Architectural/Engineering Services for Warwick Public Transit Garage Proj #

Transcription

1 Standard Form of Agreement between Owner and Consultant Agreement made as of the day of in the year 20 Between the Owner: Town of Warwick and the Consultant: for the following Project: Architectural/Engineering Services for Design of the Warwick Public Transit Garage Town Engineer: Tectonic P.O. Box 37, 70 Pleasant Hill Road Mountainville, NY The Project is funded, in part, with a Federal Transit Administration ( FTA ) grant(s) passed through to Owner by the County of Orange, New York ( County ). As such, certain aspects of the Project may require approvals by both Owner and County. Early schematic designs and other design criteria were prepared by a County consultant ( County Consultant ). County Consultant: Cambridge Systematics, Inc. 38 East 32 nd Street New York, New York Construction Manager: HAKS 40 Wall Street, 9 th Floor New York, NY The Owner and Consultant agree as set forth below. Page 1 of 110

2 ARTICLE 1 CONSULTANT S RESPONSIBILITIES 1.1 CONSULTANT S SERVICES The Consultant s services consist of those services performed by the Consultant, Consultant s employees and Consultant s subconsultants as enumerated in Articles 2 and 3 of this Agreement The Consultant s services shall be provided in conjunction with the services of the Town Engineer The Consultant shall provide sufficient organization, personnel and management to carry out the requirements of this Agreement in an expeditious and economical manner consistent with the interests of the Owner The services covered by the Agreement are subject to the time limitations contained in Time is of the essence and the Consultant s services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Consultant or Owner Project Schedule. The Consultant shall diligently render services in accordance with the following schedule, as may be modified from time to time upon written agreement of the Owner and the Consultant. This schedule excludes any approval time per Phase for the Owner to review and comment on documents prepared and includes one week per Phase for the Town Engineer to review and comment on documents prepared..1 PRELIMINARY DESIGN PHASE: Within 30 Consecutive Calendar Days ( ccd ) of the Notice To Proceed ( NTP ) the Consultant will submit 40% Design Plans, 40% Specifications..2 DESIGN DEVELOPMENT PHASE: Within 40 ccd of Approval of the 40% Design Plans, the Consultant will submit 90% Design Plans, 90% Specifications..3 FINAL DESIGN PHASE: Within 20 ccd of Approval of the 90% Construction Documents, the Consultant will submit 100% Construction Plans, 100% Specifications Duties, responsibilities and limitations of authority of the Consultant as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner and the Consultant. ARTICLE 2 SCOPE OF CONSULTANT S BASIC SERVICES 2.1 DEFINITION The Consultant s Basic Services consist of those services described in 2.2 and 2.3. Page 2 of 110

3 2.2 DESIGN PHASES: 40% DESIGN DEVELOPMENT, 90% DESIGN and 100% CONSTRUCTION DOCUMENTS, SERVICES DURING BID PROCUREMENT and SERVICES DURING CONSTRUCTION The Consultant shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. The Consultant shall complete the design of the Warwick Public Transit Garage. The consultant shall utilize the programming requirements for architectural design and engineering for the facility that are included with the RFP as the basis of design The Consultant shall provide a preliminary evaluation of the Owner s program, schedule and construction budget requirements, each in terms of the other The Consultant shall expeditiously review design documents during their development and advise on proposed site use and improvements, selection of materials, building systems and equipment, and methods of Project delivery. The Consultant shall provide recommendations on relative feasibility of construction methods, availability of materials and labor, time requirements for procurement, installation and construction, and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, and possible economies The Consultant shall advise the Owner and the Town Engineer if it appears that the Construction Cost may exceed the latest approved Project budget and make recommendations for corrective action The Consultant shall include provisions in the Contract Documents for temporary Project facilities and equipment, materials and services for common use of the Contractor. The Consultant shall verify that such arrangements and the Construction Manager s and Contractors' responsibilities with regard to common facilities, equipment materials and services are included in the proposed Contract Documents A Project Labor Agreement was executed for this Project and there will be only one contract The Consultant shall assist the Owner in obtaining information regarding applicable requirements for equal opportunity programs for inclusion in the Contract Documents The Consultant shall prepare the Construction Contract and obtain approval of the plans from the Town of Warwick Building Department The Consultant shall assist the Owner in obtaining building permits and special permits for permanent improvements, except for permits required to be obtained directly by various Contractors. The Consultant shall assist the Owner and Town Engineer in connection with the Owner s responsibility for filing documents required for the approvals of governmental authorities having jurisdiction over the Project. 2.3 SERVICES DURING BID PROCUREMENT AND CONSTRUCTION Page 3 of 110

4 2.3.1 The Proc urement Phase o n the Project shall begin when the Construction Contract is advertised for bids by the Town. The Co nsultant shall provide the below listed services during the Procureme nt Phase assist HAKS in preparing responses to technical questions received from contractors during the procurement process. HAKS shall prepare Addenda for issuance by the Town; Attend the Pre-Bid Conference and walkthrough to familiarize potential bidders with the project; Provide assistance in answering questions from prospective bidders relative to the bid documents; The Construction Phase for the Project will commence with the award of the Construction Contract and, together with the Consultant s obligation to provide Basic Services under the Agreement, will end when the Certificate of Occupancy for the new building is obtained. The Consultant shall provide the below listed services during construction: attend the Pre-Construction Meeting; attend Jobsite Progress Meetings as required. Included in the scope is attendance at four (4) progress meetings with the Contractor; perform Mock Up I ns pectio ns. Attend Mock Up I ns pectio ns o f project component s a s nece ssary d ur ing t he pro ject. Inspect ion s ha ll include techn ical assistance by t he Co nsultant to H AKS who will write t he pu nc h l ist for contractor correctio n. I ns pect t he following Mock Ups: Exterior Masonry Mock Up a n d Metal Wall/Roof Panel Mock Up attend Final Project Walk Through Inspection and provide technical assistance to HAKS who will prepare the final Punch List provide Final Sign Off for all work required to obtain the Certificate of Occupancy for the new building. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL The services described in Article 3 are not included in Basic Services and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The Additional Services described under shall only be provided if authorized or confirmed in writing by the Owner. Page 4 of 110

5 3.1.2 The following shall be considered Additional Services:.1 Providing services required because of significant changes in the Project including, but not limited to, changes in size, quality, complexity or the Owner s schedule..2 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work..4 Providing services relative to future facilities, systems and equipment not specified in this Agreement..5 Providing any other services not otherwise included in this Agreement. ARTICLE 4 OWNER S RESPONSIBILTIES 4.1 The Owner shall provide full information regarding requirements for the Project, including a program which shall set forth the Owner s objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems, and site requirements. 4.2 The Owner shall establish and update an overall budget for the Project based on consultation with HAKS and the Town Engineer, which shall include the Construction Cost, the Owner s other costs and reasonable contingencies related to all of these costs. 4.3 The Owner shall designate a representative authorized to act on the Owner s behalf with respect to the Project. The Owner, or such authorized representative, shall render decisions in a timely manner pertaining to documents submitted by the Consultant in order to avoid unreasonable delay in the orderly and sequential progress of the Consultant s services. 4.4 The Consultant shall not be responsible for actions taken by the Town Engineer or the County Consultant. 4.5 The Owner shall furnish all legal, accounting and insurance counseling services as may be required by the Owner for the Owner at any time for the Project, including auditing services the Owner may require to verify the Contractors Applications for Payment or to ascertain how or for what purposes the Contractors have used the money paid by or on behalf of the Owner. 4.6 The Owner shall furnish the Consultant with a sufficient quantity of Contract Documents. One copy of Instruments of Services requiring review by the Consultant shall be provided to Consultant. Revised Contract Documents, or portions thereof, shall be provided as necessary under the same limitations. Such necessary additional copies shall be provided by the Town Engineer or Construction Manager, as applicable, at the Owner s expense. Page 5 of 110

6 4.7 The services, information and reports required by 4.4 through 4.6 shall be furnished at the Owner s expense, and the Consultant shall be entitled to rely upon the accuracy and completeness thereof. However, Owner shall not be liable in law or in equity for Consultant s reliance on any services, information, surveys or reports prepared by Consultant or Consultant s consultants and provided by Consultant to Owner for this Project under separate contract or agreement. 4.8 Prompt written notice shall be given by the Owner to the Consultant and the Town Engineer if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.9 The Owner reserves the right to perform construction and operations related to the Project with the Owner s own forces, and to award contracts in connection with the Project which are not part of the Consultant s responsibilities under this Agreement. The Consultant shall notify the Owner if any such independent action will interfere with the Consultant s ability to perform the Consultant s responsibilities under this Agreement Information or services under the Owner s control shall be furnished by the Owner with reasonable promptness to avoid delay in the orderly progress of the Consultant s services and the progress of the Work. ARTICLE 5 CONSTRUCTION COST 5.1 DEFINITION The Construction Cost (labor, materials, contractor s profit, and contingency) of the Project Phases specified in this Agreement should stay within a budget of $2,100, The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project and approved by Owner within the budget set forth in The Construction Cost shall include the cost at current lawful market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for, plus a reasonable allowance for the Contractor s labor, materials, overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction Construction Cost does not include the compensation of the Town Engineer, the Town Engineer s consultants, the County Consultant, the Consultant and the Consultant s consultants, the costs of the land, rights-of-way, financing, furniture, technology, permitting or other costs which are the responsibility of the Owner as provided in Article RESPONSIBILITY FOR CONSTRUCTION COST Evaluations of the Owner s Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the C o n s t r u c t i o n M a n a g e r represent Page 6 of 110

7 the C o n s t r u c t i o n M a n a g e r s best judgment as a person or entity familiar with the construction industry. It is recognized, however, that neither the Consultant, the Construction Manager nor the Owner has control over the cost of labor, materials or equipment, over Contractor s methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Consultant cannot and does not warrant or represent that bids or negotiated prices will not vary from the Project budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by HAKS If the fixed limit of Construction Cost set forth in is exceeded by the sum of the lowest bona fide bid or negotiated proposal, the Owner shall, at the Owner s sole discretion:.1 give written approval of an increase in such fixed limit:.2 authorize rebidding or renegotiating of the Project within a reasonable time;.3 if the Project is abandoned, terminate this Agreement in accordance with Article 8, or.4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost If the Owner chooses to proceed under , the Consultant and the Town Engineer, without additional charge, shall cooperate as necessary to bring the Construction Cost within the fixed limit if established as a condition of this Agreement. The Consultant shall be entitled to no additional fee for this service, however, Reimbursable Expenses as set forth in 11.2, if incurred shall be compensated. ARTICLE 6 CONSTRUCTION SUPPORT ACTIVITIES 6.1 Construction support activities shall be performed by the Consultant as required under 2.3 which are included in the A/E services Contract in accordance with the Payment Schedule under Article Reimbursable Expenses listed in Schedule B for construction support activities may be subject to trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment which shall accrue to the Owner, and the Consultant shall make provisions so that they can be secured. ARTICLE 7 OWNERHSHIP AND USE OF THE TOWN ENGINEER, COUNTY CONSULTANT, AND CONTRACTOR S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 7.1 The Drawings, Specifications and other documents prepared by the Town Engineer, the County Consultant, and the Consultant, are Instruments of Service through which the Work to be executed by the Contractor is described. The Consultant may retain one record set. The Consultant shall not own or claim a copyright in the Instruments of Service prepared by the Town Engineer and the County Consultant. All copies of them, except the one record set the Consultant, the Town Engineer, and the Contractor is entitled to retain, shall be returned or suitably accounted for to the Owner, on request, upon completion of the Project. The Instruments of Service prepared by the Town Engineer, the County Page 7 of 110

8 Consultant, and copies thereof furnished to the Consultant, are for use solely with respect to this Project. They are not to be used by the Consultant on other projects of for additions to this Project outside the scope of the Work without the specific written consent of the Owner and the Town Engineer and the County Consultant as applicable. The Consultant is granted a limited license to use and reproduce applicable portions of the Instruments of Service prepared by the Town Engineer and the County Consultant, appropriate to and for use in the performance of the Consultant s services under this Agreement. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of copyright or other reserved rights as applicable. ARTICLE 8 TERMINATION, SUSPENSION OR ABANDONMENT 8.1 This Agreement may be terminated by the Owner upon not less than seven (7) days written notice should the Consultant fail substantially to perform in accordance with the terms of this Agreement. 8.2 This Agreement may be terminated by the Owner upon not less than seven (7) days written notice to the Consultant in the event that the Project is permanently abandoned. 8.3 In the event of termination not the fault of the Consultant, the Consultant shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Any time during the effectiveness of this Agreement, the Owner shall have the right, upon thirty (30) days written notice to the Consultant, to terminate this Agreement in whole or in part or to suspend or to abandon all or any part of the Project. In the event of such termination, suspension or abandonment, the Owner shall pay the Consultant, pursuant to 12.4, after the Consultant submits a bill therefore, all amounts due in accordance with this Agreement through the date of termination, suspension or abandonment, provided the Consultant shall have submitted to the Owner all deliverables pertaining to the portions of the Project which are terminated, suspended or abandoned and provided further, that Consultant shall have performed all its obligations under this Agreement to the date of termination, suspension or abandonment. 8.5 If the Project is suspended for more than six (6) months, the Consultant s compensation shall be equitably adjusted. 8.6 If payment for undisputed services rendered or reimbursable expenses incurred is not received within sixty (60) days of the receipt of such invoice, the Consultant has the right to stop work, if Owner fails to cure such delinquency after the Consultant has provided written notice to Owner, advising Owner that it has fifteen (15) days from the receipt of such notice to cure. 8.7 Termination, suspension or abandonment of the Project, in whole or in part, shall not give rise to any cause of action against the Owner for damages or extra remuneration beyond that described herein. 8.8 Termination Expenses are in addition to compensation for Basic and Additional Services, and include expenses which are directly attributable to termination for which the Consultant is not Page 8 of 110

9 otherwise compensated. Termination Expenses shall be computed as a percentage of the total compensation for Basic Services and Additional Services earned to the time of termination, as follows: Twenty (20) percent of the total compensation for Basic and Additional Services earned to date for that Project Phase if termination occurs before or during the Schematic Design Phase of the applicable Project Phase; or Ten (10) percent of the total compensation for Basic and Additional Services earned to date for that Project Phase if termination occurs during the Design Development Phase of the applicable Project Phase; or Five (5) percent of the total compensation for Basic and Additional Services earned to date if termination occurs during any subsequent Project Phase. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Consultant shall render all services under this Agreement in accordance with applicable provisions of all federal, state and local laws, rules and regulations as are in effect at the times such services are rendered. Any and all disputes involving this Agreement, including the breach or alleged breach thereof, may not be submitted to arbitration unless specifically agreed thereto in writing by the Supervisor of the Town of Warwick on behalf of Owner, but must instead only be heard in Supreme Court of the State of New York, with venue in Orange County, or if appropriate, in the Federal District Court with venue in the Southern District of New York, White Plains Division. 9.2 Terms in this Agreement shall have the same meaning as those in the General Conditions incorporated in Attachment B. 9.3 For causes of action between the parties to this Agreement pertaining to acts or failures to act, the applicable statutes of limitations shall commence to run as per New York Civil Practice Laws and Rules. 9.4 To the extent damages are covered by property insurance during construction, the Owner and Consultant waive all rights against each other and against the Contractors, Town Engineer, the County Consultant, consultants, agents, employees, persons or entities awarded separate contracts administered under the Owner s own forces for damages, except such rights as they may have to the proceed of such insurance. Whether or not damages are covered within the meaning of this paragraph shall be based upon a final determination by the applicable insurance carrier, or upon the exhaustion of the remedies from such determination that are available to and pursued by the insured. Until such final determination, the parties preserve and do not waive any rights against each other for such damages, and may pursue any remedies available to them in order to preserve and protect such rights, including, but not limited to, filing claims, notices, legal actions or proceedings. 9.5 The Owner and Consultant, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Consultant shall assign this Agreement without the written consent of the other. Page 9 of 110

10 9.6 This Agreement represents the entire and integrated agreement between the Owner and Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Consultant. 9.7 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Consultant. 9.8 Unless otherwise provided in this Agreement, the Consultant and the Consultant s consultants shall have no responsibility for the discovery, presence, handling removal or disposal of or exposure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances. This provision shall not limit Consultant s or Consultant s consultants liability for mishandling of any such hazardous materials by the Consultant or Consultant s Consultants or their directors, officers, agents, employees, consultants or other representatives. 9.9 Independent Contractor Status: In performing the services and/or supplying goods and incurring expenses under this Agreement, Consultant shall operate as, and have the status of, an independent contractor and shall not act as agent, or be an agent, of the Owner. As an independent contractor, Consultant shall be solely responsible for determining the means and methods of performing the services and/or supplying the goods and shall have complete charge and responsibility for Consultant s personnel engaged in the performance of the same. In accordance with such status as independent contractor, Consultant covenants and agrees that neither it nor its employees or agents will hold themselves out as, nor claim to be officers or employees of the Owner, or of any department, agency or unit thereof by reason hereof, and that they will not, by reason hereof, make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the Owner including, but not limited to, Worker s Compensation coverage, health coverage, Unemployment Insurance Benefits, Social Security coverage or employee retirement membership or credit Non-assignment; Inability to Subcontract: Consultant shall not assign any of its rights, interest or obligations under this Agreement, or subcontract any of the services to be performed by it under this Agreement, without the prior express written consent of the Owner. Any such subcontract, assignment, transfer, conveyance, or other disposition without such prior consent shall be void and any Services provided thereunder will not be compensated. Any subcontract or assignment properly consented to by the Owner shall be subject to all of the terms and conditions of this Agreement. Failure of Consultant to obtain any required consent to any assignment, shall be grounds for termination for cause, at the option of the Owner and if so terminated, the Owner shall thereupon be relieved and discharged from any further liability and obligation to Consultant, its assignees or transferees, and all monies that may become due under this Agreement shall be forfeited to the Owner except so much thereof as may be necessary to pay Consultant s employees for past service. The provisions of this clause shall not hinder, prevent, or affect any assignment by Consultant for the benefit of its creditors made pursuant to the laws of the State of New York. This agreement may be assigned by the Owner to any corporation, agency, municipality or instrumentality having authority to accept such assignment. Page 10 of 110

11 9.11 Order of Precedence: Any inconsistencies in the Contract Documents shall be resolved by giving precedence in the following order: Federal Contract Clauses (Attachment D) Federal Transit Administration Certifications and Assurances (Attachment E) New York State Contract Clauses (Attachment F) This Agreement Project Schedule (Attachment A) The General Conditions (Attachment B) Direct Personal Rates (Schedule A) Fee Summary (Attachment C) Reimbursable Expenses (Schedule B) ARTICLE 10 INSURANCE 10.1 INSURANCE Insurance: For all of the services set forth herein and as hereinafter amended, Consultant shall maintain or cause to be maintained, in full force and effect during the term of this Agreement, at its expense, Worker s Compensation insurance, liability insurance covering personal injury and property damage, and other insurance with stated minimum coverages as listed below. Such policies are to be in the broadest form available on usual commercial terms and shall be written by insurers with an A.M. Best rating of A- or better who have been fully informed as to the nature of the services to be performed. Except for Worker s Compensation and professional liability, the Owner shall be an additional insured on all such policies with the understanding that any obligations imposed upon the insured (including, without limitation, the liability to pay premiums) shall be the sole obligation of Consultant and not those of the Owner. Notwithstanding anything to the contrary in this Agreement, Consultant irrevocably waives all claims against the Owner for all losses, damages, claims or expenses resulting from risks which have actually been insured. The provisions of insurance by Consultant shall not in any way limit Consultant s liability under this Agreement. Page 11 of 110

12 Types and Limits of Coverage: Type of Coverage Worker s Compensation Disability Employer s liability or similar insurance Business Automobile liability with Bodily Injury and Property damage Comprehensive General Liability including Broad Form Contractual Liability, Bodily Injury, Property Damage, Products/Completed Operations and Fire Legal Liability Excess Liability Limit of Coverage Statutory Statutory $1,000,000 each occurrence $1,000,000 aggregate $1,000,000 each occurrence $1,000,000 aggregate $1,000,000 each occurrence $4,000,000 aggregate Professional Liability: $2,000,000 aggregate and $1,000,000 each occurrence Owners & Contractors Protective Liability Builders Risk Insurance All Risk Policy Environmental Impairment Liability 4,000,000 each occurrence $2,000,000 aggregate $1,000,000 each occurrence To be provided by Owner. In an amount not less than $1,000,000 for bodily injury, property damage and environmental remediation Policies: Consultant shall attach to this Agreement, certificates of insurance evidencing Consultant s compliance with these requirements. Each policy of insurance shall contain clauses to the effect that (i) such insurance shall be primary without right of contribution of any other insurance carried by or on behalf of the Owner with respect to its interests, (ii) it shall not be cancelled, including, without limitation, for non-payment of premium, or materially amended, without fifteen (15) days prior written notice to the Owner, directed to the Town Supervisor on behalf of the Owner and the Owner Page 12 of 110

13 shall have the option to pay any necessary premiums to keep such insurance in effect and charge the cost back to Consultant Claims Made Policies: To the extent it is commercially available, each policy of insurance shall be provided on an occurrence basis. If any insurance is not commercially available on an occurrence basis, it shall be provided on a claims made basis, and all such claims made policies shall provide that:.1 Policy retroactive dates coincide with or precede Consultant s start of the performance of this Agreement (including subsequent policies purchased as renewals or replacements);.2 Consultant will maintain similar insurance for at least six (6) years following final acceptance of the services;.3 If the insurance is terminated for any reason, Consultant agrees to purchase a two (2) or three (3) year extended reporting provision, at the Owner's discretion, to report claims arising from the services performed or goods provided for the Owner; and.4 Immediate notice shall be given to the Owner through the Commissioner of Public Works and the Owner s Risk Management Division of circumstances or incidents that might give rise to future claims with respect to the services performed under this Agreement. ARTICLE 11 PAYMENTS TO THE CONSULTANT 11.1 CATEGORIES OF PAYMENTS Payments to the Consultant for Basic Services shall be made for each Design Phase upon approval of deliverables at the following percentages of the Total Fee: 40% DESIGN PHASE: % of Total Design Fee 90% DESIGN PHASE: % of Total Design Fee 100% DESIGN PHASE:...35% of Total Design Fee SERVICES DURING PROCUREMENT AND CONSTRUCTION:....5% of Total Design Fee 11.2 DIRECT PERSONNEL EXPENSES Direct Personnel Expenses are defined as the direct salaries of the Consultant s personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. The Consultant s current Direct Personnel Expenses for its employees who may, at some time during the Page 13 of 110

14 Project, become engaged in performing work directly for the Project are set forth in the attached and incorporated Schedule A. Direct Personnel Expenses are chargeable to the Project, at zero (0) percent markup, in accordance with applicable rates set forth in Schedule A only when the Consultant s employees are directly engaged in performing work for the Project during Construction Phase Services up to the not-to-exceed amounts in Schedule A and Attachment C and for Additional Services, as applicable REIMBURSABLE EXPENSES Reimbursable Expenses include expenses incurred by the Consultant and the Consultant s employees and consultants in the interest of the Project, including but not limited to items identified in this 11.3 and in the attached and incorporated Schedule B..1 For site visits or travel not included in 2.3 SERVICES DURING BID PROCUREMENT AND CONSTRUCTION, expense of transportation in connection with the Project, expenses in connection with mileage for site visits at the IRS published rate at the time of travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project..2 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates..3 Expense of additional insurance coverage or limits requested by the Owner in excess of that normally commercially required of the Consultant for projects of similar scope..4 Expense of tests, inspections and reports incurred under DESIGN FEES Design Fees shall include fees specified in and the attached and incorporated Attachment C but in the event of conflict shall control PAYMENTS ON ACCOUNT OF BASIC SERVICES An initial payment as set forth in 12.1, if any, is the minimum payment under this Agreement Payments for Basic Services shall be made upon approval of deliverables for each phase as specified in Omit When any portions or Phases of the Project are deleted or otherwise not constructed, compensation for those portions or Phases of the Project shall be payable to the extent services are Page 14 of 110

15 performed on those portions or Phases, in accordance with the schedule set forth in the latest approved estimate of such portions or Phases of the Project Consultant must pay all its subcontractors for satisfactory performance of their contracts no later than thirty (30) days of receipt of payment from the Owner PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES Payments on account of the Consultant s Additional Services shall be invoiced monthly and due within thirty (30) days of approved invoice PAYMENTS WITHHELD No deductions shall be made from the Consultant s compensation on account of penalty, liquidated damages or other sums withheld from payments to Contractors, or on account of the cost of changes in Work other than those for which the Consultant has been found to be liable CONSULTANT S ACCOUNTING RECORDS Consultant agrees to maintain separate and accurate books, records, documents and other evidence and accounting procedures and practices which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement. Consultant agrees to retain all books, records and other documents relevant to this Agreement for six (6) years after the final payment or termination of this Agreement, whichever later occurs. Consultant shall submit any and all documentation and justification in support of expenditures or fees under this Agreement as may be required by the Owner so that it may evaluate the reasonableness of the charges, and Consultant shall make its records available to the Owner upon request. All books, invoices, records, reports, cancelled checks and any and all similar material may be subject to periodic inspection, review and audit by the Owner, the State of New York, the federal government, and/or other persons duly authorized by the Owner. Such audits may include examination and review of the source and application of all funds whether from the Owner and the state or federal governments, private sources or otherwise. Consultant shall not be entitled to any interim or final payment under this Agreement if any audit requirements and/or requests have not been satisfactorily met. ARTICLE 12 COMPENSATION OF CONSULTANT The Owner shall compensate the Consultant as follows: 12.1 INITIAL PAYMENT - AN INTIAL PAYMENT of NONE ($0) shall be made upon execution of this Agreement and credited to the owner s account at final payment BASIC COMPENSATION Page 15 of 110

16 FOR BASIC SERVICES, as described in Article 2, compensation, including Direct Personal Expenses, Reimbursable Expenses and Design fees, as applicable, shall be computed in accordance with this Compensation for Direct Personnel Expenses The cost of Direct Personnel Expenses, as described in 11.2, for:.1 all Design Services are included in the Total Design Fee as per Omit.3 all Additional Services shall be invoiced as incurred on a monthly basis in accordance with Compensation for Reimbursable Expenses The cost of Reimbursable Expenses, as described in 11.3, for:.1 all Design Phase Services is included in the Total Design Fee as per all Construction Phase Services shall be invoiced as incurred on a monthly basis at the rates specified in Schedule B with the total of all Reimbursable Expenses for Design Services during Construction not to exceed Number Dollars ($000.00)..3 all Additional Services shall be invoiced as incurred on a monthly basis in accordance with Compensation for Design Fees.1 Payments to the Consultant for Basic Services shall be made for each Design Phase upon approval of deliverables at the following amounts:.a 40% DESIGN PHASE: (30% of Total Design Fee).. $.b 90% DESIGN PHASE: (30% of Total Design Fee)..$.c 100% DESIGN PHASE: (35% of Total Design Fee).$.d SERVICES DURING PROCUREMENT and CONSTRUCTION PHASE: (5% of Total Design Fee)...$.e Total Design Fee: (Sum of 1 thru 4 above)....$.2 All Additional Services shall be invoiced as incurred on a monthly basis in accordance with Page 16 of 110

17 .3 Reimbursable Expenses for A d d i t i o n a l S e r v i c e s shall not-to-exceed the amounts specified in and shall be paid as follows:.a all Additional Services shall be invoiced w i t h t h e d e s i g n p h a s e i n v o i c e s in accordance with COMPENSATION FOR ADDITIONAL SERVICES FOR ADDITIONAL SERVICES OF THE CONSULTANT, as described in Article 3 compensation shall be computed as follows: At Consultant s agreed upon Reimbursable Expenses as per GUARANTEED MAXIMUM PRICE Notwithstanding the foregoing, the total of Reimbursable Expenses (Schedule B) and Total Design Fee is Number Dollars ($000.00), which shall be the guaranteed maximum price of this contract unless modified by written change order executed by both parties. This Agreement entered into as of the day and year first written above. Architectural/Engineering Services for the Warwick Public Transit Garage OWNER TOWN OF WARWICK CONSULTANT Michael Sweeton, Town Supervisor Page 17 of 110

18 ATTACHMENT A Project Schedule ATTACHMENT B General Conditions ATTACHMENT C Fee Summary ATTACHMENT D Federal Contract Clauses ATTACHMENT E FTA Certifications and Assurances ATTACHMENT F NYS Contract Clauses SCHEDULE A Direct Personal Rates SCHEDULE B Reimbursable Expenses Page 18 of 110

19 ATIACHMENT A Project Schedule Page 19 of 110

20 ATTACHMENT B See attached and incorporated General Conditions entitled "Warwick Public Transit Garage Section 07000, General Conditions ". Page 20 of 110

21 ATTACHMENT C Fee Summary. Page 21 of 110

22 ATTACH MENT D Federal Contract Clauses Page 22 of 110

23 ATIACH MENT E Federal Transit Ad mi nistration Certifications and Assura nces Page 23 of 110

24 ATTACHMENT F New York State Contract Clauses Page 24 of 110

25 SCHEDULE A Direct Personnel Rates Page 25 of 110

26 SCH EDU LE B Reimbursable Expenses 1. Express Mail (reimbursable at cost without markup) 2. Authorized travel to location other than project site or Construction Manager's facility (Reimbursable at cost without markup, provide supporting documentation) Page 26 of 110

27 ATTACHMENT B Warwick Public Transit Garage SECTION GENERAL CONDITIONS ARTICLE 1 GENERAL PROVISIONS DEFINITIONS EXECUTION, CORRELATION AND INTENT RULES OF INTERPRETATION AND ORDER OF PRECEDENCE CAPITALIZATION INSTRUMENTS OF SERVICE 33 ARTICLE 2 OWNER GENERAL INFORMATION AND SERVICES REQUIRED OF THE OWNER OWNER'S RIGHT TO STOP THE WORK OWNER'S RIGHT TO CARRY OUT THE WORK 36 ARTICLE 3 CONTRACTOR GENERAL REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR CONTRACTOR'S SUPERVISION AND CONSTRUCTION PROCEDURES LABOR AND MATERIALS WARRANTY TAXES PERMITS, FEES AND NOTICES CONTINGENCIES SUPERVISION CONTRACTOR'S CONSTRUCTION SCHEDULES DOCUMENTS AND SAMPLES AT THE SITE SHOP DRAWINGS, PRODUCT DATA AND SAMPLES USE OF SITE CUTTING AND PATCHING CLEANING UP ACCESS TO WORK ROYALTIES, PATENTS AND COPYRIGHTS INDEMNIFICATION AS-BUILT DRAWINGS PROTECTION OF SURFACES, UTILITIES AND STRUCTURES ENVIRONMENTAL REQUIREMENTS REQUESTS FOR INFORMATION TESTS AND INSPECTIONS 58 ARTICLE 4 ADMINISTRATION OF THE CONTRACT TOWN ENGINEER & CONSTRUCTION MANAGER ADMINISTRATION OF THE CONTRACT CLAIMS AND DISPUTES RESOLUTION OF CLAIMS AND DISPUTES 66 ARTICLE 5 SUBCONTRACTORS DEFINITIONS AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE Page 27 of 110

28 WORK SUBCONTRACTS RELATIONS CONTINGENT ASSIGNMENT OF SUBCONTRACTS 69 ARTICLE 6 CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS MUTUAL RESPONSIBILITY OWNER'S RIGHT TO CLEAN UP 70 ARTICLE 7 CHANGES IN THE WORK GENERAL CHANGE ORDERS CONSTRUCTION CHANGE DIRECTIVES FIELD ORDERS OMITTED WORK 79 ARTICLE 8 TIME DEFINITIONS PROGRESS AND COMPLETION DELAYS AND EXTENSIONS OF TIME 81 ARTICLE 9 PAYMENTS AND COMPLETION EXECUTORY CLAUSE CONTRACT SUM SCHEDULE OF VALUES APPLICATIONS FOR PAYMENT CERTIFICATES FOR PAYMENT DECISIONS TO WITHHOLD CERTIFICATION PROGRESS PAYMENTS SUBSTANTIAL COMPLETION PARTIAL OCCUPANCY OR USE FINAL COMPLETION AND FINAL PAYMENT BOOKS AND RECORDS RETENTION OF RECORDS AUDIT BY THE OWNER AND OTHERS NO CLAIM AGAINST OFFICERS, AGENTS, OR EMPLOYEES SET-OFF RIGHTS AND BACK CHARGES 96 ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY SAFETY PRECAUTIONS AND PROGRAMS SAFETY OF PERSONS AND PROPERTY EMERGENCIES 100 ARTICLE 11 INSURANCE AND BONDING INSURANCE BONDING 103 ARTICLE 12 UNCOVERING AND CORRECTION OF WORK UNCOVERING OF WORK CORRECTION OF WORK ACCEPTANCE OF NONCONFORMING WORK 106 ARTICLE 13 TERMINATION OR SUSPENSION OF THE CONTRACT TERMINATION BY THE CONTRACTOR TERMINATION BY THE OWNER FOR CAUSE SUSPENSION BY THE OWNER FOR CONVENIENCE TERMINATION BY THE OWNER FOR CONVENIENCE 110 Page 28 of 110

29 ARTICLE 1 GENERAL PROVISIONS 1.1 DEFINITIONS The "Contract" consists of the Contract Documents. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Owner and the Construction Manager, (2) between the Owner and a Subcontractor or Sub-subcontractor, (3) between the Construction Manager and a Contractor, (4) between Construction Manager and Town Engineer; (5) between any persons or entities other than the Owner and Contractor. The Construction Manager and Town Engineer shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Construction Manager's duties The Contract Documents consist of the Agreement between Owner and Contractor ("Agreement"), General Conditions, Supplemental Conditions, Drawings, Specifications, Notice/Invitation to Bidders, Instructions to Bidders, Sample Forms, the Contractor's Bid, Addenda issued prior to execution of the Contract, other documents listed in the Contract Documents (unless otherwise excluded) and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Construction Manager. Shop Drawings and Submittals are not Contract Documents The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors The Project Manual is the volume usually assembled for the Work which may include, but not be limited to, the Notice/Invitation to Bidders, Instructions to Bidders, unexecuted Agreement, blank sample forms, General and Supplemental Conditions and Specifications. Page 29 of 110

30 1.1.6 The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services The "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. 1.2 EXECUTION, CORRELATION AND INTENT The Contract Documents shall be signed by the Owner and Contractor as provided in the Agreement. If either the Owner or Contractor or both do not sign all the Contract Documents, the Construction Manager shall identify such unsigned Documents upon request Execution of the Contract by the Contractor is a representation that the Contractor has visited the Site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, if Work is shown only on one but not on the other, the Contractor shall perform the Work as though fully described on both, consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. Page 30 of 110

31 1.3 RULES OF INTERPRETATION AND ORDER OF PRECEDENCE In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement The following rules of interpretation apply to this Contract and shall take priority over the Order of Precedence rule set forth in below. If application of any of these rules of interpretation resolves the inconsistency, ambiguity, or discrepancy, it shall not be necessary to apply the Order of Precedence rule:.1 When one portion of the Contract documents places upon the Contractor more detailed or more stringent requirements than another portion of the Contract documents, the more detailed and more stringent requirement applies. If there is any disagreement as to which requirement is more detailed or more stringent, the requirement that is more costly to perform shall be required unless agreed otherwise between the parties..2 In instances where materials and installation techniques or requirements are introduced by a Contractor's submittal that is accepted by the Owner, if there are differences between or among the Contract, the manufacturer's written requirements, the Submittals, and relevant code and standards, the most stringent requirements shall apply. The Contractor shall perform the Work in accordance with the most stringent requirements at no increase in Contract cost or change to Contract schedule..3 In the event of a discrepancy between a drawing and figures written thereon, the figures govern over the scaled dimensions unless they are obviously incorrect..4 Anything mentioned in the Specifications and not shown in the Drawings or shown in the Drawings and not mentioned in the Specifications shall be of like effect as if shown in or mentioned in both. Anything addressed in a Drawing or Drawings of one trade discipline and not addressed in a Drawing or Drawings of another trade discipline shall be of like effect as if shown or mentioned in both..5 All Contract Documents and subsequently issued Modifications are essential parts of this Contract. A requirement included in one is binding as if included in all. Except as stated below, the following Order of Precedence shall be used to resolve any inconsistencies, conflicts, discrepancies, errors, or omissions between or among the documents comprising the Contract, first taking precedence:.1 Federal Contract Clauses.2 Federal Transit Administration Certifications and Assurances.3 New York State Contract Clauses Page 31 of 110