Loading...
HomeMy WebLinkAbout04-5035ERDMAN ANTHONY & ASSOCIATES, INC., Plaintiff V. BINK ARCHITECTURAL PARTNERSHIP, INC. Defendant TO: Bink Architectural Partnership, Inc. CIO Harrison F. Bink, AIA 133 South 32nd Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO.: b4 - 5035 CwL?rriEa? JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aquf en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demands o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 ERDMAN ANTHONY & ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW V. 4 SC?3S l.' ?,? BINK ARCHITECTURAL PARTNERSHIP, INC. NO.: Defendant JURY TRIAL DEMANDED COMPLAINT Plaintiff Erdman Anthony and Associates, Inc., by and through it's counsel, Marshall, Dennehey, Warner Coleman and Goggin, assert the following complaint against Defendant Bink Architectural Partnership Inc.: PARTIES 1. Plaintiff, Erdman Anthony and Associates, Inc. (hereinafter "Erdman Anthony") is a Pennsylvania Corporation with a principle place of business at 3 Crossgate Drive, Suite 100, Mechanicsburg, Pennsylvania 17050-2459. 2. Defendant, Bink Architectural Partnership, Inc. (hereinafter "Birk") is a fictitious name registered with the Pennsylvania Department of State Bureau of Corporations, with a principle place of business at 133 South 32"d Street Camp Hill, Pennsylvania 17011. FACTS 3. On or about June 10, 2002 Defendant entered into a contract with Erdman Anthony for building systems design, structural systems design and civil engineering design regarding project number DGS573-24, construction of a new headquarters/conference facility for the Department of Corrections, Cumberland County, Pennsylvania. (A copy of the contract is attached hereto as Exhibit A.) 4. Pursuant to the terms of the contract, Erdman Anthony is obligated to provide defendants with it's services as outlined in the contract. 5. According to the terms of the contract, Defendant is obligated to pay Erdman Anthony for the services it performed under the contract in accordance with the rates and charges set forth in the contract. 6. Pursuant to the contract, invoices for Erdman Anthony services were submitted on a monthly basis to defendant. 7, Pursuant to the terms of the contract, Defendant had the right to withhold payment based on errors and discrepancies in the invoice by identifying said discrepancies and errors in writing to Erdman Anthony within fourteen days of its receipt of the invoice. Pursuant to the contract, Defendant waived it's right to withhold payment based on any errors and discrepancies in the invoices if it did not identify the errors within fourteen days. 8. Defendant never provided Erdman Anthony in writing or otherwise identified any errors or discrepancies with its invoices. 9. In accordance with the contract Erdman Anthony is entitled to interest on any invoice balances remaining unpaid for ninety days after payment is received by Bink from the Department of General Services. 10. Erdman Anthony has invoiced the Defendant in accordance with the terms of the contract for a sum totaling $538,525.89. 11. Upon information and belief Defendant has invoiced Erdman Anthony's invoices to the Department of General Services and has been paid for the same. 12. Defendant has made partial payments in the amount of $187,334.08. COUNT I - BREACH OF CONTRACT 13. Paragraphs 1 through 12 of plaintiffs complaint are incorporated herein by reference set forth at length. 14. Defendant entered into a contract with Erdman Anthony for project number DGS573-24 construction of a new headquarters/conference facility for the Department of Corrections, Cumberland County, Pennsylvania. 15. Defendant has materially breached the contract by failing to pay Erdman Anthony $351,191.81 for the services it rendered pursuant to the contract. 16. Erdman Anthony has performed all of its duties and obligations under the contract. 17. Erdman Anthony has sustained damages as a result of the defendant's breach. Wherefore, Plaintiff respectfully requests that Judgment be entered in its favor and in amount in excess of the compulsory arbitration limit in Cumberland County, together with such other as this court deems appropriate. COUNT II - QUANTUM MERUIT 18. Paragraphs 1 through 12 of Erdman Anthony's complaint is incorporated herein by reference as fully set forth at length. 19. Erdman Anthony has performed professional services for Defendant including business system designs, structural systems designs and civil engineering design. 20. Erdman Anthony has not been paid by defendant for the services it rendered. 21. Upon information and belief, Defendant has invoiced the Department of General Services for the work performed by Erdman Anthony and in fact has been paid by the Department of General Services for Erdman Anthony's work. 22. It would be inequitable, under the forgoing circumstances, for defendant to retain the benefits of Erdman Anthony's services without paying for the value of the benefits confirmed. 23. Based on the foregoing, Erdman Anthony seeks restitution from the defendant. Wherefore, Plaintiff, Erdman Anthony and Associates Inc. respectfully requests that judgment be entered in it's favor, in an amount in excess of the compulsory arbitration limit in Cumberland County, together with such relief as the court deems appropriate. Respectfully Submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN DATE: l d ?/6? f BY: _ DO 2I)L. CARMELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 VERIFICATION I hereby affirm that the following facts are correct: Bink Architectural Partnership, Inc. is a Defendant in the foregoing action and I am authorized to execute this Verification on their behalf, The attached Complaint is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Complaint is that of counsel and not of me. I have read the Complaint, and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the contents of the Complaint is that of counsel, I have relied upon counsel in making this Verification. I hereby acknowledge that the facts set forth in the aforesaid Complaint are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. DATE: lO?/`G BY: Vince Weiser Title: Vice President - Office Manager ERDMAN ANTHONY A June 3, 2002 Harrison F. Bink, AIA Bink Architectural Partnership, Inc. 133 South 32nd Street Camp Hill, PA 17011 SUBJECT: Project No. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania Engineering Design Fee Proposal Erdman Anthony Project No. 56970.00 Dear Harrison: We offer this revised engineering design fee proposal for Building Systems Design, Structural Systems Design and Civil Engineering Design for your consideration. This proposal has been revised to incorporate the items discussed at our May 7, 2002 meeting at our office and your subsequent review of May 28, 2002 and June 3, 2002. Proposal Basis This proposal is based o1n?oyur u pd taann}diiinng of the project as follows: • The building is 42&00 fs`quazre fret two or three-story office facility located on Lisburn Road directly across from the existing State Correctional Institution at Camp Hill Administration Building in Lower Allen Township. • The site area is approximately 30 acres as outlined on the attached copy of a drawing received from the Department of General Services on February 11, 2002. • All zoning approvals and requirements for the site have been completed according to information received from the Pennsylvania Department of General Services. Erdman Anthony will provide additional zoning-related work if required as an additional service to be approved by the Pennsylvania Department of General Services. • The facility is based on a document entitled "Pennsylvania Department of Corrections, Headquarters Building, General Program and Performance Standards, Revised as of June 12, 2001". • Meetings (We define site visits and meetings as one person per visit and describe quantity of site visits and meetings in the applicable parts of the proposal.) • Drawings will be developed on AutoCad 2000. P%Ak-1 Employee Owned - Quality Driven 3 Crossgate Drive - Suite 100, Mechanicsburg, PA 17050-2459 Telephone 717 766 1741 : Facsimile 717 766 5516 www. erdmananthony. com Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 2 of 14 • Architect will furnish us with AutoCad compatible building backgrounds including floor plans, sections and elevations. • Drawings delivered to Architect on bond paper with a single copy for each required submission and final bidding. Architect is responsible for any additional copies required. Final set of bidding drawings will be signed and sealed as required. • Specifications delivered on bond paper in CSI format to conform to Architect's format. • Printing of any drawings and specifications beyond single copy for reviews and final bidding document is not included. • This proposal incorporates the Professional Agreement dated April 10, 2002, between Bink Architectural Partnership, Inc. and the Commonwealth of Pennsylvania Department of General Services, which shall govern in the event of discrepancy in this proposal as basic services. BUILDING SYSTEMS DESIGN GENERAL - BUILDING SYSTEMS Utilities are extended from within the building to a point 5'-0" beyond the exterior walls. Refer to Civil Engineering section of this proposal. We do not include the following items under Building Systems Design Engineering: • Engineering design and documentation for structural engineering. Refer to Structural Design Systems Engineering section of this proposal. • Site Design (Other than site lighting). Refer to Civil Engineering section of this proposal. • Revisions by Architect and/or owner after substantial completion and approval of Final Design Phase. • Telephone and data systems design drawings, specifications and bid package. • Attending or preparing documentation for municipal zoning/planning meetings and PA Department of Labor & Industry meetings and hearings except as authorized and approved as additional services. • PA Department of Labor & Industry submission and review fees and any other regulatory agency approval fees and/or meetings. • Presentation graphics. • Hazardous materials consulting. ERDMAN 01 ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 3 of 14 • Professional detailed cost estimate. Standard engineering opinions of probable cost of construction will be prepared for the Sketch, Preliminary and Final Submissions as required by the Department of General Services. • Detailed life cycle cost analysis of proposed and alternate types of systems. • Detailed acoustical analysis of HVAC system and components. We recommend input from an acoustical consultant during design. • Additional meetings with you or your client beyond contractual requirements. • Research and representation on disputed change orders or claims unless the change order is a result of an Erdman Anthony error or omission. DESIGN PHASE - BUILDING SYSTEMS • Attend ten (10) design review meetings with the Architect and Construction Manager for design coordination at the Architect's office or at the project site. • Attend the following contract-mandated meetings with the Department of General Services, including, but not limited to: o Sketch Submission Review o Preliminary Submission Review o Final Submission Review HVAC Systems Recommend types of systems for owner acceptance and design systems to accommodate the proposed building including: • Heating systems • Ventilation systems • Cooling systems • Exhaust systems We will base our design on a packaged rooftop Variable-Air-Volume (VAV) HVAC system. In the event other types of systems are to be considered, we will have to adjust our fee accordingly. Plumbing Systems Recommend types of systems for owner acceptance and design systems to accommodate proposed facilities including: ERDMAN JJ ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 4 of 14 • Hot and cold domestic water systems • Sanitary drainage systems • Grease interceptor system for kitchen • Storm water drainage systems inside the building. Refer to Civil Engineering section of this proposal. Electrical Systems Recommend types of systems for owner acceptance and design systems to accommodate proposed facilities including: • Lighting Systems and Controls • Fire alarm/detection system as required • Power Systems by applicable codes • New Electrical Service • Site Lighting • Security System empty conduit system • Surge Protection System • Telephone System empty conduit • CATV System empty conduit system system • Data System empty conduit system Fire Suppression Systems • Fire protection sprinkler system will be designed in accordance with applicable codes and ordinances. • Chemical fire suppression system utilizing FM200 will be designed for the computer system room. BIDDING PHASE - BUILDING SYSTEMS -? • Attend a total of two (2) Bidding Phase meetings including a pre-bid meeting with potential contractors to gather requests for clarification of bidding documents. • We will respond to requests for clarification of bidding documents. These requests must be from your office. We will not acknowledge or answer any requests for clarification fi-om contractors, specialty contractors, vendors or suppliers unless they are from your office. Our responses to these requests will be in the form of bidding document addenda issued to the 1 potential contractors through your office. J • We will assist you in analyzing bid results and in making a recommendation to the owner for selection of contractors, specialty contractors, vendors and suppliers. ERDMAN no ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 I Page 5 of 14 l CONSTRUCTION PHASE - BUH DING SYSTEMS After the award of construction contracts, we will do the following under our basic fee: • Attend thirty-five (35) Construction Phase meetings at the project site. • Review and comment on required shop-drawing submittals. • Respond to Request for Information (RFI) from Contractors. • Respond to Change Order Requests (COR). We will not comment on accuracy of construction costs provided by Contractors. We will review Change Order Requests that expand the scope of work for the project on a negotiated-fee basis. • Conduct a final punch list review of the project for a total of four (4) meetings. POST CONSTRUCTION PHASE - BUII.DING SYSTEMS • Attend two (2) Post Construction Phase meetings at the project site. ADDITIONAL SERVICES - BUILDING SYSTEMS The following design engineering services are available on a negotiated-fee basis and are not included in our basic design fee: • Telephone Systems Consulting • Data Systems * • CATV Systems • Lightning Protection Systems (UL Master Label) • Building Security Systems • Commissioning • Acoustical Consulting • Security Consulting • Elevator Consulting • Fire and Smoke Protection Consulting • Audio and Video Consulting • Television Special Consulting • Special Lighting Consulting • Food Service Consulting • Medical Systems Consulting • Electrical Load Studies • Fault Current Studies • Secondary Distribution Voltage Studies • Primary Distribution Studies • Impact Statement Studies, Environmental, etc. • Solid Waste Management Studies • Life Cycle Costing * Design engineering beyond that required for an empty conduit system listed previously under Electrical Systems. ERDMAN n ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 6 of 14 STRUCTURAL SYSTEMS DESIGN ENGINEERING GENERAL-STRUCTURAL SYSTEMS Our Structural Engineering Design fee is based upon the following assumptions: • Footing design based on foundation investigations to be completed by geotechnical engineer under a separate contract. • The footings will be spread footings founded on soil or rock. Our price does not include the design of deep foundations such as piles or caissons, grade beams, mat foundations, or other unusual foundations and does not include any site structures such as retaining walls, culverts, bridges, etc. Refer to Civil Engineering section of this proposal. • Architect will provide to Erdman Anthony base floor plans in AutoCad format to use in the preparation of structural systems drawings. DESIGN PHASE - STRUCTURAL SYSTEMS • Attend four (4) design review meetings with the Architect for design coordination at the Architect's office or at the project site. • Design isolated and wall footings, structural steel floor, wall, and roof framing including moment connections, lintels, and miscellaneous related items. • Prepare final structural drawings on Architect's floor plan. • Prepare structural specifications. BIDDING PHASE - STRUCTURAL SYSTEMS • We will attend a pre-bid meeting with potential contractors to gather requests for clarification of bidding documents. • We will respond to requests for clarification of bidding documents. These requests must be from your office. We will not acknowledge or answer any requests for clarification from J contractors, specialty contractors, vendors or suppliers unless they are from your office. Our responses to these requests will be in the form of bidding document addenda issued to the potential contractors through your office. CONSTRUCTION PHASE - STRUCTURAL SYSTEMS After the award of construction contracts, we will do the following under our basic fee: ERDMAN jR ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 I Page 7 of 14 Review and comment on required shop-drawing submittals. Respond to Request for Information (RFI) from Contractors. Respond to Change Order Requests (COR). We will not comment on accuracy of construction costs provided by Contractors. We will review Change Order Requests that expand the scope of work for the project on a negotiated-fee basis. ADDITIONAL SERVICES - STRUCTURAL SYSTEMS We will provide additional services not included in our basic fee based on a fee negotiated at the time. Should unforeseen conditions require the expenditure of more time, we will advise you in • writing of such prior to incurring the additional expense for your authorization to proceed. CIVIL ENGINEERING GENERAL - CIVIL ENGINEERING Our Civil Engineering Design fee is based upon the following Scope of Services: • Building Footprint of approximately 40,000 square feet • 800 car parking area • Approximately 30 acres of land to be developed SKETCH SUBMISSION - CIVIL ENGINEERING We will provide the following in accordance with the Department of General Services Project Procedural Manual: 401.1b Provide Architect with the appropriate sections of the Project Information Forms. Prepare a preliminary cost estimate for site work based on the footprint of the building and parking lot layout provided by the Architect. 401.1e Request capacity letters from the following utilities: • Electric • Gas • Water • Sewer • Telephone • Television ERDMAN 0.1 ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 8 of 14 The letters will indicate whether charges will be levied to provide service. 401.11 Provide a list of project related approvals/permits including, but not limited to: • Land development approval • Sewage planning approval • Erosion and sedimentation control plan approval • Highway occupancy permit A list of submission and review fees will also be provided. 401. lj Prepare and submit the initial reports for flood control (conceptual prelpost comparison), water supply, and sewerage facilities in accordance with paragraph 802.1 of the DGS manual). 401.2b Prepare a Site plan at a scale of 1"=50' on a 30" x 42" sheet to provide an overall view of the project area on one sheet. Also provide plans at 1"=20' as per the manual. 401.2c Prepare a conceptual grading plan for the development of conceptual storm drainage and stormwater management plans. The grading plan will also be used to design sewer and water connections. A landscaping plan will be prepared to use in developing the initial cost estimate. 401.7 Prepare a cost estimate for the site work and forward to the Architect for presentation I on the appropriate forms. 401.8 Prepare the appropriate project information forms relating to the site work and forward to the architect for submission. 400.5 Attend the review conference with the agency, the institution and the Architect to review the plans. Attend meetings as required during the development of the sketch - this may include the following: the Architect, the Township staff or its engineer, the sewer authority or its representative, the water company, the gas company, Cumberland County Conservation District, DEP, and with other members of the design team, if requested. ERDMAN V ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 structures, utilities and storm water facilities. 1 Cumberland County 1 Road. A sewa6aP??e module will be prepared and submitted to the the Township and d the the Department Department of Environmental Protection. The The land development plan is to be approved submission. Includes landscape plan. Efforts to upgrade to mad specific requirements will require a change of scope Page 9 of I4 PRELIMINARY SUBMISSION - CIVIL ENGINEERING We will provide the following in accordance with the Department of General Services Project Procedural Manual: 403.6 Attend meetings with the Agency and the Architect as necessary between the sketch submission and the preliminary submission to meet the needs and objectives of the project- 501.1f Provide a list of the regulatory approvals/permits with copies of the permits obtained to date. 501. lg Prepare and submit outline specifications in accordance with Chapter 10 and Section 501.5. 501.1m Prepare a final stormwater management report (part of the land development process). 501.1n Prepare a final report on water supply, as applicable. 501.1 o Prepare a final report on sewerage facilities (planning module package). ?D2-3' Site plans will be prepared in accordance with this section (Mechanical, Electrical and SaI.G General Construction Site and include structural design engineering So /. Z General Construction Site Plans) and include structural design engineering of site- required structures, utilities and storm water water facilities. 5921 ? Prepare ? Prepare a cost submit . a cost estimate atimete for for site s¢e work work and and submit to ro the Architect. 502.11 Prepare and and submit it land land development plans Lower Allen Township and the 502. Prepare development plans to Lower Allen Township and md the County Planning g Commission. The plena will include a cover sheet, Cumberland The plans will include a cover sheet, Iayom. grading layout, and utility plan, plan, erosion plan, @?ed'mg uNdY Dom. vo?mweta stormwater management em plan, , erosion wmml control V?+R lighting IigMine and landscaping n8 plans. . The plan Plm will wi0 show slaw any improvements roven?atls along long Lisburn Road. Lisburn and The any Asewage-planning module will be prepared d submitted Township v of 4M development plan is to be approved prior prior to b preliminary preliminary su submission. Includes basic baeic landscape plan. Efforts to upgade to meet specific requirements will require a change of scope. ERDMAN 51 ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 I Page 10 of 14 503.1 Determine and show on the plan the point of demarcation where the utility companies' responsibility ends and the agency's begins. 503.2 Determine whether any back charges will be levied. 504.7 Meet with the DGS Construction District Manager and the architect at the site to discuss the construction administration requirements. FINAL SUBMISSION - CIVIL ENGINEERING We will provide the following in accordance with the Department of General Services Project Procedural Manual: 701.1c Prepare specifications for the site work and forward to the Architect for use in preparing the final specifications for the project. 701.1£ Provide copies of all permits/approvals received. 701.2 Prepare final plans based on the comments received on the review of the preliminary plan and include structural design engineering of site-required structures, utilities and storm water facilities. 701.5 Prepare an estimate of the number of working days required to complete the site work and forward to the architect. Send a letter making a recommendation on the need for a Pre-Bid conference. BIDDING PHASE - CIVIL Attend a total of two (2) Bidding Phase meetings including a pre-bid meeting with potential contractors to gather requests for clarification of bidding documents. We will respond to requests for clarification of bidding documents. These requests must be from your office. We will not acknowledge or answer any requests for clarification from contractors, specialty contractors, vendors or suppliers unless they are from your office. Our responses to these requests will be in the form of bidding document addenda issued to the potential contractors through your office. We will assist you in analyzing bid results and in making a recommendation to the owner for selection of contractors, specialty contractors, vendors and suppliers. ERDMAN no ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page I 1 of 14 CONSTRUCTION PHASE - CIVIL ENGINEERING After the award of construction contracts, we will do the following under our basic fee: • Review and comment on required shop-drawing submittals. • Respond to Request for Information (RFI) from Contractors. • Respond to Change Order Requests (COR). We will not comment on accuracy of construction costs provided by Contractors. We will review Change Order Requests that expand the scope of work for the project on a negotiated-fee basis. • Conduct a final punch list review of the project for a total of one (1) meeting. ADDITIONAL SERVICES - CIVIL The following design engineering services are available on a negotiated-fee basis and are not included in our basic Civil Engineering design fee: 1. Traffic study 2. Application for Highway Occupancy Permit 3. Highway Occupancy Permit 4. Prepare as-built survey and plans 5. Construction Observation/Inspection Services 6. Subcontracting of soil core boring 7. Soil boring stakeout 8. Subdivision of property 9. Extension/modification of non- building specific existing utilities 10. Site surveying 11. Phase I Environmental Hazardous Materials evaluation 12. Additional zoning requirements requested by local municipality FEE FOR SERVICES - DESIGN, BIDDING AND CONSTRUCTION PHASES We base our engineering design fee on the previously described scope of work and defined areas of the project. BUILDING SYSTEMS Our compensation for Building Systems Engineering design is based on the following formulation: Building Systems Construction Costs x Base Fee (0.0453) x (0.85) ERDMAN 0 ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 12 of 14 Building Svstems Construction Costs are those costs traditionally assigned through bidding and change orders and include HVAC, Plumbing, Electrical, and Fire Protection and determined through construction contract awards. Base Fee is the percentage Compensation for Basic Services with appropriate increases granted by the Department of General Services. Architect Compensation is 15 percent of the Base Fee of the Building Systems for handling the general administration of the project. If the Base Fee is increased, as determined by the Department of General Services, the base fee of the Building Systems fee calculation shall be increased accordingly. ¦ STRUCTURAL SYSTEMS 1 Our compensation for Structural Systems Engineering design is based on the following formulation: Building Construction Costs x (0.0075) Building Construction Costs are those costs traditionally assigned through bidding and change orders and include the total project construction costs less Building Engineered Systems and Site Work determined through construction contract awards. CIVII. ENGINEERING Our compensation for Civil Engineering design is based on the following formulation: Site Construction Costs x Base Fee (0.0453) x (0.85) Site Construction Costs are those costs traditionally assigned through bidding and change y orders and include the total construction costs assigned to work outside the building 1 perimeter as determined through construction contract awards. Base Fee is the percentage Compensation for Basic Services with appropriate increases granted by the Department of General Services. ERDMAN ANTHONY • Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 13 of 14 Architect Compensation is 15 percent of the Base Fee of the Building Systems for handling the general administration of the project. If the Base Fee is increased, as determined by the Department of General Services, the base fee of the Building Systems fee calculation shall be increased accordingly. Additional services are available on a negotiated fee basis. This proposal and attached STANDARD CONTRACT TERMS AND CONDITIONS, dated June 2001 Revised June 3, 2002, are intended to represent the entire contractual relationship between Bink Architectural Partnership, Inc. and Erdman, Anthony, Associates, Inc. Carefully review our Standard Contract Terms and Conditions and contact me with any questions or concerns that you may have. If Bink Architectural Partnership, Inc. concurs with and accepts the provisions of this proposal and our Standard Contract Terms and Conditions, please have an authorized representative sign this proposal in the space provided, and this proposal and attached Standard Contract Terms and Conditions shall become an executed Contract between us. Receipt of an original signed copy of this Contract, shall constitute Erdman Anthony's Authorization to Proceed with the work. This proposal is valid only if signed on or before June 15, 2002. Two sets of documents are provided for your use. Very truly yours, ERDMAN, ANTHONY, ASSOCIATES, INC. 41U? ?/47V-? Ronald L. Hoover, PE Principal Associate Enclosures ® 2002, Erdman, Anthony and Associates, Inc. ERDMAN J.1 ANTHONY Bink Architectural Partnership, Inc. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania June 3, 2002 Page 14 of 14 Accepted for Bink Archite artnership, SIGNATURE: NAME (PRINTED): AR?jSnF3 Ic TITLE: 7R -`5 -T- DATE: Z 00 Z ERDMAN 0 ANTHONY ERDMAN STANDARD CONTRACT TERMS AND CONDITIONS ANTHONY MA Project No. DGS 573-24 Construction of a New Headquarters/Conference Facility Department of Corrections, Cumberland County, Pennsylvania Section 1. Services. Erdman, Anthony, Associates, Inc. (Erdman Anthony) shall provide Client with the "Services" set forth in the Proposal for Services ("Proposal") with respect to the property identified in the Proposal (the "Site"), under the terms and conditions set forth herein. Erdman Anthony's Services will be performed on behalf of and solely for the exclusive use of Client for the purposes set forth in the Proposal and for no other purpose. There are no understandings or agreements concerning this project except as expressly stated in the Proposal and herein. In performing the services required by this Agreement, Erdman Anthony shall use that degree ofusual and customary professional skill and care ordinarily exercised by members of its profession under similar circumstances practicing in the same or similar locality. The standard of care shall exclusively be judged as of the time the services are rendered and not according to later standards. Notwithstanding any other provision of this Agreement, Erdman Anthony makes no express or implied warranties with regard to the Agreement or the Services performed or required by this Agreement. In the event that Erdman Anthony and Client have not executed this Agreement, the Client's authorization to Erdman Anthony to proceed with the performance of the services set forth herein shall constitute acceptance by the Client of these Terms and Conditions. Section 2. Construction Observation Services. Where such services are expressly included in the Proposal or in a written amendment thereto, Erdman Anthony will observe the work of the contractor at intervals agreed to in writing between Erdman Anthony and Client to determine and report to Client whether the work of the contractor is proceeding in such a way that when completed it will be in general compliance with such drawings and specifications. Such observations shall be limited only to those specific aspects of work which are identified in the Proposal or any written amendment. Erdman Anthony's Observation Services do not include exhaustive or on-site inspection ofthe work ofthe contractor nor any supervision or direction of work of any contractor or subcontractor, or their respective employees, agents or servants. Erdman Anthony will not be responsible for any contractor's or subcontractor's compliance with the provisions of any contract nor for the observation or supervision of any contractor's or subcontractor's use of personnel, machinery or equipment. Under no circumstances shall Erdman Anthony have control over, or be in charge of, nor be responsible for, construction means, methods, techniques, sequences or procedures in connection with the work, or for the contractor(s)'s safety programs or procedures at the site. Section 3. Opinions of Probable Construction Cost. Any cost estimates prepared by Erdman Anthony are based upon standard engineering practice. Client recognizes that Erdman Anthony has no control over the pricing in the marketplace and that Erdman Anthony cannot warrant or guarantee that Client will obtain these costs at the time of bidding. Any cost related to re-design of the project subsequent to bidding to lower the project cost will be considered additional services for which Erdman Anthony will be entitled to additional compensation. June 2001 Revised June 3, 2002 Page 1 of 5 ERDMAN ANTHONY OA STANDARD CONTRACT TERMS AND CONDITIONS Section 4. Invoices, Payments. Client will pay Erdman Anthony for services performed in accordance with the rates and charges set forth in the Proposal. Invoices for Erdman Anthony's services will be submitted on a monthly basis and will coincide with the invoice dates as submitted to the Department of General Services by the Client (Bink Architectural Partnership, Inc.). Client shall promptly review Erdman Anthony's invoices. Any right to withhold payment based on errors or discrepancies in the invoice is waived if not identified in writing to Erdman Anthony within fourteen (14) days of Client's receipt of invoice. Payment for all invoices will be due upon receipt of payment by the Department of General Services to the Client. Invoice balances remaining unpaid for ninety (90) days after payment is received by Client will bear interest from receipt date at 1.5 percent per month (or part thereof) or at the maximum lawful interest rate, if such lawful rate is less than 1.5 percent per month. Timely payment to Erdman Anthony in accordance with the Terms and Conditions of this Agreement is a material consideration of this Agreement. Therefore, the Client's failure to make payments in accordance with this Agreement shall constitute substantial nonperformance and a cause for termination by Erdman Anthony. If Client fails to make payment when due, Erdman Anthony may, at its option and at any time, and without waiving any other rights or claims against Client, and without thereby incurring any liability to Client, elect to either suspend or terminate performance of services upon ten (10) days prior written notice by Erdman Anthony to Client. Such termination or suspension shall be effective at the end of such ten (10) day notice period without further notice unless all sums due and owing as of the end of such ten (10) day notice period have been paid in full. Erdman Anthony reserves the right to withhold stamping of drawings produced for any phase of this project under the terms of this agreement until all invoices billed up to that point in the project have been paid in full. Section 5. Limitations of Remedies. The Client shall promptly report to Erdman Anthony any defects or suspected defects in Erdman Anthony's services of which Client becomes aware, so that Erdman Anthony may take measures to minimize the consequences of such defect. Client further agrees to impose a similar notification requirement on all contractors retained by the Client and shall require all subcontracts at any level to contain a like requirement. Failure by Client, and the Clients contractors or subcontractors to notify Erdman Anthony of such defects in a timely fashion shall relieve Erdman Anthony of the costs of remedying the defects above the sum such remedy would have cost had prompt notification had been given. Not withstanding any other provisions of this Agreement, neither party shall be liable to the other for any consequential damages incurred due to the fault of the other parry, regardless of the nature of the fault or whether it was committed by Client or Erdman Anthony, their employees, agents, subconsultants or subcontractors. Consequential damages include, but are not limited to, loss of use and loss of profit. Section 6. Insurance. Erdman Anthony maintains Workers Compensation Insurance with respect to it's employees with statutory required limits. Erdman Anthony also maintains Automobile Liability insurance and General and Professional Liability insurance. Certificates of Insurance evidencing such coverage will be provided to Client upon request. Client shall be responsible for all other forms of property, casualty and June 2001 Revised June 3, 2002 Page 2 of 5 E R D M A N STANDARD CONTRACT TERMS AND CONDITIONS ANTHONY liability insurance coverage required for the project. Erdman Anthony shall maintain General and Professional Liability Insurance as current through project completion and as is required by the Professional Agreement dated April 10, 2002, between Bink Architectural Partnership, Inc., and the Commonwealth of Pennsylvania, Department of General Services. Section 7. Project Site. The Client shall be responsible for acquiring and providing timely project site access authorization for Erdman Anthony as may be needed to facilitate performance of services described in Section 1. Section S. Documents. All reports, boring logs, field data, field notes, laboratory test data, calculations, estimates, drawings, specifications and other documents, data or information prepared by Erdman Anthony, in any form including machine readable format (collectively "Documents") are instruments of Erdman Anthony's services and shall be property of the Department of General Services. Erdman Anthorry releases all ownership and all other rights, including copyrights, in all such documents as is required in Article 10 of the Professional Agreement dated April 10, 2002, between Bink Architectural Partnership, Inc., and the Commonwealth of Pennsylvania Department of General Services. The documents are prepared for use on this Project and at the Site identified in the Proposal only and are not appropriate for use on any other project or at any other site, or for any purpose other than as defined by the Scope of Services, except by the agreement in writing with the appropriate compensation to Erdman Anthony. Where Erdman Anthony agrees to supply some or all of the Documents in machine readable format (hereinafter "machine readable media"), the parties understand and agree that any Documents supplied in such machine readable format are so supplied as a convenience to the recipient. Such documents are not intended to replace the printed forms of such Documents. The content of the documents supplied by Erdman Anthony in printed form shall govern over the contents ofDocuments supplied in machine readable format. The recipient shall be solely responsible for comparing the output of the machine readable media with the printed Documents designated by Erdman Anthony as the contract documents and determining the accuracy of such output. Recipient shall only use the output of machine readable media for the limited purpose agreed to by Erdman Anthony and shall not alter, mediate or change the contents of such machine readable media in any way, or transfer to others, without the express written approval ofErdman Anthony. Any use of the documents or the information or data contained therein, in violation of this Section or any alteration or modification of such Documents or the information or data contained therein, without the express written consent of Erdman Anthony is expressly prohibited. Such prohibited use is at the sole risk of the user and Erdman Anthony is released from any liability for damages arising from such use. Client shall indemnify and save harmless Erdman Anthony from and against any and all claims, damages, judgements, demands, liabilities, costs or expenses (including reasonable attorney's fees and other defense costs) arising from any changes made by anyone other than Erdman Anthony or from re-use of the documents without prior written consent of Erdman Anthony. June 2001 Revised June 3, 2002 Page 3 of 5 I ERDMAN 0 STANDARD CONTRACT TERMS AND CONDITIONS ANTHONY Section 9. Clients Duty to Notify Erdman Anthony of Hazards. Client represents and warrants that it will provide Erdman Anthony with any and all information known to or suspected by Client with respect to 1) the existence or possible existence at, on or under the Site of any hazardous materials, or pollutants and 2) to disclose the location and quantity of all previously installed asbestos containing materials or presumed asbestos containing materials in their facility. if unanticipated potentially hazardous materials, pollutants or asbestos are encountered during the course of the work, Erdman Anthony shall have the right 1) to suspend its work immediately and 2) to terminate the work described in the Proposal, upon ten (10) days of Erdman Anthony's written notice of intent to terminate, unless Erdman Anthony and Client agree upon a mutually satisfactory amendment to the Proposal that may include a revision of the scope of services, adjustment of budget estimates, revised Terms and Conditions and revised fees. Client shall remain liable for and shall pay all fees and charges incurred under the provisions ofthe Proposal through the date of termination, notwithstanding Client and Erdman Anthony not having reached a new, mutually satisfactory, revision of their agreement. Section 10. Dispute Resolution. In an effort to resolve any conflicts that arise during the design or construction ofthe project or following the completion of the project, the Client and Erdman Anthony agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. The parties shall share the mediator's fee equally. The party initiating the mediation shall be liable for any filing fee. In no event shall the demand for mediation be made after the date when institution of legal proceedings would be banned by the applicable statute of limitations. The Client and Erdman Anthony further agree to include a similar mediation provision in all agreements with independent contractors and consultants retained for the project and to require all independent contractors and consultants also to include a similar mediation provision in all agreements with subcontractors, subconsultants, suppliers or fabricators so retained, thereby providing for mediation as the primary method for dispute resolution between the parties to those agreements. Section 11. Firm Publicity. Erdman Anthony has the right to photograph the above-named project and to use the photos in the promotion of the professional practice through advertising, public relations, brochures or other marketing materials. Client agrees that Erdman Anthony has the authority to utilize its name as a Client and general description of the project work or service performed as references. Section 12. Assigns. Neither the Client nor Erdman Anthony may delegate, assign, sublet, or transfer his duties or interest (including any claims that arise here) in this Agreement without written consent of the other party. Such consent shall not be unreasonably withheld. Section 13. Third Party Beneficiaries. Nothing contained in this Agreement shall create a contractual relationship with a cause of action in favor of a third party against either the Client or Erdman Anthony. Section 14. Severability. In the event that any provisions herein shall be deemed invalid or unenforceable, the other provisions hereof shall remain in the full force and effect, and binding upon the parties hereto. June 2001 Revised June 3, 2002 Page 4 of 5 ERDMAN 01 STANDARD CONTRACT TERMS AND CONDITIONS ANTHONY Section 15. Termination, Suspension. This Agreement may be terminated by either party upon ten days written notice should the other party fail substantially to perform in accordance with its terms. This Agreement may be terminated by the Client upon at least ten days written notice to Erdman Anthony in the event that the Project is permanently abandoned. Erdman Anthony shall be compensated for the services performed up to the time written notice of termination is actually received by Erdman Anthony, together with reimbursable expenses then due and reasonable Termination Expenses directly associated with the termination. END OF STANDARD CONTRACT TERMS AND CONDITIONS. June 2001 Revised June 3, 2002 Page 5 of 5 B .: Partnersh p Consultant's Acknowledtment Erdman Anthony Associates, Inc. has executed an agreement with Bink Partnership, Inc. as of June 10, 2002 and understands that the General Conditions of the Agreement for Professional Services between Bink Partnership, and the Department of General Services are incorporated into the Consultant's agreement with Bink Partnership. Erdman Anthony Associates acknowledges that it has received and read a copy of the Professional's Agreement with the Department, including the General Conditions, and that all of the General Conditions, relating to the Consultants or to their work, are binding upon and shall be a part of the Consultant contract with Bink Partnership. These acknowledgments are acknowledged and agreed to by authorized signature below. =Hoove:? /0 Rod //6 Date Erdman Anthony Associates, Inc. Encl: (1) Engineering Design Fee Proposal signed June 10, 2002 Cc: R. Hoover, P.E., Erdman Anthony Associates, Inc. D:\Projects\02004DGS-DOC\DOCS\ENG\NotifyDGSContSigned.wpd DGS 573-24 Consultant Contract Page 2 of 2 1 ! l i I? I l J J• AGREEMENT FOR PROFESSIONAL SERVICES THE DEPARTMENT OF GENERAL SERVICES HARRISBURG, PENNSYLVANIA EDITION OF 1999 (Revised 4/18/01) Edition of 1999 i? I • Attachments 1. Request for Project Action 2. Orientation Summary Sheet AGREEMENT FOR PROFESSIONAL SERVICES AGREEMENT made this ADr1L 10. 2002 by and between the DEPARTMENT OF GENERAL SERVICES (hereinafter called the 'DEPARTMENT") and Bink Partnership, Incorporated 133 South 32" Street Camp Hill, Pennsylvania 1701' Federal Identification No. 26-0000143 (hereinafter called the "PROFESSIONAL") WITNESSETH THAT: The parties hereto, intending to be legally bound hereby, do agree as follows: 1. RETAINING THE PROFESSIONAL. The PROFESSIONAL will provide all necessary Design and Bidding Services and administer and review the Construction Phase Services for the Project. The Project is more particularly described on the "Scope" attached hereto and made a part hereof and hereinafter called the "Project," and is designated as Project No. D.G.S. 573-24. 2-TIME SCHEDULE. The time schedule established at the Orientation meeting for the completion of the several phases is: COMDlete On or Before a. Schematic May 15, 2002 b. Preliminary August 14, 2002 c. Final December 11, 2002 d. Bidding April 10, 2003 e. Completion of Construction August 11, 2004 (480) 3. ADHERENCE TO TIME SCHEDULE. The PROFESSIONAL shall strictly adhere to the submission schedule set forth in Paragraph 2. The Professional is not, however, to proceed from one phase to the next without the approval of the preceding phase and authorization by the DEPARTMENT. Should the PROFESSIONAL become aware that any of the dates set forth In Paragraph 2, cannot be met, unless the dates cannot be met due to the DEPARTMENT not providing authorization to proceed, the PROFESSIONAL will immediately notify the DEPARTMENT in writing. The PROFESSIONAL shall include in the notice the reason(s) for the PROFESSIONAL'S inability to meet the date(s) and a request that the DEPARTMENT amend the time schedule. The DEPARTMENT will review the PROFESSIONAL'S notice and determine whether or not to amend the time schedule. If the DEPARTMENT determines that the delay is due to the fault of the PROFESSIONAL, the DEPARTMENT may: 1) emend the schedule and direct the PROFESSIONAL to expeditiously proceed with the design of the Project, in which case the DEPARTMENT may hold the PROFESSIONAL responsible for any costs attributable to the delay, or 2) terminate the Agreement for default of the PROFESSIONAL, in accordance with the provisions of Paragraph 9.1.102 of the General Conditions. . Page 1 of 5 Agreement for Project No. D.G.S. 573-24 Edition of 1999 1 If the DEPARTMENT determines that the delay is not due to the fault of the PROFESSIONAL, the Is DEPARTMENT may amend the time schedule. The PROFESSIONAL agrees'that such an amendment of the time schedule is the exclusive remedy for a delay and that a claim may not be made against the DEPARTMENT for increased costs due to the delay. The Bidding Phase and Construction Phase are tentative dates, subject to adjustment by the DEPARTMENT. The period between Final approval and authorization to prepare for Bidding shall be considered a suspension and the provisions of General Conditions 9.4, Reactivation of Project, shall apply to the period between Final Design Phase approval and Bidding if not extended due to a fault of the Professional. The length of construction period shall, at the time of Bidding, be set by the DEPARTMENT commensurate with the project design and conditions. There shall be no adjustment in compensation due solely to the adjustment of the construction period from the time schedule in paragraph 2. 4. COMPENSATION AND COSTS a. The PROFESSIONAL'S compensation for Basic Services for the approved Schematic and Preliminary Phases is based on the Allocation of $17.500,000.00 is payable as set forth in Column 3 of Exhibit A, Part I, to the General Conditions. The compensation for Basic Services is increased by adding thereto an additional percentage of 0"k in accordance with Rule(s) - 0- Exhibit A, Part 11, of the General Conditions. b. PROFESSIONAL'S compensation for Basic Services for the approved Final Phase is based on the amount fixed in the Allocation, and payable as set forth In Paragraph 41.1100 of the General Conditions. All prior payments shall be adjusted on this basis. c. PROFESSIONAL'S compensation for the remaining Basic Services is based on the aggregate of acceptable low bids In accordance with Article 4 of the General Conditions. All prior • payments will be adjusted and will be the PROFESSIONAL'S entire compensation for the Basic Services . d. PROFESSIONAL'S compensation for any required additional services that are listed in Part 2.7 of the General Conditions are payable as described therein. e. Upon the failure of the PROFESSIONAL to comply with the Article G, Shop Drawings, of the General Conditions, the compensation due the PROFESSIONAL shall be reduced by the sum of 50.00 per day, per submission, as liquidated damages consistent with paragraph 6.1.101. 5. LIMITED BUDGET. The PROFESSIONAL must design this project within the Allocation as set in Paragraph 4a, and authorized in the Scope of the Project, unless that Allocation is changed in accordance with the law governing the DEPARTMENT. 6. INCORPORATION BY REFERENCE. This Agreement is made subject to and is governed by the DEPARTMENTS General Conditions of Professional Services Agreement, 1999 Edition. All Plans and Specifications must be prepared in conformity with the DEPARTMENTS Bureau of Engineering and Architecture Project Procedure Manual, as amended, and with the DEPARTMENTS Construction Contract Documents in effect at the time of execution of the Agreement, all of which are hereby incorporated in this Agreement by reference and made a part of It. This Agreement is subject to and governed by any Special Conditions attached to and made a part of it. 7. CLAIMS. - The following process will be followed for claims: a. Any claim, dispute, question or other matter, which the Professional may have against the Department under this Contract will be considered by the Deputy Secretary or his designee, if • Page 2 of 5 Agreement for Project No. D.G.S. 573-24 Edition of 1999 1 the Professional files a written claim with the Deputy Secretary within six months after the date on the claim accrued. No claim may be filed later than six months after it accrues. 1 b. If the controversy is not resolved by mutual agreement, the Deputy Secretary will issue a • decision in writing. The decision will: (i) State the reasons for the action taken, and (ii) Inform the Professional ofIts right to administrative and judicial review. c. A copy of the decision will be delivered to the Professional by registered mail. 4 d. The decision issued by the Deputy Secretary is final and conclusive unless the Professional files a claim with the Board of Claims within thirty days of its receipt of the decision. e. If the Deputy Secretary does not issue a written decision within 120 days after the claim is filed, then the Professional may proceed as If an adverse decision had been received. The 120 day period may be extended with the written consent of the Department and the Professional. f. The Professional shall carry on its work during the claims process, including Board of Claims proceedings, If any, unless otherwise agreed by it and the Department in writing. 8. ASSIGNMENT. This Agreement Is for the personal services of the PROFESSIONAL and performance hereunder may not be assigned or transferred by PROFESSIONAL without written consent of the DEPARTMENT. This provision does not prevent an assignment for financing purposes of amounts, due orto become due under this Agreement, nor the retaining, by the PROFESSIONAL, on Its own responsibility and at its own expense, of such specialized architects or professional engineers as may be necessary for the proper design and development of the Project. 9. AMENDMENT. The PROFESSIONAL hereby acknowledges receipt of notice that no person has any authority to amend or modify this Agreement or waive any term or provision hereof except by written • amendment hereto signed by the Secretary of the DEPARTMENT or by the Deputy Secretary for Public Works of the DEPARTMENT. 10. NOTICES. Wherever the term "notice" is used, to be effective, notice must be in writing and If to the l DEPARTMENT must be mailed certified mail, postage and fees prepaid, or hand delivered to the Director of the Bureau of Engineering and Architecture, 18th and Herr Streets, Harrisburg, Pennsylvania 17125, and if to the PROFESSIONAL notice must be similarly mailed or hand delivered to the address set forth in the caption of this Agreement, unless notice of another address has been given, in which case notices shall be so hand delivered or mailed to that address. 11. INTEGRATION. This Agreement contains all the terms and conditions agreed to by the parties hereto, and no other agreements, oral or otherwise, regarding the subject matter of this Agreement exist. J • 12. NO THIRD PARTY RIGHTS. Nothing in this Agreement or in the General or Special Conditions or in any other document Incorporated herein by reference or issued hereunder, expressed or implied, is intended to or shall be construed to confer upon, or give to, any person, firm or corporation or any Governmental Agency other than the DEPARTMENT, its successors and assigns, and the PROFESSIONAL, any right, remedy or claim, legal or equitable, whether as third party beneficiary or otherwise. This Agreement and all provisions applicable hereto or incorporated herein are for the sole and exclusive benefit of the DEPARTMENT, Its successors and assigns and the PROFESSIONAL. 13. HOLD HARMLESS CLAUSE. The PROFESSIONAL agrees to protect, indemnify, and save harmless the DEPARTMENT from and against any and all liabilities, losses, damages, costs, expenses, causes of action, suits, claims, demands, or judgments of any nature arising from any Injuries to, or the death of any person or any damages to property growing out of or connected with the work performed by the PROFESSIONAL under this agreement to the extent that the same is caused by the negligence of the PROFESSIONAL, its employees, its agents, or its consultants. Page 3of5 Agreement for Project No. D.G.S. 573-24 Edition of 1999 14, PROFESSIONAL EVALUATIONS. in signing this Agreement, the PROFESSIONAL consents to the evaluation of its performance by the DEPARTMENT and understands that any such evaluation may be used in future selections of Professionals. Furthermore, the PROFESSIONAL'S consultants will also be evaluated. The PROFESSIONAL is required to notify each of Its consultants that in contracting with the PROFESSIONAL, the consultant consents to the DEPARTMENTS evaluation of the consultant and to the use of any such evaluation in future selections of Professionals. 15. ADDITIONAL SERVICES. The PROFESSIONAL will perform all necessary Additional Services required by the project to include the performing or administering of testing, design, inspection and air substance monitoring associated with the removal of any unanticipated asbestos, other hazardous material or contaminant encountered during the project design or construction phases, as found in paragraph 2.7.100d of the General Conditions. Provisions of all additional services will be consistent with the terms of the General Conditions, and will be by written direction of the Department expressly for the purpose of authorizing additional services. An amendment to the Agreement is not required for Additional Services enumerated in the General Conditions. 16. SPECIAL CONDITIONS The following Special Conditions are attached to and made a part of this Agreement by reference: a. Attendance at Meetings. The Professional shall be compensated as an additional service, in accordance with Article 2.1.105 of the General Conditions of the Professional Agreement, for its attendance at meetings in excess of the numbers shown below: Bidding Phase 2 Construction Phase 69 Final Inspection 4 Meetings for up to one year after Final Inspection 2 • Record Drawinas: In addition to the services in paragraph 2.6.115 Record Drawinas, the Professional shall provide the following: Upon the completion of the project, the Professional shall provide the Department with three (3) duplicate CD-ROM's containing all AutoCAD release 14 drawing files used to produce the drawings for the project with all changes recording all construction changes. These drawing files shall use logically named and defined layers, where objects are placed on the appropriate layers. Layers shall be separated by discipline. All referenced drawings, non-standard fonts and line types shall be included with the files. A key list shall be provided defining the layering system by name and description. AutoCAD plotter configuration file with extension "pc 2" indicating pen table assignments (associated with color) shall be provided. The CAD software and version being used shall be identified. A standard AutoCAD release 14 workstation should be capable of loading the drawings and reproducing all prints as provided to the Department by the Professional c. Provisions concernina the Americans with Disabilities Act (ADA) During the term of this contract, the Contractor agrees as follows: Pursuant to federal regulation promulgated under the authority of The Americans With Disabilities Act, 28 C.F.R. 35.01, at seq., the Contractor understands and agrees that no individual with a disability shall, on the basis of the disability, be excluded from participation in this contract or from activities provided for under this contract. As a condition of accepting and executing this contract, the Contractor agrees to comply with the General Prohibitions Against Discrimination, 028 C.F.R. 35.130, and all other regulation promulgated under Title 11 of The Americans With Disabilities Act which are applicable to the benefits, services, programs and activities provided by the Commonwealth of Pennsylvania through contracts with outside contractors. • Page 4 of 5 Agreement for Project No. D.G.S. 573-24 Edition of 1999 IN WITNESS WHEREOF, This Agreement has been executed and delivered as of the date set forth above. WITNESS: f DEPARTMEN F G S VICES f1i ??1 is By y/z7l V y- 1 / Date K ly Powell Lin t% Date 111 ?l Secretary of General Services f AND Bink Partnership, Incorporated (Name of Corporation) ATTEST- S cre reasurer Date sidenWirancai d to 1 • APPROVED AS TO FORM AND LEGALITY OFFICE OF GENERAL COUNSEL l _4 (Q VKX LLQ/i {hereby certify that funds in the Deputy (Assistant) General Counsel amount of 192150.00 are ppROVEt7 FOR FORM available under Appropriation ALVTY Symbol ?0(38-Ots 30?- 4-3-6aoo- 5032y- q&7 AAND D LEG APR 0 4 2aa2 &&an /J 24 APR 10 2002 Comptroller Date ncW??4 Page 5 of 5 Agreement for Project No. D.G.S. 573-24 Edition of 1999 DEPARTMENT OF GENERAL SERVICES PROFESSIONAL ARCHITECT OF ENGINEER CERTIFICATE OF COMPLIANCE • CONTRACT NO. D.G.S. 573-24 Construction of a Now HeadquarterslConference Faclllty Department of Corrections Cumberland County, PA RECEIVED • APR 17 2002 BINK PAKI-NERSHIp In accordance with the Rules and Regulations promulgated by the Department of General Services of the Commonwealth of Pennsylvania, the undersigned, in person, or by its duly authorized representative, hereby certifies that 1, or it, have not, or has not employed or retained any person, partnership, or corporation, other than a bona fide employe or agent working for me or it, to solicit or secure this agreement; that 1, or It, have not, or has not paid or agreed to pay any person, partnership or corporation, other than a bona fide employe or agent, any fee, or any other consideration contingent upon the making of this agreement, and that 1, or it, have not, or has not made any political contributions because of this agreement. . Dated at . IWO RU ? this day of -:A" 2002 Bink Partnership, Incorporated Name of P%kssional Firm By - tY Vgning f7 ;W //?? fg ature Title of Person S County of (1.I APUUOW9 SS: COMMONWEALTH OF PENNSYLVANIA nn A 6l being duly swom, deposes and says that he is 1'Y,"StOL of ale- rq? ICPStH ra =ANC (Name of Organization) and acknowledges that he executed the foregoing statement for 4he purpose therein contained. Sworn to before me this ^ ?t Day of Vl?1CU04 , 2002 Notary? t4oww Sol fttft My Commission Expires th- ®L.y k001Y omm HM am, cwmwiaw 'a' s= of N MIN lirotlibay i' 10n Page 6 of 5 Agreement for Project No, D.G.S, 573-24 Edition of 1999 I . , 1i • I DEPARTMENT OF GENERAL SERVICES GENERAL CONDITIONS OF PROFESSIONAL DESIGN AGREEMENTS TABLE OF CONTENTS CAPTION Article 1 1.1.100 Article 2 PAGE NO. MATERIAL INCORPORATED INTO AGREEMENT Application of General Conditions and Standard 1 Practice Manuals THE PROFESSIONAL'S RESPONSIBILITIES AND SERVICES PART 2.1 - GENERAL REQUIREMENTS • 2.1.100 Basic Services 1 2.1.101 Limited Budget Contract 1 2.1.102 Professional Client Relationship 2 2.1.103 Consultants 2 2.1.104 Progress Reports During Design 2 2.1.105 Attendance at and Minutes of Conferences 2 and Meetings 2.1.106 Attendance and Testimony as Witness 3 2.1.107 Coordination with Existing Facilities and 3 Utilities 2.1.108 Visits to site 4 2.1.109 Scheduling of Submissions 4 2.1.110 Coordination of Separate Contracts 4 2.1.111 Representation as to Qualifications 4 2,1.112- Construction Scheduling 4 PART 2.2-SCHEMATIC TIC DESIGN PHASE 2.2.100 Scope of Phase 5 PART 23-PRELIMINARY DESIGN PHASE 2.3.100 Scope of Phase 5 2.3.101 Preliminary Construction Cost Estimate and 5 Breakdown 1 PART 2.4-FINAL DESIGN PHASE • 2.4.100 Scope of Phase 6 2.4.101 Final Cost Estimate and Detailed Breakdown 6 2.4.102 Multiple Base Bids 7 2.4.103 Reports During Design on Special Conditions 8 Relating to Operations and Maintenance PART 2.5-BIDDING PHASE 2.5.100 Scope of Phase 8 2.5.101 Advertising and Receipt of Bids 8 2.5.102 Reproduction and Distribution of Bidding Documents 8 2.5.103 Pre-Bid Conferences 9 2.5.104 Evaluation of Bids 9 PART 2.6 - CONSTRUCTION PHASE 2.6.100 Documents 10 2.6.101 Administration of the Construction Contracts 10 2.6.102 Access to Work and On-Site Representation 10 2.6.103 Visits to the Site 10 2.6.104 Approval of Payment to Contractors 10 • 2.6.105 2.6.106 Interpreter Review of Contractors Shop Drawings and Materials 10 11 2.6.107 Progress Reports as to Construction 11 2.6.108 Review and Approval of Contractor's Breakdown 11 Sheets 2.6.109 Change Orders 11 2.6.110 Errors and Omissions 11 2.6.111 Rejection or Stoppage of Work 12 2.6.112 Construction and Maintenance Data 12 2.6.113 Construction by State Employees 13 2.6.114 Final Inspection 13 2.6.115 Record Drawings 13 2.6.116 Construction Administration Beyond Scheduled 13 Completion Date 2.6.117 Standards of Quality 14 2.6.118 Substitutions 14 2.6.119 Extensions of Time 14 2.6.120 Professional Observation of Testing 14 • I* I *- PART PART 2.7 -ADDITIONAL SERVICES 2.7.100 Additional Services Not Covered by Compensation for Basic Services 2.7.101 Compensation for Additional Services Article 3 3.1.100 3.1.101 3.1.102 3.1.103 3.1.104 3.1.105 3.1.106 Article 4 4.1.100 4.1.101 4.1.102 4.1.103 4.1.104 4.1.105 4.1.106 Article 5 5.1.100 Article 6 6.1.100 6.1.101 Article 7 7.1.100 7.1.101 THE DEPARTMENT'S RESPONSIBILITIES AND DUTIES Basic Information Plat or Survey and Surveyor's Report Interpretation of Instructions Department to Act Promptly Effect of Department's Failure to Disapprove Design Work Copies of Certain Documents Advertisement of Notice to Bidders 14 18 19 19 20 20 20 20 20 THE PROFESSIONAL'S COMPENSATION AND PAYMENT Basis of Professional's Compensation During 20 Design Basis of Professional's Compensation Upon the 21 Receipt of Bid Proposals, and Upon the Award of Contracts Basis of Professional's Design Compensation for 22 Value Engineered Projects Applicable Percentage 22 Schedule of Payments During Design 22 Schedule of Payments After First Job Conference 23 Phasing 23 PROFESSIONAL'S ACCOUNTING RECORDS Records 24 SHOP DRAWINGS Priority Submittal Schedule 24 Approval,of Shop Drawings 24 PROFESSIONAL'S RESPONSIBILITY FOR CONSULTANTS, OBSERVANCE OF LAWS AND COOPERATION WITH LOCAL BODIES, AND INSTRUCTIONS REGARDING PROPRIETARY -- ITEMS Responsibility Cooperation with Local Bodies 25 25 iii 7.1.102 Proprietary Items, Copyrights, Patents 25 • Article 8 8.1.100 8.1.101 8.1.102 8.1.103 INSURANCE Professional Liability Insurance 25 General Liability Insurance 26 Certificate of Insurance 26 Failure to Comply with Insurance Requirements 26 Article 9 TERMINATION OF AGREEMENT AND SUSPENSION OF WORK THEREUNDER PART 9.1 - TERMINATIONS 9.1.100 Termination for Convenience 26 9.1.101 Termination Upon Disability of Professional 27 9.1.102 Termination for Default of Professional 27 9.1.103 Adjustment of Compensation Upon Termination 27 PART 9.2 - SUSPENSION 9.2.100 Suspension of Work 28 PART 9.3 - PROVISION FOR SPECIAL CASES • 9.3.100 Adjustment of Professional's Compensation in 28 Special Cases PART 9.4 - REACTIVATION OF PROJECT 9.4.100 Adjustment of Compensation on Reactivation of 28 Project Article 10 OWNERSHIP OF DOCUMENTS 10.1.100 Department Owns Documents 29 • iv i I 1 1• 1 1 1 Article 11 PROVISIONS REQUIRED BY PENNSYLVANIA LAW OR FEDERAL LAW TO BE INSERTED 11.1.100 Provisions Deemed Inserted 11.1.101 Physical Amendment of Agreement 11.1.102 Nondiscrimination 11.1.103 Contractor Integrity Provisions and Disclosure of Financial Interest 11.1.104 Contractor Debarment Provisions 11.1.105 Tax Liability Provisions Article 12 PROFESSIONAL AND CONSULTANT RELATIONSHIP 12.1.100 Professional and Consultant Relationship Article 13 DEFINITIONS 13.1.100 Definitions EXHIBITS A. Compensation Percentages and Rules B. Non Discrimination Clause C. Contractor Integrity Provisions D. Certification and Stipulations Related to Debarment E. Tax Liability Provisions v 29 29 29 29 30 30 30 30 A-1 A-2 A-3 A-4 A-5 B-1 B-2 C-1 C-2 D-1 E-1 THE DEPARTMENT OF GENERAL SERVICES • GENERAL CONDITIONS Of PROFESSIONAL AGREEMENT ARTICLE 1 MATERIAL - INCORPORATED INTO AGREEMENT 1.1.100 Aoplication of General Conditions and Standard Practice Manuals. These General Conditions, the Bureau of Engineering and Architecture Project Procedure Manual, and the DGS Construction Contract Documents, in effect when the Professional Services Agreement is executed, and any attached Special Conditions govem_.the Professional's work and are deemed a part of the Professional Agreement. The Professional will be provided a copy of these documents, The Bureau of Engineering and Architecture Project Procedure Manual and the Construction Contract Documents supplement these General Conditions. In case of any irreconcilable inconsistency, the General Conditions of the Professional Agreement govern. ARTICLE 2 THE PROFESSIONAL'S RESPONSIBILITIES AND SERVICES 2.1 - GENERAL REQUIREMENTS 2.1.100 Basic Services. The Professional's Basic Services consist of Phases described in these General Conditions. They include all architectural, structural, mechanical and electrical engineering, and landscape architectural design and all other professional services and administration of Construction Phase services required for the project. . 2.1.101 Limited Budaet Contract. This is a limited budget agreement. It is the Professional's responsibility to promptly notify the Department, if in the Professional's opinion, the Project cannot be designed and. constructed within the Allocation for the Project as set forth in the Agreement, paragraph 4, Compensation and Costs. It is the Professional's responsibility to so notify the Department as soon as such a situation becomes, or should have become, apparent to the Professional. If, without such notification, the Professional permits the Construction Contracts to be bid, and If the Contractor's bids when received are in excess of the Allocation and, if the Project cannot be brought within the Allocation plus five percent (5%) by the acceptance of one of the Base Bids provided in the bidding documents, the Professional shall without charge to the Department adjust the project's entire design and rebid it until the aggregate of the-bids is within the Allocation plus five percent (5%). If, after notification • of the inadequacy 'of the Allocation, the Professional is instructed to proceed without a change in the program, the design or the Allocation, the Professional shall not be responsible for the cost of any subsequent redesign and shall be compensated in accordance with paragraph 2.7.100a or 2.7.100h. I ., • 2.1.102 Professional Client Relationship. The Professional is responsible to the Department, and only the Department may give instructions, which bind the Department. The Department is constructing the Project for the Using Agency in accordance with the Scope. Neither the Using Agency nor the Professional may change a Scope or direct that items be included in the design, which will increase the construction cost above the Allocation. All requests for such changes must be submitted to the Department by the Using Agency. 2.1.103 Consultants. The Professional's Compensation for Basic Services, except as otherwise specifically provided, includes the compensation for all necessary consultants in the several branches of the architectural and engineering professions. The compensation and cost of any special discipline consultants, as described in 2.7 of the General Conditions and not included in the Special Conditions of the Agreement, shall be in addition to the compensation for Basic Services. The Professional, within 30 days of signing the Agreement with the Department, shall fumish to the Department an executed counterpart of its agreement with each consultant deemed necessary for the proper design and construction of the Project. Each Consultant Agreement shall incorporate these General Conditions and shall include an acknowledgment by the Consultant that it has received and read a copy of the Professional's Agreement with the Department, including the General Conditions. All provisions of these General Conditions, relating to Consultants or to their work, are binding upon and shall be a part of each Consultant's contract. • 2.1.104 Proaress Reports Durinq Design. The Professional shall, during all 1 Design Phases, submit to the Department, monthly progress reports showing 1 percentage of completion of the design documents and other significant actions, When the Professional becomes aware that a change in cost or schedule will be necessary, the report shall be accompanied by a separate letter so stating and setting forth the reason for the change. The report shall also state the date on which it is proposed to make the next submission. The monthly progress report must be received by the Department before that month's payment to the Professional is due. 2.1.105 Attendance at and 'Minutes "of Conferences and Meetings. The Professional shall submit in writing the qualifications of its proposed authorized representatives, and those of each Consultant, for acceptance by the Department prior to first attendance of the Consultant or authorized representative at a meeting or conference. The Professional, or its authorized representative, and the Professional's Consultants when appropriate, shall attend all meetings and conferences as required by the Department. The Professional shall submit to the Department detailed minutes of all meetings and conferences within one week after each such conference and meeting. The Department may demand, with written justification to the Professional, the withdrawal from the project of any person employed by the Professional who the Department deems to be insufficiently qualified for that portion of the work or who is incompetent or guilty of misconduct. The Professional must have in attendance at the meeting all individuals from the Professional or any of its consultants which are • necessary to properly address the agenda. Meetings with regulatory agencies or other agencies required to properly design the Project are not considered meetings for purposes of this paragraph, and are compensated as part of Basic Services. The Professional's attendance at meetings under this article in excess of the numbers shown in the Special Conditions of the Agreement for the phases of services listed below shall be compensated as an additional service, except that there shall be no . additional compensation for attendance at meetings, which are occasioned by the Professional's failure, error or omission. The absence of a number in the Special -Conditions means there shall be no additional compensation for meetings in that phase of service. Bidding Phase Construction Phase Final Inspection Meetings for up to one year after Final Inspection MAN Attendance and Testimony as Witness. In the event of a dispute between the Department and any person concerning or involving the Professional's failure to design or administer construction in accordance with this agreement, the Professional or the, appropriate Consultant, or their qualified and authorized representative or representatives shall attend all conferences, hearing and/or court proceedings. If requested by the Department, they.shall prepare testimony and shall testify, both as to facts and as to expert opinion, in all such proceedings on behalf of the Department without any additional charge to the Department. If, however, upon resolution of such dispute, it has not been determined that there has been a failure by the Professional or any of its consultants regarding the adequacy of either the design construction documents or contract administration they shall be entitled to reasonable compensation, as determined by the Department, in accordance with the rates as set • forth in the Bureau of Engineering and Architecture Project Procedure Manual. Neither the Professional nor any of its consultants will be compensated for any dispute resolution at the project site. The Department's decision will be final regarding the compensation due the Professional or its consultants. 2.1.107 Coordination with Existing Facilities and Utilities. The Professional shall consult with the Using Agency and obtain all necessary data for coordinating the Project with existing structures and all support utilities. The Professional shall consult with the Department regarding any correlation of design with future planning. The Professional shall confirm in writing to the Department and Using Agency all data furnished to the Professional in this connection and the data's adequacy. The Professional shall obtain from the various Public Services and Utility Companies, such as gas, electric, water, steam, waste water treatment/disposal, surface water disposal, telephone and communication, a written commitment of their capability to service this Project, and shall submit same to the Department as part of the Schematic Submission. The Professional shall bring to the Department's immediate attention any reservations to this commitment by the utility companies, such as in-house engineering and construction costs. If utility services are not available at the site, the Professional must provide the location of the nearest available utility service. The Professional's. design shall include provisions for adequate water and sewage disposal services:=Where water or sewage disposal are not readily available from the • public services, ails Professional's design responsibility, unless otherwise directed by the Department, includes the preparation of necessary plans and specifications for well drilling or for the sewage disposal system, and the cost thereof will be included in the Cost of Construction of the Project. 2.1.108 Visits to Site. During the design of the Project, the Professional shall visit • the Project Site as required and shall obtain and study available record drawings, investigate existing conditions, visual topographic and site data, and the Using Agency's available future plans, for the purpose of obtaining any and all pertinent or necessary information as to local conditions not required to be shown, or shown without complete detail, on the Plat of Survey and Report of Surveyor furnished by the Department, as may effect the design of the Project and the necessity for special provisions or wording in the specifications. The Professional shall verify in writing to the Department, no later than with its preliminary submission, that it has requested and obtained pertinent interference documentation from all utility companies, the Using Agency and Institution, and any other entity that may have underground or concealed lines or objects in the area of the proposed construction. The Professional shall verify existing conditions by I visual inspection and measurement and not by sole reliance on record documents or land survey. Should corrective or additional work become necessary by reason of such failure .to obtain all necessary, clarifying and available data for a proper and correct design of the Project, the Professional shall reimburse the Department for the cost of such corrective or additional work to the extent that such costs exceed the costs that would have been payable had the initial design taken such data into proper consideration. 2.1.109 Scheduling of Submissions. During the schematic and preliminary phases, the Professional shall.scheduie and coordinate its work so the Using Agency has adequate time and opportunity to review and approve both the program and the • design concepts throughout development of these two phases prior to the scheduled submissions to the Department. During the final phase, the Professional shall coordinate its work with the Using Agency to keep the agency current with the project development. The Professional must obtain all approvals in a timely manner to permit the work to continue on schedule. 2.1.110 Coordination of Separate Contracts. The Professional shall coordinate the plans and specifications for all of the separate prime contracts to insure against omissions, conflicts, overlaps or duplications of any items of work or materials on the Project. 2.1.111 Representation as to Qualifications. The Professional specifically represents to and covenants with the Department that the Professional and its consultants, agents, servants, employees, officers and subcontractors possess and shall possess the experience, knowledge, and skills necessary to qualify them individually for the particular duties they perform. 2.1.1 12 Selected Construction Management. When the Department has determined, at any point in'the design, bidding or construction phase, construction management service will be used to provide selected services, including but not limited to, cost estimating, scheduling, constructibility review, value engineering, and 1 construction administration, the Professional shall generally cooperate with the 1 • construction manager. The Professional shall provide the construction manager with drawings, specifications and other information pertinent to the selected construction I management services. The Professional shall be compensated as an additional service 1 it's direct cost for providing the above documents and information to the construction manager. No additional compensation shall be paid the Professional for Construction Phase services provided in support of construction scheduling by a selected • construction manager. 2.2 =SCHEMATIC DESIGN PHASE 2.2.100 Scope of Phase. The Professional shall consult with the Using Agency, and the Department to ascertain fully the requirements of the Scope and the Allocation for the Project. Based upon the forgoing and the Survey, if any, supplied by the Department, the Professional shall develop the program and prepare and submit for approval, sketches consisting of schematic design studies and other documents based on the Scope and the developed program. The Professional shall also prepare a breakdown of the estimated construction cost projected to the then estimated bid receipt date and its relationship to the Allocation. Such costs shall be based on current areas, volume and other unit costs. 2.3 - PRELIMINARY DESIGN PHASE 2.3.100 Scope of Phase. Upon receipt of written approval of the Schematic Phase submission from the Department, the Professional shall, based on the Scope, program and Schematic Phase approval, prepare the Preliminary Design Development Documents. These documents consist of such drawings, outline specifications and other documents as may be necessary to fix and describe the, approximate size and character of the entire Project, its exact site location, and • character and capacity of all structural, mechanical and electrical systems, and such other essentials as may be appropriate -or as may be required by the Department. 2.3.101 Preliminary Construction Cost Estimate and Breakdown. With the Preliminary Documents, the Professional shall submit a statement and breakdown of the estimated construction cost computed at present prices, projected to the estimated bid receipt date, and a justification of the factors used for such projection. If the cost estimate furnished with the preliminary submission is not within the allocation, the Department, subject to the limitations of Section 2.2.100, shall have the following options for proceeding with the design: a. It may require the Professional to adjust the entire design, at no expense to the Department, to bring the preliminary cost estimate within the Allocation. b. It may allow the Professional, at no additional cost to the Department, to include sequentially reduced base bids so that at least one is within the Allocation. The approved base bid within the Allocation shall be the basis for the approved Preliminary Design and the basis for development of the Final Design. If the Professional elects to provide Final design documents for work of Base Bids estimated above the Allocation it is provided at the Professional's risk. Compensation for basic services shall remain in • accordance with paragraph 4 of the Agreement. C. It may instruct the Professional to proceed with the design in accordance with the preliminary design development documents. In such event, the I II Ij I Professional shall be compensated for any costs required to subsequently adjust the design to bring the cost estimate within the Allocation in accordance with Article 2.7, Additional Services. 2.4 - FINAL DESIGN PHASE 2.4.100 Scope of Phase. Upon receipt of the Department's written approval of the Preliminary Phase, the Professional shall develop the Construction Contract Drawings and Specifications, on or before the date provided in the Final Time Schedule, and shall submit the same for review and approval to the Department and for review by the Using Agency. The submission shall include a recommendation for the number of construction days and Temporary Heat days, and all other documents required by the E/A Procedures Manual. 2.4.101 Final Cost Estimate and Detailed Breakdown. The Professional shall submit. a Final Cost Estimate and detailed breakdown for each contract. The Professional. shall advise the Department of any changes from the Preliminary Documents necessitated by current market conditions and a justification for any change. The Final Cost Estimate, if within the Allocation and approved by the Department, is the agreed basis upon which the design is completed. If the Final Cost Estimate is not within the Allocation, the Department, at its sole discretion, has the following options for proceeding with the design: • a. When the 'Final Cost Estimate exceeds the Allocation, the Department may require the Professional to modify the entire design, at no expense to the Department, to bring the Final Cost Estimate within the Allocation. The Department, in consultation with the Professional and the Using Agency, must approve the design modifications to be made. b. When the Final Cost Estimate exceeds the Allocation, the Professional, with the approval of the Department, may include Alternate Base Bids to bring the Final Cost Estimate within the Allocation. Alternate Base Bids in excess of the allocation permitted in the Preliminary Phase shalt be included in the bidding documents as part of Basic Services. Additional Base Bids permitted by the Department to bring the estimated cost within the Allocation are also included in Basic Services and compensation shall be in accordance with Article 4 of the Agreement. J+ • J C. When the Final Cost Estimate exceeds the Allocation, the Department, at its sole discretion, may request a revised Allocation and suspend the design work pending approval of the revised Allocation. Until such time as a revised Allocation is approved, the Professional's compensation shall be based on the current Allocation. If the revised Allocation is approved, the Professional will be notified to proceed with the design and the Agreement will be amended to the revised Allocation. If the revised Allocation is not approved, the Department may, at its sole discretion, direct the Professional to proceed based on one of the other provisions of this paragraph. d. When the Final Cost Estimate exceeds the Allocation, the Department, at its sole discretion, may request a revised Scope and a redesign. The • Professional shall be compensated for the redesign in accordance with paragraph 2.7.100h. e. When the Final Cost Estimate, including all Base Bids, or subsequent Final Estimates, including all Base Bids, exceeds the Allocation and, in the opinion of the Department, the estimate(s) is high, the Department shall designate the highest base bid it believes to be within the Allocation, the Professional shall proceed with the design as directed, and compensation shall be based on the Allocation until the project is bid, if the Department cannot ultimately award contracts because low bids exceed the Allocation, the Professional shall modify the design to be within the Allocation and shall be compensated for wasted design. 2.4.102 Multiple Base Bids. Multiple Base Bids shall appear in the Final Estimate and Bidding Documents under the following conditions: a. If the Department has permitted multiple Base Bids in the Preliminary, they shall be included in the bidding documents for each contract as part of Basic Services. b. If the Final Estimate, or at least one of the previously approved base bids submitted with the final estimate, is not within the allocation and the • overage is not because of any action by the Department, the Professional, as part of Basic Services, shall prepare revised or additional base bids to bring the construction cost estimate within the allocation when directed by the Department. Document revisions for Base Bids required with the Final Submission, which are directly related to actions not the responsibility of the Professional, are reimbursable as additional expenses in accordance with paragraph 2.7.100 a. C. To provide further assurance that the construction bids will be within the allocation, at the direction of :the Department, and at no additional compensation, the Professional shall include one or more additional base bids to reduce the estimate. d. The Professional may include, at its request, a base bid estimated to be in excess of the Allocation so long as the work included conforms to the Scope and is approved by the Department. In such cases, the Professional's compensation for basic services will be based on the award in accordance with Article 4. No additional compensation will be paid for base bids which are incorporated at the Professional's request and which are not awarded. 0 2.4.103 Reports Durina Design on Special Conditions Relating to Operations and Maintenance. The Professional shall familiarize itself with the Using Agency's • normal operating and maintenance programs and shall submit with the Final Phase submission, reports on any special operating or maintenance procedures required by the design. If the design does not require departures from the Using Agency's normal procedures, the Professional shall submit a signed statement to that effect to the Department with the Final Phase submission. 2.5 - BIDDING PHASE 2.5.100 Scope of Phase. When the Department determines the project is ready for bidding, it will provide to the Professional all necessary instructions required to proceed with the Bidding Phase. The Professional's work is considered suspended, in accordance with Article 9.2, for the period between completion of the Final Design Phase and direction to reactivate to commence the Bidding Phase. 2.5.101 Advertising and Receipt of Bids. The Department will designate the date, hour and place for the receipt, public opening, and reading of bids. The Department will designate the construction period and advertise the project forbidding. 2.5. 102 Reproduction and Distribution of Bidding Documents. a. Upon receipt of a deposit from a prospective bidder, the Professional shall assemble and issue complete bidding documents to the prospective • bidder. In addition, the prospective bidder must notify the Professional of the method by which the bidder wishes the documents to be delivered. The bidder must pay the costs of delivery of the documents separate from the deposit. b. The deposit is to be determined based on a not to exceed cost of ten (10) cents per page for specifications and one dollar fifty cents ($1.50) per sheet of drawings. C. The Professional shall also issue drawings and specifications to Bidders' Services designated by the Department and to local Department of General Services Construction Information Center. d. A complete set of documents shall include: (1) Project Specification Manual including: (a) General Conditions and Instructions to Bidders; (b) Notice to Contractors; (c) Prevailing Wage Determination; (d) Special Requirements; and (e) Technical and other Sections of all contracts . (f) Certified ContractorsNendors List l (2) Proposal Form and bid Envelope, with Bond Forms J (3) All drawings of all contracts I e. All bulletins issued after the date of mailing of documents shall be • forwarded to the bidder and bidders' services by certified mail with return receipt requested, or by fax with return fax requested, as part of the Professional's Basic Services. Upon the return of the drawings and specifications in good condition within fifteen (15) days after the opening of bids, the Professional shall return bidder's deposit check. The Professional is not to deposit or cash the bidders' deposit checks prior to a determination that the bidder is not returning drawings and specifications in good condition. The first and second low bidders shall not be required to return the drawings and specifications within the above specified time. The second low bidder shall return the drawings and specifications within ten (10) days after the award of the Contract. If all bids are rejected by the Department, the first and second low bidders shall return the drawings and specifications with ten (10) days after the rejection of the bids. g. All deposits not returned become the property of the Professional. h. The Professional shall furnish the Department with ten complete sets of plans and eleven complete sets, plus two sets per contract, of bound specifications. I. The Department will reimburse the Professional the not-to-exceed amount of ten (10) cents per page for specifications and one dollar fifty cents ($1.50) per sheet of drawings for all complete sets of bid documents which have been distributed to prospective bidders, Bidders' Services and the Department. The payment will be made on actual costs, up to the not-to- exceed cost, as shown on invoices submitted to the Department. The Department will also reimburse the Professional for the actual cost of delivery of drawings and specifications to Bidders' Services and the Department but .for no other administrative costs. 2.5.103 Pre-Bid Conferences. The Professional, with key consultants, shall attend as the chairperson, the first pre-bid conference as part of Basic Services. All other pre-bid conferences, resulting from phasing or other reasons not due to the fault of the Professional, shall be an Additional Service with reimbursement as set forth in Article 2.7, Paragraph 2.7.100t, Rebidding. 2.5.104 Evaluation of Bids. The Professional shall evaluate the reasonableness of the bids and their compliance with the requirements of the bidding documents: The Professional shall render its opinion of qualification with a confidential report to the Department on all information known or ascertainable by reasonable inquiry, bearing on. the qualifications of the three (3) lowest bidders on each contract for which contractor qualifications are required by the bid documents. The evaluation and • report must be submitted within three (3) calendar days after the receipt of the qualification forms from the Department. ' ' 2.6 - CONSTRUCTION PHASE • 2.6.100 Documents. The Professional will furnish to each contractor one (1) set of reproducible drawings and one set of specifications. Additional sets may be sold at cost. 2.6.101 Administration of the Construction Contracts. The Professional shall provide administration of the Construction Contracts and generally administer and review the performance of the work in accordance with the applicable provisions of these General Conditions and as described elsewhere in the DGS Construction Contract Documents. 2.6.102 Access to Work and On-Site Representation. The Professional, consultants and authorized representatives shall have full access to the work at all times. When provided, as an Additional Service, the Professional shall provide a representative at the site during all times of active construction. The representative shall provide the services described in the Bureau of Engineering and Architecture Project Procedure Manual. The Professional's selection of a full-time, on-site representative must be submitted to the Department for prior approval. 2.6.103 Visits to the Site. The Professional, or an authorized and qualified representative, shall visit the site at least biweekly, or more often as required by the Department, during periods of active construction. The Professional shall review the progress of the work, including the completeness of the Contractors' record prints, and • take actions necessary or appropriate to achieve the requirements of the construction contracts. The Professional shall advise the Department's Inspectors as to particular matters to watch and guard against. The Professional's consultants must visit the site at such intervals as deemed necessary by the Department or the Professional, to review their respective phases of the work in order to achieve the requirements of each contract. In addition, the Professional is to attend any and all project site conferences that are determined by the Department to be necessary to clarify the Contract Documents. The Professional is not responsible for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. 2.6.104 Approval of Payment to Contractors. Based on the Professional's visits I to the site and the Contractor's Applications for Payment, the Professional will, within l seven (7) days from receipt of the Contractor's Application for Payment, either approve or disapprove the application for payment. If the Professional disapproves the Contractor's Application for Payment, the Professional will forward in writing the reasons for disapproval to the Construction Regional Director. 1 2.6.105 Interpreter. The Professional is, in the first instance, the interpreter of the I Construction Contract Documents and the initial evaluator of the Contractor's performance there under. Within seven days after receipt of a written request from a contractor, the Professional will, render in writing an interpretation or evaluation • consistent with the Contract Documents. The Professional will provide the Department l with a copy of the interpretation. J 10 2.6.106 Review of Contractors' Shop Drawings and Materials. The Professional shall review and approve shop drawings for compliance with the Contract . Documents, and process as provided in Article 6 of these General Conditions. The Professional shall review and approve all samples, materials, and other submissions of the Contractor for conformity to and harmony with the design concept of the Project and for compliance with the requirements of the Contract Documents. The Professional shall request from the Contractor and may rely on bona fide test data, certifications and evidence submitted by the Contractor, as needed to establish conformity wits contract requirements prior to approving material and products submitted. 2.6.107 Progress Reports as to Construction. The Professional shall, N seven (7) days of each site visit, make written reports to the Department relative t progress of the work. The Progress Reports to the Department shall includ( Consultants' findings on each of their visits. 2.6.108 Review and Approval of Contractor's Breakdown Sh Professional shall review and approve or disapprove the detailed Cost break__ _ sheets submitted by all Contractors.. 2.6.1 09 Change Orders. The Professional shall evaluate and recommend action to the Department on all change order requests initiated by the Department, the Using Agency, the Contractors, or by the Professional's own observation of the work. The evaluations shall include a cost estimate (with a breakdown of major Hems of work), an opinion of the cause of the change order with substantiating background and a • recommendation as to whether the change order should be pursued. The Department may require the Professional to submit a detailed breakdown to support the cost estimate. The Professional shall review all costs submitted by the Contractor for all change orders and advise the Department in writing of their acceptance or rejection within seven days of its receipt of the costs. Justification must be provided to substantiate disputed costs. The Department will review the Professional's input and determine those change orders to be pursued. Compensation for services associated with change orders, including the Professional's detailed breakdown, shall be in accordance with paragraph 2.6.110 and 2.7.109 of these General Conditions. 2 .6.110 Errors and Omissions. If it becomes necessary during the course of construction to issue change orders which increase the cost of the Project because of the Professional's failure to produce proper and coordinated specifications and drawings, or any portions thereof relating to-the project, in accordance with accepted standards and practice, the Professional shall be assessed the difference between the amount of the change order and what the Department would have paid had the error or omission not occurred, plus administration costs incurred by the Department. The Department's administration costs will not exceed the professional fee percentage rate established for the project applied to the change order amount. The assessment for added cost will be based on the following: a. If the• change order is an omission change order, the assessment for the • difference between the amount of the change order and what the Department would have paid had the omission not occurred will be based on the construction cost index change between bid opening and the change order cost proposal, but in no case less than zero. For purposes of 11 i this section, a change order is an omission change order If additional work is required due to the failure of the Professional to produce proper and • coordinated specifications and drawings, but no work must be removed or replaced to carry out the change order. b. If the change order is an error change order, the assessment for the difference between the amount of the change order and what the Department would have paid had the error not occurred will be the same as for an omission change order plus the cost of removing and replacing work in order to remedy the error. For purposes of this section, a change order is an error change order if work must be removed and/or replaced because of the failure of the Professional to produce proper and coordinated specifications and drawings. No fee will be paid for change orders preliminarily designated as resulting from an error or omission. The assessments set out in 2.6.110(a) and (b) will not take effect until after the value of approved change orders exceed 3% of the aggregate contract award amount. If the value of the approved change orders which are determined to be the result of the Professional's error or omission does not exceed. 3% of the aggregate contract award amount upon completion of the project, the fee will be paid on change orders preliminarily designated to be error or omission change orders. If the value of approved change orders, which are determined to be error or mission change orders, exceeds 3% • of the aggregate contract award amount, the assessments set out in 2.6.110(a) and (b) will apply to all change orders determined to be error or omission change orders. Once the value of the approved change orders exceeds 3% of the aggregate contract award amount, the Department will review change orders preliminarily designated to be error or omission change orders on a quarterly basis. 2.6.111 Rejection or Stoppage of Work. The Professional shall recommend rejection of work that does not conform to the Contract Documents and immediately notify the Department of the recommendation of rejection. The Professional shall recommend stoppage of Contractors' work or_special testing whenever such testing or stoppage is necessary, in the Professional's opinion, for the proper performance of the Construction Contract Work. Recommendation of stoppage shall be made orally to the Department's field representative and confirmed, in writing, within twenty-four hours of the recommendation. The confirmation-- must include the reasons for such recommendation. 2.6.112 Construction and Maintenance Data. At the time of substantial completion of the Project, the Professional shall collect from the prime contractors, as provided in the Construction Documents, a rough draft of the Operation and Maintenance Instructions Manuals prepared by the contractors. The Professional shall review the rough draft for completeness including all pertinent shop drawings, diagrams, catalog data, manufacturers operating instructions, manufacturer's or supplier's • maintenance instructions, certificates, warranties, guarantees and other pertinent operating and maintenance data. The Professional shall indicate its approval of the rough draft with correction if necessary or request a revised draft and resubmission of the manual for the Professional's review and approval. Upon receipt of the two (2) final 12 bound manuals from the prime contractors, the Professional shall review them for accuracy and content, and when they meet with its approval, the Professional shall forward the two (2) copies to the Department. 2.6.113 Construction by State Employees. Should the Department decide to perform the actual construction using its own personnel, or other State employees, or inmates, the Professional shall prepare a list of construction materials and specifications for purchasing the materials as part of the Basic Services in lieu of supplying construction contract specifications. Unless otherwise indicated, the Professional shall provide drawings and all construction administration services as part of the Basic Services. The Professional's fee for Basic Services for work constructed by state employees or inmates shall be based on twice the cost of construction materials plus an estimated contracted labor cost approved by the Department for that portion of the project completed by non-contract labor. In no event, however, will the fee be based on an amount in excess of the Allocation for the project. 2.6.114 Final Inspection. When the Contractor submits in writing to the Department a request for a Final Inspection and an application for final payment, final inspection will be made within 30 days of the receipt of the request for final inspection and application for final payment.. If the work is substantially completed, the Professional will issue a certificate of final completion and a final certificate for payment. The certificate given by the Professional shall list in detail each uncompleted item and a reasonable cost of completion. The Professional will participate in inspections to determine if the hems are completed. is 2.6. 15 Record Drawings. At substantial completion of the work, the Professional shall prepare Record Drawings showing all changes from the construction documents made during the course of construction. The Record Drawings shall indicate the vertical and horizontal alignment of concealed pipes, conduits and similar items. Recorded changes shall be obtained from clearly marked field prints provided by the contractors and field office of the Department and from change orders. The Record Drawings shall be 0:003", or heavier, polyester drafting film (Mylar) shall be identified as "Record Drawings", shall be delivered to, and shall become the sole property of, the Department. The Record Drawings may be prepared by modifying the original construction contract reproducible sheets if they are the proper material or they may be made on separate set of reproducible sheets of the proper material. In either case all construction changes from the original contract documents must be clearly designated. 2.6.116 Construction Administration Beyond Scheduled Completion Date. If the last final inspection for construction contracts occurs after the period of scheduled construction as specified in the construction contract documents, then the Professional is entitled to additional compensation for each month up to final inspection for which there is: (a) actual and active construction at the site, and (b) bi-weekly job conferences held and the Professional actively attends to both (a) and (b). The additional compensation is.payable monthly, upon approval of an invoice, in the amount of one half of the regular monthly installment computed under Section 4.1.105a. If the services • of a full-time, on-site Professional's representative during an extended or overrun period are required by the Department, they shall be provided as an.Addhional Service in accordance with paragraph 2.7.100g. The Professional shall not be entitled to compensation under this paragraph for delays in construction that are attributable in 13 whole or in part to the Professional. Should there be more than one construction phase in the project, the calculation of additional compensation due the Professional under this paragraph shall be made separately for each phase. The decision of the Department shall be final in so far as determining when there is actual and active construction at the job site and when the Professional's compensation shall be withheld because of delays that are attributed in whole or in part to the Professional. 2.6.117 Standards of Quality. Where trade names, catalog number and manufacturers of material or equipment are specified, they are to be mentioned for the purpose of establishing a standard of quality, performance, and appearance, and for establishing a standard of competitive bidding. If the Contractor wishes to utilize material or equipment that is of the same type, but manufactured by others than those named in the specifications, the Contractor shall certify that the material or the equipment is equal in quality, performance and appearance to that mentioned in the specifications. The Contractor shall submit to the Professional and the Department, subsequent to the Effective Date of the Contract, a request to furnish such material or equipment as equal to those named in the. specification. The Contractor's request shall include a comprehensive description of the material or equipment proposed to be utilized as equal, including engineering, construction, dimension and performance data. Within thirty days after receipt of the Contractor's request, the Professional will render a written determination to the Contractor. Products, material or equipment determined as equal to that named in the specification are not Substitutions. I .6.118 Substitutions. Should the Contractor desire to furnish material or equipment different in quality, performance, or appearance from that named in the i specification, the Contractor shall submit to the Professional and the Department a i comprehensive description of the proposed substitution, including engineering, construction, dimension, performance and appearance data, along with a statement of the cost involved. The Professional shall render a written opinion of the proposed substitution to the Department within thirty (30) days after receipt of the request for Substitution. 'The Professional's opinion shall include an evaluation of the salient characteristics of the proposed substitution, its compatibility with the Project, its cost and any schedule impact on the Project. 2 .6.119 Extensions of Time. The Professional shall assist the Department, if requested, in the review of Extension of Time requests and claims of any type. 2.6.120 Professional Observation of Testing. If the Professional wishes to observe inspections, tests or approvals, it shall do so promptly and where practicable, at the source of supply. 2.7 - ADDITIONAL SERVICES 2.7.100 Additional Services Not Covered by Compensation for Basic Services. Unless required by the Project Scope or included as part of the Basic l Services by the ..Special Conditions to the Agreement (including the Orientation • Summary Sheet);" the Additional Services described in this Part of the General Conditions are not covered by the Compensation for Basic Services. If requested, in writing, by the Director of the Bureau of Engineering and Architecture, and performed by 14 the Professional, such Additional Services shall be the subject for additional compensation, as provided in this part. . a. Revisions to Approved Drawings and Specifications. Revising previously approved drawings or specifications to accomplish changes not initiated by the Professional and not required by the terms of the Agreement to bring costs within the Allocation. In no case, however, shall revisions through the Sketch and Preliminary Design Phases, other than revisions made necessary by an approved revised Project Scope or fundamental program change, be considered as Additional Services. b. Detailed Estimates of Construction Cost. Furnishing Detailed Estimates of Construction Costs except as specifically provided in 2.4.101. C. Replacement of Work Damaged by Fire or Other Causes. Evaluating and/or providing replacement studies of any work damaged by fire or other causes beyond the Professional's control during construction. d. Specialized Services. Providing any unusual or specialized services or special discipline consultants (using the Professional's own employees or a consultant), other than those required in the Agreement and/or not consistent with inherent requirements to meet the fundamental needs of the Project. These services may include the testing, inspection and air quality monitoring associated with the removal of any asbestos, other • hazardous waste or contaminants encountered. e. Default of Contractor. Preparation of Bidding Documents and review of work completed and/or yet to be done upon default of the contractor(s) and services made necessary by major defects or deficiencies in the Work of the Contractors. Special Studies. Providing services related to the preparation of Environmental Assessments and/or Environmental Impact Statements, Energy Impact Statements, Analysis or Feasibility Studies as may be required by Local, State or Federal Government Agencies providing that such services are not within the Project Scope, and are not included in the Special Conditions to the Agreement. g. Project Representation (1) If more extensive representation at the site is required by the Department than is provided for in the Agreement, the Professional shall provide one or more Full Time Project Representatives to assist the Professional. Such Full Time Project Representatives shall be selected, employed and directed by the Professional, and such selection shall be approved in advance by the Department. • (2) The Full Time Project Representative or Representatives shall provide the services noted in the Bureau of Engineering and Architecture's Project Procedure Manual and through continuous 15 GE on-site observations, exercise good faith and due care to provide further protection to the Department against defects or deficiencies • in the performance of the Construction Contracts, but this additional service shall not relieve the Professional of its responsibilities under the Agreement. (3) Compensation for each full-time Project Representative shall be mutually agreed upon in advance. (4) The Professional's full-time on-site representation required by the Department during periods of construction overrun due to the Professional's failure of performance shall not be compensated. Wasted Design. Compensation for wasted design shall be made in either of the following cases: (1) For that portion of an approved design or program which cannot be reused in a revised design provided that design changes or revisions to the design are not initiated by the Professional and provided that they are not covered under Paragraph 2.7.100 a. Additional compensation for such services shall be pursuant to a negotiated amendment to the agreement. (2) Where there are Base Bids, and the Department decides not to • award a base bid which is within the Allocation, but instead awards a lower base bid, that portion of design, which is less than the allocation but in excess of the base bid which is awarded is considered to be wasted. Additional compensation shall be based on the Professional's Basic Services fee percentage times the difference in the highest aggregate base bids which were within the allocation and the aggregate of the base bids actually awarded. i. Deaartment's Special Consultants. Providing increased services related to Construction Scheduling, Value Engineering and other special consultants during the Design and Bidding Phases when initiated by the Department and when such services are not included in the Special Conditions. j. Steel Products Reouirements. Providing design services to ascertain all items incorporated into the project that contain steel, their origin of manufacture, exemptions/requirements for steel certifications and a listing 1 of all steel products subject to the Steel Products Procurement Act. 1 k. Listing of Required Submittals. Providing a complete list of 'Approval J Actions" describing all items, which require submission of an approval - shop drawings, catalogue cuts, samples, certificates, sources and other l related items. J , I. Value Engineering. Providing as a separate and distinct design service, l the identifying through recognized value engineering techniques the J function of project entities and their value in relation to the lowest overall 16 project cost. This service includes accompanying recommendations for construction and life cycle cost services. • M. Surveys. Providing, to the extent required by the project, a Plat of Survey of the site and sufficient adjacent lands, certified by a qualified licensed surveyor, and a Report of Survey, giving, as applicable, grades and lines of streets, alleys and pavements; the location of all rights of way restrictions, easements, encroachments, boundaries and contours of the site; location, dimensions and other complete data as to the exterior of existing building, or other improvements and trees; and full description and location of all known services and utility lines on the site. n. Subsurface Utility Engineering. Providing the location and identification of unknown, unobservable underground facilities, utilities, tanks and other buried objects to the extent required for construction of the project. Prospecting techniques including radio frequency electromagnetic, magnetic acoustic emission sonics, terrain conductivity, ground penetrating radar and select excavation shall be used to provide a comprehensive horizontal map and give an indication of vertical position. Information obtained using this service shall be shown on the Plat of Survey of the project site. o. Field Tests. Providing sub-surface explorations, test borings, test pits and related work. • p. Soils Foundation Engineer. Engaging the services of a registered quailed soils foundation engineer for furnishing necessary design analysis/recommendation and construction soils and/or foundation testing, inspections, approvals and recommendations. q. Laboratory Tests. Providing laboratory testing of soils, concrete or other construction materials and equipment. Shop Drawings. Services engaged in reviewing shop drawings additional to the initial approved set for each item when the Contractor elects to change the manufacturer or subcontractor after the initial manufacturer's or subcontractor's shop drawings have been approved. S. Change Orders. Services of the Professional arising from a change order authorized by the Department, which is not the result of the Professional's error or omission. Compensation for such services shall not require an amendment and shall be at the basic services fee percentage established for the project applied to the change order amount, with no reduction for credit change orders. Additional Compensation other than at the established percentage rate may be paid in the following circumstances: . 1. When professional services for a debit or credit change order are determined by the Director of Engineering and Architecture to be so extensive that the applicable percentage fee is not just 17 compensation, a negotiated amount will be established by amendment. 2. When negotiating additional compensation in an emergency situation or when failure to proceed with the change order would cause delay, the Professional shall prepare the change order and keep accurate records of its cost. If it is determined to be appropriate by the Department, it will pay additional compensation based on the Professional's records of its services. 3. When an authorized change order has been canceled prior to its execution, the Professional shall be compensated for the additional services performed prior to cancellation at a negotiated amount. If the work included in the canceled change order is subsequently undertaken by a separate phase or contract under this Agreement, the Department shall be credited the portion of the additional compensation paid for the canceled change order design work. t. Phasing. Providing administrative services in accordance with Paragraph 4.1.106; Phasing. Additional compensation for such services shall be 314 of 11% of the aggregate of all contracts awarded for each phase. There will, however, be no additional compensation for administrative cost in connection with the phase which has the highest construction contract award. Until all contracts of all phases are awarded the additional • compensation shall be paid as part of the regular payment installments based on the Allocation and the approved estimate or award of each applicable phase in accordance with paragraph 4.1.106. U. Rebidding. Services occasioned by. rebidding construction contracts when rebidding is not the result of the- Professional's failure to perform. Additional compensation shall reimburse the Professional's direct cost for revising documents, administration of rebidding, evaluation of bids and proposals and all other associated services at rates consistent with the Bureau of Engineering and Architecture Project Procedure Manual. V. Codes. Ordinances and Permits. The Professional shall be reimbursed the actual amount paid to regulatory agencies for approvals, applications for approvals and permits obtained by the Professional in accordance with paragraph 7.1.100 of these General Conditions. The Professional shall be paid its direct cost, as additional compensation, for the preparation of documents required by regulatory agencies which documents are. not part of the construction documentation. Examples are; measured drawings for fire/safety code review of portions of the building not involved in the Project, and Land Development approval drawings and computations. 4 / t, 2.7.101 Compensation for Additional Services SVC • a. For the additional services described in Paragraph 2.7.100, sub paragraphs "a" through "I"and "r", compensation shall be mutually agreed upon in advance by the Department and the Professional. In the event an 18 agreement cannot be reached, the Department may direct the Professional to provide the additional services, in which case the Professional shall provide said services and shall keep a daily record of the work performed and its cost for performing the additional services. After the additional services authorized by the Department are completed by the Professional or are terminated by the Department, the Professional may submit a claim for the cost incurred in performing the additional 1 services. b. For the additional services described in Paragraph 2.7.100, sub paragraphs "m" through "q", compensation shall be based upon the actual cost of such services. If the services are performed by an entity other than the Professional, the Department shall consider the actual cost of such services to be the amount paid to that entity by the Professional after soliciting bids or proposals approved by the Department, plus ten percent (10%) of that amount for the Professional's expense and profit. When the services' are provided by the Professional or its Consultants the actual costs of such services shall be subject to the hourly rates as set forth in the Bureau of Engineering and Architecture Project Procedure Manual in effect at the time the Agreement was executed. C. For the additional services described in Paragraph 2.7.100, sub paragraphs "s" through "v" compensation shall be as provided in said paragraph. 10 ARTICLE 3 THE DEPARTMENT'S RESPONSIBILITIES AND DUTIES 3.1.10 Basic Information. The Department shall provide the Professional with the Project Scope and all available information as to the requirements of the Project, including the amount of the Allocation. If the information furnished is not sufficient for the initiation of design development, the Professional shall immediately notify the Department. 3.1.101 Plat or Survey and Surveyor's Report. The Department will furnish to the Professional, when and to the extent required by the Project, a Plat or Survey of the site and sufficient adjacent lands, certified by a qualified licensed surveyor, and a Report of Survey, giving, as applicable, grades and lines of streets, encroachments, boundaries and contours of the site; location, dimensions and other complete data as to the exterior of existing buildings, other improvements and trees; and available information concerning all known and observable services and utility lines on the site, which information must be included, by the Professional, in the contract drawings. If the information furnished is not sufficient for the initiation of design development, the I Professional shall immediately notify the Department and indicate for the Department's J • review and final decision areas where the information is insufficient. The Department, at its option, may authorize the Professional to obtain the aforementioned services in accordance with Paragraph 2.7.100 m. In all cases the Professional is responsible for 1 19 11 • verifying at the site, with reasonable accuracy, the completeness and correctness of the information provided. 3.1.102 Interpretation of Instructions. The Department is the sole interpreter of any printed instructions, including the Bureau of Engineering and Architecture Project Procedure Manual fumished the Professional, and may require conformance with same at all times during the development of the Project. 3.1.103 Department to Act Promptly. The Department shall act with reasonable promptness upon all submissions and any failure of the Department to so act shall result in an extension of time to the Professional under the current Time Schedule equal to the number of days of the delay. If the Professional and the Director of the Bureau of Engineering and Architecture of the Department cannot agree upon the extension to be granted, the Deputy Secretary shall decide the matter. Such extension of time is the only remedy for such delay. The Professional is not entitled to any additional compensation as a result of such delay. 3.1.104 Effect of Department's Failure to Disapprove Design Work. Any approval of, or failure of the Department to disapprove or reject, design work submitted by the Professional does not relieve the Professional of its full responsibility to the Department for the proper and professional performance of all design work on the project. 3.1.105 Copies of Certain Documents. The Department shall supply the • Professional with the Bid Proposal Forms, which the Professional is responsible to duplicate in the quantity required for distribution. The Department shall supply the Professional' with, sufficient copies of the Bid Envelopes, and Bid Bond Forms to enable the Professional to comply with the terms of Paragraph 2.5.102 with regard to the bidding documents to be supplied to prospective bidders. 3.1.106 Advertisement of Notice to Bidders. The Department shall arrange for the necessary publication by advertisement of the Notice to Contractors, and shall notify the Professional when the advertisements are released for publication. Until so notified, the Professional shall not release Contract Documents to any potential bidder. ARTICLE 4 THE PROFESSIONAL'S COMPENSATION AND PAYMENT 4.1.100 Basis of Professional's Comnensation During Design. The Professional's compensation ; and payments for the Schematic and Preliminary approvals, submission of acceptable Final Documents, approval of Final Documents is based upon the amount fixed in the Allocation provided: . a. At the completion of the Preliminary Submission, K the Preliminary Construction Cost Estimate is more than 20% below the Allocation, the Department will adjust the Professional's compensation for Sketch and 20 Preliminary Submission in accordance with the approved Preliminary Construction Cost Estimate. • b. If at the submission and acceptance of the Final Construction Cost Estimate the estimated cost of construction is more than 20% below the Allocation, the Department will adjust the Professional's compensation for Sketch, Preliminary, and Final Submissions and approvals in accordance with the Final Construction Cost Estimate, if not previously adjusted during the Sketch and Preliminary Submissions. 4.1.101 Basis of Professional's Compensation Upon the Receipt of Bid Proposals, and Upon the Award of Contract. The Professional's compensation and payment shall be based on the contract awards, with adjustment to prior payments for the Schematic through Final Design Phases, provided: a. The contract award does not exceed the Allocation plus five percent (5% b. If the contract awards exceed the Allocation plus five percent. (5%) and additional funds are provided to award construction contracts, the Professional's compensation and payments will be based on the total contract award amount. C. If the aggregate of low bids exceeds the Allocation plus five percent (5%) and the approved Final Construction Cost Estimate is within the Allocation • and additional funds are not made available for the award of contracts, the Professional shall, at the direction of and without charge to the Department, redesign and rebid the Project until the aggregate of the low bids is within the Allocation plus five percent (5%) above the Allocation. d. If the aggregate of low bids exceeds the Allocation plus five percent (5%), additional funds are not made available for the award of contracts, the Professional has notified the Department of the inadequacy of the Allocation in accordance with Paragraph 21.101, and the Professional is instructed to proceed without a change in the Scope or in the Allocation, the Professional shall be compensated for any necessary redesign, subject to a negotiated credit for that portion of the original design which is applicable to the redesign. In the event the Department and the Professional cannot agree upon 'a negotiated credit, the Professional shall proceed to redesign without delay when so directed by the Department and may submit a claim as provided in Paragraph 7 of the Agreement. e. If the aggregate of low bids falls more than 15% below the Allocation, the Department, at Its discretion may reject all bids and require the Professional to redesign and rebid the project, without cost to the Department, until the aggregate of the low bids is within the established limits: The Department, at its option, may award all or selected bids. If • additional funds allow after the award of bids, the Department may, at its option, direct the Professional to initiate an additional phase of design and construction and to prepare Drawings and Specifications for bidding to the extent permitted by the Allocation. Payment for all the Professional's 21 ' services in the event of such an additional phase shall be in accordance with Paragraph 4.1.106. • f. If the Department elects to award a base bid other than the highest base bid for which aggregate low bids are within the allocation, the Professional's compensation for Basic Services for the Design Phase (aggregate of 75%) shall be adjusted to the sum of low bids of the highest base bid within the allocation in accordance with paragraph 2.7.100 h. Wasted Design, of these General Conditions and the compensation for the Construction Phase (aggregate 25%) shall be based on the aggregate of all contracts awarded. g. If the Department, in its sole discretion, determines that it is appropriate, the Department may base compensation on the Final Estimate, and not l adjust the compensation to the award amount. Neither the Department's failure to exercise its discretion concerning this determination, nor any determination it makes under this paragraph, shall give rise to a claim by the Professional. The Professional agrees to accept, without challenge, the Departments decision to utilize this paragraph. 4.1.102 Basis of Professional's Design Compensation for Value Engineered Projects. For projects in which the Professional performs, administers or cooperates in 1 value engineering services during design as specified in paragraphs 2.7.1.00 i, a Department's Special Consultants or 2.7.100 1, Value Engineering, the design compensation will be based on the fee percentage, applied to an agreed to amount no l • greater than the allocation. If the Department awards construction contracts at an amount higher than that agreed, then the Professional's design compensation will be based on that higher amount. ! 4.1.103 Anplicable Percentage. The applicable fee percentage is the percentage applicable to current basis of compensation determined in accordance with Paragraph 4. 1.100 and Paragraph 4.1.101, which percentage shall be as provided in Paragraph 4a of the Agreement. Exhibit A to this Agreement contains project compensation percentages and rules that apply to all Department projects. 4..7104 Schedule of Payments During Design. The Professional's compensation is payable monthly in accordance with the percent complete of the various design phase whose total values are calculated using the design phase percentages below. Payment for work in subsequent design phases is not contingent on the approval of a prior phase when the project is being designed and bid in sequential bid packages or phases: Payment Aggregate a. Upon approval of the Schematic Phase 15% 15% b. Upon.approval of the Preliminary Phase 15% 30% C. Upon submission of apparently acceptable • Final Documents 25% 55% d. Upon approval of the Final Phase 20% 75% 22 As used above, the approval required is the written approval of the Department that the indicated phase has been satisfactorily completed, or a written statement that the • apparently acceptable Final documents are received. 4.1.105 Schedule of Pavments After First Job Conference. The remaining 25% of the Professional's compensation will be paid in installments beginning with the first job conference as follows: Payment Aggregate a. Balance of payment apportioned as many installments as there are calendar months form the actual start of construction to the completion date specified in the Construction Contract Documents. Monthly payments will be made upon determination by the Bureau of Construction that acceptable performance has been rendered. 20% 95% b. Upon acceptance by the Department and Professional's Certificate of Final Completion and approval of the Record Drawings and completion of the, Department's evaluation of Error/Omission change orders 5% 100% If the last final inspection for construction contracts occurs after twenty percent (20%) beyond the period of scheduled construction as specified in the Construction Contract Documents, upon the Professional's request to the Director of Construction, the • Department may release up to fifty percent (50%) of the final payment of 5% being retained under Paragraph b. 4.1.106 Phasing. At the orientation, or during the several design phases, the Department in its sole discretion shall determine whether or not the Project and the related contracts will be designed, bid and/or constructed in one or more phases. The fee percentage payable for a phase or phases shall be the percentage applicable to the Allocation and the Professional's compensation .and payment for the Sketch, Preliminary, and Final Phases shall be based upon the construction cost estimate established by the Department for each phase. The Professional's compensation and payment upon receipt of bids for each phase shall be based on _the contract awards, with adjustment to prior payments for the schematic through final design phases. Upon award of contracts for the final phase, the applicable fee percentage for payment for all phases shall be the percentage applicable to the aggregate of contract awards for all phases and all previous payments adjusted. Compensation for Basic Services shall not be subject to any additional design, bidding or construction phase reimbursement except that the Professional will be compensated for additional services required by the phasing in accordance with 2.7, Additional Services. Phasing initiated by the Department in accordance `with Paragraph 4.1.101, Basis for Professional Compensation, Sub-paragraph e, shall be compensated for as set forth in Paragraph 2.7.100 t, Phasing. 23 ! .1 11 ARTICLE 5 PROFESSIONAL'S ACCOUNTING RECORDS • 5.1.100 Records. The Professional's direct personnel costs, Consultant costs and all other expenses pertaining to the Project, shall be. kept on a generally recognized accounting basis and with proper records, and such records shall be available to the Department at the Professional's office for inspection and copying at mutually convenient times for a period of at least 3 years beyond completion or termination of the contract. Cost incurred by Professional for providing additional services shall be kept separate and apart from all other project costs. ARTICLE 6 SHOP DRAWINGS 6.1.100 Priority Submittal Schedule. Contractors shall submit all necessary submittals to the Professional in accordance with a priority submittal 'schedule established by the Professional and the Contractors. The priority submittal schedule shall be determined no later than the first Job Conference held after the initial job conference. 6.1.101 Approval of Shop Drawings. The Professional agrees that time is of the • essence of this Article and.shall return the approved shop drawings, or detailed notation for resubmission If required, within fourteen days after the submission date on the established priority schedule, unless a different period is approved by the Department 1 The fourteen day period is the time from the scheduled receipt of the submittal by the Professional to the time of receipt by the Department of the submittal by the Professional. If the Professional's receipt of the shop drawings is late by the approved schedule, the Professional shall endeavor to. meet the schedule for acting upon the submission, but shall have the submission delivered to the Department no later than within fourteen (14) days after receipt. The Professional shall act on any resubmissions within ten days of its receipt, unless a different period is approved by the Department. The Professional's review and approval is only for conformance with the design concept of the project and with the information given in the Contractor Documents. The Professional's approval of a separate item does not indicate approval of an assembly in which the item functions. A detailed log shall be maintained by the Professional as to time of receipt of the shop drawings and time of retum with adequate notes as to their disposition. Upon any failure to abide by the time provision of this section, or such extension thereof as may be granted in writing, the compensation due the Professional shall be reduced by the sum .set out in the Professional Agreement, as liquidated damages for each and every working day including Saturdays, until the proper disposition of shop drawings is made. The Department, however, may extend the date for the return of shop drawings for cause over which the Professional has no control and which, in fact, delays the required action on the shop drawings. The reduction in the • compensation shall not be the Department's sole remedy for damages caused by the delay of the shop drawing approval. 24 rJ ARTICLE 7 PROFESSIONAL'S RESPONSIBILITY FOR CONSULTANTS, OBSERVANCE OF • LAWS AND COOPERATION WITH LOCAL BODIES. AND INSTRUCTION REGARDING PROPRIETARY ITEMS 7.1,100 Responsibility. The Professional is responsible for the compliance of the Drawings and Specifications with all applicable permits, laws, regulations and ordinances of all commissions, agencies and govemments, federal, state and local, insofar as they are applicable to, and have jurisdiction over, the Project. The Professional shall make all required submittals to, and shall obtain all required approvals from, the applicable agency in a timely manner so as not to cause delays to the Project. 7.1.101 Cooperation with Local Bodies. During the design of the Project, the Professional shall keep informed and comply with the requirements of all local zoning, planning and supervisory bodies. Should these requirements substantially increase the cost of the Project, or should any required approvals be withheld-by the local bodies, the Professional shall immediately notify the Department. 7.1.102 Proprietary Items, Copyrights, Patents. The Professional shall not include in the design of the Project any equipment, material or mode of construction which is proprietary or which contains a copyright or patent right relating to designs, plans, drawings or specifications, unless the equipment, material or mode of construction is different and fairly considered superior in quality and performance. If the IS Professional includes in the design of the Project any equipment, material or mode of construction which is proprietary, it shall have prior approval by the Department and it shall only be because the item is different and fairly considered superior in quality and performance, and not for the purpose of preventing or restricting competitive bidding. Professional may not knowingly list as acceptable any item which cannot comply with the Steel Products Procurement Act. ARTICLE 8 INSURANCE 8.1.100 Professional Liability Insurance. The Professional shall secure and maintain, at its sole cost and expense, Professional Liability Insurance to protect against loss resulting from design errors and omissions, failure to coordinate properly the Drawings and Specifications of the Project, and failure to properly execute the construction administration duties for the Project. a. Unless otherwise specifically provided in the Agreement, the Professional shall be required to secure and maintain Professional Liability Insurance with a minimum coverage of $50,000, or the total of the Professional's fee, based on current allocations, under all the contracts with the Department • as of the date of this Agreement, whichever is greater. 25 ' b. If the Professional is a Joint Venture, one Professional Liability Insurance policy covering the Joint Venture, or separate policies covering the individual joint venturers may be furnished. If separate policies covering • the individual joint venturers are furnished, each policy must provide the minimum coverage called for by Paragraph 8.1.100 a of the General Conditions. In addition, the certificates of insurance required under Paragraph 8.1.102 of the General Conditions, in the case of separate policies, must include statements that the insurance covers joint venture projects. C. The Professional is required to secure and maintain Professional Liability Insurance, in accordance with this Paragraph 8.1.100 of the General Conditions, up to and including one year after the date of the last final inspection of the contracts under the Project. 8.1.101 General Liability Insurance. The Professional shall secure and maintain, at its sole cost and expense, adequate General Liability Insurance to protect the Department and its employees against claims arising out of the Professional's services during the design and construction of the Project for damages in law or equity for property damage and personal injury, including wrongful death. The Department shall be named as an additional insured in the policy and the Professional shall submit a certified copy of the entire policy to the Department, prior to the Department's submission of the executed Agreement to the Professional The limits of coverage shall be acceptable to the Department. The Professional is required to secure and maintain • General Liability Insurance up to and including the submission of Record Drawings and J a Certificate of Completion. 8.1.102 Certificate of Insurance. The Professional shall furnish to the Department annually, unless otherwise requested, during the active terms of this Agreement, a Certificate from an Insurance Carrier authorized to do business in Pennsylvania indicating: 1) the existence of the insurance required under this Article; 2) the amount of the deductible; and 3) the amount of coverage of such insurance. The Professional shall submit a Certificate of Insurance covering the Professional Liability insurance requirement for one year beyond- the last final inspection referenced in Paragraph 8.1.100. 8.1.103 Failure to Comply with Insurance Requirements. During any period in which the Professional is not in compliance with the terms of this Article 8, no compensation shall. be paid by the Department to the Professional. ARTICLE 9 TERMINATION OF AGREEMENT AND SUSPENSION OF WORK THEREUNDER 9.1.100 Termination for Convenience. The Department shall have the right at • any time for any reason, to terminate the Agreement by written notice, which termination shall be effective as provided in said notice. The Professional shall comply with all reasonable instructions of the Department then or subsequently given, relating to such termination, including but not limited to: instructions concerning delivery of drawings, 26 sketches, and other architectural/engineering data to the Department; discontinuance of the work on outstanding contracts; and furnishing to the Department information concerning all action to be taken respecting outstanding agreements with consultants, • contracts, awards, orders or other matters. 9.1.101 Termination upon Disability of Professional. In the event of death or mental or physical disability of Professional, or the Professional's inability to complete the contract for any other reason over which Professional has no control including military mobilization, or dissolution of the Professional firm, the Department may terminate the Agreement by written notice, which termination shall be effective as provided in said notice, and select and employ a new professional to complete the work. 9..102 Termination for Default of Professional. The Department may terminate this Agreement for any material default of the Professional, including default in making submissions or taking action within the time limits specified in the Agreement, upon written notice to the Professional and Professional's failure to cure the default within a period of not less than ten (10) days as specified in such notice. 9..103 Adjustment of Compensation Upon Termination. Upon termination of the Agreement, as hereinbefore provided, the compensation of the Professional shall be adjusted in accordance with the following: a. If the Agreement is terminated as of the end of any of the six phases of the Professional's work, described in Article 2, for any reason except the material default by the Professional, all obligations of the Department to the Professional shall be discharged by the payment to the Professional of that percentage of the fee due under Article 4 for the completion of the work through that phase, plus any reimbursable costs properly approved under the Agreement or otherwise authorized and properly incurred under any provision of these General Conditions. b. If the Agreement is terminated at any time during the Construction Phase, for any reason except the material default by the Professional, the obligation of the Department to -the Professional shall be discharged by the payment of the monthly payment due for the month in which such termination occurs, plus any other unpaid items due and owing for work performed prior to the termination date. C. If the Agreement is terminated for any reason except the material default by the Professional, at any time during the course of any Design Phase, all obligations of the. Department to the Professional shall be discharged by the payment to the Professional of all sums due and unpaid in respect of all completed design phases, plus an appropriate portion of the payment due for the phase in which the Agreement is terminated. d. If the Agreement is terminated by reason of death or incapacity of the professional, all payments due and owing shall be made to the • Professional's personal representative. If the Agreement is terminated by reason of the liquidation of a partnership or the dissolution of a 27 corporation, payment shall be made to the liquidating partners or trustees as the case may be. • e. If the Agreement is terminated by reason of a material default of the Professional, continuing for the period specified in the written notice of such default and demand for cure, no further payments will be made to the Professional until the Department has engaged another Professional to complete the Project. If another Professional is engaged, the cost to the Department of the compensation and expenses of such other Professional will be deducted from the remainder of the compensation otherwise payable to the Professional for completion of the work under the Agreement. Any shortage is recoverable from the Professional. 9.2 - Suspensions 9.2.100 Suspension of Work. The Department may, at any time, direct the Professional in writing to suspend all work on the Project, or any part thereof, pending receipt of further notice from the Department. In ail such cases the Department and the Professional shall agree upon an appropriate phasing out of the work, or any part } thereof, in such a manner that the work may be resumed with a minimum of added cost I to the Department, but in no event shall the work be continued beyond the completion of the Design Phase in which it then is. The Professional shall be compensated as if the Agreement had been terminated at the completion of the agreed balance of work. If work is suspended during the Construction Phase, compensation shall be paid for all Professional services provided to the date of suspension, but no additional 1 compensation shall be paid during the period of suspension. 9.3 - PROVISION FOR SPECIAL CASES 9.3.100 Adiustment of Professional's Compensation in Special Cases. If the Agreement, in its Special Conditions, so provides by a reference to this paragraph, then upon any suspension of work or termination of the Agreement, the Department and the Professional shall agree upon the amount to be reimbursed to the Professional to cover the costs, during any period of suspension, or-incurred in effecting a termination, of any additional space specifically leased for the Project and of holding or terminating the employment of any group of employees specially hired for the Project. The Professional shall have given the Department notice prior to leasing space or hiring personnel as a prerequisite to receiving additional compensation hereunder. The Professional shall use its best efforts to minimize all claims for additional compensation under this paragraph. 9.4 - REACTIVATION OF PROJECT 9.4.100 Adjustment of Compensation on Reactivation of Project. Where a '0(1 Project has been suspended, terminated or if the time between Final Design approval ^ I and the authorization to prepare for bidding is a period longer than six (6) months and is X71 then subsequently reactivated, the Department and the Professional.shall agree, prior to • the beginning of the reactivation work, upon a lump-sum, or other basis of reimbursement to the Professional for extra start up costs occasioned as a result of the work having been suspended or terminated. In the event of a disagreement between the 28 Professional and the Department as to the amount of reimbursement, the Professional shall proceed with the work when so directed and submit the dispute to a claim as provided in Paragraph 7 of the Agreement. Failure of the Professional to proceed when • directed by the Department will be cause for termination of the Agreement as a material default. ARTICLE 10 OWNERSHIP OF DOCUMENTS 10.1.100 Department Owns Documents. All preliminary studies, contract drawings and specifications, special requirements and cost estimates and all other data compiled by the Professional under this Agreement, become the sole property of the Department, and may be used by it for any purpose desired by the Department without any compensation to the Professional. By execution of this contract, the Professional conveys to the Department the copyright of the design and all documents produced under this contract. The Professional is not liable for any reuse of these documents by the Department. ARTICLE 11 PROVISIONS REQUIRED BY PENNSYLVANIA LAW • OR FEDERAL LAW TO BE INSERTED 11.1.100 Provisions Deemed Inserted. Each and every provision required to be inserted in Professional Agreements by the law of Pennsylvania, or the lawful regulations of any agency of the Commonwealth, and, if the Project involves the use of federal funds, by any law of the United States of America or the lawful regulations.of any agency thereof applicable to the Agreement, are included in the Agreement by reference, and the Agreement shall be read, interpreted and enforced as if such provisions were set forth therein in full. 11.1.101 Physical Amendment of Agreement. If desired by the Department or by any State or Federal Officer having power to require the inclusion of provisions and terms in Professional Agreements, the Agreement shall be forthwith physically amended to include such provisions over the signature of the Professional. 11.1.102 Nondiscrimination. So long as this Agreement is in effect, the Professional agrees to the terms of the Nondiscrimination Clause attached hereto as Exhibit "B". For purposes of this Agreement, the word "Contractor" in these provisions means "Professional". 11.1.103 Contractor Integrity Provisions and Disclosure of Financial Interest. So long as this -Agreement is in effect, the Professional agrees to the Contractor • Integrity Provisions attached hereto as Exhibit "C". For purposes of this Agreement, the word "Contractor" in these provisions means "Professional% 29 11.1.104 Contractor Debarment Provisions. Included in and made a part of this Agreement is Exhibit "D", Certification and Stipulations Related to Debarment. For purposes of this Agreement, the word "Contractor" in these provisions means "Professional". 11.1:1D5 Tax Liability Provisions. Included in and made part of this Agreement is Exhibit "E", Tax Liability Provisions. For purposes of this Agreement, the word "Contractor" in these provisions means "Professional". ARTICLE 12 PROFESSIONAL AND CONSULTANT RELATIONSHIP 12.1.100 Professional and Consultant Relationship. The Professional, in accordance with Paragraph 2.1.103, must enter into an Agreement with each Consultant deemed necessary for the proper design and construction of the project. The relationship between the Professional and the Consultant limits the participation of the Consultant as follows: 1 a. Consultant may not individually or as a firm submit a bid directly or indirectly to the Commonwealth, to any prime contractor, sub-contractor or any contractor or firm submitting a bid on a project on which the Consultant has provided design or technical services. 1 • b. Consultant may not individually or as a firm have any personal interest or holding in any firm or company that bids as a prime contractor, sub-contractor or sub-sub-contractor, submitting a bid on a project on I which the Consultant has provided design or technical services. C. Consultant may not individually or as a firm have any personal interest or holding, in any firm that bids as a manufacturer, distributor or supplier on any project on which the Consultant has provided design or technical services. Consultant must immediately inform the. Department of any current or former Commonwealth employees on its payroll. The names of former employees who have not been employed by the Commonwealth within the last twelve (12) months need not be disclosed. ARTICLE 13 DEFINITIONS 13.1.100 Definitions. As used in these General Conditions and in the Agreement . and any Special Conditions, unless the context clearly otherwise requires: a. Agreed Estimated Construction Cost means the most recent estimate approved as such, or, in the absence of any other approved Agreed 30 Estimated Construction Cost, the amount approved by the Department as the Allocation. • b. Agreement for Professional Services means the Agreement for Professional services of which these General Conditions are made a part. c. Allocation means the base construction amount set forth in the Agreement paragraph 4a. the Allocation may be amended by procedures established by the Department. Base id means all the work encompassed in the proposed construction contract. It is the proposed construction contract with the highest cost estimate when there is more than one proposed contract of the same prime contract. • e. Bid Date means the date upon which bids are received for construction contracts for the Project. Construction Contract Documents mean the Construction Contract, Notice to Bidders, the Instructions to Bidders, the Bid Form, the Contract Bonds, the Conditions of the Contract (General, Special, Supplementary, and other Conditions), the drawings of all Contracts, the specifications of all Contracts, all bulletins and :addenda issued prior to execution of the Agreement, all change orders, and the Administrative Procedures of the Bureau of Construction. g. Department means the Department of General Services or any authorized representative thereof. h. Construction Regional Director is the chief administrator of the Department's Bureau of Construction regional office administering the construction phase of the Project. Error or Omission Change Order, means a change order to a construction contract required to correct a Professional's error or omission in the contract documents or an omission in the construction contract documents of information, material and construction necessary to complete the project. Institution means the particular facility of the Using Agency where the Project will occur. k. Mechanical as used with respect to contract and design means both the Air Conditioning, Heating and Ventilating Work or Contract and the Plumbing Work or Contract. • 1. Professional's Compensation means the amount payable to the Professional for services rendered hereunder as determined from the Department's Standard Schedule of Professional Compensation attached 31 as Exhibit A to these General Conditions on the basis described in Article 4. • M. Project means the undertaking proposed by the Using Agency and agreed upon by the Department, for which an allocation of funds has been made. n. Project Scope means the authorization and approval by the Department and the Office of the Budget of a capital improvement project that defines I the Allocation, the property site and a description of the construction required in a document titled "Request for Project Action or a Work I Request Submitted by an Agency." o. Program Development means the compilation of raw statistical space data, including basic functional units, approximate number of persons and special equipment for each function will be provided to the Department by the Agency. The Professional shall be responsible for translating the raw statistical data into organizational relationships, activities and functions to be housed within the building or buildings of this project and shall develop layouts and building plans which establishes net and gross space and a 1 volume requirements for the project within the established allocation. p. Substantial Completion of the Work means the date on which the Professional certifies and the Department approves that the Work is 90% complete. • q. Usino Agency means the, Department, Board, Commission, State Agency, State aided College or University, or Land Grant University which' has proposed and which will use the project. r. Value Engineering is the application by a recognized/certified firm and individuals of accepted techniques which identify the function of a component, system or service in order to establish their lowest overall cost, while meeting project objectives and specifications. 1 32 THE DEPARTMENT OF GENERAL SERVICES LIMIT OF FEE • COMPENSATION SCHEDULE FOR BASIC DESIGN SERVICES EXHIBIT A I - COMPENSATION PERCENTAGES (1) (2) (3) (4) (5) Simple or Rule 2 Construction Repetitive Regular Complex Fees Costs Projects Projects Projects 1/2%- 20,000 - 39,999 10.900 11.500 12.000 4.000 40,000 - 59,999 10.400 11.000 11.500 4.000 60,000 - 79,999 9.900 10.500 11.000 4.000 80,000 - 99,999 9.400 10.000 10.500 4.000 100,000 -'119,999 8.900 9.500 10.000 3.900 120,000 -139,999 8.800 9.400 9.890 3:850 140,000 - 159,999 8.700 9.300 9.780 3.800 160,000 - 179,999 8.600 9.200 9.670 3.750 180,000 - 199,999 8.500 9.100 9.560 3.700 200,000 - 219,999 8.400 9.000 9.450 3.650 220,000 - 239,999 8.310 8.900 9.340 3.600 • 240,000 - 259,999 8.220 8.800 9.230 3.550 260,000 - 279,999 8.130 8.700 9.120 3.500 280,000 - 299,999 8.040 8.600 9.010 3.450 300,000 - 324,999 7.950 8.500 8.900 3.400 325,000 - 349,999 7.860 8.400 8.790 3.350 350,000 - 374,999 7.770 8.300 8.680. 3.300 375,000 - 399,999 7.680 8.200 8.570 3.250 400,000 - 424,999 7,590 8.100 8.460 3.200 425,000 - 449,999 7.500 -8.000 8.350 3.150 450,000 - 474,999 7.410 7.900 8.240 3.100 475,000 - 499,999 7.320 7.800 8.130 3.050 500,000 - 549,999 7.310 7.780 8.100 3.000 550,000 - 599,999 7.270 7.730 8.040 2.950 600,000 - 649,999 7.230 7.680 7.980 2.900 650,000 - 699,999 7.190 7.630 7.920 2.850 700,000 - 749,999 7.150 7.580 7.860 2.800 750,000 - 799,999 7.110 7.530 7.800 2.750 800,000 - 849,999 7.070 7.480 7.740 2.700 850,000 - 899,999 7.030 7.430 7.680 2.650 900,000 -..9.49,999 6.990 7.380 7.620 2.600 950,000 = 999,999 6.950 7.330 7.560 2.550 • 1,000,000 - 1,099,999 6.940 7.310 7.530 2.500 A-1 , • • J J (1) (2) (3) (4) (5) Simple or Rule 2 Construction Repetitive Regular Complex Fees Costs Projects Projects Projects 1/2%- 11100,000 - 1,199,999 6.900 7.260 7.470 2.450 1,200,000 - 1,299,999 6.860 7.210 7.410 2.400 1,300,000 - 1,399,999 6.820 7.160 7.350 2.350 1,400,000 - 1,499,999 6.780 7.110 7.290 2.300 1,500,000 - 1,599,999 6.740 7.060 7.230 2.250 1,600,000 - 1,699,999 6.700 7.010 7.170 2.200 1,700,000 - 1,799,9,99 6.660 6.960 7.120 2.150 1,800,000 - 1,899,999 6.650 6.930 7.080 2.100 1,900,000 - 1,999,999 6.620 6.900 7.050 2.050 2,000,000 - 2,099,999 6.590 6.870 7.020 2.000. 2,100,000 - 2;199,999 6.560 6.840 6.990 2.000 2,200,000 - 2,299,999 6.530 6.810 6.960 2.000 2,300,000 - 2,399,999 6.500 6.780 6.930 2.000 2,400,000 - 2,499,999 6.470 6.750 6.900 2.000 2,500,000 - 2,599,999 6.4.40 6.720 6.870 2.000 2,600,000 - 2,699,999 6.410 6.690 6.840 2.000 2,700,000 - 2,799,999 6.380 6.660 6.810 2.000 2,800,000 - 2,899,999 6.350 6.630 6.780 2.000 2,900,000 - 2,999,999 6.320 6.600 6.750 2.000 3,000,000 - 3,099,999 6.290 6.570 6.720 2.000 3,100,000 - 3,199,999 6.260 6.540 6.690 2.000 3,200,000 - 3,299,999 6.230 6.510 6.660 2.000 3,300,000 - 3,399,999 6.200 6.480 6.630 2.000 3,400,000 - 3,499,999 6.170 6.450 6.600 2.000 3,500,000 - 3,599,999 6.140 6.420 6.570 2.000 3,600,000- 3,699,999 6.110 6390 6.540 2.000 3,700,000 - 3,799,999 6.080 6.360 6.510 2.000 3,800,000 - 3,899,999 6.050 6.330 6.480 2.000 3,900,000 - 3,999,999 6.020 6.300 6.450 2.000 4,000,000 - 4,099,999 5.990 ..6.270 6.420 2.000 4,100,000 - 4,199,999 5.960 6.250 6.390 2.000 4,200,000 - 4,299,999 5.930 6.210 6.360 2.000 4,300,000 - 4,399,999 5.910 6.190 6.340 2.000 4,400,000 - 4,499,999 5.890 6.170 6.320 2.000 4,500,000 - 4,599,999 5.870 6.150 6.300 2.000 4,600,000 - 4,699,999 5.850 6.130 6.280 2.000 4,700,000 - 4,799,999 5.830 6.110 6.260 2.000 4,800,000 - 4,899,999 5.810 6.090 6.240 2.000 4,900,000 - 4,999,999 5.790 6.070 6.220 2.000 5,000,000 - 5,249,999 5.760 6.040 6.190 2.000 5,250,000 - 5,499,999 5.690 5.970 6.120 2.000 A-2 (1) (2) (3) (4) (5) Simple or Rule 2 • Construction Repetitive Regular Complex Fees Costs Projects Projects Projects 1/2%- 5,500,000 - 5,749,999 5.620 5.900 6.050 2.000 5,750,000 - 5,999,999 5.550 5.830 5.980 2.000 6,000,000 - 6,249,999 5.480 5.760 5.910 2.000 6,250,000 - 6,499,999 5.410 5.690. 5.840 2.000 6,500,000 - 6,749,999 5.340 5.620 5.770 2.000 6,750,000 - 6,999,999 5.280 5.560 5.710. 2.000 7,000,000 - 7,249,999 5.220 5.500 5.650 2.000 7,250,000 - 7,499,999 5.160 5.440 5.590 2.000 7,500,000 - 7,749,999 5.100 5.380 5.530 2.000 7,750,000 - 7,999,999 5.040 5.320 5.470 2.000 8,000,000 - 8,249,999 4.980 5.260 5.410 2.000 8,250,000 -8,499,999 4.920 5.200 5.350 2.000 8,500,000 - 8,479,999 4.860 5.140 5.290 2.000 8,750,000 - 8,999,999 4.800 5.080 5.240 2.000 9,000,000 - 9,249,999 4.750 5.030 5.190 2.000 9,250,000 - 9,499,999 4.700 4.980 5.140 2.000 9,500,000 - 9,749,999 4.650 4.930 5.090 2.000 9,750,000 - 9,999,999 4.600 4.880 5.040 2.000 • 10,000,000 - 10,249,999 4.550 4.830 4.980 2.000 10,250,000 - 10,499,999 4.540 4.820 4.970 2.000 10,500,000 - 10,749,999 4.530 4.810 4.960 2.000 10,750,000 - 10,999,999 4.520 4.800 4.950 2.000 11,000,000 - 11,249,999 4.510 4.790 4.940 2.000 11,250,000 - 11,499,999 4.500 4.780 4.930 2.000 11,500,000 - 11,749,999 4.490 4.770 4.920 2.000 11,750,000 - 11,999,999 4.480 4.760 4.910 2.000 12,000,000 - 12,249,999 4.470 4.750 4.900 2.000 12,250,000 -12,499,999 4.460 4.740 4.890 2.000 12,500,000 - 12,749,999 4.450 4.730 4.880 2.000 12,750,000 - 12,999,999 .4.440 4.720 4.870 2.000 13,000,000 - 13,249,999 4.430 --4.710 4.860 2.000 13,250,000 - 13,499,999 4.420 4.700 4.850 2.000 13,500,000 - 13,749,999 4.410 4.690 4.840 2.000 13,750,000 - 13,999,999 4:400 4.680 4.830 2.000 14,000,000 - 14,249,999 4.390 4.670 4.820 2.000 14,250,000 - 14,499,999 4.380 4.660 4.810 2.000 14,500,000 - 14,749,999 4.370 4.650 4.800 2.000 14,750,000 - 14,999,999 4.360 4.640 4.790 2.000 15,000,000 - 15,249,999 4.350 4.630 4.780 2.000 • 15,250,000 - 14,499,999 4.340 4.620 4.770 2.000 15,500,000 - 15,749,999 4.330 4.610 4.760 2.000 A-3 l (1) (2) (3) (4) (5) • Construction Simple or Repetitive Regular Complex Rule 2 Fees Costs Projects Projects Projects 1/2%- 15,750,000 - 15,999,999 4.320 4.600 4.750 2.000 16,000,000 - 16,249,999 4.310 4.590 4.740 2.000 16,250,000 - 16.499,999 4.300 4.580 4.730 2.000 16,500,000 - 16,749,999 4.290 4.570 4.720 2.000 16,750,000 - 16,999,999 4.280 4.560 4.710 2.000 17,000,000 - 17,249,999 4.270 4.550 4.700 2.000 17,250,000 - 17,499,999 4.260 4.540 4.690 2.000 17,500,000 - 17,749,999 4.250 4.530 4.680 2.000 17,750,000 - 17,999,999 4.240 4.520 4.670 2.000 18,000,000 - 18,249,999 4.230 4.510 4.660 2.000 18,250,000 - 18,499,999 4.220 4.500 4.650 2.000 18,500,000 - 18,749,999 4.210 4.490 4.640 2.000 18,750,000 - 18,999,999 4.200 4.480 4.630 2.000 19,000,000 - 19,249,999 4.190 4.470 4.620 2.000 19,250,000 - 19,499,999 4.180 4.460 4.610 2.000 I 19,500,000 - 19,749,999 4.170 4.450 4.600 2.000 1 19,750,000 - 19,999,999 4.160 4.440 4.590 2.000 • 20,000,000 and over *Th f i t d b th ti t D a t e ee s ne go a e y e men ep r J? J !9¢99 x T714174 A-4 II. RULES APPLIED TO COMPENSATION PERCENTAGES • Rule 1: The appropriate column to be applied is determined by the Selections Committee as follows: a. Simple or Repetitive Proiects consist of projects such as dormitories, warehouses, garages and projects determined to be similar thereto. b. Reqular Projects consist of projects such as administration buildings, libraries, and projects determined to be similar thereto. C. Complex Proiects consist of projects such as power plants, hospitals, and projects determined to be similar thereto. Rule 2: For alteration and renovation projects the basic design compensation applicable to the type of buildings involved will be increased by adding thereto an additional compensation ranging from 0.50% to 4.000% depending on the complexity of the renovation. The maximum limits of the additional compensation for alteration and renovation projects will be determined by the Selections Committee. The limits of compensation are found on the Exhibit A, I, Compensation Percentages List of Fees. Rule 2 fee percentages are based on the initial project allocation/construction cost and will not be adjusted upon the award of construction contracts. Rule 3: In the case of multiple structures constituting one project, the • compensation in the case of similar structures will be computed on the aggregate construction cost for the several structures, but in the case of structures not of a similar nature, the compensation will be computed upon the aggregate construction cost at such rate between that applicable to the costliest structure taken alone, and that applicable to the aggregate, as may be determined by the Selections Committee to be appropriate. Rule 4: All determinations made by the Selections Committee, if approved by the Secretary, shall be final. Further listing of the determinations shall be published from time to time as addenda to this exhibit. • A-5 I -1 1, , 14 l* I* I J J EXHIBIT B .NONDISCRIMINATION CLAUSE During the term of this contract, the Professional agrees as follows: 1. Professional shall not discriminate against any employee, applicant for employment, independent consultant or any other person because of race, color, religious creed, ancestry, national origin, age, sex or handicap. Professional shall take affirmative action to insure that applicants are employed, and that employee or agents are treated during employment, without regard to their race, color, religious creed, ancestry, national origin, age sex or handicap. Such affirmative action shall include, but is not limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training. Professional shall.post in conspicuous places, available to employees, agents, applicants for employment, and other persons, a notice to be provided by the contracting agency setting forth the provision of this nondiscrimination clause. 2. Professional shall, in advertisements or requests for employment placed by it or on its behalf, state all qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, sex or handicap. 3. Professional shall send each labor union or workers' representative with which it has a collective bargaining agreement or other contract or understanding, a notice advising said labor union or workers' representative of its commitment to this nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by Professional. 4. It shall be no defense to a finding of noncompliance with this nondiscrimination clause that Professional had delegated some of its employment practices to any union, training program, or other source of recruitment which prevents it from meeting its obligations. However,. if the evidence indicates that the Professional was not on notice of the third-party discrimination or made a good faith effort to correct it, such factor shall be considered 'in mitigation in determining appropriate sanctions: 5. Where the practices of a union or of any training program or other source of recruitment will result in the exclusion of minority group persons, so that Professional will be unable to meet its obligations under this nondiscrimination clause, Professional shall then employ and fill vacancies through other nondiscriminatory employment procedures. 6. Professional shall comply with all state and federal laws prohibiting discrimination in hiring or employment opportunities. In the event of Professional's noncompliance with the nondiscrimination clause of this contract or with any such laws, this contract may be terminated or suspended,. in whole or in part, and Professional may- be declared temporarily ineligible for further Commonwealth contracts, and other sanctions may be imposed and remedies invoked. • 7. Professional shall furnish all necessary employment documents and records to, and permit access to its books, records and accounts, by the contracting agency and the Office of Administration, Bureau of Affirmative Action, for purposes of B-1 I r? 'r 4 investigation to ascertain compliance with the provisions of this clause. If Professional does not possess documents or records reflecting the necessary information • requested, it shall furnish such information on reporting forms supplied by the contracting agency or the Bureau of Affirmative Action. 8. Professional shall actively recruit minority consultants or consultants with substantial minority representation among their employees. 9. Professional shall include the provisions of this nondiscrimination clause in every agreement so that such provisions will be binding upon each Consultant. 10. Professional's obligations under this clause are limited to the Professional's facilities within Pennsylvania. 0 • B-2 r 1 EXHIBIT C • CONTRACTOR INTEGRITY PROVISIONS 1 1. Definitions, a. Confidential Information means information that is not public knowledge, or available to the public on request, disclosure of which would give an unfair, unethical, or illegal advantage to another desiring a contract with the Commonwealth. b. Consent means written permission signed by a duly authorized officer or employee of the Commonwealth, provided that where the material facts have been disclosed, in writing, by prequalification, bid, proposal, or contractual terms, the Commonwealth shall be deemed to have consented by virtue of execution of this agreement. C. Contractor means the individual or entity that has entered into this agreement with the Commonwealth, including directors, officers, partners, managers, key employee, and owners of more than a five percent (5%) interest. d. Financial Interest means: • (1) Ownership of more than a five percent (5%) interest in any business; or (2) holding a position as an officer, director, trustee, partner, employee, or the like, or holding any position of management. e. Gratuity means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment' or contracts of any kind. 2. The contractor shall maintain the :highest standards of integrity in the performance of this agreement and shall take no action in violation of state or federal laws, regulations, or other requirements' that govern contracting with the Commonwealth. 3. The contractor shall not disclose to others any confidential information gained by virtue of this agreement. 4. The contractor shall not, in connection with this or any other agreement with the Commonwealth, directly or indirectly, offer, confer, or agree to confer any pecuniary benefit: on anyone as consideration for the decision, opinion, • recommendation, vote, other exercise of discretion, or violation of a known legal duty l by any officer or employee of the Commonwealth. J ci 5. The contractor shall not, in connection with this or any other agreement with the Commonwealth, directly or indirectly, offer, give, or agree or promise to give to anyone any gratuity for the benefit of or at the direction or request of any officer or employee of the Commonwealth. 6. Except with the consent of the Commonwealth, neither the contractor nor anyone in privity with him or her shall accept or agree to accept from, or give or agree to give to, any person, any gratuity from any person in connection with the performance of work under this agreement except as provided therein. 7, Except with the consent of the Commonwealth, the contractor shall not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material on this project. 8. The contractor, upon being informed that any violation of these provisions has occurred or may occur, shall immediately notify the Commonwealth in writing. 9. The contractor, by execution of this agreement and by the submission of any bills or invoices for payment pursuant thereto, certifies and represents that he or she has not violated any of these provisions. 10. The contractor, upon the inquiry or request of the Inspector General of the Commonwealth or any of that,official's agents or representatives, shall provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Inspector General to the contractor's integrity or • responsibility, as those terms are defined by the Commonwealth's earth's statutes, regulations, or management directives. Such information may include, but shall not be limited to, the contractor's business or financial records, documents or files of any type or form which refer to or concern this agreement. Such information shall be retained by the contractor for a period of three (3) years beyond the termination of the contract unless otherwise provided by law. 11. For violation of any of the above provisions, the Commonwealth may terminate this and any other agreement with the contractor, claim liquidated damages in an amount equal to the value of anything received in breach of`these -provisions claim damages for all expenses incurred in obtaining another contractor to complete performance hereunder, and debar and suspend the contractor from doing business with the Commonwealth. These rights and remedies. are cumulative, and the use or nonuse of any one. shall not preclude the use of all or any other. These rights and remedies are in addition to those the Commonwealth may have under law, statute, regulation, or otherwise. • C-2 r ' EXHIBIT D l CERTIFICATION AND STIPULATIONS RELATED TO DEBARMENT 1. By execution of this contract, the contractor-certifies that neitherit nor its principal' are presently debarred, suspended, or voluntarily excluded from participation in this transaction by any other state government or by any Federal department or agency. 2. In addition, the contractor may not enter into any subcontract with any person or firm which has been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any other state government or any Federal department or agency. By execution of this. contract, the contractor agrees that it will terminate any subcontract with any person or firm which has been debarred or suspended immediately upon finding out of the debarment or suspension. 3. Further, the contractor agrees that it will, incorporate this provision for certification without modification in each subcontract and in all lower tier subcontracts. The contractor may rely upon the certification of a prospective subcontractor unless it has knowledge that the certification is erroneous. 4. The contractor shall provide immediate written notice to the Department If the contractor learns that its certification or that of a subcontractor was erroneous when • submitted or has become erroneous by reason of changed circumstances. 5. This certification is a material representation of fact upon which reliance is placed in entering into this contract. If it is later determined that the contractor knowingly rendered an erroneous certification, or did not provide the Department with notice of an erroneous certification as provided by this provision, the Department may find the contractor in default and terminate the contract. Erroneous certification may also be grounds for the initiation of civil or criminal proceedings. 6. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to rend in good faith, the certification required by this provision. The knowledge and information of a contractor is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. l 7. The contractor agrees that it will be responsible for reimbursing the l Commonwealth for all necessary and reasonable costs and expenses incurred by the Office of Inspector General relating to an investigation of the Contractor's compliance with the terms of this or any other agreement between the contractor and the J Commonwealth which results in the suspension or debarment of the contractor. J • J D-1 EXHIBIT E TAX LIABILITY PROVISIONS The contractor, by execution of the contract: a. Certifies that the contractor has no outstanding tax liability to the Commonwealth of Pennsylvania; b. Authorizes the Department of Revenue to release information related to its tax liability to the Department of General Services; and C. Authorizes the Commonwealth to offset any state and local tax liabilities of the contractor or any of its subsidiaries, as well as any other amount due to the Commonwealth from the contractor, against any payment due to the contractor under a contract with the Commonwealth. 2. The certification of no outstanding tax liability is a material representation of fact upon which reliance is placed by the Department in entering into the contract. If it is later determined that the contractor knowingly rendered an erroneous certification, the Department may find the contractor in default and terminate the contract. Erroneous certification may also be grounds for the initiation of civil or criminal proceedings. E-1 O Ell Ul O d l? F-- SHERIFF'S RETURN - REGULAR CASE NO: 2004-05035 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND ERDMAN ANTHONY & ASSOCIATES IN VS BINK ARCHITECTURAL PARTNERSHIP RONALD HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BINK ARCHITECTURAL PARTNERSHIP INC the DEFENDANT , at 1317:00 HOURS, on the 7th day of October , 2004 at C/O HARRISON F BINK AIA CAMP HILL, PA 17011 DEBORAH YEAKLE, ADMIN ASST 135 SOUTH 32ND STREET by handing to ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.10 Affidavit .00 Surcharge 10.00 .00 39.10 Sworn and Subscribed to before me this /3 v day of -20e y A.D. ?Prbthonctary So Answers: R. Thomas Kline 10/08/2004 MARSHALL DENNEHEY WARNER COLEM By:? Deputy Sheriff \05_A\LIAB\DNC\LLPG\166875VMF\20614\00156 NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT ERDMAN ANTHONY & IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 04-5035 CIVIL TERM BINK ARCHITECTURAL PARTNERSHIP, INC., JURY TRIAL DEMANDED Defendant To: BINK ARCHITECTURAL PARTNERSHIP, INC. (Defendant) Date of Notice: November 2, 2004 IMPORTANT NOTICE; YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland Country Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 DATE: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN GOGGIN 1/'46q BY: DbNA-Iftil. CARMELITE, ESQ IRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney fbr Plaintiff ERDMAN ANTHONY & IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. BINK ARCHITECTURAL PARTNERSHIP, INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do hereby certify that on this day of November 2004, served a copy of the foregoing Notice of Praecipe to Enter Judgment by Default via Certified Mail/Return Receipt Requested as follows: Bink Architectural Partnership, Inc. C/O Harrison F. Bink, AIA 133 South 32nd Street Camp Hill, PA 17011 . Parr Foan*nje-M-1 4? N ?'? c:? ? ?? ,_, ,?n ? --{ .? f'-- r-A ' ?"? ?-? C7 ?? J McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. ERDMAN ANTHONY & ASSOCIATES, IN THE COURT OF COMMON PLEAS INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : NO. 04-5035 CIVIL TERM V. BINK ARCHITECTURAL CIVIL ACTION - LAW PARTNERSHIP, INC., Defendant JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter the appearance of Diane M. Tokarsky and Susan V. Metcalfe of McNees Wallace & Nurick LLC as counsel on behalf of Defendant Bink Architectural Partnership, Inc. in the above-referenced matter. McNEES WALLACE & NURICK LLC By Diane M. Tokars , Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. Dated: November _L_, 2004 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served by first-class mail upon the following: Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 McNEES WALLACE & NURICK LLC BY ttV0,W U/ Plane M. Tokarsky, E quire Attorney I.D. No. 44369 Susan V. Metcalfe, Esquire Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. Dated: November J/ , 2004 7- 1 -;'; r ry -={ -? n McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. ERDMAN ANTHONY & ASSOCIATES, IN THE COURT OF COMMON PLEAS INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 04-5035 CIVIL TERM V. BINK ARCHITECTURAL PARTNERSHIP, INC., Defendant CIVIL ACTION -LAW JURY TRIAL DEMANDED NOTICE TO PLEAD TO: ERDMAN ANTHONY & ASSOCIATES, INC., Plaintiff, and DONALD L. CARMELITE, Esquire, their attorney: YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. McNEES WALLACE & NURICK LLC By QU44., /' &?-m 9_? - lane M. Tokarsky Attorney I.D. No. 44369 Susan V. Metcalfe Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Dated: November ,?, 2004 McNEES WALLACE & NURICK LLC Diane M. Tokarsky, Esquire I.D. No. 44369 Susan V. Metcalfe, Esquire I.D. No. 85703 100 Pine Street, P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. ERDMAN ANTHONY & ASSOCIATES, IN THE COURT OF COMMON PLEAS INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. BINK ARCHITECTURAL PARTNERSHIP, INC., Defendant NO. 04-5035 CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED ANSWER WITH NEW MATTER Defendant, Bink Architectural Partnership, Inc., by and through its counsel, McNees Wallace & Nurick LLC, for its Answer with New Matter to Plaintiffs Complaint, states as follows: Parties 1. Admitted upon information and belief. 2. Denied as stated. Bink Architectural Partnership, ('Kink") is a fictitious name owned by Bink Partnership, Inc., a Pennsylvania corporation having its principal place of business at 133 South 32°d Street, Camp Hill, Pennsylvania. Facts 3. Admitted in part and denied in part. It is admitted that on or about June 10, 2002, Bink and Erdman Anthony & Associates, Inc. ("Erdman Anthony") entered into the agreement attached to the Complaint as Exhibit A ("Agreement"). The Agreement is a document that speaks for itself, and Plaintiffs characterization thereof is denied. 4. Admitted. 5. Denied as stated. The Agreement is a document that speaks for itself, and Plaintiffs characterization thereof is denied. By way of further answer, under the Agreement, Bink was obligated to pay Erdman Anthony only a percentage of the fees Bink actually received from the Department of General Services ("DGS") for work on the construction of a new Department of Corrections office building ("Project"). 6. Denied. Bink is without knowledge or information sufficient to form a belief as to the truth of the averments of Paragraph 3, and they are therefore denied. By way of further answer, pursuant to the Agreement, Bink was not obligated to make monthly payments to Erdman Anthony for specific tasks as set forth in invoices provided by Erdman Anthony. Rather, the Agreement called for Bink to pay Erdman Anthony for completed services based on a percentage of construction costs, as estimated by Erdman Anthony and Bink, and corroborated by a third-party agent of DGS, within ninety (90) days of receiving payment by DGS. 7. Denied. The Agreement is a document that speaks for itself, and Plaintiffs characterization thereof is denied. 8. Denied. On numerous occasions, Bink promptly notified Erdman Anthony of errors and discrepancies in its invoices. 9. Denied. The Agreement is a document that speaks for itself, and Plaintiffs characterization thereof is denied. 10. Admitted in part and denied in part. Bink is without knowledge or information sufficient to form a belief as to truth of the averments of Paragraph 10, and they are therefore 2 denied. By way of further answer, Bink denies that Erdman Anthony is entitled to payment of $538,525.89 under the Agreement. 11. Denied. Bink did not forward to DGS Erdman Anthony's invoices for basic services under the Agreement ("Basic Services"), because the amount of Erdman Anthony's fees for Basic Services was calculated strictly on a percentage basis of Project costs as determined and revised by DGS. Bink did forward to DGS Erdman Anthony's invoices for additional services, or work orders ("Work Orders"); however, DGS denied many of these Work Orders, and therefore, Bink was not obligated to pay Erdman Anthony for them. 12. Denied. Bink has paid Erdman Anthony a total of $196,123.63 for Basic Services and Work Orders which were approved by DGS. Count I - Breach of Contract 13. Paragraphs 1 through 12, above, are incorporated herein by reference. 14. Denied as stated. Bink entered into a contract pursuant to which Erdman Anthony agreed to provide certain design and engineering services in connection with the construction of an office facility for the Pennsylvania Department of Corrections, project number D.G.S. 573-24. 15. Denied. The allegations of Paragraph 15 constitute conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied. 16. Denied. Erdman Anthony failed to perform all of its duties and obligations under the contract in a reasonable and timely manner. On numerous occasions, Erdman Anthony's submissions, including but not limited to reports, plans, and estimates, were late and/or incomplete. 17. Denied. The allegations of Paragraph 17 constitute conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied. 3 WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff, together with costs and expenses and such other relief as this Court deems just and proper. Count II - Quantum Merui.t 18. Paragraphs 1 through 17, above, are incorporated herein by reference. 19. Admitted in part and denied in part. It is admitted that Erdman Anthony performed certain professional design and engineering services on the Project. It is denied that Erdman Anthony performed these services in a timely, reasonable, and satisfactory manner. 20. Denied. Bink has paid Erdman Anthony a total of $196,123.63. Bink denies that Erdman Anthony is entitled to be paid a total of $538,525.89 for its services on the Project. 21. Denied. Bink did not forward Erdman Anthony's invoices for Basic Services to DGS, because the amount of Erdman Anthony's fees for Basic Services was calculated strictly on a percentage basis of Project costs as estimated by Erdman Anthony and Bink, and corroborated by a third-party agent of DGS. Bink did forward to DGS Erdman Anthony's invoices for additional services, or Work Orders; however, DGS denied many of these Work Orders and Bink received no payment for them from DGS. 22. Denied. The allegations of Paragraph 22 constitute conclusions of law to which no response is required. To the extent a response is deemed required, the same are denied. 23. Denied. Bink specifically denies that Erdman Anthony is entitled to restitution. WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff, together with costs and expenses and such other relief as this Court deems just and proper. 4 NEW MATTER 24. Pursuant to the Agreement, Bink was obligated to pay Erdman Anthony only for Basic Services based on a percentage of construction costs as estimated by Erdman Anthony and Bink, and corroborated by a third-party agent of DGS, and for any additional services, or Work Orders, which were approved and paid by DGS. 25. Pursuant to the Agreement, Bink was not obligated to pay Erdman Anthony unless and until it received payment from DGS. 26. Throughout the Project, payments from DGS to Bink were consistently and substantially late. 27. In or about April of 2003, DGS decided to put the Project on hold. 28. Because the Project was interrupted at a time when approximately three-quarters of Bink's work was completed, DGS ultimately paid Bink its percentage of fees based on seventy-five percent (75%) of DGS' revised Project cost estimate. 29. Bink did not receive its final payment from DGS until May 3, 2004. 30. Throughout the Project, Erdman Anthony invoiced Bink for amounts that were incorrect according to the formula set forth in the Agreement. 31. When Bink received incorrect invoices from Erdman Anthony, Bink and Erdman Anthony discussed the invoices, but concluded that the invoices were moot because Erdman Anthony's fee was to be determined by a percentage of construction costs. 32. Throughout the Project, Erdman Anthony also invoiced Bink for various Work Orders, which Bink forwarded to DGS for approval. 33. DGS approved and paid for some of Erdman Anthony's Work Orders, and Bink in turn paid Erdman Anthony for those Work Orders that were approved and paid by DGS. 5 34. DGS denied many of the Work Orders, and did not pay Bink for them. 35. Bink was not obligated under the Agreement to pay Erdman Anthony for Work Orders that were denied by DGS. 36. Under the clear language of the Agreement, and based on the amount DGS paid to Bink, Bink was only obligated to pay Erdman Anthony a total of $256,068.12 for Basic Services, together with payment for Work Orders approved and paid by DGS. 37. Throughout the Project, Bink paid Erdman Anthony a total of $196,123.63, including $134,586.36 for Basic Services, and $61,537.27 for all Work Orders approved and paid by DGS. 38. The remaining amount due and owing by Bink to Erdman Anthony under the Agreement is $121,481.76. 39. On or about May 4, 2004, one day after Bink received final payment from DGS, Bink met with Erdman Anthony to discuss the discrepancies in Erdman Anthony's invoices, and to try to come to an agreement on the final amount owed to Erdman Anthony. 40. Despite the clear language of the Agreement concerning the computation of Erdman Anthony's fees, Erdman Anthony refused to agree with Bink on the amount of compensation owing to Erdman Anthony. 41. On or about May 4, 2004, Bink was ready, willing, and able to pay Erdman Anthony the remaining $121,481.76 due and owing under the .Agreement; however, Erdman Anthony was unwilling to accept this amount, insisting that Bink owes it almost $230,000.00 more than is actually due. 42. Throughout the Project, Erdman Anthony's work was consistently and substantially late and/or incomplete. 6 43. At various times throughout the Project, Bink was required to perform work that Erdman Anthony was obligated to, but failed to, perform. 44. To the extent Erdman Anthony has suffered damages, which Bink denies, Bink is entitled to a setoff for the value of work that Bink was forced to perform due to Erdman Anthony's failure to meet its contractual obligations in a timely and reasonable manner. 45. Pursuant to the Agreement, Erdman Anthony and Bink agreed that all disputes between them arising out of or relating to the Agreement must be submitted to nonbinding mediation unless the parties mutually agree otherwise; and Bink has not agreed to waive mediation. 46. Plaintiff's Complaint fails to state a claim for which relief can be granted. 47. Plaintiff's causes of action may be barred by the applicable statutes of limitations. 48. If Plaintiff has sustained damages as alleged, they were caused by or contributed to by actions of Plaintiff or others over whom Bink has no control and for whom Bink is not responsible. 49. Plaintiff fails to state a claim for damages in quantum meruit, because Erdman Anthony's rights and obligations with respect to its services on the Project, and payment therefor, are governed by the written contract it entered into with Bink. 7 WHEREFORE, Defendant respectfully requests that judgment be entered in its favor and against Plaintiff, together with costs and expenses and such other relief as this Court deems just and proper. Respectfully submitted, McNEES WALLACE & NURICK LLC By L Y Diane M. 'Tokarsky Attorney I.D. No. 44369 Susan V. Metcalfe Attorney I.D. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Dated: November 3 9, 2004 8 VERIFICATION Subject to the penalties of 18 Pa. C.S.A. §4904 relating to unswom falsification to authorities, I hereby certify that I am the President of Bink Partnership, Inc., that 1 am authorized to make this verification on its behalf, and that the facts set forth in the foregoing document are true and correct to the best of my information and belief. . i?ardson F.:Bink Dated: November, 2004 CERTIFICATE OF SERVICE I hereby certify that on this date a true and correct copy of the foregoing document was served via facsimile and U.S. first-class mail upon the following: Donald L. Carmelite, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 McNEES WALLACE & NURICK LLC By Y, 4 Diane M. Tokarsky, Esquire Attorney I.D. No. 44369 Susan V. Metcalfe, Esquire Attorney LD. No. 85703 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Bink Architectural Partnership, Inc. Dated: November 30, 2004 G ?•, ? l- X \05_A\LIAB\DNC\LLPG\171154\JMF\20614\00156 ERDMAN ANTHONY & ASSOCIATES, INC., Plaintiff V. BINK ARCHITECTURAL PARTNERSHIP, INC., Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-5035 CIVIL TERM JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO DEFENDANT'S NEW MATTER Plaintiff Erdman Anthony & Associates, Inc., by and through its counsel, Marshall, Dennehey, Warner, Coleman & Goggin asserts the following answers to Defendant's New Matter: 24. Denied. The Agreement is a written document which speaks for itself and therefore Defendant's characterizations thereof are denied. 25. Denied. After reasonable investigation. and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 26. Denied. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 27. Denied. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 28. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 29. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 30. Denied. Plaintiff denies that it invoiced Defendant for amounts that were incorrect according to the formula set forth in the Agreement. 31. Denied. It is denied that Plaintiff and Defendant ever discussed Invoices and concluded that said Invoices were moot because Plaintiff's fee was to be determined by a percentage of construction costs. 32. Admitted in part; denied in part. It is admitted that throughout the project Plaintiff invoiced Defendant for various work orders. Defendant is without sufficient information to form a belief as to the truth or veracity of the remainder of the averments set forth in Paragraph 32 and therefore the same are denied. 33. Denied. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 34. Denied. After reasonable investigation and inquiry, Plaintiff is without sufficient information or knowledge to form a belief as to the truth and veracity of the averments set forth in this Paragraph and, as such, said averments are denied and strict proof thereof is demanded at the time of trial. 35. Denied. The Agreement is a written document which speaks for itself and therefore Defendant's characterization thereof is denied. 36. Denied. The Agreement is a written document which speaks for itself and therefore Defendant's characterization thereof is denied. By way of further answer, Plaintiff without sufficient information to form a belief as to the truth or veracity as to Defendant's representations to how much DGS paid Defendant and which work orders DGS approved. By way of further answer, it is denied that Defendant was only obligated to Plaintiff a total of $256,068.12. 37. Admitted in part; denied in part. It is admitted that Bink paid Erdman Anthony a total of $196,123.63. All remaining averments set forth in this Paragraph and strict proof thereof is demanded at the time of trial. 38. Admitted in part; denied in part. It is admitted that Defendant owes Erdman Anthony $121,481.76. It is denied that this is the remaining amount owed to Plaintiff under the Agreement. 39. Denied. It is denied that Defendant and Plaintiff met on or about May 4, 2004 to discuss discrepancies in Plaintiffs Invoices and to try to come to an agreement on the final amount owed to Plaintiff. 40. Denied. Plaintiffs answer to Paragraph 39 is incorporated herein as if fully set forth at length. By way of further answer, the Agreement is a written document which speaks for itself and therefore Defendant's characterizations thereof are denied. 41. Admitted in part; denied in part. Plaintiffs answers to Paragraphs 38 and 39 are incorporated herein as if fully set forth at length. 42. Denied. It is denied that Plaintiffs work was consistently and substantially late and/or incomplete and strict proof thereof is demanded at the time of trial. 43. Denied. It is denied that Defendant was required to perform work Plaintiff was obligated to do but failed to perform, and strict proof thereof is demanded at the time of trial. 44. Denied. Paragraph 44 states a conclusion of law to which no responsive pleading is required. To the extent that the averments set forth in Paragraph 44 are deemed factual in nature, and a responsive pleading is required, it is denied that Defendant is entitled to any set off. It is further denied that Plaintiff failed to meet its contractual obligations in a timely and reasonable manner. 45. Denied. The averments set forth in Paragraph 45 state conclusions of law to which no responsive pleading is required. To the extent that the averments are deemed factual in nature, and a responsive pleading is required, the Agreement is a written document which speaks for itself and Defendant's characterizations thereof are denied. 46. Denied. The averments set forth in Paragraph 46 state conclusions of law to which no responsive pleading is required. To the extent that the averments are deemed factual in nature, and a responsive pleading is required, it is denied that Plaintiffs Complaint fails to state a claim for which relief can be granted. 47. Denied. The averments set forth in Paragraph 47 state conclusions of law to which no responsive pleading is required. To the extent that the averments are deemed factual in nature, and a responsive pleading is required, it is denied that Plaintiffs causes of action were barred by the applicable Statutes of Limitations. 48. Denied. The averments set forth in Paragraph 48 state conclusions of law to which no responsive pleading is required. To the extent that the averments are deemed factual in nature, and a responsive pleading is required, Paragraph 48 is admitted in part and denied in part. It is admitted that Plaintiff has sustained damages as alleged in its Complaint. It is denied that Plaintiffs damages were caused or contributed to by Plaintiffs actions or actions of others over whom Defendant had no control and for whom Defendant was not responsible. 49. Denied. The averments set forth in Paragraph 49 state conclusions of law to which no responsive pleading is required. WHEREFORE, Plaintiff respectfully requests that Jud1!9ment be entered in its favor and against Defendant in an amount in excess of the compulsory Arbitration limit in Cumberland County, together with such other relief as this Court shall deem appropriate. DATE: Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN BY: h-5? D L. ELITE, ESQUIRE I.D. No. 84730 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3504 Attorney for Plaintiff VERIFL CATION I hereby affirm that the following facts are correct: Erdman Anthony & Associates, Inc. is the Plaintiff fit the foregoing action and I am authorized to execute this Verification on their behalf. The atbmhed Answer to Defendant's New Matter is based upon information which has been gathered by my counsel in the defense of this lawsuit. The language of the Answer to Defendant's New MattE r is that of couuscl an not of me. I have read the Answer. and to the extent that the responses an; based upon information which I have given to my counsel, they are true and correct to the best of my Imowledge, information and belief. To the extent that the contents of the responses are treat of counsel, I have elied upon counsel in making this Verification. I hereby aclmowledg? that the facts set f in the aforesaid responses are trade subject to the penalties of 18 )%a. C.S. Section 4904 relating to unworn falsification to authorities. DATE: /Z/Z / d q ?G?---? BY. VINCE W ISER Title: ERDMAN ANTHONY & IN THE COURT OF COMMON PLEAS ASSOCIATES, INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. BINK ARCHITECTURAL PARTNERSHIP, INC., CIVIL ACTION - LAW Defendant CERTIFICATE OF SERVICE I, Joanne M. Parr, an employee of Marshall, Dennehey, Warner, Coleman & Goggin, do p`Ik hereby certify that on thi?? day of December 2004, served a copy of the foregoing Answer to Defendant's New Matter via U.S. First Class Mail, postage pre-paid, as follows: Diane M. Tokarsky, Esquire Susan Metcalf, Esquire McNees, Wallace & Nurick, LLC 100 Pine Street PO Box 1166 Harrisburg, PA 17108-1166 anne M. Parr C7 _ r-la c-J c, p ..n r- C? r-- rNa n w 7? ? N rt 1 a Curtis R. Long Prothonotary office of the i3rotbonotarp CUmberlanb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor 041 - xM35 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 5TH DAY OF NOVEMBER 2007 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573