THE CONSTRUCTION MANAGEMENT PLAN - archimedesnet.comarchimedesnet.com/CMAA-mega/CMAA-12-10-2013/CMAA... · Web viewThe Owner’s description and statement of requirements for the

CMAA Document A-4

Standard Form of Agreement BetweenOWNER AND DESIGNER

2013 EDITION

This document is to be used in connection with the Standard Form of Agreement Between Owner and Construction Manager (CMAA Document A-1), the Standard Form of Contract Between Owner and Contractor (CMAA Document A-2), and the General Conditions of the Construction Contract (CMAA Document A-3), all being 2013 editions.

CONSULTATION WITH AN ATTORNEY IS RECOMMENDED WHENEVER THIS DOCUMENT IS USED.

AGREEMENTMade this Click here to enter text. day of Click here to enter text. in the year of Two Thousand and Click here to enter text.

BETWEEN The Owner: Click here to enter text.

and the Designer: Click here to enter text.

For services in connection with the Project known as: Click here to enter text.

hereinafter called the “Project,” as further described in Article 1.3

Owner has employed Click here to enter text. (the “CM”) to provide professional construction management services as Owner’s agent in connection with the Project in accordance with an agreement dated Click here to enter text., 20Click here to enter text. (the Owner-CM Agreement). A copy of all portions of the Agreement between the Owner and CM pertinent to the Designer’s services under this Agreement including the terms and conditions in connection with interrelationships and the complementary nature of services of the CM and the Designer for the Project is attached hereto, made a part of this Agreement and marked “Exhibit A.”

Construction Management Association of America, 7926 Jones Branch Drive, Suite 800 McLean, Virginia 22102-3303

Table of ContentsARTICLE 1: THE CONSTRUCTION MANAGEMENT PLAN...............................................................................................3ARTICLE 2: RELATIONSHIP OF THE PARTIES.................................................................................................................3ARTICLE 3: BASIC SERVICES..........................................................................................................................................4ARTICLE 4: ADDITIONAL SERVICES...............................................................................................................................9

P a g e 1 | CMAA Document A-4©Copyright Construction Management Association of America, Inc., 2013. All rights reserved.

Reproduction or translation of any part of this Document without the permission of the copyright owner is unlawful.

ARTICLE 5: OWNER’S RESPONSIBILITES.....................................................................................................................10ARTICLE 6: DURATION OF DESIGNER’S SERVICES......................................................................................................11ARTICLE 7: COMPENSATION FOR DESIGNER’S SERVICES AND PAYMENT..................................................................12ARTICLE 8: CHANGES IN DESIGNER’S BASIC SERVICES AND COMPENSATION...........................................................15ARTICLE 9: INSURANCE AND MUTUAL INDEMNITY...................................................................................................16ARTICLE 10: TERMINATION AND SUSPENSION..........................................................................................................17ARTICLE 11: DISPUTE RESOLUTION...........................................................................................................................18ARTICLE 12: OWNER’S RIGHTS IN DOCUMENTS AND REUSE.....................................................................................18ARTICLE 13: ADDITIONAL PROVISIONS......................................................................................................................18



ARTICLE 1: THE CONSTRUCTION MANAGEMENT PLAN

1.1. The Owner’s description and statement of requirements for the Project are set forth in the Construction Management Plan, which is acceptable to the Owner and the CM, and to the extent that it relates to the Designer’s services hereunder is also acceptable to the Designer. The Construction Management Plan datedClick here to enter text., 20Click here to enter text. is attached hereto, made a part hereof and marked Exhibit B. A preliminary Master Schedule specifying the starting and finishing dates for construction and a Milestone Schedule for the Designer’s Design Phase services (including interim and final submittals) is included in the Construction Management Plan. A preliminary Project and Construction Budget and a preliminary Management Information System covering and regulating communication between the key participants in the Project are included in the Construction Management Plan. The Designer shall perform the services specified by this Agreement in a manner consistent with the Construction Management Plan.

1.2. It is recognized that as the Project progresses and its documentation becomes more definitive, various aspects of the Construction Management Plan (including the Owner’s requirements, Master Schedule, Project and Construction Budget and Management Information System) may be revised and refined after consultation between the Owner, CM and Designer, and those revisions will be incorporated into the Construction Management Plan by formal amendments as appropriate.

1.3. Project Definition

1.3.1. The Project name and location is as follows:

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1.3.2. The Project is intended for use as:

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ARTICLE 2: RELATIONSHIP OF THE PARTIES

2.1. The Designer is to render to the Owner and have sole responsibility for all professional design services in connection with the Project (except as specifically provided otherwise in this Agreement). In the Agreement between the Owner and CM, the CM has agreed to maintain a working relationship with the Designer in this regard and to recognize the Designer’s responsibility for the Project design. The CM has received all portions (other than terms of compensation) of this Agreement that relate to the CM’s services under the Agreement between the Owner and the CM, including terms and conditions relative to the interrelationships and cooperative nature of services to be rendered by the Designer and CM, and the Owner represents to the Designer that the CM has acknowledged that they are acceptable to the CM.

2.2. The Designer shall provide to the Owner professional architectural and engineering services for all Design Phases of the Project and professional design services during the Construction Phase as provided in this Agreement. The services shall include customary architectural and civil, structural, mechanical and electrical engineering services.

2.3. The CM will serve as the Owner’s principal agent in connection with the Project. The CM’s services during the Design Phase will relate principally to matters of scheduling and coordination of the activities of all parties involved, coordinating and expediting communications, evaluation of constructibility, cost, scheduling and time considerations related to designs developed by the Designer, recommendations as to the division of the Work into various categories and separate contracts, and comments on clarity, consistency and coordination of the design documentation. The CM’s services during the Construction Phase will involve administering on the Owner’s behalf the Contracts for construction, monitoring the quality and quantity of the Work of the Contractor, monitoring cost and time considerations during construction, coordinating and expediting of communications, and functioning as the initial arbiter of disputes between the Owner and Contractors pertaining to the Work.

2.4. The Designer is an independent contractor responsible for its own means and methods of providing services and is not a joint venturer with the Owner or CM, nor a subcontractor or agent of the CM. The Designer recognizes the authority, responsibility and role assigned to and undertaken by the CM under the Agreement between the Owner and CM. The Designer’s services shall be rendered compatibly and in cooperation with the CM’s services under the Agreement between the Owner and CM. It is not intended that the services of the CM and Designer be competitive or duplicative but rather complementary. The Designer shall communicate with the Owner, the Contractor and



others involved in the Project only in accordance with the Management Information System included in the Construction Management Plan.

2.5. The Designer shall perform its services hereunder properly and in accordance with the standards of its profession. The Designer acknowledges its sole responsibility as a professional for the design of the Project and for performing certain design related services during its construction. The Designer also acknowledges that in the performance of services under the Agreement between the Owner and CM, the CM will be relying upon the performance by the Designer of services under this Agreement. The Designer shall be entitled to rely upon the CM for the proper performance of services undertaken by CM pursuant to the Agreement between the Owner and CM.

2.6. The Designer shall participate in the orientation sessions provided by the Owner or CM in accordance with the Agreement between the Owner and CM and, as the design of the Project progresses, shall provide advice as requested and suggestions with respect to revisions to the various aspects of the Construction Management Plan.

ARTICLE 3: BASIC SERVICES

3.1. The Designer shall perform Basic Services as described herein and any Additional Services that are authorized, all in accordance with the provisions of Article 2.

3.2. Design Phase

3.2.1. Design Criteria : Based on the preliminary description and statement of the Project requirements as set forth in the Construction Management Plan, the Designer, in consultation with the Owner and the CM, shall develop design criteria and design requirements for the Project. During this development process the Designer shall receive from the CM recommendations as to constructibility, scheduling, and time of construction; as to clarity, consistency, and coordination of documentation among Contractors; and as to the separation of the Project into contracts for various categories of the Work. In addition, the CM shall give to the Designer all data of which it is aware, and which the Owner has furnished to the CM, concerning patents or copyrights for inclusion in Contract Documents. As the Designer develops the design criteria and design requirements, and they evolve from preliminary to detailed and definitive, they shall be submitted to and reviewed by the Owner and CM, and ultimately accepted by the Owner. As the design criteria and design requirements are so accepted they shall be furnished to the CM in written form. In performing services under the Agreement between the Owner and CM, the CM will be entitled to rely on all design considerations and determinations provided by the Designer.

3.2.2. Owner-Supplied Information : Designer shall advise the CM of the necessity of the Owner or CM obtaining from others and providing to the Designer subsurface and other data of the types described in Paragraph 3.4.7, on all of which the Designer may rely in rendering services hereunder and in preparing the design documentation.

3.2.3. Government Approvals : The Designer shall be responsible for identifying governmental bodies having jurisdiction to approve the design of the Project. As part of such responsibilities as a licensed professional, the Designer shall be responsible to verify that the documents and services furnished by the Designer conform to the laws, regulations and other legal requirements applicable at the time they are furnished, and that the final design documentation complies with the requirements of Paragraph 3.2.8 below. The Designer shall not have responsibility as part of its Basic Services to obtain any governmental approvals or permits but may rely on the Owner doing so on its own or through the CM. Information with respect to such approvals shall be furnished to the Designer in a timely manner, and the Designer shall be entitled to rely upon the accuracy and completeness of what has been so furnished.

3.2.4. Construction Management Plan : The Designer shall make recommendations for revisions to the Construction Management Plan as the design progresses and shall evaluate and comment on revisions proposed by the CM. These may include revisions to the Project requirements, Master Schedule, Project and Construction Budget, and Management Information System. Revisions approved by the Owner shall be incorporated into the Construction Management Plan. The Designer may rely upon all information and data included in the Construction Management Plan in rendering services hereunder and in preparing the design documentation.

3.2.5. Cost Control

3.2.5.1. During design of the Project, the CM and Designer shall maintain close liaison and have frequent interchange of information and documentation. Both will cooperate to achieve compliance with the Project and Construction Budget, which will include a contingency acceptable to the Owner, CM, and Designer for construction costs appropriate for the type and location of the Project and the extent to which the design has progressed and been finalized. The Designer shall provide to the CM submittals of drawings and specifications as required in the



Construction Management Plan. The Designer shall receive, comment on and give due consideration to advice, cost analyses, value analyses, information as to constructibility, as to costs, scheduling and time of construction, and as to clarity, consistency and coordination in documentation as submitted by the CM. While the Designer may rely upon such data submitted by the CM, the Designer as the party having sole responsibility for design of the Project shall, after taking into consideration any budgetary restraints imposed by the Construction Management Plan, make the final determination as to the acceptability, selection and specification of materials and equipment for the Project (subject to any directives issued by the Owner). Final determinations with respect to scheduling, the division of the Work into various categories and separate contracts, and the estimated Project and construction costs will be made by the CM and will be incorporated in the Construction Management Plan as amended from time to time and the Designer shall be entitled to rely upon such data provided by the CM.

3.2.5.2. The Owner recognizes that while the Designer is to cooperate with the CM to the end that actual construction costs will not exceed budget figures included in the Construction Management Plan as amended from time to time, the Designer has no control over the costs of labor, materials, equipment or services furnished by others, or over the Contractor’s methods of determining prices, or over competitive bidding or market prices, or over construction costs projections prepared by the CM. Accordingly, the Designer does not give any assurance or guarantee that proposals, bids or actual construction costs will not vary from budget figures included in the Construction Management Plan as amended from time to time. If the budget figure is exceeded the Owner shall give written consent to increasing the budget, or authorize negotiations or rebidding of the Project within a reasonable time, or cooperate with the Designer and CM in revising the Project’s general scope, extent or character in keeping with the requirements and sound design practices, or modify the requirements appropriately. The preparation by the Designer of additional or amended drawings, specifications and other design documents in order to reflect design changes in the Project’s general scope, extent, character or requirements shall be provided by the Designer as an Additional Service under Article 4. Instead of the foregoing the Owner may abandon the Project and terminate this Agreement in accordance with Article 10.

3.2.6. Times of Performance : In preparing the design documentation the Designer shall comply with the Master Schedule and Milestone Schedule for Design Phase Services as included in the Construction Management Plan.

3.2.7. Conferences and Meetings : The Designer shall attend Project conferences and meetings called by the Owner or CM.

3.2.8. Design Documents : Before conclusion of the Design Phase, and after receipt of comments, recommendations and advice from the CM, who will also convey the Owner’s comments, the Designer shall prepare the final design documentation for construction consisting of:

3.2.8.1. Drawings to show the general scope, extent and character of the Contractor’s Work;

3.2.8.2. Specifications prepared in accordance with the Construction Specification Institute’s sixteen (16) division format;

3.2.8.3. Technical criteria, written descriptions and design data information for use by the Owner in filing applications for governmental approvals and permits;

3.2.8.4. General Conditions using CMAA Document A-3 (2013 Edition).

3.2.8.5. Supplemental Conditions of the Construction Contract and General Conditions for separate material and equipment procurement, which shall be provided by the CM;

3.2.8.6. Bid Documents which may include requests for alternate bids as required by the CM (subject to the provisions of Paragraph 4.1.8); and

3.2.8.7. Addenda or other customary design documents.

3.2.8.8. The final documentation shall be in form for contracting (e.g. single or multi-prime) as indicated in the Construction Management Plan. The final design documentation furnished hereunder shall be prepared in accordance with professional standards, shall be in such detail as is appropriate for the nature and character of the Work to be performed by the Contractors, and shall be prepared and coordinated so as to permit such scheduling and sequencing of construction as may be required by the Construction Management Plan. The CM will assemble bid packages and handle all administrative aspects of bidding. The Owner shall be responsible for obtaining appropriate legal reviews of all documents.



3.3. Procurement Phase

3.3.1. Pre-Bid Conferences : The Designer shall participate in Pre-Bid Conferences.

3.3.2. Requests for Clarification : The Designer shall receive from the CM requests from Contractors for clarification of the Contract Documents and shall prepare the design documentation for addenda, which will be reviewed by the CM for constructibility, cost, scheduling, time, coordination, clarity and consistency, and will be issued by the CM after being processed by the CM and approved by the Owner.

3.3.3. Prequalification of Bidders : The Designer shall, on request of the CM, provide advice on the prequalification of bidders and the evaluation of bids.

3.3.4. Post-Bid and Pre-Construction Conference : The Designer shall attend Post-Bid Conference and Pre-Construction Conference.

3.3.5. Acceptance of Subcontractors or Suppliers : The Designer shall not be involved in accepting or rejecting subcontractors or suppliers.

3.3.6. Substitutions : If substitutions are to be permitted during the bidding period, the Designer shall determine their acceptability and prepare the necessary design documentation for inclusion in addenda.

3.4. Construction Phase

3.4.1. Visits and Access to Site : The Designer shall make visits to the site as necessary to enable the Designer to carry out its Basic Services responsibilities under Paragraphs 3.4.3 through 3.4.7 inclusive, and Paragraphs 3.4.16 and 3.4.17. However, it is not intended that during such visits the Designer shall be obligated as part of Basic Services to become generally familiar with or check the quality or quantity of the Work or to determine that the Work is being completed in accordance with the Contract Documents. The Owner shall be responsible to see that the Designer is given access to the site as necessary to carry out its services under this Agreement.

3.4.2. Communications : The Designer shall only communicate with the Contractor, subcontractors and suppliers through the CM or in the presence of the CM.

3.4.3. Interpretations and Clarifications : Upon receipt from the CM (with the CM’s comments as appropriate) of written requests for clarifications and interpretations of the drawings, specifications and other design related information, the Designer shall review the same and issue (through the CM) in writing appropriate clarifications and interpretations.

3.4.4. Substitutions : Upon receipt from the CM of written proposals for substitutions of materials and equipment (with the CM’s comments, including trade-off studies, as appropriate), the Designer shall evaluate the same and shall have final authority to accept or reject such proposals as being appropriate for the Project.

3.4.5. Changes : Upon receipt from the CM of written requests for changes in the Contract Documents (with comments, including trade-off studies, as appropriate) the Designer shall prepare the necessary drawings and specifications (subject to the provisions of Paragraphs 4.1.5 and 4.1.7). Whenever a directive for a work change is issued by the Owner, a copy will be sent to the Designer. Whenever the CM authorizes minor changes in the Work pursuant to authority under the Owner-CM Agreement, written confirmation will be given to the Designer, who shall review the information submitted and advise the Owner and CM whether or not the change is compatible with, or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. The Designer shall be the sole judge of whether or not a minor change involves design or aesthetic considerations and no such change shall be made without the Designer’s concurrence.

3.4.6. Submittals : The Designer shall cooperate and participate in meetings conducted by the CM to establish procedures for submission and review of shop drawings, samples and other submittals. Upon receipt from the CM of the Contractor’s shop drawings, samples and other submittals with the CM’s comments (including trade-off studies, as appropriate), the Designer shall review, approve or reject and return the same to the CM for transmission to the Contractor no later than 14 days after the date of submission to the Designer. The review and approval shall be for the limited purpose of checking conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. The Owner shall require the CM to transmit to the Designer all data on variations and deviations from the requirements of the Contract Documents received from the Contractor and to insist on Contractor’s compliance with the procedures established. All reviews of shop drawings, samples and other submittals shall be in accordance



with the Contractor’s Construction Schedule, which will have been established by the CM with the Contractor’s and the Designer’s participation.

3.4.7. Surface and Subsurface Conditions : The information with respect to surface and subsurface conditions at or contiguous to the site on which the Contractor will be entitled to rely shall be identified by the Designer in the Contract Documents. The Contractors’ responsibility for other surface and subsurface conditions will be as provided in the Contract Documents. The Owner shall require the CM to consult with the Designer whenever a surface or subsurface condition is uncovered that differs from what the Contractor is entitled to rely on, or from what is indicated in the Contract Documents, or that may require a change in the Contract Documents. In that event the Designer shall visit the site to examine the condition and determine if the Owner should obtain further examination or testing. The preparation by the Designer of additional or amended drawings and specifications for incorporation into a change order to reflect any design changes required to be responsive to the changed conditions shall be provided by the Designer as Additional Services under Article 6.

3.4.8. CM’s Comments and Advice : The Owner shall require that all transmittals to the Designer requesting interpretations or clarifications, or proposals for substitutions, or change orders, or reviewing and approval of submittals, or evaluations for changed subsurface conditions shall include the CM’s comments regarding the request or proposal and its anticipated effect on compliance with the Project requirements, the Project and Construction Budget, and the Master Schedule. The CM’s comments will not relate to design considerations, but rather to matters of constructibility, cost, scheduling and time of construction, clarity, consistency and coordination of the design documentation. The Owner shall require the CM to give the Designer prompt notice (confirmed in writing) of apparent defects in the design documents (drawings, specifications, approved submittals, samples, changes, change orders and other design documents referred to in Paragraphs 3.2.8 and 3.4.3 through 3.4.7, inclusive) of which the CM obtains actual knowledge, but the CM shall not have responsibility for detecting the existence of any such defects.

3.4.9. Tests and Inspections : The Designer may request the CM to call for special inspections and tests of the Work to enable the Designer to carry out its services under Paragraphs 3.4.3 through 3.4.7, inclusive, and shall be entitled to rely upon the accuracy and completeness of the results provided.

3.4.10. Quality Control of the Contractor’s Work : The Owner shall not cause or permit the CM to allow or accept, and the Owner shall not allow or accept, any work by the Contractor involving deviation from the requirements of the Contract Documents unless the Designer shall have given written approval, which approval shall not be unreasonably withheld; however, the foregoing restriction shall not apply to variations from the design documentation which do not affect the design concept or the integrity of the completed Project as a functioning whole (aesthetically, structurally, or otherwise). Any participation by the Designer in programs or procedures to observe, review or monitor the quality of the Contractor’s Work, or any participation in the review and acceptance or rejection of the Contractor’s Work, or any participation in the review and acceptance or rejection of the Contractor’s Work that the Owner or CM may require (except as provided in Paragraphs 3.4.16 and 3.4.17) shall be provided by the Designer as an Additional Service under Article 4. If during the course of any such visits to the site, or other site visits furnished as Additional Services in accordance with Paragraphs 3.4.10 and 3.4.11 and Article 4, the Designer obtains actual knowledge of Contractor’s Work that does not conform to the requirements of the Contract Documents, or will not be compatible with or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, the Designer shall give prompt written notice thereof to the CM, but the Designer shall not have responsibility to detect the existence of any such condition.

3.4.11. Progress Payments : As requested by the CM, the Designer shall comment in writing on specific aspects of any schedule of values developed by the CM for the Work. Any participation by the Designer in the review and approval of applications for payment, and the review and acceptance of the quality and quantity of the Contractor’s Work that the Owner or CM may require in connection with applications for payment, shall be provided by the Designer as an Additional Service under Article 4.

3.4.12. Not Responsible for Contractor’s Work : The Designer shall not have responsibility for or guarantee the Contractors’ performance of the Work or the construction contracts, or the acts of subcontractors or suppliers, but shall be beneficiary of the customary guarantees by the Contractor that the Work furnished is in accordance with the requirements of the Contract Documents.

3.4.13. Copies of Notices : The Designer shall furnish the CM copies of all written notices and communications sent to or received by the Designer, which relate to the aspects of the Project for which the CM has responsibility under the Owner-CM Agreement.



3.4.14. Coordination and Scheduling of Contractor’s Work : Any coordination or scheduling of the Work of the Contractor that is required by the Owner will be the responsibility of the CM. The Designer’s documentation shall be prepared as required by the Construction Management Plan to permit such coordination and scheduling.

3.4.15. Time and Cost Control : The CM will have authority as the Owner’s agent to develop and monitor the Contractor’s cost control procedures and time schedules with respect to the Work and will receive, as requested, comments and suggestions from the Designer, who shall have no other authority or responsibility in connection with the Contractor’s timely performance, scheduling, sequencing or costs incurred during construction.

3.4.16. Substantial Completion : The Designer shall visit the site and consult with the CM as requested with respect to the readiness of certain specific items of the Work for substantial completion. Such visits and consultation shall involve assistance in the preparation of lists of incomplete Work or Work which does not conform to the requirements of the Contract Documents for each construction Contract. Final decisions on substantial completion will rest with the CM, who will issue a Certificate of Substantial Completion. A copy of the Certificate of Substantial Completion will be given to the Designer.

3.4.17. Final Completion : The Designer shall visit the site and consult with the CM as requested with respect to completion of items on the list prepared in connection with substantial completion.

3.4.18. Confidentiality : The Designer shall keep all information concerning the Project confidential except for communications between the Designer, CM, Contractor and their independent professional engineers, architects and other consultants, subcontractors, and suppliers incident to completion of the Project, and except for publicity approved by the Owner and in connection with filings and communications with governmental bodies having jurisdiction over the design of the Project.

3.4.19. Means and methods : The Designer shall not have responsibility for means, methods, techniques, sequences or procedures of construction, or for safety precautions and programs incident thereto.

3.4.20. Overtime Work : The Owner shall require the CM to give Designer immediate written notice whenever Work at the site is to be performed at any time other than during regular working hours.

3.4.21. Stopping the Work : The Designer shall have no authority or responsibility to recommend to the Owner or CM that the Work be suspended, stopped or taken over by the Owner, or that any of the construction Contracts be terminated.

ARTICLE 4: ADDITIONAL SERVICES

4.1. As requested by the Owner or CM, the Designer shall perform Additional Services and the Designer shall be compensated therefore as provided in Articles 7 and 8. Additional Services shall be performed only after execution of a written amendment or supplement to this Agreement authorizing such services. Additional Services may include:

4.1.1. Services rendered to investigate, appraise or evaluate existing conditions, facilities or equipment, or to verify the accuracy of existing drawings or other information furnished by the Owner, including information of the types described in Paragraph 6.12.

4.1.2. Services of independent professional associates or consultants for other than Basic Services; services to provide data of the types described in Paragraph 5.12 where the Owner employs the Designer to provide such services in lieu of furnishing the same in accordance with Paragraph 5.12; services relating to determination of space needs for the preparation of space programs; and services related to tenant and rental operations.

4.1.3. Services related to building sites investigations and analyses.

4.1.4. Services of the types described in Paragraph 3.3.5.

4.1.5. Services resulting from significant changes in the general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity of the Project or in the Construction Management Plan (including the Master Schedule, the Milestone schedule, Project and Construction Budget, and Management Information Systems), changes in the character of construction or method of financing, and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are required by changes in



laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents, or are due to any other cause beyond Designer’s control.

4.1.6. Services in connection with visits to the site, in addition to those required under the Basic Services, which are requested in writing by the Owner or CM for consultation and advice on specific aspects or parts of the Contractor’s work.

4.1.7. Services to prepare drawings and specifications for incorporation into a change order to reflect design changes required to be responsive to changed conditions as described in Paragraph 3.4.7.

4.1.8. Services in connection with the preparation of drawings, specifications and other design documentation for alternate bids requested by the Owner of CM, or in connection with the preparation of additional or amended drawings, specifications and other design documentation to reflect changes in the Project’s scope, extent, character or requirements as provided in Paragraph 3.2.5.2.

4.1.9. Services in connection with the preparation review or assembly of maintenance manuals, warranties, guarantees, and the development of systems and procedures for control of operation and maintenance records for the Project.

4.1.10. Services to prepare a set of reproducible prints of record drawings showing those changes made during construction process, based on marked-up prints, drawings and other data furnished by the Contractor or the CM to the Designer, and which the Designer considers significant.

4.1.11. Services to establish reference points on the site for construction.

4.1.12. Services in connection with any technical inspection or testing of any material or equipment prior to its incorporation in the Work, or of any aspect or part of the Work itself.

4.1.13. Services in connection with any dispute between the Contractor and the Owner, except as related to the Designer’s services required by Paragraphs 3.4.3 and 3.4.5.

4.1.14. Consultation regarding replacement of Work damaged by fire or other cause during construction and furnishing services in connection with the replacement of such Work.

4.1.15. Services made necessary by the default of the Contractor or CM.

4.1.16. Preparation for and serving as a witness in connection with any public or private hearing, or arbitration, mediation or legal proceeding.

4.1.17. Assisting the Owner in public relation activities, including preparing information for and attending public meetings.

4.1.18. Assisting the Owner with procurement and preparation of contracts for the occupancy of the Project, and providing personnel to oversee the location of furniture and equipment.

4.1.19. Services related to the initial operation of any equipment such as start-up, testing, adjusting and balancing.

ARTICLE 5: OWNER’S RESPONSIBILITES

5.1. The Owner shall require that the CM perform its services in cooperation with the Designer, consistent with this Agreement and in a timely manner in accordance with the Master Schedule so as not to delay the Designer in the performance of services. Whenever it is provided in this Agreement that the CM will or will not perform a certain act, the Owner shall take the necessary action to ensure that the CM complies with such provisions.

5.2. The Owner shall not amend the Owner-CM Agreement in any way inconsistent with this Agreement or that would be detrimental or prejudicial to the interest and obligations of the Designer under this Agreement. The Owner shall cause all agreements between the Owner and Contractor to be compatible and consistent with this Agreement. The Owner shall not authorize any change in the Construction Management Plan, including the design requirements,



design criteria, Master Schedule, Milestone Schedule, Project and Construction Budget and Management Information System without first receiving the written advice of the Designer.

5.3. The Owner shall not cause or permit the CM to authorize, accept or approve any Work of the Contractor that varies from the design requirements, design criteria or the Contract Documents (except for minor changes referred to under Paragraph 3.4.5) without first having obtained the advice and written approval of the Designer in the form of a written addendum, interpretation, clarification, approval of substitution, change order, shop drawing, sample, or other submittal.

5.4. The Owner shall furnish legal, accounting and insurance counseling services as may be necessary for the Project.

5.5. The Owner shall furnish insurance for the Project as specified in Article 9.

5.6. If the Owner observes or otherwise becomes aware of any defect in design aspects of the Project, the Owner shall give written notice thereof to the Designer.

5.7. The Owner shall furnish required information and approvals, render decisions and perform its responsibilities and activities in a timely manner and in accordance with the Master Schedule so as to facilitate orderly progress of the Designer’s work in cooperation with the CM, consistent with this Agreement and in accordance with the Construction Management Plan. The Owner shall require the CM to do the same.

5.8. The Owner shall designate, in writing, an officer, employee or other authorized representative to act on its behalf with respect to the Project who shall have authority to approve changes in the scope of the Project and be available during working hours and as often as may be required to render decisions and furnish information in a timely manner.

5.9. The Owner shall arrange for the Designer to have access to the site as necessary to carry out its services under this Agreement.

5.10. The Owner shall cause any and all agreements between the Owner and others to be compatible and consistent with this Agreement. The Owner shall, at the Owner’s expense, furnish sufficient copies of the Contract Documents to the Designer.

5.11. The Owner shall require the CM to furnish to the Designer copies of all written notices and communications sent to or received by the Owner or the CM which relate to design aspects of the Project, or the Designer’s responsibilities under this Agreement.

5.12. Owner shall furnish to the Designer as required for the performance of the Designer’s services hereunder the following:

5.12.1. Reports of explorations and tests of surface and subsurface conditions at or contiguous to the site, and reports of explorations and tests of the conditions at the site (both surface and subsurface) with respect to the presences or absence of hazardous waste or similar materials (such as, but not limited to, asbestos, polychlorinated biphenyls (PCBs), petroleum and radioactive materials), all of such reports and drawings to be based on appropriate borings, probings, examinations, surveys, tests, and samplings of the conditions involved, to be prepared by qualified persons, and to be accompanied by appropriate professional interpretations of all of the findings;

5.12.2. Environmental assessments and impact statements;

5.12.3. Property boundary, easement, right-of-way, topographical and utility surveys;

5.12.4. Property descriptions;

5.12.5. Zoning, deed and other land use restrictions; and

5.12.6. Other special data or consultation on similar subjects.

5.13. The Owner shall be responsible for the accuracy and completeness of all reports, data and other information furnished pursuant to Paragraph 5.12, and the Designer may use and rely on the same in performing services under this Agreement.



5.14. The Owner shall be responsible for the presence at the site of any asbestos, PCBs, petroleum, hazardous materials and radioactive materials, and the consequences of such presence.

5.15. In the case of the termination of the CM’s services, the Owner shall appoint a new CM who shall be acceptable to the Designer and whose responsibilities with respect to the Project and status under the new Agreement with the Owner shall be similar to that of the CM under the Owner-CM Agreement and the Contract Documents.

5.16. The Owner shall, and shall cause the CM to give to the Designer all data of which each is aware concerning patents or copyrights for inclusion in Contract Documents.

5.17. The Owner shall in a timely manner secure, submit and pay for necessary governmental approvals, permits, easements, assessments and charges required for the construction, use or occupancy of permanent structures, or for permanent changes in existing facilities.

5.18. The Owner shall furnish evidence satisfactory to the Designer that sufficient funds are available and committed for the entire cost of the Project. Unless such reasonable evidence is furnished, the Designer shall not be required to commence services under this Agreement and may, if such evidence is not presented within a reasonable time, suspend such services upon fifteen (15) days written notice to the Owner. In such event, the Designer shall be compensated in the manner provided in Paragraph 10.2.

ARTICLE 6: DURATION OF DESIGNER’S SERVICES

6.1. The commencement date for the Designer’s Basic Services shall be the date of the execution of this Agreement.

6.2. The duration of the Designer’s Basic Services under this Agreement shall be Click here to enter text. consecutive calendar days from the commencement date.

ARTICLE 7: COMPENSATION FOR DESIGNER’S SERVICES AND PAYMENT

7.1. The Designer shall receive compensation for its services in accordance with Paragraph 7.2 (Cost Plus Fixed Fee), Paragraph 7.3 (Lump Sum) or Paragraph 7.4 (Fixed Billable Rates).

7.2. Cost Plus Fixed Fee

7.2.1. Compensation for Basic Services : The Owner shall compensate the Designer for performing the Basic Services described in Article 3 on the basis of the Designer’s cost plus a fixed fee in accordance with the terms and conditions of this Agreement and specifically as follows:

7.2.1.1. A Fixed Fee of Click here to enter text. Dollars ($Click here to enter text.)

7.2.1.2. The cost of employees working on the Project, other than principals, in an amount which equals the multiples as established in Paragraphs 7.2.1.2.1 and 7.2.1.2.2, multiplied by the personnel expense for each such employee. Personnel expense for an employee shall be Click here to enter text. times the base hourly wage. Personnel expense includes the base hourly wage, payroll taxes, employee benefits and Worker’s Compensation insurance. The cost of the Designer’s principals shall be paid at the rate specified in Paragraph 7.2.1.3. The specified multiples and rates shall remain constant for a twelve (12) month period following the date of this Agreement. Thereafter, the multiples established in the referenced paragraphs shall be adjusted by the Designer if the Designer’s personnel expense changes;

7.2.1.2.1 Employees assigned to the Project and working at the construction site, or employees for which the Owner provides all office facilities and services, excluding the project manager and assistant project managers, a multiple of Click here to enter text.

7.2.1.2.2 Employees assigned to the Project and working in the Designer’s administrative office, including the project manager and assistant project managers, a multiple of Click here to enter text.;



7.2.1.3. Principals of the Designer who participate in the Project, a fixed rate of Click here to enter text. dollars ($Click here to enter text.) per hour. The principals to be compensated according to these terms are: Click here to enter text..

7.2.1.4. Independent engineers, architects and other consultants employed by the Designer and performing services related to the Project, a multiple of Click here to enter text.(Click here to enter text.) times the amount of the invoice for such services.

7.2.2. Direct Expenses: In addition to the compensation for Basic and Additional Services stated herein, the Designer shall be reimbursed for its direct expenses incurred in providing Basic and Additional Services. Direct expenses are those actual expenditures made by the Designer, its principals, employees, independent engineers, architects and other consultants in the interest of the Project, including, without limitation:

7.2.2.1. Long distance telephone calls, telegrams and fees paid for securing approval of authorities having jurisdiction over the over the Project;

7.2.2.2. Handling, shipping, mailing and reproduction of materials and documents;

7.2.2.3. Transportation and living expenses when traveling in connection with the Project;

7.2.2.4. Computer equipment rental or service fees;

7.2.2.5. Computer software purchased;

7.2.2.6. Electronic data processing service and rental of electronic data processing equipment;

7.2.2.7. Word processing equipment rental;

7.2.2.8. Premiums for professional liability insurance and other insurance beyond the limits normally carried by the Designer that are required by the terms of this Agreement;

7.2.2.9. Relocation of employees and families;

7.2.2.10. Temporary living expenses of employees who are not relocated, but assigned to the Project;

7.2.2.11. Gross receipts taxes, sales or use taxes, service taxes and other similar taxes required to be paid as a result of this Agreement;

7.2.2.12. Field office expenses, including the cost of office rentals, telephones, utilities, furniture, equipment and supplies; and

7.2.2.13. Premium time work.

7.2.3. Designer’s Account Records : Records of the Designer’s personnel expense, independent engineers’, architects’ and other consultants’ fees and direct expenses pertaining to the Project shall be maintained on the basis of generally accepted account practices and shall be available for inspection by the Owner or the Owner’s representative at mutually convenient times for a period of two (2) years after completion of the Construction Phase Basic Services.

7.2.4. Payments : Payments to the Designer shall be made monthly, not later than fifteen (15) days after receipt of the Designer’s invoice by the Owner, as follows:

7.2.4.1. Payment of the Fixed Fee as indicated in Paragraph 7.2.1.1 shall be in amounts prorated equally over the duration of the Designer’s Basic Services. The duration shall be as set out in Article 6;

7.2.4.2. Payment of personnel expense and the fixed hourly rate for principals shall be in amounts equal to the actual hours spent during the billing period on the Project multiplied by the rates and multiples stated in Paragraphs 7.2.1.2; 7.2.1.2.1; 7.2.1.2.2; and 7.2.1.3;



7.2.4.3. Payment of independent engineers’, architects’ and other consultants’ services shall be in amounts equal to the invoice in receipt by the Designer for the billing period times the multiple stated in Paragraph 7.2.1.4;

7.2.4.4. Reimbursement for direct expenses shall be in amounts equal to expenditures made during the billing period and during previous billing periods not yet invoiced;

7.2.4.5. No deductions shall be made from the Designer’s compensation due to any claim by the Owner, Contractor or others not a party to this Agreement or due to any liquidated damages, retainage or other sums withheld from payments to the Contractor or others not a party to this Agreement; and

7.2.4.6. Payments due to the Designer that are unpaid for thirty (30) days from the date of receipt by the Owner of the Designer’s invoice shall bear interest at the annual rate of Click here to enter text.% from the due date, compounded monthly. In addition, the Designer may, after giving seven (7) days written notice to the Owner, suspend services under this Agreement until the Designer has been paid in full all amounts due for services, expenses and charges, including accrued interest.

7.2.5. Compensation for Additional Services : The Designer shall be compensated and payments shall be made for performing Additional Services in the same amount and manner as provided in Article 7 for Basic Services. There shall be an increase in the Fixed Fee set out in Paragraph 7.2.1.1 in an amount which is mutually agreeable between the Owner and the Designer.

7.3. Lump Sum

7.3.1. Compensation for Basic Services : The Owner shall compensate the Designer for performing Basic Services described in Article 3 a total Lump Sum in the amount of Click here to enter text. dollars ($Click here to enter text.), which amount shall be paid as follows: Click here to enter text.

7.3.2. Direct Expenses : The cost of direct expenses incurred will be included in the Lump Sum.

7.3.3. Payments : Payments shall be made monthly, not later than fifteen (15) days after receipt of the Designer’s invoice by the Owner.

7.3.3.1. No deductions shall be made from the Designer’s compensation due to any claim of the Owner, CM, Contractor or others not a party to this Agreement or due to any liquidated damages, retainage or other sums withheld from payments to Contractor or others not a party to this Agreement.

7.3.3.2. Payments due to the Designer that are unpaid for more than thirty (30) days from date of receipt by the Owner of the Designer’s invoice shall bear interest at the annual rate of Click here to enter text.% from the due date, compounded monthly. In addition, the Designer may, after giving seven (7) days written notice to the Owner, suspend services under this Agreement until the Designer has been paid in full all amounts due for services, expenses and charges, including accrued interest.

7.3.4. Compensation for Additional Services : The Designer shall be compensated and payments shall be made for performing Additional Services in an amount and on terms mutually agreeable to the Owner and Designer.

7.4. Fixed Billable Rates

7.4.1. Compensation for Basic Services : The Owner shall compensate the Designer for performing Basic Services described in Article 3 on the basis of fixed billable rates in accordance with the terms and conditions of this Agreement and specifically as follows:

7.4.1.1. The cost of employees working on the Project, in an amount, which equals the billable rates of the employees, as established in Paragraphs 7.4.1.1.1 and 7.4.1.1.2, multiplied by the hours for each such employee. These billable hourly rates are inclusive of all profit (fee), general administrative overhead costs, and personnel expense for each employee. Personnel expense includes the base hourly wage, payroll taxes, employee benefits and Workers’ Compensation insurance. The specified rates shall remain constant for a twelve (12) month period following the date of this Agreement. Thereafter, the rates established in the referenced paragraphs shall be adjusted by a Click here to enter text.% escalation factor for each successive twelve (12) month period.

7.4.1.1.1 Employees assigned to the Project and working at the construction site, or employees for which the Owner provides all office facilities and services, the following hourly rates: Click here to enter text.



7.4.1.1.2 Employees assigned to the Project and working in the Designer’s administrative office, the following hourly rates: Click here to enter text.

7.4.1.2. Independent engineers, architects and other consultants employed by the Designer and performing services related to the Project, a multiple of Click here to enter text. (Click here to enter text.) times the amount of the invoice for such services.

7.4.2. Direct Expenses : In addition to the compensation for Basic and Additional Services stated herein, the Designer shall be reimbursed for its direct expenses incurred in providing Basic and Additional Services. Direct expenses for those actual expenditures made by the Designer, its principals, employees, independent engineers, architects and other consultants in the interest of the Project, including, without limitation:

7.4.2.1. Long distance telephone calls, telegrams and fees paid for securing approval of authorities having jurisdiction over the over the Project;

7.4.2.2. Handling, shipping, mailing and reproduction of materials and documents;

7.4.2.3. Transportation and living expenses when traveling in connection with the Project;

7.4.2.4. Computer equipment rental or service fees;

7.4.2.5. Computer software purchased;

7.4.2.6. Electronic data processing service and rental of electronic data processing equipment;

7.4.2.7. Word processing equipment rental;

7.4.2.8. Premiums for professional liability insurance and other insurance beyond the limits normally carried by the Designer that are required by the terms of this Agreement;

7.4.2.9. Relocation of employees and families;

7.4.2.10. Temporary living expenses of employees who are not relocated, but assigned to the Project;

7.4.2.11. Gross receipts taxes, sales or use taxes, service taxes and other similar taxes required to be paid as a result of this Agreement;

7.4.2.12. Field office expenses, including the cost of office rentals, telephones, utilities, furniture, equipment and supplies; and

7.4.2.13. Premium time work.

7.4.3. Designer’s Account Records : Records of the Designer’s personnel expense, independent engineers’, architects’ and other consultants’ fees and direct expenses pertaining to the Project shall be maintained on the basis of generally accepted account practices and shall be available for inspection by the Owner or the Owner’s representative at mutually convenient times for a period of two (2) years after completion of the Construction Phase Basic Services.

7.4.4. Payments : Payments to the Designer shall be made monthly, not later than fifteen (15) days after receipt of the Designer’s invoice by the Owner, as follows:

7.4.4.1. Payment of the fixed hourly rate for employees shall be in amounts equal to the actual hours spent during the billing period on the Project multiplied by the rates stated in Paragraphs 7.4.1.1.1 and 7.4.1.1.2;

7.4.4.2. Payment of independent engineers’, architects’ and other consultants’ services shall be in amounts equal to the invoice in receipt by the Designer for the billing period times the multiplier stated in Paragraph 7.4.1.2;

7.4.4.3. Reimbursement for direct expense shall be in amounts equal to expenditures made during the billing period and during previous billing periods not yet invoiced;



7.4.4.4. No deductions shall be made from the Designer’s compensation due to any claim by the Owner, Contractor or others not a party to this Agreement or due to any liquidated damages, retainage or other sums withheld from payments to the Contractor or others not a party to this Agreement

7.4.4.5. Payments due the Designer that are unpaid for more than thirty (30) days from the date of receipt by the Owner of the Designer’s invoice shall bear interest at the annual rate of Click here to enter text.% from the due date, compounded monthly. In additional, the Designer may, after giving seven (7) days written notice to the Owner, suspend services under this Agreement until the Designer has been paid in full all amounts due for services, expenses and charges, including accrued interest.

7.4.5. Compensation for Additional Services : The Designer shall be compensated and payments shall be made for performing Additional Services in an amount and on terms mutually agreeable between the Owner and the Designer.

ARTICLE 8: CHANGES IN DESIGNER’S BASIC SERVICES AND COMPENSATION

8.1. Owner Changes

8.1.1. The Owner, without invalidating this Agreement, may make changes in the Designer’s Basic Services specified in Article 3 of this Agreement. The Designer shall promptly notify the Owner of changes that increase or decrease the Designer’s compensation or the duration of the Designer’s Basic Services or both.

8.1.2. If the scope or the duration of the Designer’s Basic Services is changed, the Designer’s compensation shall be adjusted equitably. A written proposal indicating the change in compensation for a change in the scope or duration of Basic Services shall be given by the Designer to the Owner with a copy to the CM within thirty (30) days of the occurrence of the event giving rise to such request. The amount of the change in compensation to be paid shall be determined on the basis of the Designer’s cost and a customary and reasonable adjustment in the Designer’s Fixed Fee, Lump Sum or multipliers and rates consistent with the provision of Article 7.

8.2. Authorization

8.2.1. Changes in the Designer’s Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written amendment to this Agreement executed by the Owner and the Designer. The amendment shall be executed prior to performing the services required by the amendment. The Designer shall proceed to perform the services required by the amendment only after receiving written notice directing the Designer to proceed.

8.3. Invoices for Additional Compensation

8.3.1. The Designer shall submit invoices for additional compensation with its invoice for Basic Services.

ARTICLE 9: INSURANCE AND MUTUAL INDEMNITY

9.1. Designer’s Liability Insurance

9.1.1. General Liability : The Designer shall procure and maintain insurance for protection from claims under Worker’s Compensation Acts, from claims for damages because of bodily injury including personal injury, sickness or disease or death of any or all employees or of any person other than such employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom.

9.1.2. Commercial General Liability Insurance may be obtained under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an excess or umbrella policy.

9.1.3. The foregoing policies shall contain a provision that coverages afforded under the policies shall not be cancelled or expire until at least thirty (30) days written notice has been given to the Owner and shall include either a liability endorsement covering this Agreement or an endorsement making the Owner an additional insured under the policies. Certificates of insurance showing such coverages to be in force shall be filed with the Owner prior to commencement of the Designer’s services.



9.1.4. Professional Liability: The Designer shall procure and maintain professional liability insurance for protection from claims arising out of the performance of professional services caused by a negligent error, omission or act for which the insured is legally liable; such liability insurance will provide for coverage in such amounts, with such deductible provisions and for such period of time as required by the Owner. Certificates indicating that such insurance is in effect shall be delivered to the Owner. The Designer shall also cause the independent engineers, architects and other consultants retained by the Designer for the Project to procure and maintain professional liability insurance coverage, for at least such amounts, deductibles, and periods as determined by the Owner.

9.2. Owner’s Insurance

9.2.1. The Owner shall be responsible for purchasing and maintaining its own liability insurance, and at the Owner’s option, may purchase and maintain such additional insurance to protect the Owner against claims that may arise from the Project.

9.2.2. The Designer shall be named as an additional insured in any insurance policy obtained by the Owner for the Project. Upon request of the Designer the Owner shall furnish a certificate listing the Designer as an additional insured.

9.3. Waiver of Subrogation

9.3.1. The Owner and the Designer waive all rights against each other and against the Contractor, CM, independent engineers, architects and other consultants, subcontractors, suppliers, agents and employees of the other for damages during construction covered by any property insurance required for this Project. The Owner and the Designer shall each require similar waivers from their contractors, independent engineers, architects and other consultants, subcontractors, suppliers and agents.

9.4. Indemnity

9.4.1. To the fullest extent permitted by law, the Designer shall defend, indemnify and hold harmless the Owner, its employees, agents, officers, directors and partners from and against any and all damages arising from bodily injury or property damage and reasonable attorneys’ fees incurred by the Owner caused solely by the negligent act, error or omission of the Designer, or the Designer’s consultants, or any other party for whom the Designer is legally liable, in performance of services under the Agreement. The Designer shall procure and maintain insurance as required by and set forth in this Agreement. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, the total liability, in the aggregate, of the Designer and the Designer’s consultants and the officers, directors, partners, employees, and agents of any of them, to the Owner and anyone claiming by, through or under the Owner, for any and all claims, losses, costs or damages whatsoever arising out of, resulting from or in any way related to the Project or this Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract or warranty (express or implied) of the Designer or the Designer’s consultants and the officers, directors, partners, employees, and agents of any of them, (hereafter “the Owner’s claims”), shall not exceed the total insurance proceeds paid on behalf of or to the Designer by the Designer’s insurers in settlement or satisfaction of the Owner’s claims under the terms and conditions of the Designer’s insurance policies applicable thereto (excluding fees, costs and expenses of investigation, claims adjustment, defense and appeal).

9.4.2. The Owner shall cause the CM to defend, indemnify and hold harmless the Owner, its employees, agents and representatives to the same extent and in the same manner that the Designer has provided indemnification for the CM under Paragraph 9.4.1.

9.4.3. The Owner hereby defends, indemnifies and holds harmless the Designer and its employees, agents and representatives from and against any and all claims, demands, suits and damages for bodily injury and property damage for which the Owner is liable that arise out of or result from the negligent acts or omissions of the Owner, its employees, agents, representatives, independent contractors, material suppliers, the Contractor and the CM.

9.4.4. The Owner shall cause the Contractor to defend, indemnify and hold harmless the Designer from and against any and all claims, demands, suits and damages for bodily injury or property damage, for which the Contractor is liable that arise out of negligent acts or omissions or breach of the construction Contract by the Contractor, its employees, agents or representatives in performing the Work.



ARTICLE 10: TERMINATION AND SUSPENSION

10.1. Termination

10.1.1. This Agreement may be terminated by the Owner for convenience after seven (7) days written notice to the Designer.

10.1.2. This Agreement may be terminated by either party hereto upon seven (7) days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party, or if the Project in whole or substantial part is stopped for a period of sixty (60) days under an order of any court or other public authority having jurisdiction, or as a result of an act of government.

10.1.3. In the event of termination under Paragraph 10.1.1, the Designer shall be paid its compensation for services performed to the date of termination, services of independent engineers, architects and other consultants then due and all termination expenses. Termination expenses are defined as those expenses arising prior, during and subsequent to termination that are directly attributable to the termination, plus an amount computed as a percentage of the total compensation earned at the time of termination computed as follows:

10.1.4. Twenty (20) percent if the termination occurs during the Design Phase or Procurement Phase; or

10.1.5. Ten (10) percent if the termination occurs during the Construction Phase.

10.1.6. In the event of termination under Paragraph 10.1.2, the Designer shall be paid its compensation for services performed to the date of termination, services of independent engineers, architects and other consultants then due, and all termination expenses. No amount computed as provided in Paragraphs 10.1.3.1 and 10.1.3.2 shall be paid in addition, if the termination is due to the Designer’s failure to substantially perform in accordance with the terms of this Agreement.

10.2. Suspension

10.2.1. The Owner may, in writing, order the Designer to suspend all or any part of Designer’s services for the Project for the convenience of the Owner or for Work stoppage beyond the control of the Owner, the CM or the Designer. If the performance of all or any part of the Designer’s services for the Project is so suspended, an equitable adjustment in the Designer’s compensation shall be made for the increase, if any, in the cost of the Designer’s performance of this Agreement caused by such suspension, and this Agreement shall be modified in writing accordingly.

10.2.2. In the event the Designer’s Services for the Project are suspended, the Owner shall reimburse the Designer for all of the costs of its staff assigned to the Project and other costs as provided for by this Agreement for the first thirty (30) days of such suspension. The Designer shall reduce the size of its Project staff for the remainder of the suspension period as directed by the Owner and, during such period, the Owner shall reimburse the Designer for all of the costs of its reduced staff. Upon cessation of the suspension, the Designer shall restore the Project staff to its former size.

10.2.3. Persons assigned to another project during such suspension periods and not available to return to the Project upon cessation of the suspension shall be replaced. The Owner shall reimburse the Designer for costs incurred in relocating previous staff persons returning to the home office or new persons assigned to the Project.

10.2.4. If the Project is suspended for more than three (3) months, the Designer shall be paid compensation for services performed prior to receipt of written notice from the Owner of the suspension, together with direct expenses then due and all expenses and costs directly resulting from the suspension. If the Project is resumed after being suspended for more than six (6) months, the Designer shall have the option of requiring that its compensation, including rates and fees, be renegotiated. Subject to the provisions of this Agreement relating to termination, a suspension of the Project does not void this Agreement.

ARTICLE 11: DISPUTE RESOLUTION

11.1. Mediation/Litigation



11.1.1. If a dispute arises out of or relates to this Contract or its breach, the parties shall endeavor to settle the dispute first through good faith direct discussions between their representatives. If the Parties’ representatives are not able to resolve such matter within five (5) business days of the date of the first discussion, the Parties’ representatives shall immediately inform senior executives of the Parties who shall meet within five (5) business days to endeavor to reach resolution. If the dispute remains unresolved after fifteen (15) days from the date of first discussion, as a prerequisite to maintaining any action based on this Agreement, all such claims, disputes or controversies shall be presented for non-binding mediation before JAMS or such other neutral as may be agreed upon between the parties. If the dispute cannot be settled by mediation within sixty (60) days, the parties shall submit the dispute to litigation in state or federal court venued in the state and county where the Project is located.

11.2. Joinder of Other Parties in Litigation

11.2.1. In any litigation filed in accordance with this Agreement, either party thereto, at its sole discretion, may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded therein.

ARTICLE 12: OWNER’S RIGHTS IN DOCUMENTS AND REUSE

12.1. All documents, including drawings and specifications prepared or furnished by the Designer (and the Designer’s independent engineers, architects and other consultants) pursuant to this Agreement are instruments of service with respect to the Project, and the Designer shall retain an ownership and property interest therein whether or not the Project is completed. The Owner may make and retain copies for information and reference in connection with the use and occupancy of the Project by the Owner and others; however, such documents are not intended or represented to be suitable for reuse by the Owner, CM or others on extensions of the Project or on any other project. Any reuse without written verification or adaptation by the Designer for the specific purpose intended shall be at the Owner’s sole risk and without liability or legal exposure to the Designer, or to the Designer’s independent engineers, architects and other consultants, and the Owner shall indemnify and hold harmless the Designer and the Designer’s independent engineers, architects and other consultants from all claims, damages, losses and expenses, including attorneys’ fees, arising out of or resulting therefrom. Any such verification or adaptation shall entitle the Designer to further compensation at rates and amount to be agreed upon by the Owner and the Designer.

ARTICLE 13: ADDITIONAL PROVISIONS

13.1. Confidentiality

13.1.1. The CM will keep all information concerning the Project confidential, except for communications incident to completion of the Project between the CM, Designer, and Contractor, and their independent professional engineers, architects and other consultants and subcontractors, and except for publicity approved by the Owner and communications in connection with filings with governmental bodies having jurisdiction over the design or construction of the Project.

13.2. Limitation and Assignment

13.2.1. The Owner and the CM each binds itself, its successors, assigns and legal representatives to the terms of this Agreement.

13.2.2. Neither the Owner nor the CM shall assign or transfer its interest in this Agreement without the written consent of the other, except that the CM may, without approval of the Owner, assign accounts receivable to a commercial bank for securing loans.

13.3. Governing Law

13.3.1. This Agreement shall, unless otherwise provided, be governed by the law of the state where the Project is located.

13.4. Extent of Agreement



13.4.1. This Agreement constitutes the entire agreement between the parties and incorporates all prior agreements and understandings in connection with the subject matter hereof. This Agreement may be amended only in writing signed by the party against whom enforcement is sought. Nothing contained in this Agreement is intended to benefit any third party other than the CM as specifically indicated herein. The Contractor, subcontractors, or suppliers are not intended third party beneficiaries of this Agreement.

13.5. Severability

13.5.1. If any portion of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be enforceable without such provisions.

13.6. Meaning of Terms

13.6.1. References made in the singular shall include the plural and the masculine shall include the feminine or the neuter.

13.6.2. The meaning of terms used herein shall be consistent with the definitions expressed in the CMAA Standard Form Agreements, Contracts and General Conditions.

13.7. Notices

13.7.1. Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended or if delivered or sent by registered or certified mail, postage prepaid, addressed as follows:

To the Owner: Click here to enter text.

To the CM: Click here to enter text.



IN WITNESS WHEREOF, the parties have duly executed this Contract as of the date set forth on page 1 hereof.

ATTEST:

Witness:

Witness:

OWNER

By:

Title:

DESIGNER

By:

Title:

