Updated-AE_Exhibit_A_Standard_Terms_and_Conditions_-_2025-OCT.pdf

Exhibit A - A/E Standard Terms and Conditions State of Ohio Professional Services Agreements for Public Facility Construction

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TABLE OF CONTENTS

ARTICLE 1 - A/E’S RESPONSIBILITIES

ARTICLE 2 - STATE’S RIGHTS AND RESPONSIBILITIES

ARTICLE 3 - CONSULTANTS

ARTICLE 4 - MODIFICATIONS

ARTICLE 5 - DISPUTE RESOLUTION

ARTICLE 6 - COMPENSATION AND PAYMENT

ARTICLE 7 - INSURANCE AND INDEMNIFICATION

ARTICLE 8 - SUSPENSION AND TERMINATION

ARTICLE 9 - GENERAL PROVISIONS

ARTICLE 10 - DEFINED TERMS AND ABBREVIATIONS

ARTICLE 1 - A/E’S RESPONSIBILITIES

1.1 Nondiscrimination

1.1.1 The A/E shall comply with Applicable Law regarding equal employment opportunity, including ORC Section

153.59 and all Executive Orders issued by the Governor of the state of Ohio.

1.1.1.1 As required under ORC Section 153.59, the A/E agrees to both of the following:

.1 “in the hiring of employees for the performance of work under the contract or any subcontract, no contractor, subcontractor, or any person acting on a contractor’s or subcontractor’s behalf, by reason of race, creed, sex, disability or military status as defined in section 4112.01 of the Revised Code, or color, shall discriminate against any citizen of the state in the employment of labor or workers who is qualified and available to perform the work to which the employment relates;” and

.2 “no contractor, subcontractor, or any person on a contractor’s or subcontractor’s behalf, in any manner, shall discriminate against or intimidate any employee hired for the performance of work under the contract on account of race, creed, sex, disability or military status as defined in section 4112.01 of the Revised Code, or color.”

1.1.1.2 The A/E shall cooperate fully with the State Equal Opportunity Coordinator (“EOC”), with any other official or agency of the state or federal government that seeks to eliminate unlawful employment discrimination, and with all other state and federal efforts to assure equal employment practices under the Agreement.

1.1.1.3 In the event the A/E fails to comply with these nondiscrimination clauses, the Contracting Authority shall deduct from the amount payable to the A/E a forfeiture of the statutory penalty pursuant to ORC Section 153.60 for each person who is discriminated against or intimidated in violation of this Section 1.1.1.

1.1.1.4 The Agreement may be terminated or suspended in whole or in part by the Contracting Authority and all money to become due hereunder may be forfeited in the event of a subsequent violation of this Section 1.1.1.

1.2 Royalties and Patents

1.2.1 The A/E shall inform the Contracting Authority if the A/E is aware that a particular invention, design, process, or device specified in the Contract Documents is subject to patent rights or copyrights calling for the payment of a license fee or royalty.

1.3 Assignment of Antitrust Claims

1.3.1 Each party to this Agreement recognizes that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the ultimate purchaser of goods and services; in this instance the ultimate purchaser is the Owner. Therefore, the following assignment is made:

1.3.1.1 The A/E hereby assigns, sells, conveys and transfers to the Owner any and all rights, title, and interest in and to any and all claims and causes of action which the A/E may now have or hereafter acquire under the antitrust laws

Exhibit A A/E Standard Terms and Conditions

M110-01 2025-OCT Page 2 of 21 of the United States of America or the state of Ohio, provided that the claims or causes of action relate to the particular goods, products, commodities, intangibles, or services purchased, procured, or acquired by, or rendered to, the Owner pursuant to this Agreement, and except as to any claims or causes of action which result from antitrust violations commencing after the compensation is established under this Agreement, which are not passed on to the Owner by any means. In addition, the A/E warrants and represents that it will require any and all of its Consultants and suppliers to assign any and all federal and state antitrust claims and causes of action to the Owner, subject to the proviso and exception stated above.

1.4 Use of Domestic Steel

1.4.1 The A/E shall comply with ORC Section 153.011 regarding the specification and use of domestically produced steel products. Copies of ORC Section 153.011 may be obtained from the Ohio Facilities Construction Commission or downloaded at http://codes.ohio.gov/orc/153.011v1.

1.5 Drug Free Safety Program

1.5.1 The A/E shall comply with Applicable Law regarding smoke-free and drug-free workplaces and shall make a good-faith effort to ensure that none of its or its Consultants’ employees engaged in the Services purchase, transfer, use, or possess illegal drugs or alcohol, or abuse prescription drugs in any way while on or about the Project.

1.6 Use of the State’s Web-based Project Management Software

1.6.1 If the Contracting Authority decides, in its sole discretion, to utilize the State’s web-based project management software for the Project, the A/E shall use such software for all compatible Services required under this Agreement.

1.6.2 All costs for the A/E’s use of the State’s web-based project management software for the Project shall be included in its Basic Services Fee. If the A/E’s staff or its Consultants are unfamiliar with the proper use of such software, the A/E shall provide its staff and Consultants for training without additional compensation.

1.7 EDGE Business Development Program Participation

1.7.1 The A/E shall participate in the “Encouraging Diversity, Growth and Equity” Program (“EDGE”) by contracting with and using one or more businesses certified as an EDGE Business Enterprise (“EDGE-certified Business”) by the Ohio Department of Development.

1.7.1.1 If the A/E is an EDGE-certified Business, the A/E may include this Agreement amount in the reporting.

1.7.1.2 The amount of EDGE participation cannot exceed 100 percent of the amount of this Agreement.

1.7.1.3 The A/E shall include in the reporting only those expenditures to EDGE-certified Businesses that perform a commercially useful function as described in OAC Section 123:2-16-15.

1.7.2 The A/E shall provide an EDGE Participation Report with each Professional Services Pay Request.

1.7.2.1 The A/E shall provide status reports, produced by the A/E and each applicable EDGE-certified Business for this Agreement, indicating:

.1 the name of each EDGE-certified Business;

.2 the federal tax identification number of each EDGE-certified Business;

.3 the date of the EDGE-certified Business contract, subcontract, or purchase order;

.4 the projected and actual start and end dates of the EDGE-certified Business contract, subcontract, or purchase order;

.5 the original amount of the EDGE-certified Business contract or purchase order with the A/E;

.6 the current amount of the EDGE-certified Business contract or purchase order;

.7 the amount invoiced to date;

.8 the amount paid to date;

.9 the status of the EDGE-certified Business contract or purchase order (active, complete, or void); and

.10 a statement describing any substantive product or performance deficiencies.

1.7.2.2 The A/E shall provide reports for each EDGE-certified Business; however, the reports may be consolidated and submitted as one document.

1.7.3 The A/E shall provide an EDGE Participation Final Report simultaneously with its final Payment Request.

http://codes.ohio.gov/orc/153.011v1

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1.7.3.1 The A/E and each EDGE-certified Business shall provide in the report certification that the submitted document is a true and accurate accounting of the original contract amount paid to and received by each EDGE-certified Business.

1.7.4 The A/E shall provide EDGE Participation Reports in detail and form acceptable to the Contracting Authority.

1.7.4.1 Failure to timely submit EDGE Participation Reports may result in withholding payment from the A/E.

1.7.5 The A/E shall cooperate fully with requests for additional EDGE information and documentation from the Ohio Department of Development or Contracting Authority.

1.8 A/E’s Services

1.8.1 The A/E shall provide Services for the Project, customarily furnished in accordance with generally accepted architectural or engineering practice, consistent with the terms of this Agreement.

1.8.2 The A/E shall provide the Services in accordance with Applicable Law, the applicable announcement issued pursuant to ORC Section 153.67 (“Announcement”), and the Owner’s Standards of Design, if any.

1.8.3 The A/E shall not be responsible for and shall not have control or charge of construction means, methods, techniques, sequences, procedures, or scheduling used by a Contractor to comply with the Contractor’s obligations under its Contract for the Project or for safety precautions and programs in connection with the Contractor’s Work on the Project.

1.8.4 The A/E shall not be responsible for or have control or charge over the acts or omissions of Contractors or Subcontractors, any of their agents or employees, or any other persons performing any Work on the Project.

1.8.5 The A/E shall render interpretations and decisions in connection with a Contractor’s responsibilities under the Contract Documents and submit recommendations to the Contracting Authority for enforcement of the Contractor’s contract as necessary.

1.8.5.1 The A/E is the initial interpreter of all requirements of the Contract Documents.

1.8.5.2 All of the A/E’s interpretations and decisions are subject to final determination by the Contracting Authority.

1.9 Standard of Care

1.9.1 Notwithstanding any other provision of this Agreement to the contrary, the A/E shall perform its Services consistent with the professional skill and care ordinarily provided by registered architects, landscape architects, professional engineers, and professional surveyors in the same or similar locality under the same or similar circumstances.

1.9.2 The A/E shall perform its Services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

1.9.3 The A/E shall perform its Services in accordance with the applicable rules established by its respective state board of registration, including the following codes of conduct and/or ethics pursuant to the OAC:

1.9.3.1 Registered architects: OAC Section 4703-3-07

1.9.3.2 Landscape architects: OAC Section 4703:1-3-04

1.9.3.3 Professional engineers and professional surveyors: OAC Section 4733-35

1.10 Construction Budget

1.10.1 The Owner shall provide written notice to the Contracting Authority and A/E of any change in the Construction Budget.

1.10.2 The A/E shall perform its Services so that the Project is completed within the Construction Budget.

1.10.3 The A/E, Contracting Authority, and Owner do not have control over the cost of labor, materials, or equipment, over Contractors’ methods of determining prices, or over competitive bidding, market, or negotiating conditions.

Accordingly, the A/E does not warrant or represent that competitively bid or negotiated prices will not vary from the Construction Budget or from any estimate of cost or evaluation prepared, or agreed to, by the A/E.

1.11 Cooperation

1.11.1 The A/E shall perform the Services so as not to interfere with, disturb, hinder, or delay the services of Separate Consultants or Work of the Contractors. The A/E shall cooperate and coordinate fully with all Separate Consultants and

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Contractors and shall freely share all of the A/E’s Project-related information with them to facilitate the timely and proper performance of the Services and of the services and work of Separate Consultants and Contractors.

1.11.2 If the A/E damages the property or work of any Separate Consultant or Contractor, or by failure to perform the Services with due diligence, delays, interferes with, hinders, or disrupts the services of any Separate Consultant or the work of any Contractor who suffers additional expense and damage as a result, the A/E is responsible for that damage, injury, or expense.

1.11.3 If the proper execution or results of any part of the Services depends upon work performed or services provided by the Owner, a Separate Consultant, or a Contractor, the A/E shall review that other work and appropriate instruments of service, and promptly report to the Contracting Authority in writing any defects or deficiencies in that other work or services that render it unavailable or unsuitable for the proper execution and results of the Services. The A/E’s failure so to report will constitute an acceptance of the other work and services as fit and proper for integration with the A/E’s Services except for defects and deficiencies in the other work or services that were not reasonably discoverable at the time of the A/E’s inspection.

1.11.4 The A/E shall not delay the Services on account of any claim, dispute, or action between the A/E and Separate Consultant or Contractor.

1.12 Records

1.12.1 The records of all of the A/E’s Direct Personnel Expenses, Reimbursable Expenses, and payments to Consultants pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to the Contracting Authority and Owner at all times and shall be maintained for seven years after Substantial Completion of all Work.

1.12.2 All other records kept by the A/E related to the Project shall be available to the Contracting Authority and Owner at all times and shall be maintained for six years after Substantial Completion of all Work.

ARTICLE 2 - STATE’S RIGHTS AND RESPONSIBILITIES

2.1 Contracting Authority

2.1.1 The Contracting Authority shall designate a Project Manager for the Project. The Project Manager is authorized to act on behalf of the Contracting Authority to perform specific responsibilities under the Agreement.

2.1.2 The Contracting Authority shall furnish information and services required of it in a timely manner.

2.2 Required Actions

2.2.1 The Contracting Authority and Owner shall review, approve, or take such actions as are required of them by this Agreement, the Contract Documents, and Applicable Law in a reasonable and timely manner.

2.3 Owner’s Requirements

2.3.1 The Owner shall provide to the A/E full information regarding the Owner’s requirements for the Project including the Program of Requirements, design and construction standards, and work rules, which shall set forth the Owner’s use, design, time, and financial objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability, time constraints imposed by fiscal and budgetary considerations, special equipment, and systems and Site requirements.

2.3.2 The Owner shall furnish information and services required of it in a timely manner.

2.4 Owner’s Representative

2.4.1 The Owner shall designate an Owner’s Representative authorized to act on behalf of the Owner with respect to the Project to the extent provided in the Contract Documents.

2.5 Site Description

2.5.1 If reasonably requested by the A/E as necessary for the Project, the Owner shall furnish a legal description and a certified land survey of the Site, giving, as applicable, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the Site; locations, dimensions, and complete data pertaining to existing buildings, other improvements, and trees; and full

M110-01 2025-OCT Page 5 of 21 information concerning available service and utility lines, both public and private, above and below grade, including inverts and depths.

2.6 Provided Information

2.6.1 The Contracting Authority and Owner do not warrant or guarantee the accuracy of Project-related information they provide to the A/E, but the A/E may rely upon that information to the extent consistent with the standard of care described under Section 1.9.

2.7 Notice to A/E

2.7.1 If the Owner or Contracting Authority observes or otherwise becomes aware of any Defective Work or other fault or defect in the Project, prompt written notice thereof shall be given to the A/E, and CxA if applicable.

2.8 Legal Representation

2.8.1 The Owner and Contracting Authority shall not be responsible to provide or pay for any legal representation of the A/E.

2.9 Limitation of Authority

2.9.1 The A/E shall not have any authority to bind the Contracting Authority or Owner for the payment of any costs or expenses without the prior express written approval of the Contracting Authority or Owner, as applicable.

2.9.2 The A/E shall have authority to act on behalf of the Contracting Authority and Owner only to the extent provided in this Agreement and the Contract Documents.

2.9.3 The A/E’s authority to act on behalf of the Contracting Authority and Owner may be modified only by an amendment to this Agreement in accordance with Section 4.3.

2.10 Approval or Disapproval of A/E’s Services

2.10.1 The Contracting Authority and Owner may disapprove any portion of the Services.

2.10.2 If the Contracting Authority or Owner disapproves of the Services at any Stage, the A/E shall proceed, when requested by the Contracting Authority, to re-perform the Services to satisfy the objections without additional compensation to the A/E or its Consultants.

2.10.3 The A/E acknowledges that any review or approval by the Contracting Authority and Owner of any Services shall not relieve the A/E of the A/E’s responsibility to properly and timely perform the Services.

2.11 Performance Evaluations

2.11.1 The Contracting Authority may evaluate the A/E during performance of the Services, at completion of a phase of the Project, completion of the Project, or any or all of the foregoing. The Contracting Authority shall retain the evaluation(s).

2.11.1.1 The A/E may request a copy of the completed evaluation(s). If the A/E wishes to comment or take exception to any rating or remark, the A/E shall send a response in writing to the Contracting Authority within 30 days after receiving the evaluation(s).

2.11.1.2 The Contracting Authority may use the evaluation(s) in determining the qualifications of the A/E for future contracts.

2.11.1.3 The Contracting Authority may request information from the A/E for use in evaluating the Contractor’s or Contracting Authority’s performance. If such information is requested, the A/E shall comply in a timely and responsive manner.

ARTICLE 3 - CONSULTANTS

3.1 Consultant Services

3.1.1 The A/E may provide a portion of the Services through one or more Consultants, provided, however, that the A/E shall remain responsible for all of the A/E’s duties and obligations under this Agreement.

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3.1.2 By appropriate written agreement, the A/E shall require each Consultant, to the extent of the Consultant’s portion of the Services, to be bound to the A/E by the terms of this Agreement, and to assume toward the A/E all of the obligations and responsibilities that the A/E assumes toward the Contracting Authority and Owner.

3.1.2.1 The A/E shall not retain any Consultant on terms inconsistent with this Agreement.

3.1.2.2 All agreements between the A/E and a Consultant shall identify the Contracting Authority and Owner as the agreement’s intended third-party beneficiaries.

3.1.2.3 Upon the request of the Contracting Authority or Owner, the A/E shall submit to the Contracting Authority and Owner a copy of the agreement between the A/E and each Consultant.

3.1.3 The A/E shall obtain the Contracting Authority’s written approval before engaging any Consultant not named in the Agreement. The A/E shall not employ any Consultant against whom the Contracting Authority has a reasonable objection. The Contracting Authority’s approval or disapproval of any Consultant, however, will not relieve the A/E of the A/E’s full responsibility for performance of the Services.

3.1.4 The A/E shall not remove any Consultant from the Project or reduce the extent of any Consultant’s participation in providing the Services without the Contracting Authority’s prior written consent. The A/E shall not permit any Consultant to replace any previously identified team member except with the Contracting Authority’s prior written consent unless the Consultant ceases to employ that person. On notice from the Contracting Authority, the A/E shall immediately and permanently remove from the Project any Consultant or person under a Consultant’s control whose performance is not satisfactory to the Contracting Authority.

3.1.5 The Contracting Authority may communicate with any Consultant either through the A/E or directly with the Consultant, but the Contracting Authority may not modify the agreement between the A/E and any Consultant. The Contracting Authority will advise the A/E with reasonable promptness of direct communication with any Consultant.

3.1.6 The A/E hereby assigns to the Contracting Authority each Consultant’s agreement provided that the assignment is effective only after the Contracting Authority terminates this Agreement in whole or in part and only for those agreements that the Contracting Authority accepts by notifying the Consultant and A/E in writing. The Contracting Authority may re-assign accepted agreements.

3.1.6.1 If the Contracting Authority terminates this Agreement in part, the Contracting Authority may (1) take assignment of any entire Consultant’s agreement affected by the termination or (2) take partial assignment of only the portion of any Consultant’s agreement associated with the terminated part of this Agreement.

3.2 Payments by A/E

3.2.1 Within ten business days after receipt of payment made pursuant to this Agreement, the A/E shall pay all portions thereof due to Consultants and to persons who provided items, the expenses of which are Reimbursable Expenses.

3.2.2 The Owner has no obligation to pay or see to the payment of money to any Consultant except as otherwise required under Applicable Law.

ARTICLE 4 - MODIFICATIONS

4.1 Compensation for Extension of Project Time

4.1.1 If the A/E notifies the Owner and Contracting Authority not less than 30 days before the date for completion of the Project identified in the approved Project Schedule, that the time for completion is reasonably expected to be exceeded by more than ten percent through no fault of the A/E, the A/E’s compensation for Services to be rendered during such extended period shall be negotiated to the mutual reasonable satisfaction of the Contracting Authority, Owner, and A/E.

4.1.2 If, through such negotiation, the Contracting Authority and Owner agree that the A/E shall be paid additional compensation, an amendment to that effect shall be executed in accordance with Section 4.3.

4.1.3 That amendment shall be executed before the A/E renders any Services made necessary by the extension of the time of completion, unless otherwise agreed in writing by the Contracting Authority and Owner.

4.2 Compensation for Change of Scope of Project or Construction Budget

4.2.1 The Project Scope is defined by the Approved Program of Requirements, as provided in Exhibit B.

4.2.2 The Construction Budget is defined in the Agreement Form.

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4.2.3 If the Contracting Authority and Owner, through no fault of the A/E, materially change the Project Scope after the Schematic Design Stage or materially change the Construction Budget at any time after the execution of this Agreement, any necessary adjustment in the A/E’s compensation shall be negotiated to the mutual reasonable satisfaction of the Contracting Authority, Owner, and A/E.

4.2.4 If, through such negotiation, the Contracting Authority and Owner agree that the A/E shall be paid additional compensation, an amendment to that effect shall be executed in accordance with Section 4.3.

4.2.5 That amendment shall be executed before the A/E renders any Services made necessary by the change in the Project Scope or the Construction Budget, unless otherwise agreed in writing by the Contracting Authority and Owner.

4.3 Amendments

4.3.1 This Agreement may be modified only by an amendment prepared by the Contracting Authority and signed by both the A/E and Contracting Authority, with concurrence of the Owner.

4.3.2 Amendments involving changes to the legal terms and conditions of this Agreement shall require approval by the Attorney General of the state of Ohio.

4.3.2.1 Changes to the legal terms and conditions do not include amendments to the scope or cost of the Services governed by this Agreement, which include changes to Exhibit B.

4.4 Allocation Adjustments

4.4.1 Without exceeding the total compensation for this Agreement, the allocation of costs, as described in the Agreement Form, may be adjusted upon request of the A/E and approval by the Contracting Authority without a formal signed amendment.

ARTICLE 5 - DISPUTE RESOLUTION

5.1 Notice and Filing of Requests

5.1.1 Any request by the A/E for additional fees or expenses shall be made in writing to the Contracting Authority and filed prior to payment of the final five percent of the Basic Fee. The A/E’s failure to comply with the requirements of this Section 5.1.1 shall constitute an irrevocable waiver by the A/E of any request for such fees and expenses.

5.2 Substantiation of Request

5.2.1 In every written request filed pursuant to Section 5.1, the A/E shall provide the nature and amount of the request;

identification of persons, entities, and events responsible for the request; activities on the Project Schedule affected by the request or new activities created by any delay and the relationship with existing activities; anticipated duration of any delay; and recommended action to avoid or minimize any future delay.

5.3 Mutual Waiver of Consequential Damages

5.3.1 Except as provided under Section 5.3.2, the Owner and A/E each waive against the other all claims for consequential damages that may arise out of or relate to this Agreement.

5.3.1.1 The Owner’s waiver includes claims for loss of use, income, profit, revenue, financing, cost of capital, business and reputation, management and employee productivity, and consequential damages arising from termination of the Agreement or related to insolvency.

5.3.1.2 The A/E’s waiver includes claims for overhead; delay damages except as otherwise specifically provided for in the Agreement; increased cost of funds for the Project; lost opportunity to work on other projects; losses of financing, business, and reputation; loss of profit except anticipated profit arising directly from properly performed Services; and consequential damages arising from termination of the Agreement or related to insolvency.

5.3.2 Notwithstanding Section 5.3.1, this Section 5.3:

5.3.2.1 does not apply to any damages that would be covered by insurance required or provided in connection with the Project if the Agreement did not include Section 5.3.1;

5.3.2.2 does not apply to the A/E’s indemnity obligations for third-party claims against the Indemnified Parties even if those claims are for damages that Section 5.3.1 would otherwise preclude; and

5.3.2.3 does not apply to Claims for damages arising from the Owner or A/E’s gross negligence or willful misconduct.

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5.3.3 This Section 5.3 shall survive termination of the Agreement.

5.4 Meeting with the Project Manager

5.4.1 Within 30 days after receipt of the request filed with the Contracting Authority pursuant to Section 5.1, or other period mutually agreed by the parties, the Project Manager shall schedule a meeting to resolve the request and render a decision on the request promptly thereafter or render a decision on the request without a meeting.

5.4.2 The meeting scheduled by the Project Manager shall be attended by persons expressly and fully authorized to resolve the request on behalf of the A/E.

5.5 Appeal to Commission or Institutional Designee

5.5.1 If the efforts of the Project Manager do not lead to resolution of the request, the A/E may request review of the Project Manager’s decision by written notice delivered by certified mail within 14 days after the Project Manager’s decision.

5.5.1.1 If the Project is administered by the Commission, jointly administered by School District Board in conjunction with the Commission, or locally administered by authority granted to an agency of the state of Ohio by the Commission, the written notice shall be delivered to the Executive Director of the Commission.

5.5.1.2 If the Project is administered by an Institution of Higher Education, the written notice shall be delivered to the Institutional Designee who will review the Project Manager’s decision instead of the Commission.

5.5.2 Within 30 days after receipt of notice or other period mutually agreed by the parties, the Commission or Institutional Designee shall schedule a meeting to resolve the dispute and render a decision on the appeal promptly thereafter or render a decision on the appeal without a meeting.

5.5.3 The meeting shall be attended by persons expressly and fully authorized to resolve the matters on behalf of the A/E.

5.5.4 ORC Chapter 119 shall not be applicable to any proceedings of the Commission or Institutional Designee under this Section 5.5.

5.5.5 The decision of the Commission or Institutional Designee, as applicable, shall serve as the Contracting Authority’s final and conclusive determination.

5.6 Delegation

5.6.1 No provision of this Article 5 shall prevent the Executive Director from delegating the duties or authorities of the Commission to any other person selected at the Executive Director’s sole discretion.

5.7 Alternative Dispute Resolution

5.7.1 At any point in Claims and dispute resolution processes, the Project’s key stakeholders may agree to enter into non-binding ADR including progressive negotiation, Dispute Review Board, mediation, or another non-binding ADR procedure accepted by all of the Project’s key stakeholders.

5.8 Performance

5.8.1 The A/E shall proceed with performance of this Agreement during any dispute resolution process, unless otherwise agreed by the A/E and Contracting Authority in writing.

5.8.2 The Contracting Authority shall continue to make payment, in accordance with this Agreement, of any amounts not in dispute pending final resolution of any dispute.

ARTICLE 6 - COMPENSATION AND PAYMENT

6.1 Basic Fee

6.1.1 For Basic Services provided by the A/E and all Consultants, the Owner shall pay the A/E a Basic Fee in accordance with the amount identified in the Agreement Form.

6.1.2 A change in the Basic Fee may be made only by an amendment to this Agreement in accordance with Section 4.3.

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6.2 Additional Services Fees

6.2.1 The Owner shall pay the A/E the Additional Services Fees for the associated Additional Services, when those Services are performed in accordance with the Agreement.

6.2.1.1 For Additional Services performed by a Consultant, the Additional Services Fees shall be based on the Consultant’s associated invoices to the A/E and may include an A/E mark-up negotiated between the Contracting Authority and A/E.

6.2.2 Except for the Additional Services and Additional Services Fees listed above, Additional Services and any Additional Services Fees shall be approved only by an amendment to this Agreement in accordance with Section 4.3.

6.2.2.1 For Additional Services not included in the original Agreement Form that are provided by the A/E and any Consultants in accordance with Section 4.3, the Owner shall pay the A/E Additional Services Fees in an amount negotiated to the mutual reasonable satisfaction of the Contracting Authority, Owner and A/E, but in all events, such Additional Services Fees shall not exceed two-and-one-half times the Direct Personnel Expense incurred by the A/E and any applicable Consultant in providing those Additional Services.

6.3 Reimbursable Expenses

6.3.1 The A/E shall use its best efforts to minimize Reimbursable Expenses.

6.3.2 In all events, total Reimbursable Expenses shall not exceed the amount identified in the Agreement Form, without the prior written approval of the Contracting Authority and Owner and an amendment to this Agreement in accordance with Section 4.3.

6.3.3 Reimbursable Expenses shall only be permitted for the items identified in the Agreement Form and shall not exceed the respective amounts.

6.3.4 No A/E or Consultant mark-up shall be permitted on Reimbursable Expenses.

6.4 Method and Terms of Payment

6.4.1 Basic Fee.

6.4.1.1 Payment of the Basic Fee shall be made monthly in proportion to Basic Services performed in each Stage, in accordance with Section 6.1, and the percentages of the Basic Fee described in the Agreement Form.

6.4.1.2 The Contracting Authority may, in its sole discretion, waive the withholding of any final balance or part thereof if the A/E has performed to the satisfaction of the Contracting Authority and Owner.

6.4.1.3 Payment of the last five percent of the Basic Fee for any Stage of the Services shall be made only after all deliverables required for the Stage have been submitted by the A/E to the Contracting Authority or Owner, as applicable, in form and substance reasonably satisfactory to the Contracting Authority and Owner.

6.4.1.4 The entire Basic Fee is subject to all setoffs for claims against the A/E in favor of the State.

6.4.1.5 Payments for Basic Services shall be based upon a properly completed Professional Services Pay Request and shall be made within the applicable time limits provided by ORC Section 126.30, which requires payment of interest on overdue payments. The interest rate shall be at the rate per calendar month, which equals one-twelfth of the rate per annum, prescribed by ORC Section 5703.47.

6.4.2 Additional Services Fees and Reimbursable Expenses.

6.4.2.1 Payments of Additional Services Fees in accordance with Section 6.2 and for Reimbursable Expenses in accordance with Section 6.3 shall be made monthly based upon Additional Services performed or expenses incurred, as applicable, and as shown by a properly completed Professional Services Pay Request.

ARTICLE 7 - INSURANCE AND INDEMNIFICATION

7.1 A/E’s General Insurance Requirements

7.1.1 Throughout the performance of the Services or longer as may be described below, the A/E shall obtain, pay for, and keep in force, the minimum insurance coverage described in this Article 7.

7.1.1.1 Each requirement of this Article 7 applies to Consultants just as it applies to the A/E.

7.1.1.2 If a Consultant’s usual insurance coverage does not meet the minimum coverage requirements, before entering into an agreement with that Consultant, the A/E shall submit to the Contracting Authority (1) a certificate of

M110-01 2025-OCT Page 10 of 21 insurance evidencing the insurance the Consultant will carry without additional compensation and (2) if the Contracting Authority requests, a written proposal from the Consultant to provide coverage that meets the minimum coverage requirements. The Contracting Authority will decide whether to accept the non-conforming insurance coverage or the proposal to provide conforming coverage.

7.1.1.3 Notwithstanding any other provision of this Agreement to the contrary, the A/E will not be entitled to any Fee increase on account of the Contracting Authority’s refusal to accept a Consultant’s nonconforming insurance coverage.

7.1.1.4 On a case-by-case basis, the Contracting Authority and A/E may agree to adjust the below requirements for any particular Consultant.

7.1.2 Before starting the Services, upon renewal of any policy, and upon a change of any insurance carrier, the A/E shall deliver to the Contracting Authority certificates evidencing that the required insurance is in force.

7.1.2.1 Certificates of insurance for other than government-controlled workers’ compensation insurance must identify (1) all below-required additional insureds and (2) the Project name.

7.1.3 With the exception of government-controlled workers’ compensation coverage:

7.1.3.1 the A/E shall place the insurance with companies that (1) are satisfactory to the Contracting Authority,

(2) hold an A.M. Best Rating of A-, X, or higher, and (3) are authorized to conduct business in Ohio;

7.1.3.2 the policies shall be endorsed to require the A/E’s insurance carrier to (1) provide at least 30-days’ written notice to the Contracting Authority (as certificate holder) of the cancellation or non-renewal of the insurance and

(2) provide at least ten-days’ written notice to the Contracting Authority (as certificate holder) of the cancellation of the insurance for non-payment of premium; and

7.1.3.3 within 30 days after the Contracting Authority’s request, the A/E shall submit insurance-company certified copies of the policies, the policy endorsements, or both from which the A/E may redact the premium amount.

7.1.4 The A/E shall pay all deductibles, or self-insured retentions, or both contained in the A/E’s policies of insurance required or provided in connection with the Project. The Contracting Authority reserves the right to approve or reject all levels of self-insured retention, captive insurance programs, or other alternative risk financing the A/E may use to comply with any insurance requirement.

7.1.5 The A/E shall pay a proportionate share of the deductibles, or self-insured retentions, or both contained in any insurance policy the Contracting Authority purchases for the Project. The A/E’s proportionate share will derive from the percentage of the associated claim or loss attributable to the negligence of the A/E or a Consultant.

7.1.6 The Contracting Authority and Owner do not represent that required coverage or limits are adequate to protect the A/E.

7.1.7 Failure of the Contracting Authority to demand a certificate or other evidence of full compliance with the insurance requirements or failure of the Contracting Authority to identify a deficiency from evidence that is provided shall not be construed as a waiver of the A/E’s obligation to maintain the required insurance.

7.1.8 The Contracting Authority may terminate the Agreement for cause on account of the A/E’s failure to maintain the required insurance.

7.2 A/E’s Minimum Coverage Requirements

7.2.1 Workers Compensation. The A/E shall maintain workers’ compensation coverage meeting the requirements of Applicable Law.

7.2.2 Employers’ Liability Coverage. The A/E shall maintain employers’ liability coverage with (1) an each-accident limit of not less than $1,000,000, (2) a disease each-employee limit of not less than $1,000,000, and (3) a disease policy limit of not less than $1,000,000.

7.2.3 Commercial General Liability. The A/E shall maintain commercial general liability (“CGL”) coverage that provides (1) an each-occurrence limit of not less than $1,000,000, (2) a general-aggregate limit of not less than $2,000,000, and (3) a products and completed-operations aggregate limit of not less than $2,000,000.

7.2.3.1 The CGL insurance shall be written on ISO occurrence form CG 00 01 04 13 or a substitute form, providing at least equivalent coverage for liability arising from premises, operations, independent contractors, products/completed-operations, personal and advertising injury, and liability assumed under an insured contract.

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7.2.3.2 The A/E shall include the State, Contracting Authority, and Owner as additional insureds under the CGL policy using ISO endorsement CG 20 10 07 04 and ISO endorsement CG 20 37 07 04 or a substitute form(s) providing equivalent coverage.

7.2.3.3 The CGL policy shall be endorsed using ISO endorsement CG 25 03 or a substitute form providing equivalent coverage to provide that the general aggregate limit applies separately to each of the insured’s projects.

7.2.3.4 The CGL insurance shall not exclude coverage for property damage to electronic data.

7.2.3.5 The CGL insurance shall apply as primary and non-contributory insurance with respect to any other insurance or self-insurance programs that cover the additional insured(s).

7.2.3.6 The CGL policy shall not exclude coverage to the additional insured(s) for bodily injury or property damage arising out of the products/completed-operations hazard.

7.2.3.7 The A/E shall maintain the CGL insurance in effect for no less than five years after the earlier of the termination the Agreement or Substantial Completion of all Work.

7.2.4 Business Automobile Liability. The A/E shall maintain business automobile (“BA”) coverage written on ISO form CA 00 01 04 13 or a substitute form, providing at least equivalent coverage with a limit of not less than $1,000,000 each accident.

7.2.4.1 The coverage shall extend to any auto: owned (if any), non-owned, leased, rented, hired, or borrowed.

7.2.4.2 The A/E shall include the State, Contracting Authority, and Owner as additional insureds under the BA policy.

7.2.5 Umbrella/Excess Liability. The A/E may employ an umbrella/excess liability policy to achieve the above-required minimum coverage.

7.2.6 Professional Liability. The A/E shall maintain professional liability (“PL”) insurance with limits not less than as identified in the following table:

Construction Budget Each Claim Annual Aggregate Up to $25,000,000 $1,000,000 $2,000,000 From $25,000,000.01 to $50,000,000 $2,000,000 $4,000,000 From $50,000,000.01 to $100,000,000 $5,000,000 $5,000,000 More than $100,000,000 $10,000,000 $10,000,000

7.2.6.1 The PL policy shall have an effective date on or before the date that the A/E first started to provide any Project-related Services.

7.2.6.2 Upon submission of the associated certificate of insurance and at each policy renewal, the A/E shall advise the Contracting Authority in writing of any actual or alleged claims that may erode the PL policy’s limits.

7.2.6.3 The A/E shall maintain the PL insurance in effect for no less than five years after the earlier of the termination of the Agreement or Substantial Completion of all Work.

7.2.6.4 If the Project is using the design-build project delivery system, the PL policy shall not contain any design-build exclusions.

7.2.6.5 If the A/E is a joint venture:

.1 the A/E may meet the requirements of this Section 7.2.6 by providing a PL policy under which each joint venturer is the insured; or

.2 each joint venturer shall individually meet the requirements of this Section 7.2.6 by providing a PL policy

(1) under which the individual joint venturer is the insured and (2) that covers that joint venturer’s interests in the joint venture by endorsement or otherwise. The certificate of insurance shall reflect that the PL policy covers the joint venturer’s interest in the joint venture.

Example: Assume that the A/E (1) is the “XY joint venture” of company “X” and company “Y”; and

(2) is required under Section 7.2.6 to maintain PL insurance limits of $1M/$2M. In order to comply with Section 7.2.6..2, “X” must maintain PL insurance limits of $1M/$2M and “Y” must maintain PL insurance limits of $1M/$2M.

7.2.6.6 If the A/E is a limited-liability company, which members consist of two or more separate firms:

.1 the A/E may meet the requirements of this Section 7.2.6 by providing a PL policy under which the limited-liability company is the insured; or

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.2 each member of the limited-liability company shall individually meet the requirements of this Section 7.2.6 by providing a PL policy (1) under which the individual member is the insured and (2) that covers that member’s interests in the limited-liability company by endorsement or otherwise. The certificate of insurance shall reflect that the PL policy covers the member’s interest in the limited-liability company.

Example: Assume that the A/E (1) is the “XY limited-liability company,” the members of which are “X” and “Y”; and (2) is required under Section 7.2.6 to maintain PL insurance limits of $1M/$2M. In order to comply with Section 7.2.6.6.2, “X” must maintain PL insurance limits of $1M/$2M and “Y” must maintain PL insurance limits of $1M/$2M.

7.2.7 Pollution Liability. If the Services include environmentally sensitive, hazardous types of activities (such as demolition, exterior insulation finish systems, Asbestos abatement, storage-tank removal, or similar activities), or involves Hazardous Materials, the A/E shall maintain a pollution liability (“Pollution”) policy with (1) a per-claim limit of not less than $1,000,000 and (2) an annual-aggregate limit of not less than $1,000,000, covering the acts, errors and/or omissions of the A/E for damages (including from mold) sustained by the Owner by reason of the A/E’s performance of the Services.

7.2.7.1 The Pollution policy shall have an effective date, which is on or before the date that the A/E first started to perform any Project-related Services.

7.2.7.2 Upon submission of the associated certificate of insurance and at each policy renewal, the A/E shall advise the Contracting Authority in writing of any actual or alleged claims that may erode the Pollution policy’s limits.

7.2.7.3 The A/E shall maintain the Pollution insurance in effect for no less than five years after the earlier of the termination of the Agreement or Substantial Completion of all Work.

7.2.7.4 The A/E may achieve the Pollution insurance requirement through a PL policy, which provides the required pollution coverage or through a contractor’s pollution liability policy.

7.3 Waivers of Subrogation

7.3.1 To the fullest extent permitted by Applicable Law, the A/E waives all rights against the Owner, Contracting Authority, and their agents and employees for damages to the extent covered by any insurance (not including professional liability insurance), except rights to the proceeds of that insurance. All policies shall accomplish the waiver of subrogation by endorsement or otherwise.

7.3.2 To the fullest extent permitted by Applicable Law, the A/E waives all rights against the Owner, Contracting Authority, and their employees for damages to the extent covered by any professional liability insurance, except rights to the proceeds of that insurance. All policies shall accomplish the waiver of subrogation by endorsement or otherwise.

7.3.3 The Owner, Contracting Authority, and A/E waive all rights against each other for damages caused by fire or other perils to the extent of actual recovery of any insurance proceeds under any property insurance, inland marine insurance, or builder’s risk insurance applicable to the Work.

7.4 Indemnification for Injury or Damage

7.4.1 Liability Other than Professional Liability. To the fullest extent permitted by Applicable Law and with respect to liability other than professional liability claims, the A/E shall indemnify, defend, and hold harmless the Indemnified Parties from and against all claims, costs, damages, losses, fines, penalties, and expenses (including but not limited to all fees and charges of attorneys and other professionals, and all court, arbitration, or other dispute-resolution costs) arising out of or in connection with the Project, provided that any such claim, cost, damage, loss, fine, penalty, or expense is attributable to:

7.4.1.1 bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property but only to the extent caused by the negligent acts, errors, or omissions of the A/E or a Person for whom the A/E may be liable;

7.4.1.2 infringement of patent rights or copyrights by the A/E or a Person for whom the A/E may be liable; or

7.4.1.3 a violation of Applicable Law but only to the extent attributable to the A/E or a Person for whom the A/E may be liable.

7.4.2 Professional Liability. To the fullest extent permitted by Applicable Law and with respect to professional liability claims, the A/E shall indemnify and hold harmless the State, Contracting Authority, Owner, and their respective officers, officials, and employees from and against all claims, costs, damages, losses, fines, penalties, and expenses (including but not limited to all fees and charges of attorneys and other professionals, and all court, arbitration, or other dispute-resolution costs) arising out of or in connection with (1) the failure of the A/E or a Person for whom the A/E is legally

M110-01 2025-OCT Page 13 of 21 liable to comply with the standard of care described under Section 1.9; and (2) infringement of patent rights or copyrights by the A/E or a Person for whom the A/E may be liable.

7.4.3 The A/E’s indemnification obligation under Section 7.4 exists regardless of whether or not and the extent to which the claim, damage, loss, fine, penalty, or expense is caused in part by a Person indemnified under Section 7.4. But nothing in Section 7.5 obligates the A/E to indemnify any individual or entity from and against the consequences of that Person’s own negligence.

7.4.4 In claims against an a Person indemnified under Section 7.4 by any direct or indirect employee (or the survivor or personal representative of that employee) of the A/E or a Person for whom the A/E may be liable, the indemnification obligation under Section 7.5 will not be limited by a limitation on the amount or type of damages, compensation, or benefits payable under workers’ compensation acts, disability benefit acts, or other employee benefit acts.

7.4.5 The A/E’s indemnification obligation under Section 7.4 will not be limited by any insurance policy provided or required in connection with the Project.

7.4.6 The A/E’s obligations under Section 7.4 shall not negate, abridge, or reduce other rights or obligations of indemnity, which would otherwise exist as to a Person indemnified under Section 7.4.

7.4.7 The A/E’s indemnification obligation under Section 7.4 will survive termination of the Agreement and Final Acceptance of the Work.

7.4.8 The Contracting Authority may deduct from the Fee the claims, damages, losses, fines, penalties, and expenses for which the A/E is liable under Section 7.4. If those claims, damages, losses, fines, penalties, and expenses exceed the unpaid balance of the Fee, the A/E shall immediately pay the difference to the Owner.

ARTICLE 8 - SUSPENSION AND TERMINATION

8.1 Suspension of the Services

8.1.1 The Contracting Authority,…