payment certification only pursuant to a correctly prepared and accurate payment request and only for acceptable work. Payment certification shall constitute a written representation by the D/CC, that based on their on-site field Inspections, evaluations of field reports, test results, and other appropriate and available factors, the quantity and quality of work for which the payment request is certified has been accomplished in accordance with the Contract and if applicable, materials are properly stored on or off-site.

No payment certificate shall be submitted that requests payment for disputed Project work or any Project work showing deficient test results. No payment request certificate may be submitted after the Contract completion date which does not provide for withholding of assessable and/or projected liquidated damages. Pursuant to the Department's notification, the D/CC’s certification shall reduce from the amount earned, two (2) times the amount of any current prevailing wage rate payment deficiency, as certified by the Department of Licensing and Regulatory Affairs, Wage and Hour Division against the Construction Contractor or any Subcontractor or supplier thereof (See attached Appendix – Project Prevailing Wage Trade Labor Rates).

Punch List: Prepare and distribute, as required, Punch Lists for each Construction Contract. Prescribe a reasonable time schedule for completion of all items, and identify an amount to be withheld from payment consisting of a minimum of two (2) times the estimated value of the unacceptable construction work plus an amount sufficient to assure available funds to cover all costs, as may become necessary to complete the remaining delinquent work. Distribute Punch Lists within five (5) business days of the final Inspection. Notify the Construction Contractor of any delinquent Punch List construction corrections and take appropriate action.

Close-Out Procedures: Within thirty (30) calendar days after Substantial Completion of the Project, provide to the Project Director: (1) All Project code compliance approvals; (2) Final Inspections; (3) Final occupancy permits; (4) As-built drawings; (5) Copies of “Operation and Maintenance Manuals” of the Project systems; and (6) Equipment warranties and guarantees.

Operation and Maintenance Manuals: Provide three (3) hard copies and two (2) electronic copies of "Operation and Maintenance Manuals" of the Project systems and equipment. These manuals shall include copies of reduced size, as‑built drawings, specifications, and all instructions published or furnished by respective manufacturers, construction code compliance certificates, and guarantees. The manuals shall also include a complete description of the D/CC firm’s final design/build intent concepts, operation, and required maintenance of each system. The D/CC shall conduct start-up and training instruction of the State/Client Agency personnel in the operation and use of the Project systems.

As‑Built Documents: Provide as‑built drawings incorporating and depicting all construction modifications, additions, and deletions made either by Addendum, Bulletin, supplemental written instructions, and the written notations into the Contract Documents within thirty (30) calendar days after Substantial Completion of each Project. The D/CC shall provide the following two (2) types of as-built documents for Project close-out: (1) Three (3) sets of hard copy and (2) two (2) sets of Electronic files of completely updated, as-built, original Contract Documents in both Auto CAD format that is “Auto CAD readable” and conform to the American Institute of Architects (AIA) National CAD Standard format and in PDF format. The as-built documents shall be free of the D/CC’s original final design errors and omissions.

Claims: Evaluate and respond to any claims (in whole or in part) against the Department within five (5) business days of the receipt of such claim. Where any element of claims or subsequent litigation, are based, in whole or in part, upon any deficiency or delinquency in the D/CC’s services, the D/CC shall provide, in a timely manner, all services necessary to defend the claim issue(s). No payment will be due for claim defense services accumulated under this Task until settlement or judgment of litigation concludes the claim issue. The claim settlement or judgment decision will be used as the basis for determining the D/CC’s obligation, if any, for the costs of such services and/or for any costs incurred by the Department for which performance by the D/CC may be responsible or contributory. Billing under this claims Task will be in accordance with an appropriate Contract Modification and/or Contract Change Order.

This Contract provides two (2) distinct types of D/CC services. These professional design and construction services may be coordinated and combined, or used singularly, depending upon the flexibility required by the Project and are defined below and in the attached appendices as follows:

1. PROFESSIONAL DESIGN AND CONSTRUCTION SERVICES

1.1 DESIGN SERVICES: Provide complete architectural and engineering design/build, specialized project services, or other professional services. The design work activities will be performed either by the D/CC or through their Consultant(s).

The D/CC’s design work may be provided by either the D/CC’s office staff, or a third party consultant procured by either the State of Michigan or the D/CC. The Department may also elect to use a design/build approach combining the design and construction orders to provide an integrated, expedient, delivery approach.

Design and Construction Consultant (D/CC) Services: The following Phase description(s) outline the D/CC design services that may be necessary, but may not be limited to, accomplishing the scope of work.

Phase 100─Study: Provide complete and comprehensive Study Deliverables to meet the requirements of the Project.

Upon completion of all field investigation or research, prepare a complete Study Report with an executive summary, and in such detail, as the Project Director may prescribe.

Phase 200─Programming: Research the physical, functional, and programmatic relationships required by the State/Client Agency.

Prepare a Program Statement with a complete building or facility program, listing all spaces organized by department and staff classification, adjacencies, uses, and other needs. Include information on required environmental conditions, building systems, equipment, adjacencies, security, and special conditions needs for each space.

Acceptance and approval of the Program Statement by the Department does not limit subsequent inclusion of minor, but essential, programmatic or design details whose necessity and arrangement may best become apparent during subsequent Phases of the Project design.

Phase 300─Schematic Design: Upon written authorization from the Project Director, prepare Schematic Design Deliverables consistent with the Project requirements and the approved Program Statement. Schematic Design Deliverables shall consist of drawings, outline specifications, a Schematic Construction Cost Estimate, other related documentation, and shall diagrammatically depict the areas, scales, and relationships of the functions, as described in the approved Program Statement.

Acceptance of the Schematic Design by the Department does not limit subsequent inclusion of minor, but essential, schematic or design details whose necessity and arrangement may best become apparent during subsequent Phases of the Project design.

Phase 400─Design Development: Upon written authorization from the Project Director, prepare Design Development Deliverables based on the Owner-accepted Schematic Design.

Design Development Deliverables shall consist of drawings, specifications, Construction Cost Estimates, other related documentation, and shall further define the Project by fixing and describing the Project size, character, site relationships, and other appropriate elements including the civil, structural, architectural, mechanical, electrical, and fire suppression systems.

Phase 500─Construction Documents and Bidding Documents Upon written authorization from the Project Director, and based on the Owner-approved Design Development, prepare Construction Documents that revise, refine, amplify, and depict, in detail, the Project.

Construction Documents shall set forth, in detail, quality levels of and requirements for the construction, and shall consist of drawings and specifications that comply with applicable regulatory and construction code requirements, enacted at the time of completion of the one-hundred-percent (100%) Construction Documents. The Construction Documents shall contain all information necessary to bid and construct the Project.

Prepare Bidding Documents in Phases/Bid packages appropriate to the Project requirements and funding.

Phase 600─Construction Administration, Office Services: Upon written authorization from the Project Director, provide all required construction administration and timely professional and administrative services, as the circumstances of the Construction may require, to allow the successful implementation of the Construction Documents into a completed Project, ready for occupancy, and/or for the use intended by the Owner.

Phase 700─Construction, Field Services: Upon written authorization from the Project Director, provide all required Construction Field Services, including timely inspection and professional services, as the circumstances of the Construction may require, to allow the successful implementation of the Construction Documents into a completed Project, ready for occupancy, and/or for the use intended by the Owner

1.2 CONSTRUCTION SERVICES: Provide complete construction labor, equipment, materials, and all appropriate construction services such as supervision, scheduling, estimating, etc., to construct the Project.

This Contract will provide all construction trades work. The D/CC’s construction labor force may be used for select self-performed trades and general conditions work. Any self-performed trades and general conditions work must be justified and preapproved by the Department. The D/CC may also obtain construction trades subcontracts.

1.3 ENERGY PERFORMANCE REQUIREMENTS

Energy Performance Requirements: The following Schedule description(s) outline and/or describe D/CC services that may be necessary, but may not be limited to, accomplishing the scope of work. Detailed schedules are to be prepared by the D.CC and included as a part of the Solar/Renewable Energy Project Design and Performance Proposal.

· Schedule A. Equipment to Be Installed By D/CC

· Schedule B. Description of Facility; Pre-Existing Equipment Inventory

· Schedule C. Energy and Cost Savings Guarantee

· Schedule D. Savings Measurement and Verification Plan; Methodology To Adjust Baseline

· Schedule E. Construction and Installation Schedule

· Schedule F. Systems Start-Up and Commissioning Of…