ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

University System of New Hampshire/ConsensusDocs® 240

STANDARD AGREEMENT BETWEEN OWNER AND DESIGN PROFESSIONAL

TABLE OF ARTICLES

1. AGREEMENT

2. GENERAL INFORMATION AND PROVISIONS

3. DESIGN PROFESSIONAL’S RESPONSIBILITIES

4. OWNER’S RESPONSIBILITIES

5. TIME

6. COMPENSATION AND PAYMENTS

7. INDEMNITY AND INSURANCE

8. TERMINATION

9. DISPUTE MITIGATION AND RESOLUTION

10. MISCELLANEOUS

11. CONTRACT DOCUMENTS

ARTICLE 1 AGREEMENT

Contract Number: [_____] Project ID: [_____]

This Agreement is between the

OWNER,

(Name, legal status and address) and the

DESIGN PROFESSIONAL,

(Name, legal status and address) for services in connection with the following

PROJECT

(Name and address or location)

The Owner’s Designated Representative:

(Name, address and other information)

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The Design Professional’s Designated Representative:

(Name, address and other information

ARTICLE 2 GENERAL INFORMATION AND PROVISIONS

2.1 PROJECT PARAMETERS:

2.1.1 Intent: [_____]

2.1.2 Physical parameters: [_____]

2.1.3 Legal: [_____]

2.2 FINANCIAL PARAMETERS The financial parameters are as follows:

2.2.1 Owner’s budget amount for the Cost of the Work, as defined in §2.12.4 is $[_____]

2.2.2 Fixed limits for the Cost of the Work are:

2.2.2.1 Maximum: $[_____]

2.2.2.2 Minimum: $[_____]

2.3 TIME PARAMETERS The time parameters are

2.3.1 Design Professional’s service dates: from [_____] to [_____]

2.3.2 Other time parameters: [_____]

2.4 PROPOSED DELIVERY METHOD: ☐ Competitive Bidding; ☐ Competitive Bidding with Prequalification; ☐ Construction Management; ☐ Performance by a USNH Term Contractor; ☐ Owner self-performed; ☐ Not applicable; ☐ Other, please specify [_____]

2.5 REVIEW OF DESIGN DOCUMENTS (other than by Owner) As necessary, there are persons and entities, in addition to the Owner’s Representatives, who will review Design Professional’s documents, including: Office of the State Fire Marshal, other applicable State of New Hampshire code enforcement officials, campus facilities representatives, and campus constituency representatives.

2.6 STANDARD OF CARE Design Professional shall furnish or provide the architectural and engineering Services necessary to design the Project in accordance with Owner’s requirements, as outlined in Owner’s Program and other relevant data defining the Project, which are attached as Exhibit A. The Services shall include Basic Services plus any Additional Services as may be authorized by Owner.

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Services shall be performed in accordance with the standard of professional skill and care required for a project of similar size, location, scope, and complexity, during the time in which the Services are provided.

2.7 LAWFUL PRACTICE The Design Professional shall satisfy the requirements for the lawful practice of architecture or engineering in the State of New Hampshire and shall perform its services in a professional manner consistent with the level of care and skill exercised by other practicing design professionals performing such services within the limits prescribed by the Owner.

2.8 At the Owner’s written request, the Design Professional shall provide a copy of each subconsultant’s scope of services.

2.9 RELATIONSHIP OF THE PARTIES Design Professional will cooperate and exercise the skill and judgment required above in performing Services. Design Professional represents that it possesses the skill, expertise, and licensing to perform the Services. The Parties each agree to work together in good faith and fair dealings and shall take actions reasonably necessary to enable each other to perform this Agreement in a timely, efficient, and economical manner. Both parties shall endeavor to maintain good working relationships among all members of the Project team.

2.10 Neither Design Professional nor any of its agents or employees shall act on behalf of or in the name of Owner except as provided in this Agreement or authorized in writing by Owner.

2.11 ETHICS The Parties shall each perform their obligations with integrity, so that, at a minimum each:

(a) avoids conflicts of interest; and (b) promptly discloses to the other Party any conflicts of interest which may arise. Each party warrants to the other Party that it has not and shall not pay nor receive any contingent fees or gratuities to or from the other Party, including its agents, officers, and employees, subconsultants, or others for whom they may be liable, to secure preferential treatment.

2.12 DEFINITIONS

2.12.1 “Agreement” means this University System of New Hampshire/ConsensusDocs 240, Standard Agreement Between Owner and Design Professional, as modified, and exhibits and attachments as listed in Article 11.

2.12.2 “Business Days” are all Days, except weekends and official federal or state holidays where the Project is located.

2.12.3 “Constructor” means the person or entity retained by Owner to perform Work for the Project and includes Constructor’s Representative.

2.12.4 “Cost of Work” means the total cost or, to the extent the Project is not completed the estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional.

2.12.5 “Day” means a calendar day.

2.12.6 “Design Professional” is the person or entity identified in ARTICLE 1 and includes Design Professional’s representative.

2.12.7 A “Hazardous Material” is any substance or material identified as hazardous under any federal, state, or local law or regulation, or any other substance or material which may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal, or clean-up.

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2.12.8 “Law” means a federal, state, or local law, ordinance, code, rule, and regulation applicable to the Services and with which Design Professional must comply that are enacted as of the Agreement date

2.12.9 “Others” mean other contractors, suppliers, and persons at the Worksite who are not employed by Constructor or Subcontractors.

2.12.10 “Owner” is the person or entity identified in ARTICLE 1 and includes Owner’s representative.

2.12.11 “Owner’s Program” means an initial description of Owner’s objectives that shall include budgetary and time criteria, space requirements and relationships, flexibility and expandability requirements, building performance criteria, special equipment and systems, and site requirements.

2.12.12 “Parties” mean Owner and Design Professional collectively.

2.12.13 The “Project,” as identified in ARTICLE 1, is the building, facility, or other improvements to be designed by Design Professional for which Constructor is to perform Work under the agreement between Owner and Constructor. It may also include construction by Owner, or Others.

2.12.14 The “Schedule of the Work” is the document prepared by Constructor that specifies the dates on which Constructor plans to begin and complete various parts of the Work, and the Project, including dates on which information and approvals are required from Owner.

2.12.15 “Services” mean the services provided by Design Professional or by subconsultants retained by Design Professional for the Project, including coordination of design services of subcontractors who may be procured by Constructor or Subcontractors. The Services include basic services and Additional Services as may be authorized by Owner.

2.12.16 “Subconsultant” is a person or entity that contracts with Design Professional to provide professional architectural, engineering, or other consulting services for this Project.

2.12.17 A “Subcontractor” is a person or entity retained by Constructor as an independent contractor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work. The term Subcontractor does not include Design Professional or Others.

2.12.18 A “Subsubcontractor” is a person or entity who has an agreement with a Subcontractor to perform any portion of the Subcontractor’s Work.

2.12.19 “Work” means the construction and services necessary or incidental to fulfill Constructor’s obligations for the Project in conformance with the agreement between Owner and Constructor. The Work may constitute the whole or a part of the Project.

2.12.20 “Worksite” means the geographical area of the Project location as identified in ARTICLE 1 where the Work is to be performed.

ARTICLE 3 DESIGN PROFESSIONAL’S RESPONSIBILITIES

3.1 GENERAL RESPONSIBILITIES

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3.1.1 PROJECT REQUIREMENTS Design Professional, in order to determine the requirements of the Services, shall conduct a preliminary evaluation of the information set forth in Exhibit A. Design Professional shall confirm its understanding of such requirements with Owner and shall assist Owner to refine or make clarifications to Owner’s Program for the Project.

3.1.2 Design Professional shall not proceed with the development of successive design documents as defined in §3.2.9, §3.2.10 and §3.2.11, until receiving written approval from Owner. Design Professional shall promptly revise without additional compensation:

3.1.2.1 those documents which have not been previously approved by Owner and to which Owner has reasonable objections;

3.1.2.2 those documents needing revision to align the design documents with the budget criteria established in Exhibit A;

3.1.2.3 those documents identified by Constructor and reasonably accepted by Owner as presenting constructability problems; and

3.1.2.4 those documents needing revisions to reflect clarifications and assumptions and allowances on which a guaranteed maximum price is based. To the extent that any design documents approved by Owner deviate from the requirements of Owner’s Program, the approved design documents shall govern.

3.1.3 Design Professional shall have reasonable access to the Worksite at all times.

3.1.4 Design Professional may assist Owner as needed with filing required documents with governmental authorities having jurisdiction over the Project, including filing documents required to obtain permits necessary for construction of the Project. In addition, if requested by Owner, Design Professional shall assist Owner by providing consultations with and representations before governmental authorities or others having jurisdiction over the Project.

3.1.5 Design Professional shall meet with the Owner and make presentations to Owner's review groups as reasonably requested during Schematic Design, Design Development, and Construction Documents Phases of the Work, to ensure that Owner's requirements are being met. The Design Professional shall schedule and chair all design-related meetings throughout all phases of the Project and shall prepare and distribute minutes of each such meeting to the entire Project team. The Design Professional shall secure the attendance at any Project meeting of Design Professional's sub-design consultants and others as appropriate and as reasonably requested by the Owner.

3.1.6 If requested by the Owner, the Design Professional shall participate in selection interviews for any proposal process.

3.1.7 Design Professional shall not be responsible for the acts or omissions of Owner, Constructor, and Subcontractors, and their respective agents or employees, or any other persons or entities performing work on the Project who are not under the direct control or authority of Design Professional. However, the Design Professional shall report to the Owner any known deviations from the Contract Documents and from the most recent construction schedule submitted by the Constructor.

3.1.8 Prior to providing any of the services required by §§3.2 and 3.3, the Design Consultant shall submit to the Owner a written Quality Control Program (QCP) for quality assurance with respect to all plans, specifications and other documents provided under this agreement. At a minimum, the QCP

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shall provide for systematic checking of all such documents by persons other than those preparing them who are trained in the specific discipline represented by each, with the intent to determine the completeness of the product delivered to the Owner and to avoid change orders to construction contracts which are caused by errors, omissions, conflicts or ambiguities within each document and within each set of documents.

3.1.8.1 The Quality Control Program shall describe in detail the specific methodology proposed to check each document, to cross check all plans of the various disciplines with one another, and to cross check all plans and specifications for completeness and accuracy at each submittal phase. The Design Consultant shall not proceed with the work required by §§3.2 and 3.3 until the Owner has approved this Quality Control Program in writing.

3.2 BASIC SERVICES

3.2.1 Design Professional shall provide the basic services identified in Exhibit F and as defined in §3.2.3 – 3.2.14. Documents generated by Design Professional shall be in a format consistent with Owner’s articulated intended use.

3.2.2 DESIGN SERVICES BY OTHERS If professional design services are to be furnished by Owner, Constructor, or Others, Design Professional shall indicate all performance and design criteria to be satisfied in accordance with Owner’s Program, and Owner, Constructor, or Others shall not be responsible for the adequacy of such performance and design criteria. Whenever a license is required, design services furnished by a party other than Design Professional shall be obtained from licensed design professionals, who shall affix their signature and seal on all drawings, specifications, calculations, and submittals prepared by them, and Design Professional shall be entitled to rely upon the adequacy, accuracy, and completeness of such design services.

3.2.3 PROGRAMMING If identified in Exhibit F, the Design Professional shall conduct interviews and workshops and collect other information as necessary to document the current and anticipated program needs and space requirements; describe all desired spaces by function, size, environmental requirements, required relationships and adjacencies and special requirements for equipment, floor loading, building systems, special systems, sound isolation and access control; identify requirements for flexibility and expandability; project total net and gross square footage required to meet the program and space requirements; LEED requirements; site requirements; prepare and submit appropriate deliverables documenting the Design Professional’s conclusions and recommendations as to the program needs and space requirements and provide updates to such deliverables as the design services progress. When programming is not identified in Exhibit F, the Design Professional shall rely on the information provided by the Owner, but should identify any aspects that need further elaboration or clarification and work with the Owner to resolve these aspects during schematic design.

3.2.4 EXISTING FACILITIES SURVEYS The Design Professional shall review existing drawings, specifications, surveys, reports and other documents available from the Owner. Where non-destructive field inspections and measurements of existing conditions are needed, make such reasonable inspections and measurements as necessary to become familiar with the existing condition of the building and the Project site and to furnish appropriate and complete design recommendations, including architectural, structural, mechanical, electrical, plumbing, communications, A/V, fire protection, security and specialty systems. The Design Professional shall evaluate functionality, size, capacity and life expectancy of systems and equipment; verify configuration of existing spaces; field measure critical dimensions; verify the type and condition of architectural, mechanical, electrical and other systems; assess the size and capacity of existing equipment and systems based on Owner-provided information and the Design Professional’s

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inspection; prepare and submit appropriate deliverables documenting the Design Professional’s conclusions and recommendations as to the building’s capabilities, limitations and deficiencies based on the identified program requirements.

3.2.5 COST ESTIMATES

3.2.5.1 Except when estimates are the responsibility of Constructor retained to provide preconstruction services as part of the Work, it is the responsibility of the Design Professional to design and specify the Work so that the Cost of the Work is within the Maximum and Minimum Fixed Limits of the Cost of the Work as provided in §2.2.2. Design Professional shall prepare for Owner’s review and approval (a) a preliminary estimate of the Cost of Work utilizing area, volume, or similar conceptual estimating techniques and based upon Owner’s Program and other relevant information in Exhibit A, and (b) updated estimates of the Cost of Work at the completion of the Schematic Design Documents, the Design Development Documents, and the Construction Documents, except when construction commences before the completion of such documents.

3.2.5.2 In preparing estimates of the Cost of the Work, the Design Professional shall be permitted to include contingencies for design, bidding and price escalation; to make reasonable adjustments in the scope of the Project materials, component systems and types of construction, and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the Owner's budget for the Cost of the Work.

3.2.5.3 If at any time the estimate of the Cost of the Work, based upon the then current design documents, exceeds the Owner’s budget for the Cost of the Work, the Design Professional and its subconsultants shall meet with the Owner and the cost estimator to review the estimate and make appropriate recommendations to the Owner to adjust Project’s size, quality or budget for the Cost of the Work. It is the responsibility of the design team to design to the Cost of the Work, and no increase in fees will be provided for redesign required to meet the Project budget.

3.2.6 PROJECT SCHEDULE Design Professional shall prepare for Owner’s review and approval a preliminary Project schedule that shall show the timing and sequencing of the design and construction required to meet the time criteria set forth in Owner’s Program. The Project schedule shall be updated for Owner’s review and approval at the completion of Schematic Design Documents, Design Development Documents, and Construction Documents, except when construction commences before the completion of such Documents. If Constructor has been retained to provide preconstruction services as part of the Work, Design Professional shall coordinate and update the Project Schedule with the Schedule of the Work prepared by Constructor. Design Professional shall make appropriate recommendations if any Project Schedule shows a deviation from previously approved Project Schedules.

3.2.7 GREEN BUILDING FACILITATOR If identified in Exhibit F, Design Professional shall act as the Green Building Facilitator (GBF) for Project with the intent of pursuing formal certification. Owner and Design Professional shall complete University System of New Hampshire/ConsensusDocs 310 Green Building Addendum, (Exhibit I) which, at a minimum, shall address: (a) coordinating and facilitating the achievement of the Elected Green Status (EGS) such as achieving Leadership in Energy and Environmental Design “LEED” certification, and identifying the Green Measures necessary to achieve the EGS; (b) identifying, preparing, and submitting necessary documentation for the Elected Green Status; and (c) identifying project participants responsible to complete physical and procedural Green Measures.

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3.2.7.1 The Design Professional shall make recommendations and incorporate environmentally responsible design approaches in the Drawings, Specifications and other deliverables for the purpose of submitting for obtaining such certification. The Design Professional shall conspicuously identify in the Plans, Specifications and other deliverables, performance required of the Contractor for the purpose of submitting for such certification.

3.2.7.2 When Owner elects not to pursue formal certification, Design Professional shall work with the Owner to make recommendations and incorporate environmentally responsible design approaches in the Drawings, Specifications and other deliverables which meet current best practices. Design Professional shall develop a checklist to illustrate Green design components and review with Owner at agreed upon intervals.

3.2.8 BUILDING INFORMATION MODELING (BIM) If identified in Exhibit F, the Design Professional shall coordinate its services with those of its subconsultants and the Constructor to provide a Building Information Model in a form and with such detail as required by the Owner. In addition, at Owner’s option, Design Professional and Owner shall complete University System of New Hampshire/ConsensusDocs 301, Building Information Modeling (BIM) Amendment (Exhibit H).

3.2.9 SCHEMATIC DESIGN DOCUMENTS Based on Owner’s Program, including any approved refinements or clarifications, Design Professional shall prepare, for Owner’s review and approval, Schematic Design Documents consistent with requirements described in Exhibit G, consisting of drawings, outline specifications, and other documents illustrating the Project’s basic elements, scale, and their relationship to the Worksite. Schematic Design Documents shall include, as applicable, conceptual plans of the site and structures; preliminary sections and elevations; approximate areas, volumes, and dimensions; and preliminary selections of materials and systems. Design Professional shall provide to Owner electronic versions and two full-size printed sets of Schematic Development Documents. When Design Professional submits the Schematic Design Documents, Design Professional shall identify in writing for Owner’s approval all material changes and deviations that have taken place from Design Professional’s approved preliminary estimate of the Cost of Work and Project Schedule.

3.2.10 DESIGN DEVELOPMENT DOCUMENTS Based on the approved Schematic Design Documents and the updated estimate of the Cost of Work and Project Schedule, Design Professional shall prepare, for Owner’s review and approval, Design Development Documents consistent with requirements described in Exhibit G, The Design Development Documents shall further define the Project, including drawings and outline specifications fixing and describing the Project size, character, and site relationships, and other appropriate elements describing the structural, architectural, mechanical, and electrical systems. Design Development Documents shall include, as applicable, plans, sections, and elevations; criteria and sizing of major components; equipment sizes and capacities and approximate layouts, including required spaces and clearances; typical details;

materials selections and general quality levels. When Design Professional submits Design Development Documents, Design Professional shall identify in writing for Owner’s approval all material changes and deviations that have taken place from the Schematic Design Documents and the previously approved estimate of the Cost of Work and Project Schedule. If requested by Owner, Design Professional shall work with the Owner to identify potential alternate bid documents to keep within the approved fixed limits of the Cost of the Work. Design Professional shall provide to Owner electronic versions and two full-size printed sets of Design Development documents.

3.2.11 CONSTRUCTION DOCUMENTS Based on the approved Design Development Documents and updated estimate of the Cost of Work and Project Schedule, Design Professional shall prepare, ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

for Owner’s review and approval and the approval of governmental authorities, Construction Documents, including any revisions necessary to secure such approvals, setting forth in detail the quality levels of and the requirements for construction of the Project, and consisting of drawings and specifications that comply with Laws.

3.2.11.1 When Design Professional submits the Construction Documents, Design Professional shall identify in writing for Owner’s approval any proposed alternates. Preparation of alternates to keep within the approved fixed limits of the Cost of the Work and approved by the Owner shall be included in Design Professional's basic services and shall not be compensated as a Change in Service.

3.2.11.2 Design Professional shall identify all material changes and deviations that have taken place from the Design Development Documents and the previously approved estimate of the Cost of Work and Project Schedule.

3.2.11.3 The Construction Documents shall describe all work necessary to bid and construct the Project; all room numbers shown on the Construction Documents shall be established in collaboration with Owner and reflect Owner’s standard guidelines therefor.

3.2.11.4 Design Professional shall provide Construction Documents in electronic form and also provide two full-sized printed sets to Owner.

3.2.12 DESIGN COORDINATION Design Professional shall coordinate the services of all design consultants for the Project.(See Exhibit C). Design Professional shall promptly report any known errors or omissions to Owner. Design Professional is responsible for its work and that of its Subconsultants. Design Professional is not responsible for the errors, omissions or inconsistencies in design services provided by the Constructor or the Owner outside of this agreement.

3.2.13 BIDDING OR NEGOTIATION ASSISTANCE Design Professional shall assist Owner in obtaining bids or negotiated proposals from contractors by providing electronic drawings, specifications, and any addenda, attending pre-bid and pre-award meetings, clarifying the scope and intent of the Construction Documents, and, if appropriate, evaluating proposed subcontractors and suppliers for portions of the Work. Design Professional shall issue any required addenda or clarifications promptly in writing.

3.2.13.1 If the lowest bona fide bid or negotiated proposal exceeds the final approved estimate of the Cost of Work and Owner elects not to accept such bid or proposal or elects to rebid or renegotiate the Project, Design Professional, without additional compensation, shall work with Owner to make the necessary modifications to the Construction Documents to reduce the Cost of Work to an amount less than or equal to the sum of the final approved estimate of the Cost of Work

3.2.14 CONSTRUCTION PHASE SERVICES The Construction Phase will commence upon the issuance of a written notice from Owner to the Constructor to proceed with the Work, with contemporaneous notification to Design Professional. Design Professional shall advise and consult with the Owner during the provision of Construction Phase services. Such advice and consultation shall include at a minimum (a) review and advise Owner as to the accuracy and sufficiency of the schedule of values submitted by Constructor for the Work, (b) coordinate the Project Schedule with the Schedule of the Work submitted by Constructor and approved by Owner, (c) prepare design documents in connection with change orders, and (d) respond to Constructor requests for information. Design Professional shall furnish to Owner and, if directed, to Constructor interpretations and clarifications of the drawings and specifications, by means of additional drawings, or otherwise, ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

as are necessary for the proper execution and progress of the Work. All such interpretations and clarifications shall be consistent with the intent of the Construction Documents and reasonably inferable from them. The cost of such services by the Design Professional shall be included in Design Professional's Basic Services except to the extent that such services are directly attributed to changes requested in writing by the Owner, which shall be Changes in Services.

3.2.14.1 SUBMITTALS Design Professional shall review Constructor’s submittals, including shop drawings, product data, and samples, and make approvals of or recommendations about such submittals to Owner within ten Business Days of receiving the submittals from Constructor, unless mutually agreed otherwise by Design Professional, Constructor, and Owner. Design Professional shall check Constructor’s submittals for conformance with the design and the scope of the Project and for compliance with the Construction Documents. Design Professional’s review shall not extend to Constructor’s means, methods, techniques, sequences, or procedures, unless such means, methods, techniques, sequences, or procedures have been specified by Owner or Design Professional.

3.2.14.2 RFIs Design Professional shall review Constructor’s RFIs in a timely manner so as to cause no delay in the progress of the Work. Unless another time period is reasonably requested by the Design Professional and agreed to at the time of submittal, the Design Professional shall respond to each RFI within ten Business Days after receiving it.

3.2.14.3 Design Professional shall assist Owner in the evaluation and processing of requests for changes in the Work. Based on its evaluation, Design Professional shall make appropriate recommendations to Owner.

3.2.14.4 JOB MEETINGS AND WORKSITE VISITS

3.2.14.4.1 The Design Professional shall attend all job meetings, which shall be held weekly unless otherwise provided in the Contract Documents or mutually agreed by the Design Professional, Owner, and Constructor. The Design Professional shall secure the attendance at job meetings of Design Professional's sub-design consultants and others as appropriate and as reasonably requested by the Owner.

3.2.14.4.2 Design Professional shall visit the Worksite at appropriate intervals, as the Parties have established in Exhibit E, to become generally familiar with the quality of the Work and to determine in general if the Work is proceeding in accordance with the Construction Documents. After each Worksite visit, Design Professional shall promptly provide Owner and Constructor with a written report. If Design Professional becomes aware of any defects or deficiencies in the Work, or failure of the Work to progress in conformity with the Schedule of the Work, Design Professional shall provide prompt notice, followed by written confirmation, to Owner. If, in Design Professional’s opinion, special testing or inspection of the Work is needed, Design Professional shall recommend to Owner such testing or inspection procedures and appropriate consultants. Design Professional shall not be responsible for construction means, methods, techniques, sequences, and procedures, unless they are specified by Design Professional, or for ensuring that the Work is in accordance with the Construction Documents.

3.2.14.5 SAFETY Design Professional shall not be responsible for Constructor’s safety precautions and programs. However, Design Professional is required to abide by Constructor’s safety program while on site. If Design Professional has actual knowledge of safety violations, Design Professional shall give prompt written notice to Owner.

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3.2.14.6 EVALUATION OF WORK

3.2.14.6.1 Design Professional : ☐ shall ☐ shall not be responsible for reviewing and certifying the Constructor’s applications for payment. If Design Professional is required to issue certificates for payment, the following will pertain: The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's evaluation of the Work as provided in §3.2.14.4.2 and on the data comprising the Constructor's application for payment, which shall include waiver of lien notices, that the Work has progressed to the point indicated and that, to the best of the Design Professional's knowledge, information and professional judgment, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (1) to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of minor deviations from the Contract Documents prior to completion, and (4) to specific qualifications expressed by the Design Professional.

3.2.14.6.2 Design Professional shall assist Owner in conducting up to [_____] inspections to determine the date or dates of Constructor’s Substantial Completion of the Work. Such assistance shall include compiling a list of items to be completed or corrected (the “Punch List”) so that Owner may occupy or utilize the Work or a designated portion for its intended use, without unscheduled disruption.

3.2.14.6.3 Design Professional shall assist Owner in conducting up to [_____] inspections to determine Constructor’s final completion of the Work.

3.2.14.6.4 Design Professional shall provide Owner with an affidavit attesting that all systems are installed as designed and have been reviewed by the Design Professional or the Design Professional’s Subconsultant.

3.2.14.7 COMMISSIONING SUPPORT If identified in Exhibit F, Design Professional shall assist with the implementation of formal commissioning and shall coordinate with the Owner’s commissioning consultant to provide reasonable assistance to the Owner in the review and start-up of mechanical, electrical, heating, ventilating and air conditioning systems in conformance with the performance design.

3.2.14.8 If requested by Owner, Design Professional shall make up to two visits to the Worksite during Constructor’s one-year correction period to assist Owner in evaluating the need for any corrective measures.

3.2.14.9 Design Professional shall prepare record drawings from marked-up prints, drawings, or other documents that incorporated changes made during the Construction Phase.

3.2.15 HAZARDOUS MATERIAL To the extent not identified in this Agreement, if a Hazardous Material is discovered at the Worksite, Design Professional shall not be required to perform Services relating to or in the area of the Hazardous Material without written mutual agreement.

3.2.16 Except as otherwise provided in this Agreement, Design Professional hereby grants a license to use design and construction documents prepared by Design Professional to those retained by Owner or Constructor to perform construction services for the Project.

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

3.3 ADDITIONAL SERVICES Design Professional shall provide the Additional Services identified in Exhibit F when authorized in advance by Owner in writing. Any authorized Additional Service shall be paid for as an Additional Service and not be included in the Basic Service fee. The following are also considered to be Additional Services:

3.3.1 Other than as provided by §3.2.13.1, making revisions to the Schematic Design, Design Development, or Construction Documents after they have been approved by Owner, and which are due to causes beyond the control of Design Professional;

3.3.2 Worksite visits in excess of the number of visits established in Exhibit E and provided for in § 3.2.14.6.2, §3.2.14.6.3 and §3.2.14.8;

3.3.3 out-of-town travel by Design Professional in connection with Services, except between Design Professional’s office, Subconsultants’ offices, Owner’s office, and the Worksite;

3.3.4 services requested by Owner or required by the Work that are not normally part of generally accepted design and construction practice and not otherwise required by this Agreement;

3.4 SUBCONSULTANTS Design Professional shall not engage the services of any subconsultant without first obtaining Owner’s written approval, which approval shall not be unreasonably withheld. Such approval by Owner shall not be deemed to create any contractual relationship between Owner and any such subconsultant, except that Owner shall be considered the intended third-party beneficiary of the performance of their services. Design Professional shall not include any limits of liability in its agreements with any Subconsultants without the prior written approval of Owner. Design Professional shall bind its Subconsultants in the same manner as Design Professional is bound to Owner under this Agreement.

3.5 DESIGN PROFESSIONAL’S REPRESENTATIVE Design Professional’s representative shall possess full authority to receive and act on instructions from Owner, in accordance with this Agreement. If Design Professional changes its representative or the representative’s authority, Design Professional shall immediately notify Owner in writing.

3.6 KEY PROJECT PERSONNEL Design Professional’s and all Subconsultants’ key Project personnel and the anticipated time percentage each shall devote to Design Professional’s Services shall be set forth in Exhibit C. Such personnel shall not be changed without the written approval of Owner, which approval shall not be unreasonably withheld.

3.7 FINANCIAL INFORMATION At the written request of Design Professional, Owner shall provide Design Professional with evidence of Project financing. . Evidence of such financing shall be a condition precedent to Design Professional commencing or continuing Services. Design Professional shall be notified prior to any material change in Project financing.

3.8 ROYALTIES, PENALTIES, AND COPYRIGHTS Design Professional shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods, or systems selected by Design Professional and incorporated in the design or construction documents prepared by Design Professional. Design Professional warrants that it possesses the copyright or permission to use the copyright of materials, methods, or systems selected by Design Professional and incorporated in the design or construction documents prepared by Design Professional. Design Professional shall defend, indemnify, and hold Owner, Constructor, and Subcontractors harmless from all suits or claims for infringement of any patent rights or copyrights arising out of such selection.

3.9 CONFIDENTIALITY Design Professional shall treat as confidential and not disclose to any third parties, except as necessary for the performance of this Agreement or as required by law, or use for its

ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

own benefit, any of Owner’s confidential information, know-how, discoveries, production methods, and the like that are so identified in writing and disclosed to Design Professional or which Design Professional acquires in performing the Services required by this Agreement. Except for information that Owner obtains through ownership of the copyright, Owner shall treat as confidential information all design systems that may be disclosed to Owner in connection with the performance of this Agreement. Owner and Design Professional shall each specify those items to be treated as confidential and shall mark them as “Confidential.”

ARTICLE 4 OWNER’S RESPONSIBILITIES

4.1 INFORMATION AND SERVICES PROVIDED BY OWNER

4.1.1 To the extent Owner has obtained the information and services identified below, Owner shall provide them to Design Professional with reasonable promptness. Unless otherwise limited by Owner in writing, Design Professional shall be entitled to rely on the accuracy of such information and services:

4.1.1.1 information describing the physical characteristics of the Worksite, including surveys, Worksite evaluations, legal descriptions, existing conditions, subsurface and environmental studies, reports, and investigations all in reasonable detail and as set forth in Exhibit A.;

4.1.1.2 inspection reports and testing services conducted during construction as required by law or as mutually agreed;

4.1.1.3 unless otherwise provided in this Agreement, documentation evidencing any necessary approvals, site plan review, rezoning, easements and assessments, fees, and charges required for the construction, use, occupancy, or renovation of permanent structures.

4.1.2 Unless otherwise provided in Exhibit F, Owner shall furnish services of geotechnical engineers which may include, but are not limited to, test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate recommendations.

4.1.3 When the services of design professionals other than the designated Design Professional are required due to circumstances which could not reasonably have been anticipated prior to execution of this Agreement and are requested in writing by the Design Professional, either the Owner shall furnish the additional design professionals or authorize the Design Professional to furnish them as a Change in Services.

4.1.4 Owner shall promptly report to Design Professional errors, inconsistencies, and omissions it discovers in the Construction Documents; however, nothing in this subsection shall relieve Design Professional of responsibility for its own errors, inconsistencies, and omissions.

4.1.5 Approvals by Owner shall not be deemed to be an assumption of responsibility by Owner for any error, inconsistency, or omission in the drawings and specifications or other documents prepared by Design Professional, its employees, agents, or Subconsultants. Owner shall provide all approvals required under this Agreement in a timely manner.

4.2 OWNER’S REPRESENTATIVE Owner’s representative shall be fully acquainted with the Project;

agree to furnish the information and services required of Owner pursuant to §4.1 in a timely manner; and shall have authority to bind Owner in matters requiring Owner’s approval, authorization, or written notice, ConsensusDocs® 240 - Standard Agreement Between Owner and Design Professional - © 2011, Revised 2017. THIS DOCUMENT MAY HAVE BEEN MODIFIED. The ConsensusDocs technology platform creates a redline comparison to the standard language which the purchaser of this contract is authorized to share for review purposes. Consultation with legal and insurance counsel are strongly encouraged. You may only make copies of finalized documents for distribution to parties in direct connection with this contract. Any other uses are strictly prohibited.

but may not change this Agreement Between Owner and Design Professional, as modified by the Parties.

If Owner changes its representative or their authority, Owner shall immediately notify Design Professional in writing.

4.3 BUDGET INCREASES/DECREASES Owner shall not significantly increase or decrease the budget for the Cost of the Work without the agreement of the Design Professional to a corresponding change in the Project scope and quality.

4.4 ROYALTIES, PATENTS, AND COPYRIGHTS Owner shall pay all royalties and license fees which may be due on the inclusion of any patented or copyrighted materials, methods, or systems specifically required by Owner to be incorporated in the design and construction documents prepared by Design Professional. Owner warrants that it possesses the copyright or permission to use the copyright of materials, methods, or systems required by Owner to be incorporated in the design documents of Design Professional.