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S Purchasing - Corley Redfoot EMS 9-1-1 Center Upfit
NORANGE COUNTY NORTH CAROLINA AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES This AGREEMENT is made and effective on this date: BETWEEN The Owner: COUNTY OF ORANGE And the Construction Manager At Risk (hereinafter referred to as "CMAR" or "the CMAR"): Resolute Building Company, Inc,; PO Box 3656,-Chapel Hill, NC 27515 For services in connection with the Project known as: The Emergency Services/9-1-1 Center Upfit, Hillsborough, North Carolina, as further described in Article 2 For which the Designer is: Corley, Redfoot Zack Architects and Engineers, 222 Cloister Court, Chapel Hill, NC 27514 The Owner and CMAR, in consideration of their mutual covenants herein, agree as set forth below: TABLE OF CONTENTS ARTICLE 1 -RELATIONSHIP OF THE PARTIES ......................................................................................... 4 1.1 Owner and Construction Manager At Risk 1.2 Owner and Designer 1.3 CMAR and Contractors 1.4 Relationship of the CMAR to the Designer ARTICLE 2 -PROJECT DEFINITION .......................................................................................................... 4 ARTICLE 3-CONSTRUCTION MANAGER AT RISK'S SERVICES ................................................................... 5 3.1 CMAR Services 3.2 CMAR Personnel 3.3 Construction Management Plan 3.4 Consultant Selection 3.5 Time Management 3.6 Cost Management 3.7 Management Information System (MIST 3.8 Design Phase Services 3.9 Procurement Phase 3.10 Construction Phase 3.11 Post Construction Phase 3.12 Additional Services ARTICLE 4 -TIME FOR PERFORMANCE .................................................................................................... 16 / , 4.1 Duration l 4.2 Master Schedule 4.3 Non-waiver 4.4 Schedule Adjustment 4.5 Early Start 4.6 Recovery 4.7 Schedule Monitoring 4.8 Schedule Revisions 4.9 Withholding Payment from CMAR 4.10 Work by Owner 4.11 Force Majeure 4.12 Notice 4.13 Weather Delays 4.14 Damages for Delay 4.15 Liquidated Damages ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER AT RISK'S SERVICES AND ADDITIONAL 19 COMPENSATION 5.1 Owner Changes ARTICLE 6 -OWNER'S RESPONSIBILITIES ............................................................................................... 20 6.1 Program 6.2 Decisions 6.3 Insurance 6.4 Notice of Nonconformities 6.5 Approvals 6.6 Designer 6.7 Budget 6.8 Separate Contracts 6.9 Copies of Drawin sq and Specifications 6.10 Permits and Approvals 6.11 Funding Requirements 6.12 Communication with Contractors 6.13 Copies of Notices and Communication 6.14 Owner's Representative 6.15 Payments to CMAR ARTICLE 7 -GUARANTEED MAXIMUM PRICE AND PAYMENT ..................................................................... 21 7.1 Guaranteed Maximum Price 7.2 Cost of the Work 7.3 Adjustments to the Guaranteed Maximum Price 7.4 Fixed Fee and General Conditions Gosts ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 25 8.1 CMAR's Liability Insurance 2 8.2 Builder's Risk Insurance 8.31ndemni ARTICLE 9 -TERMINATION AND SUSPENSION ......................................................................................... 28 9.1 Termination for Convenience 9.2 Termination for Default 9.3 Additional Termination Provisions 9.4 Suspension ARTICLE 10 -DISPUTE RESOLUTION ....................................................................................................... 29 ARTICLE 11 -ADDITIONAL PROVISIONS .................................................................................................. 30 11.1 Confidentiality 11.2 Sipns 11.3 Limitation and Assi nq ment 11.4 Minority Business Enterprise Program 11.5 Extent of Agreement 11.6 Severability 11.7 Meaning of Terms 11.8 Notices 11.9 Bonds 11.10 Ownership of Documents i' i ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS ......................................................... 31 12.1 Guaranteed Maximum Price Appendix A -Dispute Resolution Appendix B -List of Cost Elements Appendix C -Orange County Minority Business Enterprise Policy Appendix D -Divisions of the Work for Guaranteed Maximum Price Appendix E -Project and Construction Budget. Appendix F -- Master Schedule Appendix G - CMAR GMP Proposal ARTICLE 1 RELATIONSHIP OF THE PARTIES 3, 1.1 .Owner and Construction Manager at Risk The CMAR and the Owner shall perform as stated in this Agreement and each accepts the relationship between them that is established by this Agreement. The CMAR covenants with the Owner to furnish professional construction management services during the Project. In broad terms, under this Agreement, the CMAR will perform construction services, including efficient value engineering reviews and project management, business administration and field supervision, and shall use its best efforts to see to it that the Work of the Project is done in the best and most expeditious, economical manner consistent with the interests of the Owner, and in strict conformity with the Contract Documents, including all reasonable implications therein, and to furnish its skill and judgment with due care in accordance with applicable federal, state, and local laws and regulations that are in effect on the date of this Agreement first written above. 1.2 Owner and Designer The Owner shall contract separately with the Designer to provide architectural and engineering design for the Project. The Project is defined in Article 2 of this Agreement. In this Agreement the term "Drawings and Specifications" shall refer to the drawings and specifications prepared by the Designer in accordance with its agreement with the Owner. 1.3 CMAR and Contractors The CMAR shall enter into contracts for labor, materials and services in accordance with N.C. Gen. Stat. § 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. In this Agreement the term "Contractor" or "Contractors" shall refer to all persons with such contracts with the CMAR. 1.4 Relationship of the CMAR to the Designer In providing construction management services described in this Agreement, the CMAR shall maintain a working relationship with the Designer. The Designer is solely responsible for the Project design and shall perform in accordance with the Designer agreement with the Owner and nothing in this Agreement shall be construed to mean that the CMAR is responsible for the design of the Project or that the CMAR assumes any of the contractual or customary duties of the Designer or any other persons or parties not specified by this Agreement. The CMAR and the Designer shall each be provided with a copy of the other's contract with the Owner. ARTICLE 2 PROJECT DEFINITION The term "Project" when used in the Agreement shall mean the total construction of which the Work may be a whole or part of the Project. The term "Work" required for the "Project" used in this Agreement shall mean the various parts of total construction to be performed under this Agreement. The Project name and location is the Emergency Services/9-1- 1 Center Upfit inHillsborough, North Carolina. The Project is intended for use as the Orange County Emergency Services Facility, as more fully described in the Agreement of Intent between the Owner and the CMAR, dated the project report last updated and all site plan and related documents submitted to as part of the approval of the Project and as those documents are or will be modified to conform to Project approvals obtained by The Project shall be fully described in the Contract Documents, which are hereby defined to include: This Agreement, plus the Drawings and Specifications prepared by the Designer, plus allowable Modifications to the Contract Documents. ARTICLE 3 CONSTRUCTION MANAGER AT RISK'S SERVICES 3.1 CMAR Services The CMAR shall perform the Services described herein. The sequence in which they are provided shall be as set forth in the approved Construction Management Plan. 4 3.2 CMAR Personnel The services to be provided by the CMAR under this Agreement shall be performed by personnel identified by the CMAR, and approved by the Owner, before commencing services. The furnishing of services by such personnel throughout the duration of the Project, and any individuals approved by the Owner to replace them, is of the essence to this Agreement. The CMAR shall designate a Project Representative who has the authority to act on behalf of the CMAR in respect to all matters that are the subject of this Agreement, including, without limitation, the power and authority to enter into agreements or modifications that contractually bind the CMAR. The Project Representative shall be available at all times during all phases of performance of services under this Agreement to consult with the Owner on matters pertinent to design and construction of the Project. f 1 z 3.2.1 Additions. Removals. Replacements From time to time, personnel may be added as necessary and appropriate to the stage of planning, programming, designing and constructing the Project. The CMAR shall anticipate the need for such additional personnel by submitting to the Owner, no later than seven (7) days prior to the need for the additional personnel, a list of the proposed additional personnel, attaching the resumes of proposed additional personnel, and stating the reasons for such additions. The Owner shall promptly review the proposed additions and either approve or disapprove the additional personnel in writing. The CMAR shall not employ any individual to perform the functions of any approved personnel without the advance approval of the Owner, which approval may be granted or withheld in its sole discretion. The CMAR shall not, for so long as any approved person is employed by the CMAR, remove, substitute or reduce the time devoted to the Project by such person without the Owner's prior written approval, which may be granted or withheld in its sole discretion. If the Owner is for any reason dissatisfied with the services rendered by any approved person, the CMAR shall promptly remove such person and recommend a replacement. If any approved person ceases employment with the CMAR, or if the Owner requests the removal of any such person, then the CMAR shall promptly notify the Owner of a proposed substitute of at least equal qualifications to perform the same functions, and provide a resume for the substitute. Each substitute person must be approved by the Owner prior to commencing performance of any services for the Project, which approval may be granted or withheld in the Owner's sole discretion. The CMAR shall bear, at its own expense and without reimbursement by the Owner, all costs associated with replacing, for any reason, any approved personnel. The CMAR shall remain solely responsible to the Owner, notwithstanding the Owner's approval of any approved personnel, for the quality and performance of all services provided by such personnel. 3.2.2 CMAR's Project Representative 3.2.3 CMAR's Employees None of the persons employed by the CMAR shall be considered employees of the Owner. The CMAR shall be solely responsible for any workers' compensation obligations, withholding taxes, unemployment insurance, compliance with immigration and licensing laws, and any other employer obligations with respect to all of their respective employees. 3.3 Construction Management Plan Within _30 days after execution of this Agreement, the CMAR shall present to the Owner a Construction Management Plan for the Project, including dates by which deliverables required by the Construction Management Plan will be completed. The CMAR shall make recommendations for revisions to the Construction Management Plan throughout the duration of the Project, as may be appropriate. In preparing the Construction Management Plan, the CMAR shall consider the Owner's schedule, budget, and design requirements for the Project. The CMAR shall then develop various alternatives for the sequencing and management of the Project and shall make recommendations to the Owner. The Construction Management Plan shall also include a description of the various bid packages recommended for the Project. The Construction Management Plan shall be presented to the Owner for acceptance. Revisions approved by the Owner shall be incorporated into the Construction Management Plan. 3.4 Consultant Selection If requested by the Owner, the CMAR shall assist the Owner in the selection of designers and other consultants necessary for the Project (generally referred to in this Agreement as "Consultants") by developing lists of potential firms, developing criteria for selection, preparing and transmitting the requests for proposal, assisting in reviewing written proposals, assisting in conducting interviews, evaluating candidates and making recommendations. 5 1 ~ ~ 3.4.1 Consultant Contract Preparation If requested by the Owner, the CMAR shall assist the Owner in the preparation and review of Agreements between the Owner and the Consultants engaged by the Owner. 3.4.2 Consultant Orientation If requested by the Owner, the CMAR shall conduct or assist the Owner in conducting orientation sessions during which the Consultants shall receive information regarding the Project scope, schedule, budget, and administrative requirements. 3.5 Time Mana eq ment The CMAR shall be responsible for Project scheduling and efficient and timely prosecution and completion of the Work, as follows: 3.5.1 Master Schedule In accordance with the Construction Management Plan, the CMAR shall prepare a Master Schedule for the Project. The Master Schedule shall specify milestone dates and the proposed start and finish dates for each major project activity including all design and construction activities. The CMAR shall submit the Master Schedule to the Owner for acceptance. 3.5.2 Updates and Revisions to Master Schedule As necessary throughout the Project, the CMAR may make revisions to the Master Schedule so long as such revisions do not alter agreed milestone dates. All adjustments to the Master Schedule shall be made for the benefit of the Project. The Owner shall issue change orders to the appropriate parties as required by this Agreement to implement justified revisions to the agreed milestone dates in the Master Schedule. During the Construction Phase, the CMAR shall update the Master Schedule and distribute copies to the Owner and Designer monthly. 3.5.3 Design Phase Milestone Schedule In accordance with the Construction Management Plan, after the Owner accepts the Master Schedule the CMAR shall prepare a Milestone Schedule for the Design Phase. The Design Phase Milestone Schedule may be incorporated into the contract for the Designer and shall be a method for judging progress during the Design Phase. The Design Phase Milestone Schedule activities shall include schematic design documents, design development documents, construction documents, permitting, creation of separate specifications and bid packages, and selection and approval of long-lead-time components of the Project. The CMAR shall monitor compliance with the Design Phase Milestone Schedule, and promptly notify the Owner and Designer of any delay or change in the Design Phase Milestone Schedule. 3.5.4 Pre-Bid Construction Schedules Prior to transmitting Contract Documents to bidders, the CMAR shall prepare aPre-Bid Construction Schedule for each part of the Project and make the schedule available to the bidders during the Procurement Phase. The CMAR shall inform the bidders of their responsibilities regarding the Pre-Bid Construction Schedule specified in the Instructions to Bidders or Contract Documents. 3.5.5 Contractor's Construction Schedule The CMAR shall provide a copy of the Master Schedule to the bidders. As part of the notice of award of each contract, the CMAR shall inform each Contractor of the requirements for the preparation of a construction schedule. The Contractor shall prepare its own construction schedule in accordance with the requirements of the Contract Documents. The Contractor's construction schedule shall establish completion dates that comply with the requirements of the Master Schedule. 3.6 Cost Management The CMAR shall be responsible for implementing a system of cost control, for the completion of the Project within the' Guaranteed Maximum Price agreed to by the CMAR and the Owner as set forth herein. 3.6.1 Construction Market Survev In accordance with the Construction Management Plan, the CMAR shall, at the written request of the Owner, conduct a Construction Market Survey to provide current information regarding the general availability of local construction services, labor, materials and equipment cost and other economic factors related to the Project. A report of the Construction Market Survey shall be provided to the Owner and the Designer. 3.6.2 Project and Construction Budget Based on the Construction Management Plan and the Construction Market Survey, the CMAR shall prepare a Project and Construction Budget based on separate divisions of the Work required for the Project and shall identify contingencies 6 for design and construction. The CMAR shall submit the Project and Construction Budget to the Owner for acceptance. If the CMAR believes that additional surveys, geotechnical investigations, environmental assessments or other testing or investigation is necessary and reasonable to fashion a reliable Project and Construction Budget, the CMAR shall make recommendations to the Owner for such services, with an explanation of why the CMAR believes that the services are reasonable and necessary. The decision to procure such services shall be solely in the discretion of the Owner, and shall be at the Owner's expense. The Project and Construction Budget shall be revised as directed by the Owner. 3.6.3 Preliminary Estimate and Budget Analysis The CMAR shall analyze and report to the Owner the cost of various design and construction alternatives, including the assumptions by the CMAR in preparing its analysis, a variance analysis between budget and preliminary estimate, and recommendations for any adjustments to the budget. As a part of the cost analysis, the CMAR shall consider costs relating to efficiency, usable life, maintenance, energy, and operation. 3.6.4 Cost Control Following the completion of each design phase milestone, the CMAR shall prepare an estimate of the construction cost for the Design Drawings and Specifications furnished by the Designer. Each estimate shall be accompanied by a report to the Owner and Designer identifying variances from the Project and Construction Budget as well as the assumptions made by the CMAR in preparing the estimate. The CMAR shall reconcile its estimates with the Project Budget and the Construction Budget, and with any independent estimates obtained by the Owner. The CMAR shall coordinate the activities of the Owner and Designer and provide cost estimating and value engineering studies when changes to the design are required to remain within the Project and Construction Budget. 3.6.5 Project and Construction Budget Revision The CMAR shall make recommendations to the Owner concerning design changes that may result in revisions to the Project and Construction Budget and divisions of the Work required for the Project. 3.6.6 Value Engineering Studies The CMAR shall provide value engineering recommendations to the Owner and Designer for major construction components, including cost evaluations of alternative materials and systems. 3.6.7 Estimates for Addenda Prior to bidding, the CMAR shall notify the Owner and the Designer if any addendum issued by the Designer could impact the Cost of the Work of the Project, and will prepare an estimate of costs for all such addenda and shall submit the estimates to the Owner for approval. After approval by the Owner, addenda shall be transmitted to bidders by the CMAR. Once bids are received and contracts are awarded to each Contractor, any addenda issued by the Designer which affects a Contractor shall be processed through the change order provisions in the Agreement. 3.6.8 Analyzing Bids: Upon receipt of bids, the CMAR shall evaluate the bids, including alternate prices and unit prices, and before award of any construction contract shall provide the Owner and the Designer with a report summarizing the bids. 3.6.9 Schedule of Values (Each Contract) The CMAR shall, in participation with the Contractors, determine a Schedule of Values for each of the construction contracts. The Schedule of Values shall be the basis for the allocation of the Construction Contract price to the activities shown on the Contractor's Construction Schedule. 3.6.10 Allocation of Costs to Contractor's Construction Schedule [Not used] 3.6.11 Change Order Control The CMAR shall establish and implement a change order control system. 3.6.11.1 All proposed Owner-initiated change orders shall first be described in detail in writing by the Owner, or the Designer if so requested by the Owner, and forwarded to the CMAR. The CMAR shall then forward a request for proposal to the appropriate Contractor (or Contractors), accompanied by technical Drawings and Specifications prepared by the Designer. In response to the request for a proposal, the Contractor shall submit to the CMAR for evaluation detailed information concerning the costs and time adjustments, if any, necessary to perform the proposed change order work. The CMAR shall review the Contractor's proposal, shall discuss the 7 proposed change order with the Contractor and determine the Contractor's basis for the cost and time to perform the Work and, as applicable, the effect, if any, on the Guaranteed Maximum Price. The CMAR shall present its findings to the Owner and Designer. Following Owner acceptance, the Designer shall prepare the change order documents for signature by the CMAR and Owner. Upon execution of the change order documents between the CMAR and Owner, the CMAR shall prepare change order documents for signature by the affected Contractor(s). The CMAR shall verify that any adjustment of time required by approved change orders has been incorporated into the Contractor's Construction Schedule. 3.6.11.2 The CMAR shall review the contents of all Contractor- requested changes to the contract time or price, determine whether an adjustment to the Guaranteed Maximum Price or the Master Schedule is warranted under the Contract, and determine the amount or length, if any, of the allowable adjustment to the Guaranteed Maximum Price and the Master Schedule. If the CMAR believes that an adjustment to this Contract might be warranted by a Contractor change request, the CMAR shall provide the Designer with a copy of the change request, and the CMAR shall, in its evaluations of the Contractor's request, consider the Designer's comments regarding the proposed changes. The CMAR shall present its findings to the Owner and Designer regarding the proposed changes. If, after review by the Owner and, Designer, the Owner determines that an adjustment to the Guaranteed Maximum Price or Master Schedule is warranted, the Designer shall prepare the change order documents for signature by the CMAR, the Owner and the Designer. Upon execution of the change order documents between the CMAR and Owner, the CMAR shall prepare change order documents for signature by the affected Contractor. 3.6.11.3 In instances where a lump sum or unit price is not authorized by the Owner in a change order prior to performing Work described in a request for proposal as provided in Paragraph 3.5.11, the CMAR shall request from the Contractor records of the cost of payroll, materials and equipment and the amount of payments to subcontractors incurred by the Contractor in performing the Work. 3.6.12 Trade-Off Studies The CMAR shall provide trade-off studies for various minor construction components. The results of the trade-off studies shall be in report form and distributed to the Owner and Designer. 3.6.13 Progress Payments In consultation with the Designer, the CMAR shall inspect the work to determine compliance with the Contract Documents, review the monthly payment applications submitted by each Contractor and determine whether the amount requested reflects the progress of the Contractor's Work. The CMAR shall make appropriate adjustments to each payment application and shall prepare and forward to the Designer and Owner a progress payment report. The report shall state the total contract price, payments to date, current payment requested, retainage and actual amounts owed for the current period. Included in this report shall be a certificate of payment that shall be signed by the CMAR and delivered to the Owner. The CMAR shall make payments that are due to all contractors, suppliers, and material men within fourteen (14) days following the delivery to the Owner of the certificate of payment. In addition, the CMAR shall keep the Project and the site on which Work is performed free and clear of all liens and claims from Contractors, subcontractors, or suppliers. Each payment application from each Contractor and the CMAR shall contain sales tax information on forms provided by the Owner. 3:7 Management Information System (MIS) The CMAR shall. develop a MIS to establish communication between the Owner, CMAR, Designer, and other parties on the Project. In developing the MIS, the CMAR shall interview the Owner's and the Designer's key personnel and others to determine the type of information for reporting, the reporting format, and the desired frequency for distribution of the various reports. At a minimum, the MIS shall include the elements described in this section. 3.7.1 Pre-construction Procedures As part of the MIS, the CMAR shall establish procedures for reporting, communication, and administration during the Design Phase and regulatory permitting. 3.7.2 Schedule Maintenance Reports The CMAR shall prepare and distribute schedule maintenance reports on a monthly basis that shall contrast actual progress against scheduled progress for each Phase and the overall Project and shall make recommendations to the Owner for corrective action to maintain the Master Schedule and all 8 design and construction schedules. During the Construction Phase the reports shall compare the actual construction dates i ' to scheduled construction dates of each separate construction contract and to the Master Schedule for the Project. 3.7.3 Project Cost Reports The CMAR shall prepare and distribute project cost reports on a monthly basis that shall indicate estimated costs compared to the Project Guaranteed Maximum Price and shall make recommendations to the Owner for corrective action to maintain all budgets and the Guaranteed Maximum Price. During the Procurement Phase, the reports shall specify the actual award prices and construction costs for the Project, compared to the Project Guaranteed Maximum Price. During the Construction Phase the reports shall specify actual Project and construction costs compared to the Project Guaranteed Maximum Price. 3.7.4 Cash Flow Report The CMAR shall periodically prepare and distribute a cash flow report: The reports shall be based on actual award fees and prices and on actual design and construction costs for the Project. The reports shall specify the actual cash flow compared to the projected cash flow. 3.7.5 Change Order Report The CMAR shall prepare and distribute Design Phase reports on a monthly basis that shall list all Owner-approved addenda, substitutions and change orders as of the date of the report and shall state the effect of the changes on the Project and Construction Budget and the Master Schedule. The CMAR shall continue to prepare and distribute monthly change order reports during the Construction Phase. The report shall include logs of all requests for information, requests for interpretation of the design documents, requests for proposals, notices of events that might justify an adjustment in the Guaranteed Maximum Price or Master Schedule, and status of critical decisions to be made by the Owner or the Designer. The report shall list all Owner-approved change orders by number, a brief description of the change order work, the cost established in the change order and percent of completion of the change order work. The report shall also include similar information for potential change orders or impact on the Guaranteed Maximum Price of which the CMAR may be aware. 3.7.6 Proiect and Construction Budget Revisions The CMAR shall make recommendations to the Owner concerning construction changes that may result in revisions to the Project Guaranteed Maximum Price. 3.7.7 Prooress Payment Reports SEach Contract) The CMAR shall prepare and distribute the progress payment reports. The reports shall state the total construction contract price, payment to date, current payment requested, retainage, sales and use tax paid, and actual amounts owed this period. A portion ~of this report shall be a certificate of payment that shall be signed by the CMAR and delivered to the Designer and the Owner. 3.7.8 Contractor's Safety Program On a monthly basis, the CMAR shall review the safety programs of each Contractor and confirm that each Contractor has established and implemented safety programs as required by the Contract Documents. 3.7.9 Final Inspections and Commissioning The GMAR shall schedule final inspections and, if required by the Contract Documents, commissioning of systems in the Project, and shall compile and organize all inspection reports for the Project records. 3.7.10 Closeout Reports At the conclusion of the Project, the CMAR shall prepare final project accounting and closeout reports. 3.7.11 MIS Reports for Move-in and Occupancv In consultation with the Owner, the Designer and appropriate regulatory agencies, the CMAR shall prepare and distribute reports associated with the Occupancy Plan. 3.8 Design Phase Services All drawings and spec cations shall be prepared by the Designer and submitted to the Owner for review and authorization to proceed with procurement and construction. The CMAR shall provide the following services related to design of the Project. 3.8.1 Project Conference In accordance with the approved Construction Management Plan and Master Schedule, the CMAR shall conduct a project conference attended by the Designer, the Owner and others as 9 necessary. During the Project Conference, the CMAR shall review the Construction Management Plan, the Master Schedule, the Design Phase Milestone Schedule, the Project Guaranteed Maximum Price, and the MIS. The CMAR shall conduct and prepare minutes of this meeting. 3.8.2 Desion Phase Information The CMAR shall monitor the Designer's compliance with the Construction Management Plan and the MIS and the CMAR shall coordinate and expedite the flow of information between the Owner, Designer, the CMAR and others as necessary. 3.8.3 Progress Meetings The CMAR shall participate in regularly scheduled progress meetings attended by the Owner, CMAR and others as necessary. Such meetings shall serve as a forum for the exchange of information concerning the Project and the review of design progress. The Designer shall prepare and distribute minutes of these meetings to the Owner, CMAR and others. 3.8.4 Review of Desion Documents The CMAR shall review all design documents, including drawings, spec cations, addenda, and supplemental design information, for clarity, consistency, constructibility and coordination among the Contractors. The results of the review shall be provided in writing as notations on the documents or in a written report. The CMAR is not responsible for providing, nor does the CMAR control, the Project design and contents of the design documents. By performing the reviews described herein, the CMAR is not acting. in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design and design documents. The CMAR's actions in reviewing the Project design and design documents and in making recommendations as provided herein are only advisory to the Owner. 3.8.5 Desiq_n Recommendations The CMAR shall make recommendations to the Owner and Designer with respect to constructibility, construction cost, sequence of construction, construction duration, possible means and methods of construction, time for construction, and separation of the Project contracts for various categories of Work. In addition, the CMAR shall give to the Designer all data of which it is aware concerning patents or copyrights for inclusion in Contract Documents. i 3.8.6 Owner Design Reviews The CMAR shall expedite the Owner's design reviews by compiling and conveying the Owner's comments to the Designer. 3.8.7 Approvals by Regulatory Agencies The CMAR shall assist the Designer with transmittal of documents to regulatory agencies for review and shall advise of potential problems in completing such reviews. 3.8.8 Construction Contracts and General Conditions The CMAR shall recommend for approval by the Owner the appropriate Contractor bid packages. The CMAR shall take into account the needs of the Project, the Master Schedule, risk management, and the available resources, and divide the Work for the best benefit of the Project. The CMAR and the Designer shall collaborate on the preparation of bid documents consistent with the bid packages identified by the CMAR and approved by the Owner. Consistent with State law, one or more bid packages shall be prepared for each of the general construction, electrical, mechanical, fire protection, and plumbing divisions of the Work of the Project. The CMAR shall prepare any other contract packages for other divisions or subdivisions of the Work as agreed with the Owner. The form of agreement and general conditions for inclusion in all bid packages and use in the contracts between the CMAR and the Contractors for construction for the Project shall be based on a form of Agreement selected by the CMAR and the General Conditions of the Orange County Contract For Construction - Construction Manager at Risk. The form of Agreement selected by the CMAR shall be consistent with the Orange County General Conditions of the Contract For Construction - Construction Management at Risk. The requirements of this Agreement shall be included in each construction contract to the extent applicable to the construction contract. Supplementary General Conditions for Contractors shall be prepared by the CMAR and submitted to the Owner and the Designer with adequate time for review and comment before inclusion in bid packages. The Designer and the CMAR will collaborate on the preparation of the general Division One requirements of the Specifications. Separate General Conditions for materials and equipment procurement shall be prepared by the CMAR to meet the specific requirements of the Project using forms approved by the Owner. The CMAR shall be afforded a reasonable opportunity to review and comment on all special warranties and other obligations imposed on the Contractors by the Specifications. 10 3.8.9 Public Relations The CMAR shall assist the Owner in public relations activities and shall prepare information for and attend public meetings regarding the Project as reasonably required by the Owner. 3.8.10 Proiect Funding The CMAR shall assist the Owner in preparing documents concerning the Project for use in obtaining or reporting on project funding. The documents shall be prepared in a form approved by the Owner. 3.9 Procurement Phase All construction contracts labor materials and services shall be procured in accordance with N C Gen. Stat. § 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. 3.9.1 Pregualifyinq_Bidders The CMAR shall develop lists of possible bidders and shall prequality bidders. This service shall include the following: preparation and transmission of questionnaires; receiving and analyzing completed questionnaires; interviewing possible bidders; bonding agents, and financial institutions; and preparing summary reports regarding this activity to the Owner. The CMAR shall also prepare and transmit to the Owner a bidders list for each bid package. The Owner shall notify the CMAR promptly of any reasonable objections to a proposed bidder, and the CMAR shall remove that bidder from the bidders list. 3.9.2 Bidder's Interest Campaign The CMAR shall conduct a telephonic and correspondence campaign to attempt to create interest among qual~ed bidders, both to foster competition for the Work of the Project, and to satisfy the requirements of the Owner's Minority Business Enterprise Policy, attached to this Agreement as Appendix C. 3.9.3 Notices and Advertisements The CMAR shall prepare and place notices and advertisements to solicit competitive bids for the Project. 3.9.4 Delivery of Bid Documents The CMAR shall expedite the delivery of bid documents to the bidders. The CMAR shall obtain a full set of documents from the Designer and arrange for printing, binding, wrapping and delivery to the bidders. The CMAR shall maintain a record of bidders receiving documents. 3.9.5 Pre-Bid Conference In conjuhction with the Designer, the CMAR shall conduct a Pre-Bid Conference. These conferences shall be forums for the CMAR and Designer to explain to the bidders the Project requirements, including information conceming schedule requirements, time and cost control requirements, access requirements, contractor interfaces, minority and women's business enterprise goals, the project administrative requirements and technical information. 3.9.6 Information to Bidders The CMAR shall develop and coordinate procedures to provide answers to bidders' questions. 3.9.7 Addenda The CMAR shall receive from the Designer a copy of all addenda. The CMAR shall review addenda for clarity, consistency and coordination. By performing the reviews described herein, the CMAR is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design or the content of the design documents. The CMAR shall also distribute a copy of all addenda to each bidder receiving documents. 3.9.8 Bid Opening The CMAR shall conduct bid openings in accordance with statute and shall evaluate the bids to determine the lowest responsive and responsible bidder. The CMAR shall not award or enter into any contract for Work on the Project until the CMAR has provided the Owner with written notice of the intent to award the contract with reasons for awarding the contract to the successful bidder. This written notice shall also describe compliance by the bidder with the Owner's Minority Business Enterprise Policy, attached to this Agreement as Appendix C_. The Owner shall be given reasonable opportunity to consider the qualifications of the successful bidder, and the impact of award of the contract on the Project and Construction Budget. 3.9.9 Construction Contracts At the direction of the Owner, the CMAR shall prepare, execute, and deliver the Contract Documents between the 11 CMAR and the Contractors. The CMAR shall also issue the ' notices to proceed. ~~ I 3.9.10 Permits Insurance and Labor Affidavits The CMAR shall verify that all required building permits, bonds, insurance, labor affidavits, and waivers required for the Project have been obtained. 3.10 Construction Phase The CMAR shall be responsible for construction administration and management, overall field supervision, Project safety program, quality assurance, and other services needed to construct the Project in the most expeditious, economical manner consistent with the interests of the Owner 'and the requirements of the Contract Documents. 3.10.1 Pre-Construction Conference In connection with the Designer, the CMAR shall conduct a Pre-Construction Conference during which the CMAR shall review the reporting procedures, site operations and other contractual requirements for the Project. 3.10.2 Onsite Management and Construction Phase Communication Procedures The CMAR shall provide and maintain a management team on the Project site to provide contract administration and the CMAR shall establish and implement coordination and communication procedures among the CMAR, Owner, Designer, and Contractors. 3.10.3 Contract Administration Procedures The CMAR shall establish and implement procedures for expediting and processing requests for information, shop drawings, material and equipment sample submittals, Contractor schedule adjustments, change orders, substitutes, payment requests and the maintenance of logs. The CMAR shall maintain daily job reports. The CMAR shall be the party to whom requests for information, submittals, Contractor schedule adjustments, substitutes, change order requests and payment requests shall be submitted by the Contractors. 3.10.4 Project~Site Meetings The CMAR shall conduct weekly coordination meetings at the site with all Contractors. As set forth in the Master Schedule and the Contract Documents, the CMAR shall conduct pre- installation and preconstruction meetings for key components of the Work. The CMAR shall conduct a monthly meeting with the Owner and the Designer to update them on progress of the Work. The CMAR shall record, transcribe and distribute minutes of all project site meetings to all attendees, the Owner and Designer. 3.10.5 Coordination of Other Independent Consultants Technical inspection and testing required by the Designer, the Owner or others shall be coordinated by the CMAR. The CMAR shall be provided with a copy of all inspection and testing reports on the day of the inspection or test or when issued. 3.10.6 Gontractor's Construction Schedule The CMAR shall review, to the extent required by the CMAR; each Contractor's Construction Schedule and shall verify that the schedule is prepared in accordance with the requirements of the Contract Documents and that it establishes completion dates that comply with the requirements of the Master Schedule. The CMAR and the Owner shall together approve the Contractors for which a Construction Schedule is required. 3.10.7 Construction Schedule Report The CMAR shall review the progress of construction of each Contractor on a weekly basis, shall evaluate the percentage complete of each construction activity as indicated in the Contractor's Construction Schedule and shall review such percentages with the Contractor. This evaluation shall serve as data for input to a monthly Construction Schedule report that shall be prepared and distributed to the Contractor, the Owner and Designer. The report shall indicate the actual progress compared to scheduled progress and shall serve as the basis for the progress payment to the Contractor. The CMAR shall determine and implement alternative courses of action that may be necessary to achieve contract compliance by the Contractor. 3.10.8 Recovery Schedules in the event the Project is"falling behind schedule, the CMAR shall require each Contractor to prepare and submit a recovery schedule as specked in the Contract Documents. The CMAR shall review and ascertain that the Contractor is providing sufficient resources to regain lost time. 3.10.9 Reouests for Changes to the Contract Time and Guaranteed Maximum Price The CMAR shall review the contents of a request for changes to the construction contract time or price submitted by a 12 t Contractor, assemble information concerning the request and endeavor to determine the cause of the request. In instances where the CMAR's analysis reveals that the request is valid, the CMAR shall prepare a detailed report to the Designer and the Owner for review, consideration and approval. The CMAR shall, prior to the issuance of a change order, determine the effect on the Master Schedule of time extensions requested by the Contractor. The Designer shall prepare the necessary change order documents for signing by the CMAR, Designer and Owner. The CMAR shall then prepare the necessary documents to effect a change to the contract with the Contractor. In its sole discretion the Owner may approve a change in the Guaranteed Maximum Price that corresponds with any approved construction contract change order. 3.10.10 Quality Review and Warranty The CMAR unconditionally warrants and guarantees all materials and workmanship against patent defects arising from faulty materials, faulty workmanship or negligence for a period of twelve (12) months following the date of substantial completion of the Work and shall replace such defective materials or workmanship without cost to the Owner. 3.10.10.1 In addition to the foregoing general warranty, the Contract Documents may require extended warranties for specked building components, including without limitation mechanical and electrical equipment, elevators and escalators, security equipment, roof, curtain wall, doors and waterproofing. Extended warranties shall be specified in the Contract Documents. All such extended warranties shall either be provided by the CMAR or by a Contractor or manufacturer as provided in the Contract Documents. Such warranties shall provide, at a minimum, for the repair or' replacement of defective or non-conforming components within the warranty period. 3.10.10.2 The CMAR shall establish and implement a program to monitor the quality of construction. The purpose of the program shall be to guard the Owner against defects and deficiency in the work of 'the Contractors. The CMAR shall transmit to the Designer and the Contractor a notice of nonconforming work and may require that the Contractors correct Work at no expense to the Owner when it is the opinion of the CMAR that the Work does not conform to the requirements of the Contract Documents. Except for minor variations as stated herein, the CMAR is not authorized as part of this service to change, evoke, enlarge, relax, alter, or to release any requirement of the Contract Documents or to approve or accept any portion of the Work not performed in accordance with the Contract Documents. 3.10.11 Testinq_by the CMAR The CMAR shall recommend to the Owner additional tests and inspections that the CMAR believes should be conducted to monitor the quality of construction and compliance with the Contract Documents. Notice of all such tests and inspections shall be provided to the Owner and the Designer, and copies of the results and reports of all such tests and inspections shall be provided to the Owner and the Designer. 3.10.12 Operation and Maintenance Materials The CMAR shall obtain from the Contractors, review and assemble operation and maintenance manuals, warranties and guarantees for materials and equipment installed in the Project, in accordance with the Contract Documents and the .Master Schedule. It is expected that all operation and maintenance manuals will be compiled and delivered to the Owner before the Project is substantially complete, and generally when the Work is eighty percent complete. 3.10.13 Substantial Completion Substantial completion is the point in time when the Work, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be utilized by the Owner for its intended use, and all necessary permits and permissions for beneficial occupancy and utilization having been obtained by the CMAR. All operations and maintenance manuals, Owner training, and as-built drawings must be submitted prior to Final Completion being achieved. , The CMAR shall,- prior to requesting a Certificate of Substantial Completion, prepare and submit to the Contractors lists identifying Work that does not conform to the Contract Documents. The CMAR shall not request a Certificate of Substantial Completion from the Designer until the CMAR believes that the Project is substantially complete and certifies to the Designer that all of the Work is substantially complete. The Designer shall then determine whether the Project is substantially complete. Upon Substantial Completion, the Designer shall prepare and submit to the CMAR a deficiency list identifying all portions of the Work which are known by the Designer at that time to be incomplete or defective. Within forty-five (45) days of receipt of this deficiency list, the CMAR shall complete and correct all items on that list along with all other Work required to achieve Final Completion of the Work. 13 At any time prior to completion of the period of warranty, the Designer may submit to the CMAR a supplemental deficiency list, in which case the CMAR shall complete or correct any and all new items identified on the Supplemental deficiency list. 3.10.14 Final Completion In consultation with the Designer, the CMAR shall determine when the Project and the Contractor's Work are finally completed and, following completion of corrections, shall issue a Certificate of Final Completion to the Owner. Upon delivery of the Certificate of Final Completion to the Owner, the CMAR shall make all remaining payments due to Contractors. 3.10.15 Protection of the Work. Properly and the Public The CMAR shall be responsible for the entire site and shall provide all the necessary protections required by the Owner and by laws or ordinances governing safety and protection of property. Consistent with the indemnification provisions elsewhere in this Agreement, and subject to the benefits of any Owner-controlled or Owner-provided insurance that covers the interests of the CMAR and its Contractors, the. CMAR shall be responsible for protecting the public and those on the site against all bodily injury or harm, and protecting against any damage to the Work, to adjacent property, and to property of others. The CMAR shall have access to the Project at all times. Subject to its ultimate contractual responsibility for protection of work, property and the public under this Agreement, and subject to any non-delegable duties imposed by law, the CMAR may delegate to Contractors these obligations of the CMAR under this Agreement, and may obtain indemnification and insurance from Contractors as the CMAR deems reasonable and prudent. 3.10.15.1 The CMAR shall provide cover and protect all portions of the structure when the Work is not in progress, provide and set all temporary roofs, covers for doonruays, sash and windows, barricades, and all other materials necessary to protect all the Work on the building, whether set by it, or any of the Contractors. Any completed Work or Work in progress damaged through the lack of proper protection or from any other cause shall be repaired or replaced without extra cost to the Owner.3.10.15.2 No fires of any kind will be allowed inside or around the operations during the course of construction. 3.10.15.3 The CMAR shall protect all trees and shrubs designated to remain in the vicinity of the operations by building substantial protection around same. The CMAR shall barricade all walks, roads, etc., as authorized by the Owner to keep the public away from the construction. All trenches, excavations or other hazards in the vicinity of the Work shall be well barricaded and properly lighted at night. 3.10.15.4 The CMAR shall develop and implement a Project Safety Program. The Owner may reject the Project Safety Program and require that it be rewritten if in the Owner's reasonable opinion the Safety Program is inadequate. The CMAR shall report, to the Owner, as part of the MIS, any safety violations and actions taken to protect the safety of persons and property engaged in the Project. The CMAR shall require that all Contractors meet or exceed the Project Safety Program requirements including where those requirements meet or exceed State or Federal requirements. 3.10.15.5 In the event the Owner implements an Owner Controlled Insurance Program ("OCIP"), the CMAR agrees to cooperate and coordinate with any safety plan or risk management plan implemented in connection with the OCtP. 3.10.15.6 The CMAR shall implement the Project Safety Program for the protection of all persons on the job, including the requirements of the A.G.C. Accident Prevention Manual in Construction, as amended, and shall fully comply with all state laws or regulations and North Carolina State Building Code requirements to prevent accident or injury to persons on or about the location of the Work. The CMAR shall clearly mark or post signs warning of hazards existing, and shall barricade excavations, elevator shafts, stairwells, floor and wall openings and similar hazards. The CMAR shall protect against damage or injury resulting from falling materials and shall maintain all protective devices and signs throughout the progress of the Work. 3.10.15.7 The CMAR shall, at a minimum, adhere to the rules, regulations and interpretations of the North Carolina Department of Labor relating to Occupational Safety and Health Standards for the Construction Industry. 3.10.15.8 As part of the .Project Safety Program the CMAR agrees to implement a Public Hazard Control Plan conforming to the standards set forth in ANSI A10.34-2005R. The Public Hazard Control Plan shall be submitted to the Owner for review and approval before construction begins on the Project. 3.10.15.9 The CMAR shall designate a responsible member of its organization as safety inspector, whose duties shall include 14 accident prevention on the Project. The name of the onsite safety inspector shall be made known to the Project Designer and Owner at the time the Work is started. The CMAR will provide the Owner with the name of each Contractor's onsite safety officer. 3.10.15.10 In the event of emergency affecting the safety of life, the protection of Work, or the safety of adjoining properties, the CMAR is hereby authorized to act at its own discretion, without further authorization from anyone, to prevent such threatened injury or damage. Any compensation claimed by the CMAR on account of such action shall be determined as provided for under Article 7 herein. 3.10.15.11 If reasonable precautions are inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the site by the CMAR or its Contractors, the CMAR shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and the Project property owner if different from the Owner and Project Designer in writing. The Owner or Project property owner if different from the Owner shall take responsibility for remediation of the material or substance from the site. If the CMAR claim's its progress in completing the Project is delayed because of the remediation response to the site, the CMAR shall file notice and a claim in accordance with this Agreement. 3.10.15.12 Any land-disturbing activity performed by the CMAR in connection with the Project shall comply with all erosion control measures set forth in the Contract Documents and any additional measures which may be required in order to ensure that the Project is in full compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title 15, North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as amended (15 N.C.A.C. 4A, 4B and 4C). 3.11 Post Construction Phase The CMAR shall provide the following ongoing services in connection with Final Completion of the Work by the. Contractors: 3.11.1 Record Documents The CMAR shall coordinate and expedite submittals of information from the Contractors for preparation of record Drawings and Specifications, and shall coordinate and expedite the transmittal of such record documents to the Owner. 3.11.2 Oroanize and Index Operations and Maintenance Materials Prior to final completion of the Project the CMAR shall compile manufacturers' operations and maintenance manuals, warranties and guarantees and bind such documents in an organized manner. This information shall then be provided to the Owner. 3.11.3 Occupancy Permit The CMAR shall assist the Owner and Designer in obtaining an occupancy permit by accompanying governmental ofFcials during inspections of the Project, preparing and submitting documentation to governmental agencies and coordinating final testing and other activities. 3.11.4 Occupancy Plan The CMAR, in consultation with the Owner, the Designer and appropriate regulatory agencies, shall prepare an Occupancy Plan for the Project. This plan shall be provided to the Owner at least thirty days prior to Substantial Completion. 3.12 Additional Services The CMAR agrees to perform all tasks and functions reasonably necessary to complete the services described in the preceding paragraphs in this Article 3, even if not explicitly described therein, unless the tasks or functions are explicitly described as Additional Services in this section 3.12. At the request of the Owner, the CMAR shall perform Additional Services and shall be compensated for same as provided in Article 7 of this Agreement. The CMAR shall perform Additional Services only after the Owner and CMAR have executed a written amendment to this Agreement providing for such services. The following is a list of Services that might reasonably be anticipated, with indication of whether the specified services will be considered to be Additional Services or required Services: 3.12.1 Services related to investigation, appraisal, or evaluation of existing conditions, facilities, or equipment or determination of the accuracy of existing drawings or other information furnished by the Owner are required and are not Additional Services; 3.12.2 Services related to procurement, storage, maintenance and installation of Owner-furnished equipment, materials, supplies and furnishings are Additional Services; provided, 15 however, that coordination and scheduling of the procurement, storage, maintenance and installation of Owner-furnished equipment, materials, supplies and furnishings with the Work of the Contractors is required and is not an Additional Service; 3.12.3 Services related to determination of space needs, programming, internal traffic studies or other utilization of the Project are Additional Services; 3.12.4 Warranty inspections during the warranty period of the Project are required and are not Additional Services; 3.12.5 Services made necessary by the failure to perform by or bankruptcy of a Contractor is a required Service and is not an Additional Service; 3.12.6 Preparation for and serving as a witness in connection with any public or private hearing or arbitration mediation or legal proceeding relating to the Project is a required Service and is not an Additional Service; 3.12.7 Assisting the Owner in public relations activities and preparing information for and attending public meetings is a j required Service, not an Additional Service; and 3.12.8 Services related to move-in including preparing and soliciting responses to requests for proposals, preparing and coordinating the execution of contracts, conducting pre-moving conferences, administering the contract for moving activities in conjunction with the move-in for the Project and providing on- site personnel to oversee the relocation of furniture and equipment by the movers while actual move-in is in progress are Additional Services; provided, however, that coordination of the Work of the Contractors with move-in by the Owner in accordance with the Master Schedule is required and is not an Additional Service. ARTICLE 4 TIME FOR PERFORMANCE 4.1 Duration The commencement date for the CMAR's Services shall be the date of execution of this Agreement by the Owner as stated herein or the date on which the Owner issues to the CMAR a written instruction to proceed with Services, whichever is earlier. The duration of the CMAR's Services under this Agreement shall be from the date of this Agreement through the issuance of the certificate of final completion, plus the one- year CMAR warranty phase services. 4.2 Master Schedule The CMAR's Services shall be performed for the periods of time indicated in the approved Master Schedule. Firm dates for substantial completion and final completion of the Project shall also be fixed. At that time the CMAR represents that the Master Schedule has been reviewed in detail, that the Contractors participated in its preparation, that all of the activities which impact, limit, or otherwise affect the time of completion of the Work are shown in the Master Schedule and that all of the activities of others which impact, limit, or otherwise affect the start, duration, or completion of the CMAR's activities are also shown. The CMAR further represents that the CMAR can and will complete each activity within the time shown for that activity. Time is of the essence with respect to each such activity and completion date. 4.3 Non-waiver If the CMAR submits a construction schedule, progress report, or any other document that indicates or otherwise expresses an intention to achieve completion of the Work prior to any established completion date, no liability of the Owner to the CMAR for any failure of the CMAR to so complete the Work shall be created or implied. 4.4 Schedule Adjustment If the CMAR and its Contractors, for reasons beyond their control, are delayed in beginning any activity, the CMAR shall, nevertheless, have the same number of days as is shown in the Master Schedule for the activity, and the affected activity and any succeeding activity that is dependent upon that activity shall be adjusted accordingly; provided that at any time the Owner, by means of a Change Order, may require the CMAR to work overtime, to increase labor forces or to take any necessary or appropriate action to decrease the time required for any activity, and the CMAR shall be entitled to an adjustment in the Contract Price computed in accordance with Article 5 of these General Conditions. 4.5 Early Start [Not used] 4.6 Recovery 16 Should the CMAR fail to start a critical activity on the start date shown in the Master Schedule or as it may have been adjusted in accordance with this Article, or become delayed, the CMAR and its Contractors shall, without being entitled to any increase in the Guaranteed Maximum Price or other compensation, work overtime, increase labor forces or take such other action as may be necessary or appropriate to complete the activity by the Completion Date shown on the Master Schedule, or as such Completion Date may have been adjusted. 4.7 Schedule Monitoring The Designer and Owner shall monitor progress of the Work and the CMAR shall cooperate with such monitoring and provide any and all information with respect to the progress of the Work and scheduling as the Owner or Designer may reasonably require. 4.8 Schedule Revisions On a monthly basis, the CMAR shall revise the Master Schedule, showing any adjustments made in accordance with this Article, by any Change Order, the progress of the Work, and any days gained or days lost with respect to any activity, and shall furnish copies thereof to the Owner and Designer. 4.9 Withholding Payment from CMAR Should any monthly revision of any Master Schedule show that the CMAR is behind on any critical activity, the late completion of which could delay Substantial Completion of the Work, the Owner shall be entitled to withhold from the next Progress Payment due the CMAR an amount not exceeding the amount the Owner would be entitled to in Liquidated Damages, should Substantial Completion be delayed by the .same number of days that the CMAR is currently behind schedule. If, subsequently, the Project progress, as shown by any succeeding monthly revision to the Master Schedule, is such that the anticipated delay no longer exists, the Owner shall pay with the Progress Payment next due 'to the CMAR such amounts as have been withheld in accordance with this paragraph. 4.10 Work by Owner If the CMAR, within a period of five (5) days after notice that it is behind in a critical activity or is otherwise in default under this Agreement, shall not proceed in good faith and with reasonable speed to correct such delay or default in accordance with such notice, the Owner shall have full power and authority to take the prosecution of the Work out of the hands of the CMAR, to appropriate or use any or all materials and equipment at the Project as may be suitable and acceptable, and to enter into other agreements for the completion of the Work or pursue such other methods as in the Owner's sole discretion and opinion shall be necessary or appropriate for the completion of the Work in an acceptable manner. The Owner shall have the right to perform Work, hire and employ labor and craftsmen, rent equipment, subcontract with other parties, or do anything that the Owner deems necessary or appropriate to remedy or cure any delay or default by the CMAR in the progress of the Work. Such action by the Owner shall not, in any way, affect, void or limit any warranty, guaranty or other responsibility of the CMAR under the Contract Documents. Such action may be taken by the Owner only after five (5) days written notice to the CMAR. All costs incurred by the Owner in taking any such action shall be charged to the CMAR and deducted from any amounts due under the Agreement. 4.11 Force Majeure The CMAR may be entitled to an extension of the time for completion (but no increase in the Guaranteed Maximum Price except as described in this Paragraph 4.11) for delays arising from unforeseen causes beyond the control and without the fault or negligence of the Owner, the CMAR or the CMAR's Contractors as follows: 4.11.1 Acts of God, tornado, fire, hurricane or earthquake that damage completed Work or stored materials. 4.11.2 Acts of the public enemy. 4.11.3 Acts of the State, Federal, or local government in their sovereign capacities. 4.11.4 Abnormal inclement weather as defined in Paragraph 4.13. If the Force Majeure delay is greater than 120 days, the Owner shall consider and, if reasonable, approve a request for an adjustment to the GMP for the additional costs caused by the force majeure delay beyond the 120 day period. 4.12 Notice The CMAR and the Contractors shall not be entitled to and hereby expressly waive any extension of time resulting from any condition or cause unless a claim for extension of time is made in writing to the Owner within five (5) days of the first instance of delay for all delays, except excessive inclement 17 weather which shall be made in accordance with paragraph July 8 'l 4.13. All claims not filed in accordance with this Article shall be August 6 waived by the CMAR. Circumstances and activities leading to September 5 such claim shall be indicated or referenced in a daily field October 5 inspection report for the day(s) affected. In every such written November 5 claim, the CMAR shall provide the following information: December 9 ), 4.12.1 Nature of the Delay; 4.12.2 Date (or Anticipated Date) Of Commencement of Delay: 4.12.3 Activities on the Progress Schedule affected by the delay, and/or new activities created by the delay and their relationship with existing activities; 4.12.4 Identification of person(s) or organization(s) or events(s) responsible for the delay; 4.12.5 Anticipated extent of the delay; and 4.12.6 Recommended action to avoid or minimize the delay. 4.13 Weather Delays On any day that the CMAR considers that the Project is delayed by adverse weather conditions, the CMAR shall identify in writing to the Designer and the Owner the adverse weather conditions affecting each activity, the specific nature of the activity affected, the number of hours lost, and the number of and identity (by responsibility or trade) of workers affected and shall obtain from the Designer written recognition of the delay. The time for performance of this Contract includes an allowance for a number of calendar days which may not be suitable for construction Work by reason of adverse weather. The Contract Time will be extended only if the number of calendar days of adverse weather recognized by the Designer exceeds the number of inclement weather days set forth below, and the CMAR clearly demonstrates how this adverse weather negatively impacts activities on the critical path of the Master Schedule. Month Number of Inclement Weather Days January 7 February 6 March 7 April 6 May 7 June 6 If the CMAR believes that the progress of the Work has been adversely affected by adverse weather recognized by the Designer during a particular month, the CMAR shall submit a written request for extension of time to the Designer. Such a request for time extension of the Contract Time shall be submitted by the tenth (10th) day of the month following that month in which the adverse weather is encountered. The request shall include, but is not limited to, the ,following information: 4.13.1 Detailed description of weather's effect on scheduled activities and its net effect on the critical path of the Project, and 4.13.2 Weather records from the official weather station nearest the Project site and records of actual observation as contained in daily reports, correspondence, or other contemporaneously prepared documentation. 4.14 Damages for Delay The CMAR shall not be entitled to any adjustment in the Guaranteed Maximum Price or other compensation from the Owner for any delay in the completion of or progress on the Work that is caused by a force majeure condition or is otherwise not caused by the sole and direct act or omission of the Owner and the Owner's employees or agents. 4.15 Liquidated Damages The CMAR specifically recognizes that a delay by the CMAR in achieving the Substantial Completion of the Project will necessarily cause damages, losses, and expenses to the Owner, including; but not limited to and by way of illustration only, increased capitalized costs and interests for the Project, increased and extended Project overhead, Designer's and Consultant's fees, increased costs of construction, increased and extended operation costs of other facilities, and inefficiency and loss of productivity, and that such damages, losses, and expenses may not be readily identifiable or ascertainable at the 18 time they are incurred or at any time. Therefore, and in recognition of these factors and the likelihood that actual damages from his delay will not be readily ascertainable, the CMAR agrees to pay to the Owner, as Liquidated Damages and not as a penalty, the sum of Two Thousand Five Hundred Dollars ($2,500) as the Liquidated Damages per day, for each day by which the failure to meet the Substantial Completion Date shown in the Master Schedule, adjusted in accordance with this Article, delays the Substantial Completion of the Project. The sum for Liquidated Damages is the amount reasonably estimated in advance to cover the, losses to be incurred by the Owner by reason of failure of the CMAR to complete the Project within the time specified, such time being in the essence of this contract and a material consideration thereof. ARTICLE 5 CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 5.1 Owner Changes The Owner, without invalidating this Agreement, may make changes in the CMAR's Services specked in Article 3 of this Agreement. The CMAR shall within five (5) days notify the Owner of any changes or other events which in the opinion of the CMAR entitle the CMAR to an increase or decrease the Guaranteed Maximum Price, the CMAR's compensation, the duration of the CMAR's Services, or both. 5.1.1 Changes in the CMAR's Services Changes in the CMAR's Services may be directed by the Owner in writing, and if so directed to provide different or additional Services the CMAR shall comply with the directions of the Owner. Additional compensation shall be settled by a written amendment to this Agreement executed by the Owner and the CMAR. If possible, the amendment shall be executed by the Owner and CMAR prior to the CMAR performing the services required by the amendment, but failure to agree on compensation for a change in Services shall not be grounds for the CMAR to cease or refuse to provide the Services reasonably requested by the Owner. The CMAR shall proceed to perform the services required by the amendment only after receiving notice directing the CMAR to proceed. 5.1.2 Additional Compensation and Extended Duration The CMAR shall be entitled to receive additional compensation and additional time when the scope or planned duration of Services is increased or extended through the fault of the Owner. The CMAR shall notify the Owner within five (5) days after changes to the scope of the Project or a part thereof or after delays caused in whole or in part by the Owner increase or extend the scope or duration of the CMAR's Services. 5.1.2.1 Fixed Fee The CMAR shall not be entitled to an increase in the Fixed Fee unless and until it is finally determined at the completion of the Project that the approved Cost of the Work exceeds one hundred and five percent (105%) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. If an increase in the Fixed Fee is just~ed, the CMAR shall be entitled to an increase in .the Fixed Fee equal to percent (_%) of the amount by which the final approved Cost of the Work exceeds one hundred and five percent (105%) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. The Owner may in its discretion approve adjustments to the Fixed Fee prior to the end of the Project. 5.1.2.2 General Conditions The amount of additional General Conditions costs to be paid to the CMAR and the amount of extension of the duration of this Agreement shall be determined on the basis of the CMAR's reasonable additional General Conditions costs after determining the increased services and length of the extensions of the duration of this Agreement. A change in the Drawings and Specifications or other change in the scope of the Work shall not automatically entitle the CMAR to an increase in compensation. Increases in the compensation payable to the CMAR shall only be payable upon proof of an increase in the actual duration or level of services being provided by the CMAR, or both. 5.1.2.3 Cost of the Work Increases in the Cost of the Work shall be deterrnined in accordance with the provisions of Article 7 of this Agreement. 5.1.3 Payment of Additional Compensation The CMAR shall submit invoices for additional compensation with its invoice for Services and payment shall be made pursuant to the provisions of Article 7 of this Agreement. ARTICLE 6 OWNER'S RESPONSIBILITIES 19 6.1 Program The Owner shall provide to the CMAR complete information regarding the Owner's requirements for the Project. 6.2 Decisions The Owner shall examine information submitted by the CMAR and shall render decisions thereto promptly. 6.3 Insurance The Owner shall furnish the insurance that the Owner has agfeed to furnish as specified in Article 8. 6.4 Notice of Nonconformities If the Owner observes or otherwise becomes aware of any fault or defect in the Project or nonconformity with the Contract Documents, the Owner shall give prompt written notice thereof to the CMAR. 6.5 Approvals The Owner shall furnish required information and approvals and perform its responsibilities and activities in a timely manner to facilitate orderly progress of the Work in cooperation with the CMAR, consistent with this Agreement, and in accordance with the planning and scheduling requirements and budgetary restraints of the Project. 6.6 Designer The Owner shall retain a Designer whose services, duties and responsibilities shall be described in a written agreement between the Owner and Designer. The services, duties, and responsibilities of the Designer set out in the agreement between the Owner and Designer shall be compatible and consistent with this Agreement and the Contract Documents. The Owner shall, in its agreement with the Designer, require that the Designer perform its services in cooperation with the CMAR, consistent with this Agreement and in accordance with the planning, scheduling and budgetary requirements of the Project as determined by the Owner. The terms and conditions of the agreement between the Owner and the Designer shall not be changed or waived without written notice to the CMAR provided at the time of the change or revision. 6.7 Budget The Owner shall establish the Project and Construction Budget and approve subsequent revisions deemed acceptable as provided in this Agreement. 6.8 Separate Contracts The Owner reserves the right to contract separately with other entities to complete portions of the Work of the Project, or to deploy its own employees to complete portions of the Work. If the Owner contracts separately with any other parties, the Owner shall cause all such agreements to be compatible and consistent with this Agreement. Each of the agreements shall include waiver of subrogation as required herein. The CMAR agrees to cooperate with the Owner and its separate contractors and coordinate the Work of all parties, including the Owner's forces or separate contractors. Provided the CMAR has reasonable advance notice of the identity and duties of separate contractors, the CMAR agrees to include coordination and support of the Owner's separate contractors in the General Conditions costs. Disputes or conflicts between the CMAR, the Owner and any separate contractors shall be subject to dispute resolution in accordance with the dispute resolution provisions in Appendix A. 6.9 Copies of Drawinos and Specifications The CMAR shall estimate the reasonable number of copies of interim and final drawings, specifications and Contract Documents required by the CMAR, and shall obtain such copies from the Designer at the CMAR's expense. The estimated cost of such copies shall be included in the Guaranteed Maximum Price. 6.10 Permits and Approvals With the cooperation and assistance of the CMAR and the Contractors as set forth in this Agreement, the Owner shall in a timely manner secure, submit and pay for necessary approvals, easements, assessments, permits and charges required for the construction, use or occupancy of permanent structures, or for permanent changes in existing facilities. 6.11 Funding Requirements The Owner shall describe the funding for the Project to the CMAR and the Designer. 6.12 Communication with Contractors The Owner, its representatives and consultants, including Designers, shall communicate with the Contractors only through the CMAR. 20 6.13 Conies of Notices and Communication The Owner shall send to the CMAR and shall require the Designer to send the CMAR copies of all notices and communications sent to or received by the Owner or Designer relating to the Project. 6.14 Owner's Representative The Owner shall designate, in writing, an officer, employee or other authorized representative to serve as the Owner's point of contact and to act in the Owner's behalf with respect to the Project. This representative shall be available during working hours and as often as may be required to render decisions and furnish information in a timely manner. The CMAR acknowledges that more than one individual might be designated as the Owner's representative at different times and for different purposes. The CMAR also acknowledges that some changes to this Agreement and to the Project might require authorization by the County Commissioners and execution by the County Manager in addition to the Owner's project representative. 6.15 Payment to CMAR [Not used.] ARTICLE 7 GUARANTEED MAXIMUM PRICE AND PAYMENT 7.1 Guaranteed Maximum Price The CMAR shall be required to give a Guaranteed Maximum Price for the Project. The Guaranteed Maximum Price shall be documented by the CMAR as defined in Article 12 and, once established, the Guaranteed Maximum Price shall be subject to modification only as defined in this Agreement. 7.1.1 Guaranteed Maximum Price Proposal The Guaranteed Maximum Price shall be provided by the CMAR when requested by the Owner, but in no event before the completion of one hundred percent of schematic design documents for the Project by the Designer, and in no event later than sixty (60) days after construction documents for the Project are released by the Designer for permitting, bidding and construction. The Owner shall accept such Guaranteed Maximum Price or negotiate and reach agreement with the CMAR on a different Guaranteed Maximum Price within thirty (30) days of the date of the receipt unless such time is mutually agreed to be extended. If the Owner does not accept a Guaranteed Maximum Price within the time period herein provided, such price shall be presumed to be rejected by the Owner. 7.1.2 Consideration of Proposal In the event the Owner does not accept the CMAR's proposed Guaranteed Maximum Price, the Owner may terminate the Agreement in accordance with Article 9. 7.1.3 Construction Contracts Construction contracts for the Work required for the Project shall be between the CMAR and Contractors. The CMAR shall request and receive bids for each contract and shall advise the Owner with respect to award of a contract to the lowest responsive and responsible bidder. The CMAR shall enter into a contract with that bidder after receipt of approval of award from the Owner. 7.1.4 Work bYCMAR All of the labor and materials for the Work of the Project as described in the Drawings and Specifications developed. by the Designer shall be performed by Contractors, except as specifically provided in this paragraph. The CMAR may perform a portion of the Work only if (1) bidding produces no responsible, responsive bidder for that portion of the Work, no responsive, responsible bidder will execute a contract for the bid portion of the Work, or a Contractor defaults and apre- qualified replacement cannot be obtained in a timely manner, and (2) the Owner approves performance of the Work by the CMAR. In the event the CMAR performs a portion of the Work under this paragraph, the CMAR shall be entitled to its actual direct cost to perform the Work, including direct labor costs with reasonable burden, actual material costs, actual equipment costs, and actual subcontract payments, without markup for overhead or profit. Any other direct costs of the Work performed by the CMAR will only be paid if approved by the Owner in advance of performing the Work. 7.1.5 Elements of the Guaranteed Maximum Price The Guaranteed Maximum Price shall include the total Cost of the Work, including the CMAR Fee for Services, the reimbursable costs for General Conditions provided by the CMAR, if any, and the _CMAR Contingency, if any, all as defined herein. The Guaranteed Maximum Price includes the cost of all labor, equipment, supplies, materials, services and allowances to complete the Project. The Guaranteed 21 Maximum Price shall be directly correlated to the specific design Drawings and Specifications in existence at the time the Guaranteed Maximum Price is prepared. The assumptions used in the preparation of the Guaranteed Maximum Price shall be identified by the CMAR in its Guaranteed Maximum Price proposal. 7.1.6 Sales and Use Taxes The Guaranteed Maximum Price shall include those sales and use taxes applicable to the Project that are legally enacted at the time the Guaranteed Maximum Price is established. Sales and use taxes shall be accounted for separately in the Guaranteed Maximum Price and in the payment application submitted by the CMAR. Any increase or decrease in such taxes that affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is submitted shall be incorporated into that price by change order. 7.1.7 Change in Scooe The Owner may change the scope of the Project or a part thereof and the Guaranteed Maximum Price shall then be adjusted as provided in Paragraph 7.3. 7.2 Cost of the Work The term "Cost of the Work" shall include all amounts paid by the Owner to the CMAR other than General Conditions and Fixed Fee costs for payment to all separate Contractors, suppliers and equipment lessors for all the Work of the Project as described in the Design Drawings and Specifications developed by the Designer. The Cost of the Work shall be adjusted for all discounts obtained on payments by the CMAR or any Contractor, which shall be for the benefit of the Project and the Owner. Trade discounts, rebates, refunds, and amounts received from sales of surplus or salvaged materials and equipment shall accrue to the Owner, and the CMAR shall make provisions so they can be secured and will reduce the Guaranteed Maximum Price accordingly. Amounts which accrue to the Owner in accordance with this paragraph shall be accounted for and credited to the Owner as a deduction from the Cost of the Work. 7.2.1 Exclusions from Cost of the Work The Cost of the Work shall not include the following: 7.2.1.1 The CMAR's fee for Services and reimbursable costs for General Conditions; 7.2.1.2 All professional fees paid by the Owner to the Designer or other consultants retained directly by the Owner; 7.2.1.3 All costs paid directly by the Owner to contractors or suppliers retained directly by the Owner and outside the scope of the Guaranteed Maximum Price; 7.2.1.4 All Additional Services costs as defined herein. 7.3 Adjustments to the Guaranteed Maximum Price The CMAR understands, confirms and agrees that its responsibility hereunder is to construct the Project in accordance with the Drawings and Specifications. It is recognized that the Guaranteed Maximum Price is based on complete design documents unless the Owner requests that the Guaranteed Maximum Price be fixed at an earlier stage in the design process. The CMAR shall notify the Owner if the CMAR believes that it is being asked to fix the Guaranteed Maximum Price on incomplete, ambiguous or under-developed drawings and specifications. In those instances in which the Drawings and Specifications are not fully developed at the time the Guaranteed Maximum Price is established, the CMAR shall exercise reasonable care and judgment to determine the intent of the design and shall calculate the Guaranteed Maximum Price on the basis of the quality of construction, materials, and finishes that can be reasonably inferred from the design documents or other specified sources. The CMAR shall determine unit prices and the Cost of the Work and shall make those reasonable assumptions regarding the project scope and the quality of the intended construction as may be necessary to fully document the Guaranteed Maximum Price. 7.3.1 Changes to the Work The Owner may, at any time and for any reason, by written notice or order, make changes or modifications to the Work or add Work within the general scope of the Project, including without limitation changes to the Drawings and Specifications, the Master Schedule, the sequence, manner or method of performing the Work, or the work being provided by the Owner or its separate contractors. The amount of adjustment to increase or decrease the Cost of the Work resulting from a change in the Project shall be determined in one or more of the following ways: 7.3.1.1 By mutual acceptance of a lump sum, properly itemized and supported by cost data; or 22 7.3.1.2 By unit prices defined in a contract with a Contractor; or 7.3.1.3 By the cost of such Work determined on the basis of the cost records for the changed work. In the event actual costs are to be reimbursed, the CMAR shall keep and present in such form as may be agreeable to the Owner and Designer an itemized accounting together with appropriate supporting data of the actual Cost of the Work. 7.3.2 Directive to Proceed In the event the CMAR and the Owner cannot agree that an adjustment to the Guaranteed Maximum Price or the Master Schedule is warranted, or cannot agree on the compensation for a change in the Work or on an increase in the Guaranteed Maximum Price, the CMAR shall, if so directed by the Owner in writing, nevertheless proceed with the Work, and any adjustment to the Guaranteed Maximum Price shall be negotiated by the parties at a later date, utilizing the dispute resolution procedures under this Agreement if necessary. 7.3.3 Unit Prices If unit prices are utilized in the Guaranteed Maximum Price, the Guaranteed Maximum Price Proposal shall document the estimates on which the unit prices are based. If the CMAR later determines that the quantities on which unit prices are based will vary from the quantities utilized by the CMAR to fix the unit prices and calculate the Guaranteed Maximum Price, the CMAR shall within five (5) days after determining that the quantities will vary from the estimates notify the Designer and the Owner in writing and forecast the amount of the variance. If the estimated quantities available to and used by the CMAR to establish the unit prices are so changed that application of the agreed unit prices to the quantities or work proposed cause substantial inequity to the Owner or the CMAR, the applicable unit prices and Guaranteed Maximum Price shall be adjusted. 7.3.4 Unforeseen Conditions Should the CMAR encounter unforeseen conditions at the Project site materially differing from those shown on the Drawings or indicated in the Specifications or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the CMAR shall immediately, and in no event more than five (5) days later, give notice to the Owner of such conditions before they are disturbed. The Owner .and the Designer shall thereupon promptly investigate the conditions and if they find that they materially differ from those shown on the Drawings or indicated in the Specifications, they shall at once make such changes in the Drawings and/or Specifications as they may find necessary. Any increase or decrease in the Guaranteed Maximum Price resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. However, neither the Owner nor the Designer shall be liable or responsible for additional work, costs, or changes to the Work that could have been reasonably determined from any reports, surveys, and analyses made available for the CMAR's review or that could have been discovered by the CMAR through the performance of its obligations pursuant to the Contract Documents. 7.3.5 Minor Changes The Designer shall have the authority to order minor changes in the Project consistent with the intent of the Drawings and Specifications and not involving an adjustment in the Guaranteed Maximum Price or change of the construction completion date. Such changes may be affected by written order only. 7.4 Fixed Fee and General Conditions Costs The Owner shall compensate the CMAR for the CMAR's Fixed Fee and reimbursable General Conditions Costs in accordance with the terms and conditions of this Agreement as specifically as follows: 7.4.1 Fixed Fees The Fixed Fees payable to the CMAR shall be: Six Thousand Five Hundred Dollars ($6,500) for the pre- construction and procurement phases that is included in the GMP provided the GMP is accepted by the Owner. If the GMP is not accepted by the Owner the CMAR is entitled to the cost of services rendered not to exceed $6,500; and, . for the construction and post-construction phases, a fee equal to (completed at later date)percent (n/a %) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. In the event the original agreed Guaranteed Maximum Price is adjusted between the time it is fixed and the end of the Project, the Fixed Fee shall be adjusted in accordance with Paragraph 5.1.2.1 of this Agreement. 7.4.2 General Conditions General Conditions Costs shall include the categories of costs described as General Conditions Costs in the Listing of Cost Elements contained in Appendix B. Within thirty (30) days after execution of this Agreement, the CMAR shall present a General Conditions cost proposal, including its itemization of 23 estimated General Conditions costs and a cash flow schedule for payments of General Conditions costs over the duration of the Project. At the .time the Guaranteed Maximum Price is fixed, General Conditions Costs to be included in the Guaranteed Maximum Price shall be fixed as a lump sum, based on line item estimates in a tabulation with cost elements at least as detailed as the cost elements in Appendix B. The following guidelines shall apply when calculating the lump sum for General Conditions: 7.4.2.1 Unless a schedule of personnel rates are agreed to in writing in an amendment to the Agreement, field personnel costs may be reimbursed at direct personnel expenses/employee costs (direct salary) plus all customary payroll benefits [including but not limited to FICA, SUTA, FUTA, 401 K, vacation leave, sick leave, holidays, jury duty leave and bereavement leave] with no employee overhead mark up. The on-site field staff is limited to full time staff which includes the project manager, project engineer, field engineer, superintendent(s) actually furnishing services to the Project, and field clerical staff, as amended from time to time by agreement of the parties. Other CMAR positions will be deemed included in the CMAR Fixed Fee; 7.4.2.2 Independent engineers, architects and other consultants employed by the CMAR and deemed necessary by the Owner at the reasonable prevailing hourly rates for such services. Any consultants employed by the CMAR for the Project must be approved in advance by the Owner prior to performing work. 7.4.2.3 Travel Expenses: All travel, by any conveyance, required for the Project, outside of Orange County. 7.4.2.4 Temporary Facilities: Field office(s) with telephone service and high- speed Internet connections and field office computers, as needed, for Project tracking purposes. All software for use on computers (accounting, tracking, scheduling, word processing, AutoCAD, Project management etc.), otherwise shall be included in General Conditions. Field office temporary electric, heating, water, sanitation, and electronic equipment maintenance and field office operation costs, e.g., stationary, postage, etc., shall be incurred judiciously. General Conditions shall include maintenance of an appropriate shipping and receiving system. 7.4.2.5 Plans/Surveys/Pemtits/Testing: Reproduction of Construction Documents as needed by the CMAR and approved in advance by the Owner. Surveyor's services (site layout, etc.), as required. Apply for and take delivery of all required permits (fee for permits to be paid directly by Owner unless otherwise directed by the Owner). 7.4.2.6 Safety/Cleanup: Establish and maintain an on-site safety program throughout the construction phases. (Note: The cost of home office safety personnel is included in the CMAR Fee.) Install and maintain temporary facilities, as required: safety barricades, partitions, ladders, stairs, site fencing, signage, first aid, trafFc control devices, etc. Provide daily site clean up, trash collection, and removal. Provide and maintain site security throughout Project construction phases. Provide site snow removal, as may be required throughout Project construction phases. 7.4.2.7 General: Provide temporary weather and dust protection (that which must practically remain outside of contracts) as may be required during construction phases. Provide field personnel pagers, and twa-way radio throughout the construction phases, as applicable. Include travel expenses for field personnel related to off-site equipment/materials survey and inspections. 7.4.2.8 Insurance/Bond: Provide 100% Performance and Payment Bonds. Provide liability insurance and provide builder's risk insurance policy in the amount of the Guaranteed Maximum Price unless directed otherwise by Owner in accordance with an OCIP. 7.4.2.9 Close-Out/De-Mobilization: Provide final site/facility clean up. Provide final release of liens for all contracts. Provide sets of all Contractor as-built drawings to the Owner and Designer; one set will be used by the Designer to prepare as- builtdrawings. 7.4.3 Construction Manager's Accounting Records Records for the Cost of the Work, the CMAR's personnel expenses, independent engineer's fees, other consultant's fees and direct expenses pertaining to the Project shall be maintained on the basis of generally accepted accounting practices and shall be available for inspection by the Owner and the Designer at mutually convenient times throughout the duration of the Project and for a period of three years after completion of the CMAR's Services. 24 7.4.4 Payments Payments to the CMAR shall be made monthly. The CMAR shall submit an Application of Payment, acceptable to the Owner and the Designer, no later than the twenty fifth of each month. The Owner shall make payment as required by the accepted application no later than the twentieth of the following month as follows: 7.4.4.1 Seventy five percent (75%) of the Fixed Fee shall be paid monthly in amounts prorated equally over the duration of the CMAR's Services. The duration shall be as set out in Article 4. The remaining twenty five percent (25%) of the Fixed Fee shall be payable in full upon final completion of the Project. 7.4.4.2 Payment of General Conditions costs shall be based on the cash flow schedule of payments prepared by the CMAR and submitted with the General Conditions cost proposal, which shall be converted to a fixed schedule of payments when the Guaranteed Maximum Price is fixed. 7.4.4.3 Payment of the actual verifiable Cost of the Work completed to date and not previously invoiced and paid, less retainage withheld from the Contractors. Except with the Owner's prior approval, payments allocated to the CMAR and the Contractors shall be subject to a retention of ten (10%). Whenever any Contractor completes its Work on or before a target date mutually agreed upon by the Owner, Designer and the CMAR, and the Designer and Owner agree the Work is satisfactorily completed, the Owner may reduce the amount of retainage on that Contractor by fifty percent (50%) for the remainder of the Project. 7.4.4.4 Payments due to the CMAR that remain unpaid for more than thirty (30) days from the date of receipt by the Owner and the Designer of the CMAR's acceptable invoice shall bear interest at the statutory rate. ARTICLE 8 INSURANCE AND INDEMNITY 8.1 CMAR Liability Insurance The CMAR shall purchase and maintain insurance that shall protect the CMAR from the claims set forth below that may arise out of or result from the CMAR's performance of services pursuant to this Agreement: Claims under Workers' .Compensation, disability benefits and other similar employee benefits acts that are applicable to the Work performed; Claims for damages because of bodily injury, occupational sickness or disease or death of CMAR's employees under applicable employer's liability law; Claims for damages because of bodily injury or death of any person other thah CMAR's employees; Claims for damages insured by usual personal injury liability coverage that are sustained by any person as a result of an offense directly related to the employment of such person by the CMAR or by any other person; Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss or use therefrom; Claims for damages because of bodily injury or death of any person or property damage arising out of ownership, maintenance or use of any motor vehicle; and Claims for professional liability against any design professional engaged by the CMAR or the Contractors as required by the Contract Documents for fabrication or installation of components of the Project. The CMAR shall include similar requirements in all Contracts for Contractors, with limits and coverage terms acceptable to the Owner. 8.1.1 Coverage Limits Worker's Compensation shall be maintained with at least the minimum statutory limits. The CMAR's commercial general and motor vehicle liability insurance shall be written for not less than the following limits of liability: a. Commercial General Liability 1. $2,000,000 Bodily Injury and Property Damage for each occurrence 2. $4,000,000 Products/Completed Operations Aggregate 25 I ,~ ~ 1) 3. $4,000,000 General Aggregate Coverage shall include, but not be limited to, the following supplementary coverages: 1. Contractual Liability to cover liability assumed under the agreement 2. Product and Completed Operations Liability insurance 3. Broad Form Property Damage Liability insurance 4. Independent Contractors 5. Such policy shall include all of the coverages, which may be included in coverages A, B, and C contained in the Commercial General Liability Policy, without deletion. Such policy must be issued on an "occurrence" basis, as distinguished from a "claims made" basis. 6. Completed Operations extended five years after final payment 7. For contractors with design responsibility, endorsement CG22 80 and DIC for contractors' professional is requested b. Commercial Motor Vehicle Liability 1. Minimum Combined Single Limit that shall not be less than $1,000,000 per occurrence excess liability policies shall be endorsed with a schedule of underlying liability policies required and obtained from the Contractors. Coverage under the CMAR commercial liability policies shall not be limited by any language in the contracts with the Contractors making the Contractors liable for losses in excess of the limits of coverage provided by the Contractors. 8.1.3 Professional Liability Policies Subject to section a.7 of Paragraph 8.1.1, policies for professional liability may be provided by the CMAR or by Contractors or design professionals retained by them, provided that the CMAR first provides a proposal for insurance coverage to the Owner and the Designer, and also provides certificates of insurance for all professional liability insurance provided by such design professionals. The limits of coverage required for professional liability shall be included in the CMAR proposal for insurance, and will be subject to approval by the Owner, taking into account among any other reasonable factors the risks insured against, the cost of the insurance, and the professionals providing the insurance. 8.1.4 Cancellation The foregoing policies shall contain a provision that coverages afforded under the policies shall not be cancelled or expire until at least thirty (30) days written notice has been given to the Owner and shall include either a liability endorsement covering this Agreement or an endorsement making the Owner an additional insured under the policies. Certificates of Insurance showing such coverages to be in force shall be filed with the Owner contemporaneously with execution of this Agreement or 2. Commercial Automobile Liability insurance to cover all any relevant Contractor contract. vehicles owned by, hired by, or used on behalf of the Contractor c. Excess/Umbrella Liability 1. $5 Million per Occurrence 2. $5 Million Aggregate 8.1.2 Policies Commercial general liability insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an excess or umbrella liability policy. The Owner and any lender of the Owner with a loan secured by the property whereon the Project is located shall be a named insured on all commercial general liability policies and excess/umbrella liability policies submitted to comply with this Article. Commercial general liability and 8.2 Builder's Risk Insurance The CMAR shall be responsible for purchasing and maintaining insurance satisfactory to the Owner to protect the Project from perils of physical loss. -The Owner shall receive copies of the builder's risk insurance policies that satisfy this Article. The CMAR shall be responsible for any deductibles associated with this coverage. 8.2.1 Coverage Terms The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall include as named insureds the Owner, the CMAR, the Contractors and their subcontractors and shall insure against the loss from the perils of fire and all risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief, transit, 26 flood, earthquake, testing, or damages resulting from defective design, negligent workmanship or defective material. The CMAR shall obtain approval from the Owner before increasing any coverage due to increases in construction costs. 8.2.2 Other Property Insurance [Not used.] 8.2.3 Partial Occupancy: If the Owner occupies or uses a part or parts of the Project prior to substantial completion thereof, such occupancy shall not occur until the Owner obtains property insurance for the structure. 8.2.4 Notices and Recovery If requested by the Owner, the CMAR shall provide the Owner with copies of all policies thus obtained for the Project. The CMAR shall provide the Owner with thirty (30) days advance notice of cancellation, non-renewal or endorsement reducing or restricting coverage. 8.2.5 Waiver of Subrogation The Owner and the CMAR waive all rights against each other and against the Contractors, consultants, agents and employees of the other for damages occurring during construction and covered by builder's risk and any property insurance required for this Project, excluding the Owner's property insurance. The Owner and the CMAR shall each require appropriate similar waivers from their contractors, consultants and agents. This waiver does not apply to design liability. 8.3 Indemni To the fullest extent permitted by law, the CMAR shall indemnify and hold harmless the Owner, its employees, agents (including the Designer), officers, directors and partners from and against any and all damages and reasonable attorneys' fees incurred by the Owner caused or arising out of the negligent acts, errors or omissions of the CMAR, or any other party for whom the CMAR is legally liable, in performance of services under this Agreement. The CMAR shall not be required to indemnify any person against losses resulting from a breach of contract or resulting from negligence, misconduct or violation of laws on the part of any person indemnified hereunder. The CMAR shall procure and maintain insurance as required by and set forth in this Agreement. 8.3.1 Indemnification by Designer The Owner shall cause the Designer to indemnify and hold harmless the Owner, its employees, agents and representatives to the same extent and in the same manner that the CMAR has provided indemnification for the Owner under Paragraph 8.3. 8.3.2 Indemnification by Contractors The CMAR shall cause each Contractor to indemnify and hold harmless the Owner, CMAR and Designer from and against any and all claims, demands, suits, damages, including consequential damages and damages resulting from personal injury or property damage, costs, and expenses and fees that are asserted against the Owner, CMAR and the Designer and that arise out of or result from negligent acts or omissions or the breach of the Construction Contract by the Contractor, its employees, agents and representatives in performing the Work. 8.4 Bonds The CMAR shall purchase and provide 100% Performance and Payment Bonds, which Bonds shall comply with the requirements of the General Conditions. ARTICLE 9 TERMINATION AND SUSPENSION 9.1 Termination for Convenience This Agreement may be terminated in whole or in part by the Owner for convenience after seven (7) days written notice to the CMAR. In the event of termination pursuant to Paragraph 9.1, the CMAR shall either cancel or assign to the Owner all contracts with Contractors and other suppliers at the option of the Owner. The CMAR shall be paid for the Cost of the Work performed to the .date of termination, plus reasonable termination expenses payable to Contractors under their respective contracts, which shall each contain a termination for convenience clause that limits the recovery of the Contractors in the event of a termination for convenience to the value of the work actually completed by the Contractor to the date of termination, with no recovery of lost profit or other damages for wrongful termination of contract. In addition, the CMAR shall be paid all of its allowable General Conditions costs to the date of termination, including all termination expenses. Termination 27 expenses are defined as those expenses arising prior, during ~ and subsequent to termination that are directly attributable to the termination. In addition, the CMAR shall be entitled to its full Fixed Fee for any phase of services completed prior to termination, plus a reasonable pro-rata portion of its Fixed Fee for any phase of services not completed at the time of termination, based on the percentage of such incomplete services actually completed prior to the date of termination; provided, however, that if it reasonably appears that the General Conditions costs being incurred by the CMAR would have exceed the not-to-exceed limit on General Conditions costs, then the Owner shall be entitled to reduce the amount of the Fixed Fee payable to the CMAR upon termination by the amount by which the General Conditions would have exceeded the limit on General Conditions costs. After receipt of a notice of termination under Paragraph 9.1, the CMAR shall submit a claim for termination fees and expenses in a form and with certifications as are reasonably required by the Owner. The termination claim shall be submitted promptly, but in any event within sixty days of receipt of a notice of termination unless extended by the Owner. The claim shall be subject to reasonable audit io the same extent as any other request for payment of General Conditions. 9.2 Termination for Default This Agreement may be terminated by either party hereto upon seven (7) days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party or if the Project in whole or substantial part is stopped for a period of one hundred twenty (120) consecutive days under an order of any court or other public authority having jurisdiction or as a result of an act of government. Without in any way limiting the scope of this Paragraph 9.2, the Owner may terminate this Agreement if the CMAR fails to begin or complete the Work within the time specified for completion in this Agreement, or shall perform the Work unsuitably or shall discontinue the prosecution of the Work for five (5) consecutive days, or if the CMAR shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the CMAR or its afFliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner, Termination under this Paragraph 9.2 for failure substantially to perform in accordance with the terms of this Agreement shall be without prejudice to any other right or remedy that the terminating party has under the Agreement or at law. 9.2.1 Notice and Time for Cure Neither party to this Agreement may terminate this Agreement without first giving the other party five business days notice of the intent to terminate the Agreement, measured from actual receipt of the notice. If the grounds for termination stated in the written notice are removed or cured within five business days after receipt of notice, the Agreement may not be terminated for default. 9.2.2 Payment to the CMAR In the event of termination pursuant to Paragraph 9.2, the CMAR shall be paid a reasonable pro-rata portion of the Guaranteed Maximum Price, based on the percentage of such incomplete services actually completed prior to the date of termination, less any amount by which the total cost paid by the Owner to complete the Work for which the CMAR is responsible, including Fees and General Conditions, exceeds the Guaranteed Maximum Price. In addition, the Owner may deduct from the final payment to the CMAR any liquidated damages or other damages for which the CMAR is liable under this Agreement. No payment shall be due under this Paragraph until the Project is finally complete and all rights and claims by Contractors for work on the Project have been settled and paid. 9.2.3 Assignment of Contracts In the event of termination pursuant to Paragraph 9.2, all construction and supply contracts between the CMAR and all Contractors and other suppliers for the Project shall be immediately assignable to the Owner, at the option of the Owner, on the same terms and conditions applicable to the CMAR under those contracts. The CMAR shall obtain the consent of each Contractor and supplier, in their respective contracts with the CMAR, to this assignment. 9.3 Additional Termination Provisions In the event of termination under either Paragraph 9.1 or 9.2, the CMAR agrees to: deliver to the Owner all Project as-built records, operating manuals, warranties and other Project information generated to date; 28 deliver to the Owner copies of all shop drawings and other submittals received to date; i / ~ convey to the Owner or its designees title to all materials, supplies, partially or wholly fabricated parts and components, and any other property acquired by the CMAR for the Project; and provide the Owner with copies of all pending claims under the CMAR builder's risk policy. 9.4 Suspension The Owner may order, in writing, the CMAR to suspend all or any part of the CMAR's services for the Project for the convenience of the Owner or for work stoppage beyond the control of the Owner or the CMAR. If the performance of all or any part of the services for the Project is suspended, an equitable adjustment in the Guaranteed Maximum Price shall be made and this Agreement shall be modified in writing accordingly. 9.4.1 General Conditions In the event the CMAR's services on the Project are suspended, the Owner shall reimburse the CMAR for all of the General Conditions allowed for by this Agreement for the first thirty (30) days of such suspension. The CMAR shall reduce the size of staff for the remainder of the suspension period as directed by the Owner and during such. period, the Owner shall reimburse the CMAR for all costs of reduced General Conditions. Upon cessation of the suspension, the CMAR shall restore the construction site and home office staff to its former size. 9.4.2 Reassignment of Personnel Persons assigndd to another project during such suspension or period and not available to return to this Project upon cessation of the suspension shall be replaced. The Owner shall reimburse the CMAR for reasonable costs incurred in relocating staff persons returning to the Project or new persons assigned to the Project. 9.4.3 Protracted Suspension If the Project is suspended by the Owner for more than one hundred twenty (120) consecutive days, the CMAR shall have the option of requiring that the Guaranteed Maximum Price be renegotiated. Subject to the provisions of this Agreement relating to termination, a delay or suspension of the Project does not void this Agreement. 9.4.4 Additional Compensation to Contractors The CMAR shall include provisions in its contracts with Contractors substantially the same as this Paragraph 9.4, allowing for suspension of the Project by the Owner, and providing that suspension shall not be grounds for termination of the contracts except on the terms set forth in this Agreement. If the Owner suspends the Project for reasons other than default by the CMAR or any of its Contractors, the Guaranteed Maximum Price will be adjusted by an amount sufficient to reimburse the reasonable and provable expenses incurred by the Contractors as a result of the suspension. In no event will the Guaranteed Maximum Price be increased or any expenses be paid to the CMAR or its Contractors for delays caused by the CMAR or any Contractor, even if there is a concurrent delay or suspension by the Owner, it being understood that the CMAR bears the risk of delays caused by its Contractors. ARTICLE 10 DISPUTE RESOLUTION The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Appendix A to this Agreement shall be a part of the Contract Documents. Prior to initiating an action under this Paragraph, any party to this Agreement shall initiate the mediation process as provided in Appendix A to this Agreement. Any person or firm that expressly or impliedly agrees to perform labor or services or to provide material, supplies, equipment, work, performance or payment bonds, insurance or indemnification for the construction of the Project or the Work shall be deemed a party to this Agreement solely for the purpose of this Article 10. The CMAR, by means of its contracts, shall specifically require its Contractors to be bound by this Article. ARTICLE 11 ADDITIONAL PROVISIONS 29 ~ 1 11.1 Confidentiality The CMAR will keep confidential and not disclose to any third party all information designated and marked by the Owner as "Confidential" unless required to disclose the information by law. Furthermore, the CMAR shall not disclose publicly information concerning the Project, except for communications incident to completion of the Project between the CMAR, Designer, and Contractor, and their independent professional engineers, architects and other consultants and subcontractors, and except for information publicity approved by the Owner and communications in connection with filings with governmental bodies having jurisdiction over the design or construction of the Project. 11.2 Signs The CMAR shall be permitted to erect one sign to identify the CMAR and other Project participants. The identification sign shall be of sound construction, shall be neatly lettered, and shall be subject to approval by the Owner. The Contractor may only erect other identification signs if approved by the Owner. In addition to the identification sign, directional signs may be erected on the property to facilitate deliveries and the movement of personnel and materials about the site. Any directional signs shall be subject to approval of the Owner with respect to size, style and location of such directional signs, which approval shall not be unreasonably withheld. Such signs may bear the name of the CMAR and a directional symbol. All signs must comply with Town of Hillsborough sign, appearance and traffic ordinances. No other signs will be permitted except by permission of the Owner. 11.3 Limitation and Assignment The Owner and the CMAR each bind itself, its successors, assigns, insurers, and legal representatives to the terms of this Agreement. Neither the Owner nor the CMAR shall assign or transfer its rights or interest in this Agreement without the written consent of the other, except that the CMAR may assign accounts receivable to a commercial bank for securing loans without approval of the Owner. However, nothing contained in this paragraph will prevent the GMAR from employing Contractors or such consultants, associates or subcontractors as the CMAR may deem appropriate to assist in performance of the services and of the Work hereunder in accordance with this Agreement. 11.4 Minority Business Enterprise Program The CMAR shall at all times comply with the latest edition of the Orange County Minority Business Enterprise Policy. All documentation substantiating compliance with the requirements of this program shall be delivered to the Owner as stipulated in the Contract Documents. A copy of the Orange County Minority Business Enterprise Policy is attached to this Agreement as Appendix C, and shall be included in the bid documents submitted to potential Contractors for bids. 11.5 Extent of Agreement This Agreement represents the entire and integrated agreement between the Owner and the CMAR and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by written directives, change orders and other instruments signed by the Owner and the CMAR as expressly set forth in the Agreement. Nothing contained in this Agreement is intended to benefit any third party. The Contractors and Designer are not intended third party beneficiaries of this Agreement. 11.6 Severability If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be enforceable without such provision. 11.7 Meaning of Terms References made in the singular shall include the plural and the masculine shall include the feminine or neuter. To the greatest extent possible, the meaning of terms used herein shall be consistent with the definitions expressed in the Contract Documents, Designer agreement, and the Contractor contracts. 11.8 Notices Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended or if delivered or sent by registered or certified mail, postage prepaid, addressed as follows: To the Owner: 30 Orange County, North Carolina Attn: Pam Jones, Director of Purchasing and Central Services Post Office Box 8181 Hillsborough, North Carolina 27278 To the CMAR: Resolute Building Company Attn: Kim Vrana, Vice President PO Box 3656 Chapel Hill, North Carolina 27515 11.9 Bonds In accordance with N.C. Gen. Stat. §143-128.1, the CMAR shall provide a performance bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the faithful performance of the Work, in such form as may be required by law and by the Owner. In accordance with N.G. Gen. Stat. §143-128.1, the CMAR shall provide a payment bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the payment of all labor and material costs or claims in connection with compliance with the Contract, in such form as may be required by law and by the Owner. These bonds shall be dated the same date as the Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a surety company licensed to do business in the state of North Carolina and reasonably acceptable to the Owner. If required by the Owner, these bonds shall name additional obligees to include any lender providing financing for the Project, the North Carolina Local Government Commission and ahy other joint obligee reasonably required by the Owner. In its Guaranteed Maximum Price, the CMAR shall include a program and costs for bonds or other security against default by Contractors as the CMAR deems appropriate to protect the CMAR and the Owner against such defaults. 11.10 Ownership of Documents The CMAR shall be entitled to maintain possession of a reasonable number of sets of Contract Documents and record documents during and after the completion of the Project for its records. After completion of the Project, the CMAR shall destroy or return to the Owner all other copies of such documents as requested by the Owner. The CMAR shall not reproduce or distribute such documents to any third person or for any purpose other than bidding; permitting and construction of the Project. The CMAR shall have no copyright or other rights in the documents, or other rights to use the documents. ARTICLE 12 SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS 12.1 Guaranteed Maximum Price Pursuant to this Agreement and for the Project defined in Article 2, the Owner and the CMAR have set a Guaranteed Maximum Price for the Project of an amount not to exceed 12.1.1. Documentation The Guaranteed Maximum Price documentation shall be prepared by the CMAR and submitted to the Owner with the Guaranteed Maximum Price Proposal. The documentation shall at a minimum describe the Contract Documents on which the Guaranteed Maximum Price Proposal is based, and set forth the cost elements of the Guaranteed Maximum Price in detail. The documentation may include drawings, sketches, spec cations, calculations or other data used to identify the basis of the Guaranteed Maximum Price. Documentation of the Guaranteed Maximum Price was developed by the CMAR from the design Drawings and Specifications and such other documents as may be described in the Proposal. 12.1.2 Budget Items The documentation of the Guaranteed Maximum Price shall include a detailed cost tabulation with at least the elements described in the Listing of Cost Elements in Appendix B. 12.1.3 CMAR Contingency The Guaranteed Maximum Price shall include a contingency amount (the Contingency) for the use of the CMAR. The Contingency shall be included in the Guaranteed Maximum Price. The Contingency is for the use of the CMAR to defray costs in excess of the Cost of the Work for which the CMAR is not otherwise entitled to an increase in the Guaranteed Maximum Price under the terms of this Agreement. 12.1.4 Construction Contract Price Savings and Overruns The CMAR shall as part of cost control under its Basic Services report the adjusted final actual price of each item or division of 31 the Work the price of which was based on estimated quantities, allowances or other conditional pricing and, when the final price ~ is determined, adjust the Guaranteed Maximum Price as follows: 12.1.4.1 If the final adjusted price of any item or division of the Work is less than the amount reflected in the approved Guaranteed Maximum Price, as determined in accordance with the terms of this Agreement, the amount indicated in the Guaranteed Maximum Price for the cost of such item shall be reduced by an amount equal to the difference between the final adjusted cost and the original amount indicated in the Guaranteed Maximum Price for the cost of such item, and the Contingency shall be increased by the same difference. 12.1.4.2 If the final adjusted price of any item or division of the Work is greater than the amount reflected in the approved Guaranteed Maximum Price, as determined in accordance with the terms of this Agreement, to the extent that the Contingency is sufficient, the amount indicated in the Guaranteed Maximum Price for the cost of such item shall be increased by an amount equal to the difference between the final adjusted cost and the original amount indicated in the Guaranteed Maximum Price for the cost of such item, and the Contingency shall be decreased by the same difference. 12.1.4.3 Regardless of the final adjusted price of any item or division of the Work that differs from the amount reflected in the approved Guaranteed Maximum Price, the Guaranteed Maximum Price shall not be adjusted, except pursuant to an approved change order. 12.1.5 Change of Contractor Ordered by Owner If the Owner directs the CMAR to award a contract to a bidder other than the lowest responsible and responsive pre-qualified bidder for any potion of the Project, the Guaranteed Maximum Price shall be increased by the amount of the difference between the award price and the price submitted by the lowest responsible and responsive bidder. 12.1.6 Costs in Excess of Guaranteed Maximum Price In the event that the sum of the Cost of the Work exceeds the Guaranteed Maximum Price and any adjustments therein as may be due pursuant to the terms hereof, the CMAR shall continue to perform at no additional cost to the Owner until the Project, defined by this Agreement and all Attachments hereto, is complete. The CMAR shall be responsible for paying all costs in accordance with the terms of this Agreement that may be necessary to complete the Project, even if such amounts are in aggregate in excess of the Guaranteed Maximum Price. This Agreement is executed the day and year first written above. CMAR: (trade or Corporate Name) [Address] By: Title: (President) (Manager) Attest: By: Title: (Secretary) (Manager) (Witness) OWNER: ORANGE COUNTY P. O. Box 8181 Hillsborough, N.C. 27278 By: Chairman Orange County Board of Commissioners Attest: Clerk to the Board This instrument has been pre-audited in the manner required by the local Government Budget and Fiscal Control Act. Orange County Finance Officer This instrument is approved as to Form. Orange County Attorney 32 F:1Lisa\forms\Orange County Agmt for Construction Mgr form rev by GEG 91007.doc 33 APPENDIX A TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DISPUTE RESOLUTION PROCEEDURES FOR O~GE COUNTY Table of Rules Rule 1. Initiating Mediated Settlement Conferences A. Purpose of Mandatory Settlement Conferences B. Initiating the Dispute Resolution Process 2. Selection of Mediator A. Mediator Listing B. Selection of Mediator C. Disqualification of Mediator 3. Tb A. B. r'~ j C. D. E. ~e Mediated Settlement Conference Where Conference is to be Held When Conference is to be Held Request to Modify Deadline for Completion Recesses Project Delay 4. Duties of Parties and Other Participants in Formal Dispute Resolution Process A. Attendance B. Finalizing Agreement C. Payment of Mediation Fee D. Failure to Compensate Mediator 5. Authority and Duties of Mediators A. Authority of Mediator B. Duties of Mediator 6 Compensation of the Mediator 7. Rule Making 8. Definitions 9. Time Limits ~ ~ `~ Page 1 of 6 RULE 1. INITIATING MEDIATED SETTLEMENT CONFERENCES A. Purpose of Mandatory Settlement Conferences. Pursuant to G.S. §143-128(fl) and 143-135.26(11), these Rules are promulgated to implement a mediated settlement program designed to focus the parties' attention on settlement rather than on claim preparation and to provide an opportunity for orderly settlement negotiations to take place. Nothing herein is intended to limit or prevent the parties from engaging in settlement procedures voluntarily at any time prior to or during commencement of the dispute resolution process. B. Initiating the Dispute Resolution Process 1) Any party to a County public construction contract (referred to herein generally as the "Contract") governed by Article 8. Ch. 143 of the General Statutes and identified in G.S. § 143-128(fl) and who is a party to a dispute arising out ofthe Contract and the construction process in which the amount in controversy is at least $15,000 may submit a written request to the County for mediation of the dispute. 2) Prior to submission of a written request for mediation to the County, the parties should give notice of any and all claims in accordance with their respective contracts, obtain decisions on the claims as required or allowed by their respective contracts, and attempt to resolve the dispute according to the terms and conditions ~ in their respective contracts. The Mediator may adjourn any mediated settlement conference if the Mediator believes, in his or her sole discretion, that the parties have not satisfied all of the terms and conditions of their respective contracts and that doing so will enhance the prospects for a negotiated settlement. C. Condition Precedent to Litigation. Before any party to a Contract may commence a civil action against the County seeking remedies for breach or non- performance of the Contract by the County, said party must first initiate the dispute resolution process under these rules and attend the mediated settlement conference. RULE 2. SELECTION OF MEDIATOR A. Mediator Listing. A list of Mediators acceptable to the County is attached to and incorporated by reference into these Rules. The party requesting mediation shall select a Mediator from the designated list. If the County fails to provide a list of acceptable mediators, the list of Mediators shall be deemed to be the list of mediators certified by the North Carolina Dispute Resolution Commission to conduct mediated settlement conferences in the North Carolina Superior Courts. B. Selection of a Mediator. The party requesting mediation shall select a Mediator from the County's list of Mediators and shall file, with the County, a Notice of Selection of Mediator within 21 days of the request for mediation. Such notice shall state the name, address, and phone number of the Mediator selected. If the Mediator selected is not available or declines to participate for any reason, the Page 2 of 6 requesting party shall select another person from the County's list of Mediators. If the parry requesting mediation does not select and designate a mediator within 21 days of the request for mediation, the County shall have the right in its absolute discretion to appoint a mediator from its list of Mediators. C. Disqualification of Mediator. Any party may request replacement of the Mediator for good cause. Nothing in this provision shall preclude Mediators from disqualifying themselves. RULE 3. THE MEDIATED SETTLEMENT CONFERENCE A. Where Conference is to be Held. Unless all parties and the Mediator otherwise agree, the mediated settlement conference.shall be held in Orange County. The Mediator shall be responsible for reserving a place, making arrangements for the conference, and giving timely notice of the time and location of the conference to all attorneys, unrepresented parties and other persons or entities required to attend. B. When Conference is to be Held. The mediation shall be completed within 90 days after selection of the Mediator. C. Request to Accelerate or Extend Deadline for Completion. Any party or the Mediator may request the County to accelerate or extend the deadline for completion of the conference. Such request shall state the reasons the extension is sought and shall be served by the moving party upon the other parties and the Mediator. Objections to the request must be promptly communicated to the County and to the Mediator. The County, with the concurrence of the designated Mediator, may grant the request by adjusting the time for completion of the conference. D. Recesses. The Mediator may recess the mediation conference at any time and may set times for reconvening. If the Mediator determines the time and place where the conference is to reconvene before the conference is recessed, no further notice is required to persons present at the conference. E. Project Delay. The mediated settlement conference that results from a construction contract dispute shall not be cause for the delay of the construction project. RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORMAL DISPUTE RESOLUTION PROCESS A. Attendance. 1. All parties to the dispute must designate an official representative to attend the mediation. 2. "Attendance" means physical attendance, not by telephone or other electronic Page 3 of 6 means. Any attendee representing a party must have authority from that party to bind it to any agreement reached as a result of the mediation. 3. Attorneys representing parties may attend the mediation, but are not required to do so. 4. Sureties and insurance company representatives are required to physically attend the mediation unless the Mediator and all of the other parties to the mediation excuse their attendance or consent to their attendance by telephone or other electronic means. 5. The parties who attend a duly scheduled mediation conference shall have the right to recover their share of the Mediator's compensation from any party or parties who fail to attend the conference without good cause. B. Finalizing Agreement. If an agreement is reached in the conference, the terms ofthe agreement shall be confirmed in writing and signed by all parties. C. Mediation Fees charged by the Mediator shall be paid in accordance with G.S. § 143-128(fl). D. Failure to compensate Mediator. Any party's failure to compensate the Mediators in accordance with G.S. § 143-128(fl) shall subject that party to a withholding of said amount of money from the party's monthly payment by the County. Should the County fail to compensate the Mediator, it shall hereby be subject to a civil cause of action from the Mediator for the 1/3 portion of the Mediator's total fee as required by G.S. § 143-128(fl). RULE 5. AUTHORITY AND. DUTIES OF MEDIATORS A. Authority of Mediator. 1. Control of Conference. The Mediator shall at all times be in control ofthe conference and the procedures to be followed. 2. Private Consultation. The Mediator may communicate privately with any participant or counsel prior to and during the conference. The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference. 3. Scheduling the Conference. The Mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and Mediator. In the absence of agreement, the Mediator shall select ~' the date for the conference. i Page 4 of 6 4. Determining good cause for a party's failure to appear at a scheduled mediation conference. B. Duties of Mediator. 1. The Mediator shall define and describe the following at the beginning of the conference: a. The process of mediation. b. The difference between mediation and other forms of conflict resolution. c. The costs of the mediated settlement conference. d. That the mediated settlement conference is not a trial, the Mediator is not a judge, and the parties retain their legal rights if they do not reach settlement; however, the Mediator will advise all parties that failure to appear at mediation without good cause may result in imposition of sanctions and may be asserted as a bar to lawsuits by claimants who have failed to exhaust this administrative remedy. e. The circumstances under which the Mediator may meet and communicate privately with any of the parties or with any other person. f. Whether and under what conditions communications with the Mediator will be held in confidence during the conference. g. The inadmissibility of conduct and statements as provided by G.S. §7A- 38.1(1). " h. The duties and responsibilities of the Mediator and the participants. i. That any agreement reached will be reached by mutual consent. 2. Disclosure: The Mediator has a duty to be impartial and to advise all participants of any possible bias, prejudice or partiality. Declaring Impasse: The Mediator may deternvne at any time during the mediation conference that an impasse exists and that the conference should end. 4. Reporting Results of Conference. The Mediator shall submit a written report to the County and the other parties within 10 days of the conference stating whether or not the parties reached an agreement. The Mediator's report shall indicate the absence of any party from the mediated settlement conference without permission or good cause. 5. Scheduling and Holding the Conference. It is the duty of the Mediator to schedule the conference and conduct it prior to the deadline of completion set by the rules. The Mediator shall strictly observe deadlines for completion of the conference unless said time limit is changed by agreement of the parties. ~ ' RULE 6. COMPENSATION OF THE MEDIATOR Page 5 of 6 A. The parties shall compensate the Mediator for mediation services at the rate proposed by the Mediator and agreed to by the parties at the time the Mediator is selected. RULE 7. RULE MAKING A. These Rules may be amended by the County at any time. Amendments will not affect mediations where claims and/or requests for mediation have been filed at the time the amendment takes effect. RULE S. DEFIl~IITIONS A. "County" shall mean the County of Orange, North Carolina. B. "Project Designer" is that person or fum stipulated as project designer in the Contract Documents for the project. C. "Claim" is a demand or assertion by a party seeking adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters ~ in question between the parties to a Contract involved in the County's building construction renovation and repair projects arising out of or relating to the Contract or the construction process. Claims must be initiated by a written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. D. "Good Cause" generally includes any circumstance beyond the control of a party, which prevents that party from meeting obligations. When good cause is asserted as an excuse for a party's failure to appear at a mediation conference or to otherwise comply with the requirements of these Rules, the Mediator, in his or her sole discretion, will determine whether good cause exists to excuse the parry's failure to appear or otherwise comply with these rules. RULE 9. TIME LIMITS A. Any time limit provided for by these Rules maybe waived or extended at the sole discretion of the County, if no Mediator has been selected, and at the discretion of the County with concurrence of the Mediator if a Mediator has been selected. F:~L,isa~forms~Appendix A Agmt for Construction Manager At Risk Serv form.doc Page 6 of 6 APPENDIX B TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES LIST OF COST ELEMENTS TO BE PROVIDED BY APPENDIX C TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES ORANGE COUNTY MINORITY BUSINESS ENTERPRISE POLICY APPENDIX D TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DIVISIONS OF THE WORK FOR GUARANTEED MAXIMUM PRICE TO BE PROVIDED BY APPENDIX E TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES CMAR GMP PROPOSAL APPENDIX F TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES MASTER SCHEDULE TO BE PROVIDED BY ~~ ORANGE COUNTY GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - NORTH CONSTRUCTION AIIANAGER AT RISK CAROLINA Table of Contents Page Article 1. Definitions ............................................. : ............. . ....................................................................... 3 Article 2. Correlation, Interpretation and Intent of Contract Documents ....................................................... 6 Article 3. Familiarity with Work, Conditions and Laws .......... 7 .................................................:..................... Article 4. Bonds .................................................... 8 ..................................................................................... Article 5. .Insurance and Indemnity ................................:............................................................................ 8 Article 6. Other Record Documents and Submittals .. . 16 .. ............................................................................. Article 7. Contractor ............................................. 17 .................................................................................... Article 8. Owner .............................................................................................. : 24 ........................................ Article 9. Construction Manager ................................................................................. 24 .............................. i Article 10. Designer ..................................................................................................... : 25 .. ........................... Article 11. Testing and Surveying ................................................................................ 25 .............................. Article 12. Separate Contracts ............................................................................... 25 .................................... Article 13. Contract Time ............................................................................................ 26 .............................. Article 14. Changes in the Work ................................................................................................................ 29 Article 15. Change of the Contract Price ....................................................... 30 ............................................. Article 16. Unforeseen Conditions ............................................................................................................. 32 Article 17. Correction of Work before Final Payment ............................................ 32 ...................................... Article 18. Correction of Work after Substantial Completion; Warranties and Guaranties ............................ 33 Article 19. CMAR's Right to Do Work .................................................................. 34 ....................................... Article 20. Partial Payments ............................................................................................. 34 .......................... Article 21. Final Payment ....................................................................................... 36 .................................... Article 22. Contractor, Subcontractor and Supplier Affidavit ............................................ 37 ........................... Article 23. Assignments and Subcontracts .............................................................. 38 ................................... ~' '~ G _. ENERAL CO NDITIONS FOR CM AT RISK PROJECT 1 of 42 JUNE 2007 EDITION Article 24. Measurements ................................................................................:...................:..................... 38 Article 25. Contractor and Subcontractor Relationships ............................................................................. 38 Article 26. Use of Premises ....................................................................................................................... 39 Article 27. Cutting, Patching and Fitting ..................................................................................................... 39 Article 28. Dispute Resolution ...............................................................:.................................................... 39 Article 29. Taxes ....................................................................................................................................... 39 Article 30. Operation of Owner's Facilities .................................................................................................. 40 Article 31. Third Party Beneficiary Clause .................................................................................................. 40 Article 32. Measurement of Quantities ....................................................................................................... 40 Article 33. Termination by the CMAR for Cause ......................................................................................... 40 Article 34. Termination or Suspension by the CMAR for Convenience ....................................................... 41 Article 35. Minority Business Enterprise Program ....................................................................................... 42 Article 36. General .................................................................................................................................... 42 j -.- GENERAL CONDITIONS FOR CM AT RISK PROJECT 2 of 42 JUNE 2007 EDITION ARTICLE 1. DEFINITIONS 1.1 Agreement - The Construction Agreement, these General Conditions, and any Supplementary Conditions. 1.2 AIA -The American Institute of Architects. 1.3 ASTM -The American Society for Testing and Materials. 1.4 Beneficial Occupancy -The point at which the Project can be occupied by the Owner for its intended purpose, upon achievement of Substantial Completion, as defined in paragraph 1.39 of these General Conditions. 1.5 Change Order - A written order to the Contractor signed by the CMAR, the Owner and the Designer authorizing an addition, deletion, or revision in the Work and/or an adjustment in the Contract Price and/or the Contract Time issued after execution of the Construction Agreement. See paragraph 14.1 of these General Conditions. 1.6 Completion Dates -Those dates identified as the Contractor's Completion Dates in the Contractor's Construction Schedule, .the Master Schedule, or elsewhere in the Contract Documents. 1.7 Construction Agreement -The document executed by the Contractor and the CMAR to formally memorialize their consent to the terms of the Agreement. 1.8 Construction Change Directive - A written order to the Contractor signed by the CMAR, the Owner and the Designer directing an addition, deletion, or revision in the Work after execution of the Construction Agreement, in circumstances when the parties have been j unable to agree on an adjustment to the Contract Price or the Contract Time, but the ~` CMAR directs that the Contractor proceed with said Work subject to adjustment of the Contract Price and/or Contract Time under the procedures described herein. 1.9 Construction Manager At Risk (CMAR) -The person or firm designated as the CMAR in the Contract Documents, or its authorized representatives. The agreement between the CMAR and the Owner is referred to herein as the CMAR Contract. 1.10 Contractor's Construction Schedule -That schedule described in Article 13 hereof and identified as the Contractor's Construction Schedule. 1.11 Contract Documents -All of the documents that make up the Agreement, plus the Drawings and Specifications that describe the scope of the Work, plus allowable Modifications to the Contract Documents. 1.12 Contract Price -The total monies payable to the Contractor under the Contract Documents pursuant to paragraph 15.1 of the Agreement. 1.13 Contract Time -The number of calendar days stated in, or computed from, the Contract Documents for the completion of the Work, or any portion thereof. See, particularly, Article 13 hereof. Time of completion as specified therein is of the essence. The time used and referred to on the Project will be that time which is observed in Hillsborough, North Carolina, being Eastern Daylight Savings Time (EDT), Eastern Standard Time (EST), or other as designated by the Designer. 1.14 Contractor -The Contractor shall be that party identified as such in the Agreement. 1.15 Days -Unless otherwise indicated, the term "days" shall mean consecutive calendar days. I GENERAL CONDITIONS FOR CM AT RISK PROJECT 3 of 42 JUNE 2007 EDITION 1.16 Daylight Hours -The hours or portions of hours between sunrise and sunset local time. 1.17 Designer(s) -The person or firm designated as the Designer in the Contract Documents, or their authorized representatives. The Designer, as referred to herein, shall mean architect, landscape architect, and/or engineer. They will be referred to hereinafter as if each were of the singular number, masculine gender. 1.18 Drawings -The Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location, and dimensions of the Work, and generally including plans, elevations, sections, details, schedules and diagrams. A list of the Drawings is contained in the Supplemental General Conditions. 1.19 Field Order - A written order issued by the Designer which clarifies or interprets the Contract Documents or orders minor changes in the Work in accordance with the Contract Documents. See paragraph 14.3 of these General Conditions. 1.20 Final Completion -The point at which the Contractor has, as determined by the Designer, completed the Work, with the exception of guaranty and warranty obligations, and becomes entitled, upon the recommendation of the CMAR and the Designer and determination by the Owner, to final payment. 1.21 The words "furnish," "furnish and install," "install," and "provide" or words with similar meanings shall be interpreted, unless otherwise stated, to mean furnish and install complete, in place and ready for service. 1.22 Master Schedule -The CMAR shall prepare and maintain a Master Schedule for the Project. The Master Schedule shall specify the proposed start and finish dates for each major project activity including all design and construction activities. The Master Schedule %" , shall be included in the bid documents presented to bidders. The Master Schedule shall be ` revised and updated to include key activities from the approved Contractor's Construction Schedule, as described in the Contract Documents, including proposed start and finish dates. 1.23 Modification - (A) a written amendment to the Contract Documents signed by the CMAR and the Contractor and identified therein as such, (B) a Change Order, (C) Construction Change Directive, or (D) a Field Order. A Modification may only be issued after execution of the Agreement. 1.24 Notice -The term "notice" or "written notice" as used herein shall mean and include all written notices, demands, instructions, and claims approvals grid disapprovals furnished by the CMAR, the Owner or the Designer to obtain compliance with the requirements of the Contract Documents, as well as all written notices, demands, instructions and claims furnished by the Contractor as required by the Contract Documents. Where notice is required under the terms of the .Contract Documents, written notice shall always be required, and oral or "constructive" notice shall be insufficient and ineffective as notice. Email or other electronic delivery shall be insufficient and ineffective as notice unless specifically allowed by the Supplementary Conditions or a Modification to the Agreement. Written notice shall be deemed to have been duly served on the date that it is delivered in person to the individual or to a member of the firm, to an officer of the corporation for whom it is intended, to an authorized representative of such individual, firm, or.corporation, or on the date that it is mailed by registered or certified mail, return receipt requested, addressed to the last business address of such individual, firm, or corporation known to the person giving the notice. Written notice may also be given by facsimile transmission, provided that proof of delivery is obtained. In the case of delivery in person, such delivery shall not be effective unless and until a written and signed receipt showing the date and time of delivery is obtained. GENERAL CONDITIONS FOR CM AT RISK PROJECT 4 of 42 JUNE 2007 EDITION 1.25 Notice of Award -The written notice by the CMAR to the Contractor that the Contractor is the successful Bidder and that upon compliance with the conditions precedent to be fulfilled by the Contractor within the time specified, the CMAR will execute and deliver the Agreement to the Contractor. 1.26 Notice to Proceed -See paragraph 13.3 of these General Conditions. 1.27 Owner -The Owner is the person designated as such in the Agreement. 1.28 Owner's Authorized Representative - A person, or persons, employed by the Owner and designated from time to time by written notice to the Contractor to administer the Contract Documents, and to observe and monitor the Work on behalf of the Owner with authority and responsibility as herein specified. 1.29 Project -The total construction of which the Work performed under the Contract Documents may be the whole or a part. 1.30 Project Manager -That person designated by the Contractor in accordance with paragraph 7.2 who shall be in general charge of the Work and its performance and who shall have the authority set forth in the last sentence of paragraph 7.2. 1.31 Request For Information (RFI) - A written communication from the Contractor to the CMAR to be forwarded to the Designer for any interpretation of, or information needed, required, or desired under the Contract Documents. The CMAR reserves the right to determine the reasonable format and contents required for a RFI. In any RFI, the Contractor shall state a reasonable date by which a response is necessary in order to avoid delay in progress of the Work and shall make such request sufficiently in advance of such date as to avoid any such delay. The CMAR shall obtain a response in writing to the RFI by the date stated by the Contractor unless the CMAR cannot reasonably do so, in which case the CMAR shall prior to that date notify the Contractor of the date by which the CMAR can reasonably .respond. The Contractor shall not be entitled to any additional time for the completion of the Work or any portion thereof by reason of the failure to timely respond to an RFI if the Contractor has not submitted the RFI sufficiently in advance to allow the CMAR and the Designer a reasonable time within which to respond. 1.32 Request for Payment -The form, in the form of AIA Document G702 (latest edition.) or other published document approved by the CMAR, which is to be used by the Contractor in requesting progress payments and which is to include a Schedule of Values as required by the Contract Documents and an affidavit of the Contractor that progress payments theretofore received from the CMAR on account of the Work have been applied by the Contractor to discharge in full all the Contractor's obligations incurred in connection with Work covered by all prior applications for payment. See paragraph 20.2 of these General Conditions. 1.33 Resident Superintendent -That person designated by the Contractor in accordance with paragraph 7.2 who has day-to-day responsibility for the prosecution of the Work and the obtaining of proper materials and equipment, and adequate labor and who shall have the authority set forth in the last sentence of paragraph 7.2. 1.34 Schedule of Values -Any breakdown of the Contract Price which may be required by the Contract Documents, and designated as such. See paragraph 20.1 of these General Conditions. 1.35 Specifications -That portion of the Contract Documents consisting generally of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work and performance of related services. GENERAL CONDITIONS FOR CM AT RISK PROJECT 5 of 42 JUNE 2007 EDITION 1.36 Subcontractor - A person, firm, or corporation who has entered into a direct contract with the Contractor to perform any of the Work at the Project. 1.37 Submittal -Shop drawings, product data, samples, and other documents required by the Contract Documents to be submitted by the Contractor to the CMAR and the Designer. 1.38 Submittal Register -See paragraph 13.2 of these General Conditions. 1.39 Substantial Completion -The point at which the Work, and Work by other Contractors on or in connection with the Project, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be beneficially occupied by the Owner, and the Work can be utilized by the Owner for its intended use, and all necessary permits and permissions for Beneficial Occupancy and utilization having been obtained by the Contractor. All operations and maintenance manuals, Owner training, and as-quilt drawings must be submitted prior to Substantial Completion being achieved. 1.40 Sub-subcontractor - A person or entity that has a direct or indirect contract with a Subcontractor to perform any of the Work at the Project. 1.41 Work -The construction and services required by the Contract Documents, including all labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. 1.42 All references in the Contract Documents to the masculine shall be interpreted as including the feminine or neuter and all references in the Contract Documents to the singular or the plural shall be interpreted as including the other, as maybe appropriate in the reasonable interpretation of the Contract Documents. ARTICLE 2. CORRELATION, INTERPRETATION AND INTENT OF CONTRACT DOCUMENTS 2.1 It is the intent of the Specifications and Drawings and other Contract Documents to describe a complete Project in accordance with the Contract Documents. 2.2 The Contract Documents are complementary; what is called for by one is as binding as if called for by all. If the Contractor finds a conflict, error or discrepancy in the Contract Documents, the Contractor shall notify the CMAR in writing before proceeding with the Work affected thereby. In resolving such conflicts, errors and discrepancies, the Contract Documents shall be given preference in the following order: Construction Agreement, Modifications, Addenda, Supplemental Conditions, General Conditions, Specifications, and Drawings. Figure dimensions on Drawings shall govern over scale dimensions, and detailed Drawings shall govern over general Drawings. Any Work that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not it is specifically called for. Work, materials or equipment described in words which, so applied, have a well known technical trade meaning shall be deemed to refer to such meaning and to incorporate any recognized standards which are a .part of such meaning. 2.3 Miscellaneous items, accessories and work which are not specifically mentioned, but which are essential to produce a complete and properly operating installation, or useable structure or plant providing the indicated function shall be furnished and installed without change in the Contract Price. Such miscellaneous items and accessories shall be of the same quality standards, including material, style, finish, strength, class, weight and other applicable characteristics, as specified for the major component of which the miscellaneous item or accessory is an essential part, and shall be approved by the Designer before installation. This requirement is not intended to include major components not covered by or inferable from the Contract Documents. ` GENERAL CONDITIONS FOR CM AT RISK PROJECT 6 of 42 JUNE 2007 EDITION 2.4 The Work of all trades under the Contract Documents shall be coordinated by the Contractor in such a manner as to obtain the best workmanship possible for the Work and all components of the Work shall be installed or erected in accordance with the best practices of the particular trade. 2.5 The Contractor shall fully complete the Work and shall be responsible for all of the Work under the Contract Documents to which the Construction Agreement applies. If the Contractor is prevented from doing so by any limitation of the Contract Documents, the Contractor shall immediately give notice thereof to the CMAR in writing before proceeding with the construction in the area where the problem or limitation exists. 2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest revision or printing unless otherwise stated and is intended to establish the minimum requirements acceptable. 2.7 For those materials specified without the use of brand names; the Contractor shall submit to the CMAR within thirty (30) days after its receiving the Construction Agreement for signatures, any product that meets the express requirements of the Specifications, unless a longer time is agreed to in the Master Schedule. Such Submittal shall include manufacturer's data, test reports, performance data and certifications, samples, erection details, and other applicable information as required to permit determination by the Designer whether such proposed products are suitable. The Designer shall be the sole judge as to the suitability of any proposed product. The burden of proof of quality rests with the Contractor. 2.8 The Contractor is required to examine and read the complete set of Drawings and Specifications for the Project for information concerning the Work, because some of the ,' ~ Work for which the Contractor will be responsible may be indicated on or in documentation applying primarily to the Work of one or more other separate prime contractors. No allowance will be made for the Contractor's failure to become familiar with the complete set of Project Drawings and Specifications. 2.9 Contractor's requests for clarification or information shall clearly define the cause(s) of the Contractor's request and, as appropriate, shall include the Contractor's interpretation and the Contractor's proposed solution. ARTICLE 3. FAMILIARITY WITH WORK, CONDITIONS AND LAWS 3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting the Work, including but not restricted to those bearing upon transportation, disposal, handling and storage bf materials, availability of labor, water, electrical power, roads and uncertainties of weather, or similar physical conditions at the Project site, and the character of equipment and facilities needed prior to and during prosecution of the Work. The Contractor is satisfied as to the character, quality and quantity of surface and subsurface materials or obstacles to be encountered insofar as this information is reasonably ascertainable from inspection of the Project site, including all exploratory work done by the Owner, as well as from information presented by the Contract Documents, or any other information made available to the Contractor prior to receipt of bids. Any failure by the Contractor to become acquainted with the available information shall not relieve the Contractor from the responsibility for estimating properly the difficulty or cost of successfully performing the Work. 3.2 The Contractor shall be entitled to rely upon all information furnished to the Contractor in writing by the CMAR with respect to the Project site and to make all inferences from it that ,__ GENERAL CONDITIONS FOR CM AT RISK PROJECT 7 of 42 JUNE 2007 EDITION would reasonably be made by a contractor having knowledge and experience with similar work; however, the Contractor shall not be entitled to infer from CMAR-supplied information any fact or condition which would not be inferred by a contractor having knowledge and experience with similar work and, if the CMAR-supplied information is inadequate or insufficient in any respect, the Contractor shall be required to obtain independently such other information as a knowledgeable and experienced contractor would prudently obtain in order to evaluate any such condition. 3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws, ordinances, rules, and regulations which may in any manner affect those engaged or employed in the Work, or the materials or equipment in or about the Work, or in any way affect the conduct of the Work and agrees that the Contractor and the Contractor's employees, Subcontractors, and suppliers will, at all times, comply with same. If the Contractor shall discover any provisions in the Contract Documents which are contrary to or inconsistent with any such law, ordinance, rule, or regulation, the Contractor shall immediately give notice thereof to the CMAR in writing, identifying any items of Work affected, and the Contractor shall not proceed until the Contractor has received written direction from the CMAR with respect to these items. If the Contractor performs contrary to or inconsistently with any such law, ordinance, rule, or regulation without giving such notice, the Contractor shall bear all costs which are a consequence of such performance. 3.4 At times selected by the CMAR after execution by the Contractor of the Construction Agreement, apre-construction conference shall be scheduled and conducted for the benefit of the Project. ARTICLE 4. BONDS 4.1 A performance bond in the full amount of the Contract Price, and subject to changes in the Contract Price, may be required of the Contractor to guarantee the faithful performance of the Work in compliance with the Contract Documents, in such form as may be required by law and by the Owner. If required, the bond shall be dated the same date as the Construction Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a surety company licensed to do business in the state of North Carolina. 4.2 A payment bond in the full amount of the Contract Price, and subject to changes in the Contract Price, may be required of the Contractor to guarantee the payment of all labor and material costs or claims in connection with compliance with the Contract. If required, the payment bond shall be in such form as may be required by law and by the Owner. Said bond shall be dated and executed in the same manner as the performance bond in paragraph 4.1. ARTICLE 5. INSURANCE AND INDEMNITY 5.1 CONTRACTOR PROVIDED INSURANCE The Contractor shall, without limiting its obligations or liabilities, procure, pay for and maintain such insurance as is .required by law and as is required by the Agreement to protect the Contractor, the CMAR, the Owner, the Designer and any lender of the Owner when the loan to the Owner is secured by the property on which the Project is located from claims for damages for bodily injury, including death, and from claims for property damage which may arise from the Contractor's or its representatives', consultants', Subcontractors', agents', or employees' operations under this Agreement. Such insurance shall be of the kinds and have limits of liability and coverages not less than the minimum limits hereinafter specified or required by law, whichever is greater. The CMAR makes no representation as to the adequacy or sufficiency of such coverages. The following requirements shall in no GENERAL CONDITIONS FOR CM AT RISK PROJECT 8 of 42 JUNE 2007 EDITION way be construed to limit or eliminate the liability of the Contractor, which arises from ( performance of Work under the Agreement. The Contractor is strictly responsible for any losses, claims, and costs of any kind which exceed the Contractor's limits of liability, or which may be outside the coverage scope of the policies. The insurance specified shall be provided by an insurer approved by the CMAR, authorized to do such business in the State of North Carolina, and on terms approved by the CMAR. Insurance companies utilized shall have a minimum rating of A-and Class VII as evaluated by the most current A.M. Best Rating Guide. If the insurer has a Best Rating less than A- and Class VII, the Contractor must receive specific written approval from the CMAR prior to proceeding with any Work under the Agreement. All agents and brokers shall hold valid licenses from the State of North Carolina. The Contractor shall furnish to the CMAR a certificate or certificates of insurance in a form satisfactory to the CMAR contemporaneously with the executed Construction Agreement. Upon request of the CMAR, the Contractor shall provide the CMAR with certified copies of the insurance policies required by this Article, including without limitation declaration pages, conditions, exclusions and endorsements, and confirmation that each policy premium has been paid for the required term of this Agreement. Certificates of insurance shall be signed by a person authorized by that insurer to bind coverage on its behalf. All insurance policies shall provide, as evidenced by Certificates of Insurance, that the insurance shall not be canceled, reduced, restricted, or changed in any way without at least thirty (30) days prior written notice to the CMAR and the Owner. With regard to expiration, cancellation, reduction, restriction, or any other change, certificates shall state: "Should any of the following described policies be canceled before expiration date or be due to expire within thirty (30) days, the insurer shall mail thirty (30) days prior written notice to named certificate holder." In the event of any such cancellation, non-renewal, reduction, restriction, or change in any insurance, the Contractor is obligated to replace such insurance within seven (7) days without a gap in coverage and file accordingly such notice with the CMAR and the Owner, and other interested parties. Failing immediate receipt of evidence of such replacement of insurance, the CMAR reserves the right to procure such insurance as the CMAR considers desirable and the Contractor shall pay or reimburse the cost of the premium in respect thereof. It is expressly provided, however, that any action or inaction on the part of the CMAR in this respect shall in no way change or reduce the Contractor's responsibilities and liabilities under this Agreement. Self funded, policy fronting, or other non-risk transfer insurance mechanisms are not acceptable without prior written approval of the CMAR. Full disclosure of such a program must be made prior to commencing mobilization to the Project site. Failure to make a full disclosure constitutes a material breach of the Agreement, justifying termination for default. The Contractor shall name the CMAR, the Owner, the Designer and their respective consultants as additional insureds under all its insurance contracts (except workers' compensation) with respect to and including without limitation liability arising out of activities performed by or on behalf of the Contractor, products and completed operations of the Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to additional insureds. For any claims related to this Project, the Contractor's insurance or self-insurance shall be primary and noncontributory with respect to the CMAR, Owner or Designer insurance. Any insurance or self-insurance maintained by the CMAR, the Owner or the Designer shall be excess and noncontributory with respect to the Contractor's insurance. All policies of insurance except as noted in paragraph 5.2 shall contain a clause waiving rights of subrogation against the CMAR, the Owner and the Designer, unless the CMAR approves otherwise in writing. GENERAL CONDITIONS FOR CM AT RISK PROJECT 9 of 42 JUNE 2007 EDITION Limits of coverage are not to be amended by deductible clauses of any nature without the express written consent of the CMAR. The Contractor shall be solely responsible for any deductible assumptions that may exist in any insurance policies required under this Agreement. In addition, the Contractor shall be responsible and shall not be reimbursed for any losses arising from any risk or exposure not insured as required herein, or not covered as a result of a normal policy exclusion or that falls within the self insured retention, if Contractor is self insured. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The claim provisions in the Contractor's insurance policies must specifically state the insurance company or Contractor's third party administrator, if self insured, has both the right and duty to adjust a claim and provide. defense. The policies shall not contain any provision or definition which would serve to exclude or eliminate from coverage third party claims, including exclusions of claims for bodily or other injury to shareholders, partners, officers, directors, or employees of the insured, the premises owner, real estate manager, or the insured's Subcontractor, or any family relative of such persons. If the policies contain any warranty stating that coverage is null and void (or words to that effect) if the Contractor does not comply with the most stringent regulations governing the Work, it shall be modified so that coverage shall be afforded in all cases except for the Contractor's willful or intentional noncompliance with applicable government regulations. Any failure by any person to comply with reporting or other provisions of the policy including breach of warranties, shall not affect coverage provided to the CMAR and the ~ Owner and their respective representatives, officials, and employees. The insolvency or bankruptcy of the Insured or of the Insured's estate shall not relieve the insurance companies of their obligations under these policies. Any clauses to the contrary are unacceptable and must be stricken. Failure to comply with these requirements shall be a material breach of this Agreement justifying termination for default. 5.1.1 Worker's Compensation and Employers' Liability Insurance The Contractor and its Subcontractors shall procure and maintain Workers' Compensation Insurance in the amount and type required by the State of North Carolina and federal law for all employees employed under the Agreement who may come within the protection of Workers' Compensation Laws and covering all operations under the Agreement whether performed by the Contractor or by its Subcontractors. In jurisdictions not providing complete Workers' Compensation protection, the Contractor and its Subcontractors shall maintain employers' liability insurance in an amount, form, company, and agency satisfactory to the State of North Carolina and the CMAR for the benefit of all employees not protected by Workers' Compensation Laws and covering all operations under the Agreement whether performed by the Contractor or by its Subcontractors. The Contractor shall pay such assessments as will protect the Contractor and the CMAR from claims under the Workers' Compensation Laws, workers' or workmen's compensation disability benefits, and other similar employee benefit acts. The current Experience Modification Factor shall be indicated on the Certificate of Insurance. ~ ~ _ GENERAL CONDITIONS FOR CM AT RISK PROJECT 10 of 42 JUNE 2007 EDITION Coverage under this section shall be as required by federal and state Workers' Compensation and Occupational Disease Statutes, and shall have minimum limits as follows: Coverage A: Statutory, State of North Carolina Employers' Liability: Each Accident $1,000,000 Disease -Policy Limit $1,000,000 Disease -Each Employee $1,000,000 Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation in favor of the CMAR as well as other endorsements that may be required by applicable jurisdictions, i.e. United States Longshoremen and Harbor Workers Act and maritime coverage (Jones Act). 5.1.2 Automobile Liability Insurance The Contractor shall procure and maintain automobile insurance against liability for bodily injury and property damage as described below, that may arise with respect to the Work being performed under the Agreement, and as will provide protection from claims which may arise out of or result from the Contractor's performance of the Work and the Contractor's other obligations under the Agreement, whether such performance of the Work is by the Contractor, by any representative or Subcontractor, by anyone, both officially and personally, directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. This policy of insurance shall carry the following minimum Limit of Liability: Combined Single Limit $1,000,000 r ~ The policy of insurance shall contain or be endorsed to include the following: a) owned, hired, and non-owned automobile liability. b) If the policy contains a warranty stating that coverage is null and void (or words to that effect) if the transporter does not comply with the most stringent regulations governing the Work, it shall be modified so that coverage shall be afforded in all cases except for the transporter's willful or intentional noncompliance with applicable government regulations. Any failure by any party to comply with reporting or other provisions of the policy including breach of warranties, shall not affect coverage provided to the CMAR, the Owner, and their respective representatives, officials, and employees. No subcontracting of waste hauling shall be permitted without prior, written approval of the CMAR. 5.1.3 General Liability This policy must be written on an Occurrence basis, with the following minimum Limits of Liability: General Aggregate per project $2,000,000.00 Products/Completed Operations Aggregate $2,000,000.00 Bodily Injury and Property Damage csl/each occurrence $1,000,000.00 Personal Injury and Advertising Injury $2,000,000.00 GENERAL CONDITIONS FOR CM AT RISK PROJECT 11 of 42 JUNE 2007 EDITION The policy of insurance shall contain or be endorsed to include the following: a) Blanket Contractual Liability covering Contractor's indemnification obligations under this Agreement, in accordance with ISO policy form CG 00 01. Modifications to the standard provision will not be acceptable if they serve to reduce coverage. b) Premises/Operations Liability. c) Explosion, collapse, and underground fault. d) Independent Contractors and Independent Subcontractors coverage. e) Broad Form Property Damage. f) Personallnjury. g) Cross Liability/Severability of Interest clause. h) Employer's Stop-Gap Liability endorsement, if applicable. i) Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily injury or property damage caused by heat, smoke, or fumes from a hostile fire. j) Designated General Aggregate Limit Endorsement if required by the Supplementary Conditions. k) For contractors with design responsibility, endorsement CG22 80 and DIC for contractors' professional is requested. Coverage shall remain continuously in effect and without interruption for at least six (6) years from the date of the Notice of Award and shall include coverage for exposures arising from operations that have been completed. The Contractor shall furnish the CMAR and each other additional insured listed in the Agreement to whom the Certificates have been issued, evidence satisfactory to the CMAR of continuation of such insurance at the date of Substantial Completion and each year thereafter. 5.1.4 Pollution Legal Liability ~PLL) Pollution Legal Liability coverage will be provided if required by the Supplementary Conditions. 5.1.5 Professional Liability Policies for professional liability must be provided by the Contractor or its independent design professional if the Contractor is required to provide any professional design services under the Contract Documents. Alternatively, compliance with paragraph 5.1.3 (k) is acceptable. The limits of coverage required for professional liability shall be included in the Contract Documents, and will be subject to approval by the CMAR, taking into account among any other reasonable factors the risks insured against, the cost of the insurance, and the professionals providing the insurance. 5.1.6 Claims The Contractor shall notify the CMAR within twenty-four (24) hours of any claims or alleged claims received by the Contractor covered by any of the policies of insurance required of i GENERAL CONDITIONS FOR CM AT RISK PROJECT 12 of 42 JUNE 2007 EDITION Contractor in this Agreement. The Contractor shall provide a written copy of the claim or alleged claim to the CMAR within three (3) days of the Contractor's receipt of the claim or alleged claim. If a claim is settled to the satisfaction of the claimant, the Contractor shall submit a copy of the claimant's release to the CMAR. If a claim or alleged claim is rejected by the Contractor and/or its insurance company, the Contractor shall immediately report this fact to the CMAR. Should thirty (30) days elapse after the claim or alleged claim has been received by the Contractor, and the Contractor is not able to report a settlement or rejection of the claim, it shall report to the CMAR the steps being taken with respect to the claim. Without limiting the foregoing, the Contractor shall notify the CMAR in writing of any paid or incurred claims which may impair annual aggregate or general liability. 5.1.7 Deductibles and Self-insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the CMAR. At the option of the CMAR, either: the insurer shall reduce to a maximum of $250,000 or eliminate such deductibles or self-insured retentians with respect to the CMAR, or the Contractor shall provide evidence of collateral provided to insurers or procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses within the deductible or self-insured retention amount. Any self-insured retention or deductible amount on the policy shall not reduce the amount of collectible limits or liability. 5.1.8 Subcontractors The Contractor shall include all Subcontractors as Insureds under its policies, or shall furnish separate certificates, policies, and endorsements for each Subcontractor the Contractor intends to use. If a Subcontractor does not take out insurance in its own name and the Contractor wishes to provide insurance protection for such Subcontractor and such Subcontractor's employees, the Contractor shall either (a) procure appropriate policies in the name of the Subcontractor, or (b) cause a rider or riders to be attached to the Contractor's policies which shall identify the Subcontractor thereby covered; provided, however, in the case of the latter option, such a rider need not be attached to the Contractor's workers' compensation policy if such policy by its terms is sufficiently broad to cover the employees of all Subcontractors performing Work under the Contract Documents. Except as otherwise approved by the CMAR in writing, Limits of liability and coverage scope must be at a minimum as stringent as required of the Contractor by the Contract Documents. All Work performed for the Contractor by any Subcontractor shall be pursuant to an appropriate agreement between the Contractor and the Subcontractor which shall contain provisions that waive all rights the contracting parties may have against one another for damages caused by fire or other perils covered by insurance as provided herein. Insurance monies received from any loss shall be divided as the respective interest of the parties affected shall appear. 5.2 PROPERTY INSURANCE The CMAR shall be responsible for purchasing and maintaining insurance to protect the Project from perils of physical loss. The insurance shall provide for the cost of replacement for the Work at the time of any loss. The insurance shall include as named insureds the Owner, the CMAR, the Contractors and their Subcontractors and shall insure against the loss from the perils of fire and all risk coverage for physical loss or damage due to theft, vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, damages resulting from defective design, negligent workmanship or defective material. The CMAR I ~' ~ GENERAL CONDITIONS FOR CM AT RISK PROJECT 13 of 42 JUNE 2007 EDITION shall increase the coverage limits as necessary to reflect changes in the estimated replacement cost of the Project. The CMAR shall provide the Contractor, if requested, with copies of all policies thus obtained for the Project. The CMAR shall provide the Contractor with thirty (30) days notice of cancellation, non-renewal or endorsement reducing or restricting coverage. The Contractor and the CMAR waive all rights against each other and against the other separate contractors, the Owner, and their respective consultants, agents and employees for damages occurring during construction and covered by builder's risk and any property insurance required for this Project excluding Owners' Property insurance. The Contractor and the CMAR shall each require appropriate similar waivers from the Owner, the other separate contractors, their Subcontractors, and their consultants and agents. This waiver does not apply to design liability. The Contractor is responsible for all physical damage to owned or rented machinery, tools, equipment, forms, and other items owned, rented or used by the Contractor and/or Subcontractor(s) in the performance of the Work. The insurance coverage evidencing such shall include a waiver of subrogation in favor of the CMAR, the Owner and the Designer and their respective consultants and agents. The Contractor shall provide valuable papers and records insurance with coverage in an amount commensurate with project scope as set forth in the Supplementary General Conditions. If the Project includes as addition to or is adjacent to an existing structure, the CMAR, the separate Contractors and the Subcontractors shall be named as additional insureds for the Owner's property insurance covering such structure and its contents. If the Owner occupies or uses a part or parts of the Project prior to Substantial Completion thereof, such occupancy shall not occur until the Owner obtains property insurance for the structure and until all insurance companies providing insurance for the Project consent to such occupancy by endorsement to the insurance policies. 5.3 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE In the event the Owner elects to purchase project-specific insurance affording coverage to the Contractor and Subcontractors, the terms and conditions of such coverage shall be set forth in the Supplementary Conditions. 5.4 CONTRACTOR AS JOINT VENTURE If the Contractor is completing this Project on a joint venture basis, both joint venture partners retain all liabilities assumed by this Agreement, individually and collectively. This may include, but is not limited to, all premiums due, deductibles/self-insured retentions, coinsurance provisions, claim provisions, insurance policy conditions, and indemnification provisions hereunder. Evidence of a Blanket Joint Venture Endorsement must be obtained from the General Liability and Contractor's Pollution Legal Liability carriers of each joint venture partner substantially as follows: With respect to "your work° and the "products-completed operations hazard'; you are an insured for your liability arising out of the conduct of any partnership or joint venture of which you were a partner or member, even though this partnership or joint venture is not shown as a Named Insured in the Declarations. This coverage is excess over any ~ ~ ~~` ~ GENERAL CONDITIONS FOR CM AT RISK PROJECT 14 of 42 JUNE 20p7 EDITION available liability purchased specifically to insure the partnership or joint venture. This coverage will not inure to the benefit of any other party except you. " 5.5 INDEMNIFICATION The Contractor, to the fullest extent not expressly prohibited by law, shall defend, indemnify, and save harmless the CMAR, the Owner, the Designer, and their respective officials, officers, employees, and agents from and against any and all liabilities (foreseeable or unforeseeable), penalties, fines, forfeitures, demands, claims, causes of actions, suits, judgments, and costs and expenses incidental thereto, (including, without limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable attorneys' fees), which any or all of them may hereafter suffer, incur, be responsible for, or pay. out as a result of but not limited to: a) bodily injury (including sickness, disease, or death) to any person including, but not limited to, the Contractor's employees or its representatives while on the site of the Project; or b) actual or alleged damage (including loss of use) to any property (public or private, including the Project or other property on the Project site); or c) contamination of or adverse effects on the environment arising directly or indirectly out of or in connection with the performance of the Work, including but not limited to any hazardous or toxic waste, substance, or constituent of any substance subject to regulation under CERCLA, RCRA, TSCA, and other Federal and state authorities that is spilled, released, threatening to release, or disposed of or destroyed by the Contractor or its Subcontractors on or off the site of the Project or while in transport to or from the site; or d) any violation or alleged violation of laws and regulations, arising out of or in any way connected with the Work, caused 'in whole or in part by the Contractor, any Subcontractor or supplier or any representatives of the Contractor. The Contractor shall not be required to indemnify any person against losses resulting from a breach of contract or resulting from negligence, misconduct or violation of laws on the part of any person indemnified hereunder. The Contractor further agrees to obtain, maintain, and pay for such liability insurance coverages and endorsements as will insure the provisions of this paragraph 5.4. Furthermore, the Contractor agrees to be liable for and to indemnify and reimburse the CMAR and the Owner for all legal fees and disbursements paid or incurred to enforce the provisions of this paragraph 5.4. The indemnification obligations under this paragraph 5.4 shall not be limited in any way by the amount or type of damages, compensation or benefits payable under worker's compensation acts, disability benefit acts, other employment benefit acts, or the amount of insurance carried or recovered. The CMAR acknowledges that hazardous or toxic waste, material, chemicals, compounds or substances, or other environmental hazards, contamination or pollution, (referred to hereinafter as "environmental hazards") may be present at the Project site that were not created, generated, or released at the Project site by the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others. Unless the remediation, abatement or handling of such environmental hazards is part of the scope of the Work under this Agreement, then upon the discovery of such environmental hazards, the Contractor shall immediately, and in no event more than three days after such discovery, give notice to the CMAR of the environmental hazards before they are disturbed. The CMAR, the Owner and the Designer shall thereupon promptly investigate the GENERAL CONDITIONS FOR CM AT RISK PROJECT 15 of 42 JUNE 2007 EDITION environmental hazards, and make such changes in the Drawings and/or Specifications as they may find necessary to abate, remediate, isolate or handle the environmental hazards. Any increase or decrease in the Contract Price or the Contract Time resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. It is agreed that the Contractor shall have no liability under this Agreement for any environmental hazards existing at, on or in the Project site prior to the date that Work commences under this Agreement unless the Contractor or its Subcontractors, agents or employees, acting alone or in concert with others, by their own negligence or misconduct, release or expose the Owner or third parties to the environmental hazards. The provisions of this paragraph 5.4 shall survive the termination or cancellation or completion of this Agreement. ARTICLE 6. OTHER RECORD DOCUMENTS AND SUBMITTALS 6.1 The CMAR shall furnish to the Contractor the number of copies of Drawings and Specifications stated in the Supplementary Conditions. Additional copies of Drawings and Specifications may be obtained at the cost of reproduction and handling. 6.2 The Contractor shall submit to the CMAR for forwarding to the. Designer all Submittals required by the Contract Documents. The Contractor shall submit four (4) reproducible prints of all shop drawings plus the number of copies sufficient for its requirements. The Contractor shall submit samples in quantities required by the Contract Documents. The Contractor shall submit product data in five (5) copies, plus the number of copies sufficient for the Contractor's requirements. All shop drawings shall be reviewed by the Contractor and shall bear the Contractor's stamp of approval before being forwarded to the CMAR and the Designer. Submittals shall be submitted in such time as to cause no delay to the Work or any part thereof and in accordance with the Contractor's Construction Schedule and Submittal Register. The CMAR shall review and process the submittal with reasonable promptness, noting desired corrections, if any. The CMAR shall retain three (3) copies of the submittal and shall return the balance of the reviewed submittal to the Contractor for action. The Contractor shall furnish any corrected submittal to the CMAR for forwarding to the Designer. The CMAR shall retain three (3) copies of the corrected submittal for the records of the CMAR and the Designer, and will return the balance of the reviewed submittal to the Contractor. Subject to paragraph 6.3 herein, no substitutions will be accepted after the bids have been received. All substitutions prior to the receipt of bids shall be in accordance with the Contract Documents. The Contractor acknowledges that the processing of shop drawings and other submittals is directly impacted by the clarity, completeness, and accuracy of said documents and that it is the Contractor's responsibility to (i) review and coordinate each submittal with all other related or affected Work and (ii) approve each submittal before submitting same to the CMAR for approval 6.3 No substitutions and no deviations from any requirement of the Contract Documents shall be deemed allowed unless the Contractor has specifically informed the CMAR in writing of such deviations at the time of submittal. and the.Designer and the Owner have given written and specific approval to the substitutions or deviations. In proposing a deviation or substitution, the Contractor warrants to the CMAR, notwithstanding any review, allowance or approval by the Designer or the Owner, that the deviation or substitution is at least equal to or better in quality and for the purpose intended, and that the Contractor shall not by reason of any such review, allowance or approval be relieved from any obligation or responsibility contained in the Contract Documents. ~ GENERAL CONDITIONS FOR CM AT RISK PROJECT 16 of 42 JUNE 2007 EDITION 6.4 Review of submittals by the CMAR and the Designer shall not be construed as relieving the Contractor from responsibility for compliance with terms or designs of the Contract Documents nor from responsibility for errors of any sort in the submittal. 6.5 The Contractor shall keep one record copy marked "As-Built" of all Specifications, Drawings, Addenda, Modifications, and Submittals at the Project in good order and annotated at least monthly to show all changes made during the construction process. Such monthly annotations and their approval by the CMAR shall be a condition precedent to approval by the CMAR of each monthly Request for Payment. Said record copy shall be stored at the Project and fully protected from damage by fire or other hazard. This record copy shall be available to the CMAR, the Designer and the Owner for inspection at all times. The complete record copy shall be delivered to the CMAR for review and transmittal to the Designer for the Owner's purposes prior to the Designer's certifying Substantial Completion of the Work. 6.6 At completion of the Project and before Final Payment, the Contractor shall assemble and deliver to the CMAR one complete set of all as-built drawings and one complete set of all approved submittals, product data, and samples which were reviewed by the Designer. These drawings and submittals shall be on paper, or in electronic or other media if required by the Supplementary Conditions. These drawings and submittals shall be categorized and packaged as directed by the Designer. ARTICLE 7. CONTRACTOR 7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best skill and attention. Except as may be set forth specifically in the Contract Documents, the Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction, and for safety precautions and programs in connection with the Work. The Contractor shall be responsible to see that the finished Work ~ complies accurately with the Contract Documents. 7.2 The Contractor shall appoint a competent Project Manager with general authority to manage the Project for the Contractor. The Contractor also shall keep on the Project at all times during the Work of the Contractor a competent Resident Superintendent and necessary assistants who shall not be replaced without prior written approval by the CMAR except under extraordinary circumstances, in which event immediate written notice shall be given to the CMAR. If approved by the CMAR, taking into account the scope and complexity of the Work of the Contractor, the Project Manager and the Resident Superintendent may be the same person. At any time, the CMAR, in its sole and absolute discretion, may require the Contractor to replace the Project Manager or Resident Superintendent with an experiehced and competent person or persons upon seven (7) days written notice from the CMAR to the Contractor. Such replacement shall be at the Contractor's expense and at no cost to the CMAR. Both the Project Manager and the Resident Superintendent shall have authority to act on behalf of the Contractor, and instructions, directions or notices given to either of them shall be as binding as if given to the Contractor. 7.3 The Contractor shall provide sufficient competent and suitably qualified personnel, equipment, and supplies to lay out the Work and perform construction as required by the Contract Documents. The Contractor will at all times maintain good discipline and order at the site, and will comply with all applicable OSHA standards. Any person employed by the Contractor, by any Subcontractor, or by any sub- subcontractor who, in the opinion of the CMAR, the Designer or the Owner, does not perform its Work in a proper and skillful manner or is intemperate or disorderly shall, at the GENERAL CONDITIONS FOR CM AT RISK PROJECT 17 of 42 JUNE 2007 EDITION written request of the CMAR, be removed forthwith by the Contractor, Subcontractor, or \`) sub-subcontractor employing such person without cost to the CMAR, and shall not be employed again in any portion of the Work without the prior written approval of the CMAR. Should the Contractor fail to remove such person or persons or fail to furnish suitable and sufficient personnel for the proper prosecution of the Work within three (3) days after written order, the CMAR may withhold further payment by written notice until compliance with such order. 7.4 If, in the opinion of the CMAR, the Designer or the Owner, any Subcontractor on the Project is incompetent or otherwise unsatisfactory, such Subcontractor shall be replaced by the Contractor with no increase in the Contract Price if and when directed by the CMAR in writing. 7.5 The Contractor shall furnish all materials, equipment, labor, transportation, construction equipment and machinery, tools appliances, fuel, light, heat, and all other facilities and incidentals necessary for the execution, maintenance, initial operation, and completion of the Work, other than those specifically excluded by the Contract Documents and to be furnished by the CMAR or others. When use or storage of hazardous materials or equipment or methods of more than ordinary risk are necessary in accomplishing the Work, the Contractor shall give the CMAR reasonable advance notice. If any materials are to be furnished or installed by the CMAR or others under the terms of the Contract Documents, said materials shall be made available to the Contractor at the location(s) specified in the Contract Documents. All costs of handling, transportation from the specified location to the Project, storage, and installing of materials furnished by others shall be included in the Contract Price. The Contractor shall be responsible for any demurrage, damage, loss, or other deficiencies which may occur during the Contractor's handling, storage, or use of material furnished by others. The CMAR shall deduct from any monies due or to become due the Contractor any cost incurred by the CMAR in making good any such damage, loss, or deficiency. All equipment which is proposed to be used in the Work shall be of sufficient size and in such mechanical condition as to meet the requirements of the Work and produce a satisfactory quality of work. Equipment used on any portion of the Work shall be such that no 'injury to previously completed Work, adjacent property, or existing facilities shall result from its use. When the methods and equipment to be used by the Contractor accomplishing the Work are not prescribed in the Contract Documents, the Contractor shall be free to use any methods or equipment that will accomplish the Work in conformity with the requirements of the Contract Documents. When the Contract Documents specify the use of certain methods and equipment, such methods and equipment shall be used unless others are authorized in writing by the CMAR. If the Contractor desires to use a method or type of equipment other than that specified in the Contract Documents, the Contractor may request authority from the CMAR to do so. The request shall be in writing and shall include a full description of the methods and equipment proposed and of the reasons for desiring to make the change. If approval is given, it shall be on the condition that the Contractor shall be fully responsible for producing Work in conformity with the requirements of the Contract Documents. If, after trial use of the substituted methods or equipment, the CMAR or the Designer determines that the Work produced does not meet the requirements of the Contract Documents, the Contractor shall discontinue the use of the substitute method or equipment and shall complete the remaining Work with the specified methods and equipment at no additional cost to the Owner. The Contractor shall remove any deficient Work and replace it with Work of ~~__ GENERAL CONDITIONS FOR CM AT RISK PROJECT 18 of 42 JUNE 2007 EDITION specified quality, or take such other corrective action as the CMAR may direct. No change in the Contract Price or in Contract Time shall be made as a result of authorizing a change in methods or equipment under this paragraph. 7.6 All materials and equipment shall be new, except as otherwise provided in the Contract Documents. When special makes or grades of material which are normally packaged by the supplier or manufacturer are specified or approved, such materials shall be delivered to the Project site in their original packages or containers with seals unbroken and labels intact. Materials shall be so stored as to assure the preservation of their quantity, quality and fitness for the Work. Stored materials, even though approved before storage, may again be inspected by the CMAR, the Designer or the Owner prior to their use in the Work and shall be required to meet the requirements of the Contract Documents at the time they are incorporated into the Work. Stored materials shall be located so as to facilitate their prompt inspection. The Contractor shall coordinate the storage of all materials with the CMAR. Materials to be stored at the Project or on the Owner's property shall not create an obstruction to the Owner's or other contractor's reasonable activities. Private property shall not be used for storage purposes without written approvals consistent with the provisions of paragraph 20.3 of these General Conditions. The Contractor shall make all arrangements and bear all expenses for the storage of materials on private properly. Upon request, the Contractor shall furnish the CMAR a copy of the property owner's permission. All storage sites on private or the Owner's property shall be restored to their original condition by the Contractor at its entire expense, except as otherwise agreed to (in writing) by the owner or lessee of the property. 7.7 All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturer, ;' ~ fabricator, or processor, except as otherwise provided in the Contract Documents. 7.8 The Contractor will be fully responsible for all acts and omissions of its Subcontractors and of persons directly or indirectly employed by them and of persons for whose acts any of them may be liable to the same extent that the Contractor is responsible for the acts and omissions of the Contractor's own employees. Nothing in the Contract Documents shall create any contractual relationship between any Subcontractor or supplier and the CMAR, the Owner or the Designer, or any obligation on the part of the CMAR, the Owner or the Designer to pay or see to the payment of any money due any such Subcontractor or material furnisher except as may otherwise be required by law. The CMAR may furnish to any Subcontractor or supplier, to the extent practicable, evidence of amounts paid to the Contractor on account of specific Work done. 7.9 The divisions and sections of the Specifications and the identifications of any Drawings shall not control the Contractor in dividing the Work among Subcontractors. 7.10 The Contractor agrees to bind specifically every Subcontractor to the terms and conditions of the Contract Documents for the benefit of the CMAR and to furnish written evidence thereof to the CMAR within seven (7j days after written request by the CMAR. 7.11 The Contractor shall attend job progress conferences and all other meetings or conferences as directed by the CMAR. The Contractor shall be represented at these job progress conferences by a representative having the authority of the Project Manager and by such other representatives as the CMAR may direct. Job progress conferences shall be open to Subcontractors, suppliers and any others who may contribute beneficially toward maintaining required job progress, and such personnel shall be encouraged by the Contractor to attend. It shall be the principal purpose of job progress conferences to effect coordination, cooperation and assistance in every practical way toward the end of ~, _ GENERAL CONDITIONS FOR CM AT RISK PROJECT 19 of 42 JUNE 2007 EDITION maintaining progress of the Project on schedule and to complete the Work and the Project by the specified Completion Dates. The Contractor shall be prepared to assess progress of the Work as required in the Contract Documents and to recommend remedial measures for correction of progress as may be appropriate. The CMAR shall preside as chairman and arrange for minutes to be taken and circulated. In the event that the prosecution of the Work is discontinued for any reason, the Contractor shall notify the CMAR at least forty-eight (48) hours in advance of resuming operations. Should the terms of the Contract Documents require completion of one or more portions of the Work for the Beneficial Occupancy of the Owner prior to completion of the entire Work, the Contractor shall complete such portion(s) of the Work on or before the date specified. Such completion shall include the obtaining of all government or other permits, permission, and/or approvals necessary to occupancy. The Contractor shall independently estimate the difficulties involved in arranging the Work to permit such Beneficial Occupancy and shall not claim any additional compensation or time extension by reason of any delay or increased cost due to completing such portion(s) of the Work. The Owner's possession and use of such portion(s) of the Work shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. The Owner shall be responsible for the security, maintenance, utilities, and insurance of all portions of the Work completed and beneficially occupied by the Owner. 7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the use of any invention, design process, or device which is the subject of patent rights or copyrights held by others, except for inventions, design processes, or devices specified by the Designer in the Contract Documents. The Contractor shall indemnify and hold harmless the CMAR, the Owner, the Designer, and anyone directly employed by any of them, from and against all claims, damages, losses and expenses, including attorney's fees and costs of defense, arising out of any infringement or alleged infringement of such rights during or after completion of the Work, and shall defend all such claims in connection with any actual or alleged infringement of such rights. 7.13 The Contractor shall secure and pay for all permits, including without limitation construction permits and licenses, and will pay all governmental charges and inspection fees necessary for the prosecution of the Work. 7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and regulations applicable to the Work and shall protect and indemnify the CMAR, the Owner, the Designer, and their respective officials, officers, agents, employees or servants against any claim or liability arising from or based on the violation of any such law, ordinance, regulation, order, or decree, whether by the Contractor or by the Contractor's employees, Subcontractors, sub-subcontractors, or their employees. 7.15 The Contractor shall be responsible for the reasonable and necessary protection and security of its Work and its property and the property of others at the site, as required by laws or ordinances governing such conditions, or by custom or sound construction practices, and shall share such responsibilities for protection of property at the site as may be directed by the Contract Documents and the CMAR. The Contractor shall be responsible for any damage to the Owner's property, or that of others, by the Contractor or the Contractor's employees, Subcontractors, sub-subcontractors, or their employees or agents, and shall make good such damages. The Contractor shall be responsible for and pay for any such claims made against the CMAR or the Owner. 7.16 The Contractor shall comply with the Project Safety Program and Public Hazard Control Plan implemented by the CMAR. The Contractor shall protect existing improvements GENERAL CONDITIONS FOR CM AT RISK PROJECT 20 of 42 JUNE 2007 EDITION designated to remain in the vicinity of the operations and barricade all walks, roads, and areas as necessary to keep the public away from the construction. 7.17 The Contractor shall provide cover and/or protect all portions of the Work and provide all materials necessary to protect the Work whether performed by the Contractor or any of the Subcontractors or sub-subcontractors. Any Work damaged through the lack of proper protection, or from any other cause, shall be repaired or replaced without extra cost to the CMAR or extension to the Contract Time. The Contractor shall maintain the Work during construction and until the Work is accepted. This maintenance shall constitute continuous and effective effort prosecuted day by day, with adequate equipment and forces so that the Work is maintained in satisfactory condition at all times. All costs of maintenance shall be included in the Contract Price and the Contractor will not be paid an additional amount for such effort. Should the CMAR observe that the Contractor at any time has failed to maintain the Work as provided herein, the CMAR may immediately notify the Contractor of such non-compliance. Such notification shall specify a reasonable time within which the Contractor shall be required to remedy such unsatisfactory maintenance condition. Should the Contractor fail to properly respond to the CMAR's notification, the CMAR may, at the Contractor's expense, take such action as it may deem appropriate to remedy the defective maintenance, including suspension of the Contractor's Work or any part thereof. Any such expense incurred by the CMAR shall be deducted from monies due or to become due the Contractor. ' Parking lots, streets, and walks connecting to the Project area shall at all times be protected by the Contractor from deposits of mud, sand, stone, litter, or debris in any form. Pedestrian traffic areas around the construction limits must be maintained in a clean and safe condition at all times with required barricades and covered walkways. When excavation or other operations outside the Project limits is required, the Contractor shall, immediately following that work, return the area to its original condition. All catch basins and storm drain lines in the vicinity of the Project site shall be protected at all times from entry of dirt, rubble and other debris. The residue from the cleaning of trucks, ' wheelbarrows, concrete buggies, etc. must be prevented from entering the drainage system, and if cleaning is done, the residue must be contained and removed from the Project site with other refuse. 7.18 No burning of refuse or debris shall be allowed inside or around the Project during the course of construction. 7.19 The Contractor shall provide for and maintain necessary safety measures and safety programs for the protection of its employees and other persons at the Project site, and shall comply at all times with the requirements of the most current edition of the CAGC Safety and Health Manual [or the AGC Accident Prevention Manual in Construction], or the equivalent requirements of the Contractor's safety program, and shall fully comply with all Federal, State, and local laws, rules, regulations, and building code requirements so as to prevent accidents or injuries to persons on or about the Project site. The Contractor shall clearly mark or post signs warning of existing hazards, and shall barricade excavations, elevator shafts, stairways, .floor and wall openings and similar hazards. The Contractor shall protect against damage or injury resulting from falling materials, and shall maintain all protective devices and signs throughout the progress of the Work. All trenches, excavations, or other hazards in the vicinity of the Work shall be well barricaded, and properly lighted at night. When Work requires closing of an area normally used by the Owner or the public, the Contractor shall furnish, erect, and maintain temporary ~~~~.__ ~ GENERAL CONDITIONS FOR CM AT RISK PROJECT 21 of 42 JUNE 2007 EDITION barricades, and properly light the area. The Contractor shall comply with any directions and public authorities in this respect. 7.20 The Contractor shall adhere to the rules, regulations, and interpretations of the North Carolina Department of Labor's Occupational Safety and Health Standards for the Construction Industry (29 CFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29 CFR Part 1910 General Industry Safety and Health Standards applicable to construction) and N.C. Gen. Stat. §95-126 through 155. (Occupational Safety and Health) as well as all revisions and amendments to such standards or statutes as may occur throughout the performance of the Work. 7.21 Any land-disturbing activity performed by the Contractor in connection with the Project shall comply with all erosion control measures set forth in the Contract Documents and any additional measures which may be required in order to ensure that the Project is in full compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title 15 North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as amended (15 NCAC 4A, 4B, and 4C), and as may be revised or amended in the future. Upon receipt of notice that aland-disturbing activity is in violation of said Act, the Contractor shall be responsible for ensuring that all steps or actions necessary to bring the Project in compliance with said Act are promptly taken. The Contractor shall be responsible for all penalties assessed pursuant to N.C. Gen. Stat. 113A-64 with respect to its Work, and shall indemnify and hold harmless the CMAR and the Owner from all costs and expenses, including attorney's fees and costs of defense, arising out of or related to the enforcement of the Act against any party or person described in this Article. 7.22 The Contractor shall designate a responsible officer or employee as safety inspector, whose duties shall include accident prevention on the Project as well as implementation of the Contractor's safety measures and safety programs on the Project. The name of the safety inspector shall be made known to the CMAR at the pre-construction conference. 7.23 In emergencies affecting the safety of persons, the Work, or property at the Project site or adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent threatened damage, injury, or loss. As soon as practicable, the Contractor shall notify the. CMAR of such emergency. The Contractor shall give the CMAR prompt written notice of any significant changes in the Work or deviations from the Contract Documents caused by such emergency. If the Contractor believes that additional work done in an emergency entitles the Contractor to an increase in the Contract Price or an extension of the Contract Time, the Contractor may make a claim therefore as provided in Articles 14 and/or 15 of these General Conditions. 7.24 The Contractor shall at all times keep the premises free from accumulation of waste materials or rubbish caused by the Work. At least weekly and at the completion of the Work, the Contractor shall remove all waste materials and rubbish attributable to the Contractor's Work from and about the Project. At the completion of the Work, the Contractor shall remove all tools, construction equipment, machinery, and surplus materials. The Contractor shall leave the Work in condition for occupancy by the Owner such that no cleaning or other operations are required. Material cleared from the Project and deposited on adjacent property shall not be considered as having been disposed of satisfactorily. If the Contractor fails to keep the Project clean and free of waste materials or rubbish, fails to satisfactorily clean-up weekly or at the completion of the Work, the CMAR may do so and the costs thereof may be deducted from any amounts due or to become due the Contractor. 7.25 Utilities, temporary facilities, and signs shall be provided as described in the Contract Documents. Absent a contrary direction in the Supplementary Conditions, the Contractor GENERAL CONDITIONS FOR CM AT RISK PROJECT 22 of 42 JUNE 2007 EDITION shall pay all bills for its consumption of water, electricity, or other public utility service to the Project site. 7.26 The Contractor shall indemnify and hold the CMAR, the Owner, the Designer, the Designer's consultants, and their respective officers, agents, and employees harmless against all costs, damages, and expenses, including attorney's fees and costs of defense, arising out of claims by any separate contractor or by any Subcontractor, sub- subcontractor, or supplier engaged by or employed by the Contractor or employed by any of the Subcontractors claiming through him, including without limitation damages, losses, and expenses arising out of or relating to any inconvenience, delay, interference, or other action or non-action of the Contractor or the Contractor's Subcontractors on the Project. The Contractor acknowledges that should the Contractor or any of the Contractor's Subcontractors be damaged by any breach of contract by any other separate contractor on the Project, the Contractor may invoke applicable dispute resolution procedures with said other separate contractor. 7.27 Prior to completion of the Work and Final Payment of the Contract Price, excepting only those portions of the Work deemed accepted in accordance with the Contract Documents, the Contractor shall have charge and care of the Work, and shall take every precaution against injury or damage to any party due to the action of the elements or from any other cause, whether arising from the execution or from the non-execution of the Work. The Contractor shall, as required by the CMAR, replace, rebuild, repair, restore, and make good all injury or damage to any portion of the Work occasioned by any of the above causes before Final Completion and shall bear the expenses thereof. 7.28 In the event that the Work, or any portion thereof, is suspended at any time pursuant to an order of the Owner, the Contractor shall obey all instructions of the CMAR regarding storage of materials, drainage, protection of the Work, and erection of temporary structures during the suspension period. 7.29 The CMAR shall be responsible for the coordination of the Work of the separate contractors, both as to space and time. The CMAR shall incorporate the Contractor's Construction Schedule into the Master Schedule and coordinate the implementation of the Contractor's Construction Schedule. The CMAR shall also coordinate close-out of the Project, including but not limited to all testing, inspection, certifications, and approvals required by public agencies. The Contractor shall notify the CMAR promptly of any event or condition which could affect the conduct or progress of the Work and shall cooperate fully with the CMAR and all other separate contractors on the Project site. 7.30 The Owner has delegated to the CMAR all of its duties to coordinate and to expedite the Work not expressly reserved to the Owner by other provisions of the Contract Documents. 7.31 All Work performed pursuant to the Contract Documents shall conform in all respects to the North Carolina State Building Code and all other state, local, and national codes in effect at the time of and applicable to this Work. 7.32 The CMAR shall coordinate and supervise the installation of all sleeves, inserts, chases or other components of the Work needed for mechanical, plumbing, electrical or other work by the various contractors. The responsibility for exact location of such items shall be that of the mechanical, plumbing, electrical or other prime contractor that requires the item for passage or support of its work. Generally, the mechanical, plumbing, electrical or other contractor that requires such items for support or passage of its work shall set its sleeves, inserts, chases or other devices. If necessary to maintain the progress of and complete its GENERAL CONDITIONS FOR CM AT RISK PROJECT 23 of 42 JUNE 2007 EDITION Work, however, the. Contractor may be required to build or set sleeves, inserts, chases or other components of the Work needed for mechanical, plumbing, electrical or other work by other contractors. 7.33 The Contractor shall be responsible for permanently fixed service facilities and systems in use during progress of the Work and shall strictly adhere to the following procedures: a) Prior to acceptance of the Work by the Owner, the Contractor shall remove and replace any part of the permanent building systems damaged through use during construction. b) Temporary filters shall be installed in each of the heating and air conditioning units, return air grilles, and other locations to prevent intrusion of dust, dirt, and debris during construction. Temporary filters shall be removed and replaced with new filters immediately prior to Substantial Completion. c) Extra effort shall be maintained to keep the building clean and under no circumstances shall air systems be operated if finishing operations are creating dust in excess of what would be considered normal if the building were occupied. d) When the permanent lighting system is used during construction, lamps shall be replaced and shall be new on the date of Substantial Completion. ARTICLE 8. OWNER 8.1 The Owner shall issue communications and notices to the Contractor through the CMAR to the extent contemplated by the Contract Documents. ~ 8.2 In case of termination of the employment of the Designer, the Owner shall appoint as Designer a qualified person who shall have and assume all rights and duties held by the original Designer. 8.3 The Owner shall have the right to take possession of and use any portion of the Work notwithstanding the fact that the time for completion of such portion of the Work may not have expired, but such taking possession and use shall not be deemed an acceptance of any Work not completed in accordance with the Contract Documents. 8.4 A waiver on the part of the Owner of any breach of any part of the Agreement by the Contractor shall not be held to be a waiver of any other or subsequent breach. 8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter deposits for permanent utilities. ARTICLE 9. CONSTRUCTION MANAGER 9.1 The Owner has engaged the CMAR for the purpose of (i) assisting the Owner and Designer in developing and administering budgets and cost controls, (ii) in evaluating constructability and value engineering proposals, (iii) in establishing and maintaining a critical path method (CPM) schedule, (iv) in coordinating and/or expediting all Work on the Project, (v) in coordinating all Work on the Project with other projects being constructed by the Owner or others adjacent to or near the Work, and (vi) for such other purposes as the Owner may deem appropriate. ~` __ GENERAL CONDITIONS FOR CM AT RISK PROJECT 24 of 42 JUNE 2007 EDITION ARTICLE 10. DESIGNER 10.1 The Designer is charged with responsibility for preparation and interpretation of the Contract Documents. The Designer's decisions relating to aesthetic matters shall be final. 10.2 All Work completed under the Contract Documents shall be subject to review by the Designer. No Work is to be covered without the Designer's review or prior authorization. Any Work so covered without the Designer's review or prior authorization shall be uncovered at the Contractor's expense. The Contractor shall notify the CMAR in writing at least twenty-four (24) hours in advance of covering any Work. 10.3 The Designer shall not be responsible for the construction means, methods, techniques, sequences, procedures, or the safety precautions and programs incident thereto, and shall not be responsible for the Contractor's failure to perform the Work in accordance with the Contract Documents, but shall be entitled to enforce any requirements in the Contract Documents specifying particular means, methods, techniques, sequences, or procedures. 10.4 The Designer shall be an Owner's agent during the construction period. The duties, responsibilities and authority of the Designer as the Owner's representative during construction are as set forth in the Contract Documents. ARTICLE 17. TESTING AND SURVEYING 11.1 Laboratory and field tests to determine compliance of construction with the Contract Documents shall be made by the Owner or testing consultants employed by the Owner except those required elsewhere in the Contract Documents to be paid for by the Contractor. The costs and expenses of providing samples for and assistance in any testing shall be borne by the Contractor and are included in the Contract Price. Any Work in which untested materials are used without approval or written permission of the CMAR and the Designer shall be removed and replaced at the Contractor's expense. Work found to be unacceptable or unauthorized will not be paid for and, if directed by the CMAR, shall be removed and replaced at the Contractor's expense. Unless otherwise designated, tests in accordance with the cited standard methods of ASTM or other generally recognized or specifically authorized methods which are current on the date of advertisement for bids shall be made at the expense of the Owner; provided, however, in the event that after such testing any Work is found to be defective or does not meet the requirements of the Contract Documents, the costs of retesting such Work and the costs of inspection services shall be paid by the Contractor. Samples shall be taken by a testing laboratory employed by the Owner. All materials being used are subject to inspection, tests, or rejection at any time prior to .or during incorporation into the Work. Copies of all Owner test reports will be furnished to the Contractor at its written request. Copies of Contractor test reports shall be furnished to the CMAR upon written request. 11.2 The CMAR shall have the right to deduct the costs of additional testing as described in paragraph 11.1 from any money due or to become due the Contractor; or if no money is due the Contractor, the CMAR shall have the right to recover these costs from the Contractor, from its sureties, or from both. 11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly licensed in the State of North Carolina. ARTICLE 12. SEPARATE CONTRACTS 12.1 It is expressly understood that the CMAR and the Owner may deploy their own employees or engage other separate contractors to perform Work as a part of the Project whose work will be performed simultaneously and sequentially with the performance of the Work by the GENERAL CONDITIONS FOR CM AT RISK PROJECT 25 of 42 JUNE 2007 EDITION Contractor. It shall be necessary for the Contractor to coordinate construction activities with such other contractors, particularly with respect to access to work areas, storage of materials, and use of elevators and other common facilities. The Contractor shall diligently and in good faith cooperate with the CMAR, the Owner, the Designer, and all other contractors with respect to such matters and shall regularly and faithfully attend any and all meetings called by the CMAR with respect to such matters. Any disputes between the Contractor and any other separate prime contractor with respect to such matters shall be resolved in accordance with the claim and dispute resolution procedures in the Agreement. ARTICLE 13. CONTRACT TIME 13.1 Within fourteen (14) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall prepare and submit to the CMAR for review and approval a preliminary Contractor's Construction Schedule for the Work pursuant to the requirements stated in the Contract Documents. 13.2 Within fourteen (14) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall submit to the CMAR a Submittal Register listing all Submittals the Contractor is required to make or proposes to make under the Contract Documents, the dates on which the Contractor proposes to make such Submittals and the dates by which the Contractor reasonably requires a response from the CMAR and the Designer with respect to each Submittal. The dates submitted shall be incorporated into the Contractor's Construction Schedule as Completion Dates when they have been approved or modified by the Owner. The CMAR and the Designer shall not be required to review any Submittal from the Contractor until a Submittal Register acceptable to and approved by the CMAR has been submitted by the Contractor. 13.3 Not later than thirty (30) days following execution and delivery of the Construction Agreement by the CMAR to the Contractor, the CMAR shall deliver to the Contractor a Notice to Proceed. The Notice to Proceed shall state a commencement date on which it is expected that the Contractor will begin the Work to be performed under the Agreement. The Contract Time shall be measured from said specified commencement date. The commencement date stated in the Notice to Proceed shall not be earlier than three (3) days after the Notice to Proceed is served on the Contractor. If, other than by mutual agreement, said specified commencement date is more than thirty (30) days after the date of execution and delivery of the Agreement from the CMAR to the Contractor and the Contractor believes said delay justifies an increase in Contract Price and/or an extension of Contract Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15 of these General Conditions. No Work shall be done prior to the date specified in the Notice to Proceed. The Contractor shall submit a final Contractor's Construction Schedule for approval by the CMAR no later than fourteen (14) days after issuance of the Notice to Proceed. No payments shall be due the Contractor until this schedule is approved by the CMAR. 13.4 The Master Schedule is a Contract Document. The Contractor represents that the Master Schedule has been reviewed in detail and taken into account in preparing its bid. The Contractor's Construction Schedule shall be incorporated into the CMAR's Project Master Schedule. The Contractor's Construction Schedule shall include all of its activities which impact, limit, or otherwise affect the time of completion of the Project as shown in the Master Schedule, and all of the activities of others which impact, limit, or otherwise affect the start, duration, or completion of the Contractor's activities. The Contractor further represents that the Contractor can and will complete each activity within the time shown for i ' _ . GENERAt_ CONDITIONS FOR CM AT RISK PROJECT 26 of 42 JUNE 2007 EDITION that activity on the Contractor's Construction Schedule. Time is of the essence with respect to each such activity and Completion Date. 13.5 If the Contractor submits a construction schedule, progress report, or any other document that indicates or otherwise expresses an intention to achieve completion of the Work prior to any Completion Date required by the Contract Documents or prior to expiration of the Contract Time, no liability of the CMAR to the Contractor for any failure of the Contractor to so complete the Work shall be created or implied. 13.6 If the Contractor, for reasons beyond the Contractor's control, is delayed in beginning any activity, the Contractor shall, nevertheless, have the same number of.days as is shown in the Master Schedule for the activity, and the affected activity and any succeeding activity that is dependent upon that activity shall be adjusted accordingly; provided that at any time the CMAR, by means of a Change Order, may require the Contractor to work overtime, to increase labor forces or to take any necessary or appropriate action to decrease the time required for any activity, and the Contractor shall be entitled to an adjustment in the Contract Price computed in accordance with Article 15 of these General Conditions. 13.7 At any time, the CMAR may order the Contractor, on seven (7) days written notice, to begin any activity earlier than the starting date shown on the Master Schedule. 13.8 Should the Contractor fail to start any activity on the start date shown in the Master Schedule or as it may have been adjusted in accordance with paragraphs 13.6 or 13.7 above, or become delayed, the Contractor shall, without being entitled to any increase in the Contract Price or other compensation, work overtime, increase labor forces or take such other action as may be necessary or appropriate to complete the activity by the Completion Date shown on the Master Schedule, or as such Completion Date may have been adjusted. 13.9 The CMAR shall monitor progress of the Work at all times and the Contractor shall cooperate with such monitoring and provide any and all information with respect to the progress of the Work and scheduling as the CMAR may reasonably require. 13.10 On a monthly basis, in consultation with the Contractor, the CMAR shall revise the Master Schedule, showing any adjustments made in accordance with paragraphs 13.6 or 13.7, above, by any Change Order, the progress of the Work, and any days gained or days lost with respect to any activity, and shall furnish copies thereof to the Contractor. 13.11 Should any monthly revision of the Master Schedule show that the Contractor is behind on any activity, the late completion of which could delay Substantial Completion of the Work, the CMAR shall be entitled to withhold from the next Progress Payment due the Contractor an amount sufficient to reimburse the CMAR for any and all delay damages, should Substantial Completion be delayed by the same number of days that the Contractor is currently behind schedule. If, subsequently, the Contractor's progress, as shown by any succeeding monthly revision to the Master Schedule, is such that the anticipated delay no longer exists, the CMAR shall pay with the Progress Payment next due to the Contractor such amounts as have been withheld in accordance with this paragraph. 13.12 The CMAR shall have the right to perform Work, hire and employ labor and craftsmen, rent equipment, subcontract with other parties, or do anything that the CMAR deems necessary or appropriate to remedy or cure any delay by the Contractor in the progress of the Work. Such action by the CMAR shall not, in any way, affect, void or limit any warranty, guaranty or other responsibility of the Contractor under the Contract Documents. Such action may be taken by the CMAR only after three (3) days written notice to the Contractor. All costs incurred by the CMAR in taking any such action shall be charged to the Contractor and deducted from any amounts remaining due under the Agreement. I, GENERAL CONDITIONS FOR CM AT RISK PROJECT 27 of 42 JUNE 2007 EDITION 13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in the Contract Price) for delays arising from unforeseen causes beyond the control and without the fault or negligence of the Owner, the Designer, the CMAR, the Contractor or the Contractor's Subcontractors as follows: a) Labor disputes and strikes that directly impact the critical path activities of the Master Schedule; b) Acts of God, tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that damage completed Work or stored materials. c) Acts of the public enemy; acts of the State, Federal, or local government in their sovereign capacities. d) Abnormal inclement weather as defined in Article 13.14. 13.14 On any day that the Contractor considers that the Project is delayed by adverse weather conditions, the Contractor shall identify in writing to the CMAR the adverse weather conditions affecting each activity, the specific nature of the activity affected, the number of hours lost, and the number of and identity (by responsibility or trade) of workers affected and shall obtain from the CMAR written recognition of the delay. The time for performance of this Contract includes an allowance for a number of calendar days which may not be suitable for construction Work by reason of adverse weather. The Contract Time will be extended only if the number of calendar days of adverse weather recognized by the CMAR exceeds the number of inclement weather days set forth below, and the Contractor demonstrates how this adverse weather impacts activities on the critical path of the Master Schedule. Month Number of Inclement Weather Days January 7 February 6 March 7 April 6 May 7 June 6 July 8 August 6 September 5 October 5 November 5 December 9 13.15 If the Contractor believes that the progress of the Work has been adversely affected by adverse weather recognized by the CMAR during a particular month, the Contractor shall submit a written request for extension of time to the CMAR. Such a request for time extension of the Contract Time shall be submitted by the tenth (10th) day of the month following that month in which the adverse weather is encountered. The request shall include, but is not limited to, the following information: a) Detailed description of weather's effect on scheduled activities and its net effect on the critical path of the Project, and b) Weather records from the official weather station nearest the Project site and records of actual observation as contained in daily reports, correspondence, or other documentation. GENERAL CONDITIONS FOR CM AT RISK PROJECT 28 of 42 JUNE 2007 EDITION 13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any Completion Date can have the effect of delaying the Substantial Completion of the Project, or could force the CMAR to accelerate the Contractor's Work or the work of other contractors. Such delay in achieving a Completion Date will necessarily cause damages, losses, and expenses to the CMAR, including, but not limited to and by way of illustration only, liquidated damages payable to the Owner, damages payable to other contractors, increased and extended Project overhead, increased fees, increased costs of construction, increased and extended operation costs of other facilities, and inefficiency and loss of productivity. Such damages, losses, and expenses may be recovered from the Contractor and, if the Contractor is bonded, its surety. 13. 17 The sum for liquidated damages payable to the Owner is the amount stipulated in the CMAR Contract and reasonably estimated in advance to cover the losses to be incurred by the Owner by reason of failure of said CMAR and the Contractor(s) to complete the Project within the time specified in the Construction Management Contract, such time being in the essence of this Agreement and a material consideration thereof. ARTIC<_E 14. CHANGES IN THE WORK 14.1 Without invalidating fihe Contract Documents, the CMAR may, at any time, or from time to time order additions, deletions, or revisions in the Work. Said additions, deletions,, or revisions shall be authorized only by written Change Orders, Construction Change Directives or Field Orders. Upon receipt of a Change Order, Construction Change Directive or Field Order, the Contractor shall proceed with the Work involved. All such Work shall be executed under the applicable conditions of the Contract Documents. If any change causes an increase or decrease in the Contract Price and/or an extension or shortening of the Contract Time, adjustments shall be made as provided in Article 14 and/or Article 15 of these General Conditions. 14.2 If possible, Work shall not begin on any change or alteration to the Work until a written Change Order is executed settling any change in the Contract Price or Contract Time. In the event the Contractor and the CMAR cannot agree that an adjustment to the Contract Price or the Contract Time is warranted, or cannot agree on the appropriate adjustment to the Contract Price or the Contract Time, in order to expedite the Work and avoid or minimize delay in the Work that might affect the Contract Price or Contract Time, the Contractor shall, if so directed by the CMAR in writing, nevertheless proceed with the Work, and any adjustment to the Contract Price or Contract Time shall be negotiated by the parties .at a later date, utilizing the dispute resolution .procedures .under this Agreement if necessary. Any claim for an adjustment in Contract Price or Contract Time, if not defined in the Construction Change Directive, shall be promptly made in writing in accordance with the procedures defined in Article 15.2 of these General Conditions. 14.3 The Designer, through the CMAR, may authorize minor changes or alterations in the Work not involving change in the Contract Price or in the Contract Time and not inconsistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order. Such alterations shall not invalidate the Contract Documents nor release the surety. If the Contractor believes that any minor change or alteration authorized by the Designer entitles the Contractor to an increase in the Contract Price and/or an extension of Contract Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15 of these General Conditions. 14.4 Except in an emergency endangering life or property, no change shall be made by the Contractor except upon prior written Change Order, Construction Change Directive or Field Order authorizing such change. GENERAL CONDITIONS FOR CM AT RISK PROJECT 29 of 42 JUNE 2007 EDITION 14.5 Increases in the Contract Price and/or extensions of the Contract Time for additional Work performed by the Contractor shall only be in accordance with a written Change Order or Construction Change Directive signed by the CMAR. The Contractor shall not be entitled to additional time or to additional compensation for any Work performed or material supplied which is claimed to have been authorized or settled by an "oral" change, or by a "constructive" or "implied" change, or by a course of conduct, or by any action or non-action by the CMAR, or any other persons, or by any means whatsoever other than by a written Change Order or Construction Change Directive for such Work or material signed by the CMAR. 14.6 Changes in the Work resulting from emergency shall not invalidate the Contract Documents nor release the surety if the Contractor is bonded. 14.7 The CMAR shall not be responsible for verbal instructions which have not been confirmed in writing, and in no case shall such instructions be interpreted as permitting a departure from the Contract Documents unless such instruction is confirmed in writing and supported by a proper Change Order, Construction Change Directive or Field Order, whether or not the cost is affected. 14.8 If the Contractor is bonded, the CMAR, in its sole discretion, may require that the Contractor notify the Contractor's sureties of any changes affecting the general scope of the Work or change in the Contract Price, and that the amount of applicable bonds shall be adjusted accordingly. If this requirement is exercised, the Contractor shall furnish proof of such adjustment to the CMAR. If this requirement is exercised, the Change Orders and Construction Change Directives shall require written consent of the Contractor's surety. At the time of signing a Change Order, the Contractor shall be required to certify as follows: "1 certify that all sureties have been notified that my contract has been altered by the amount of this Change Order or Construction Change Directive and that a copy of the approved Change Order or Construction Change Directive will be mailed to all sureties upon its receipt by me." If this requirement is exercised, no payment to the Contractor on account of any Change Order or Construction Change Directive shall become due or payable until written evidence of the surety's consent to the Change Order or Construction Change Directive has been furnished to the CMAR, and the furnishing of such written consent is a condition precedent to such payment. 14.9 The Contractor shall support all requests for Change Orders with a detailed cost breakdown showing cost of materials, labor, equipment, transportation, other items, Contractor's overhead and profit, and total cost, in accordance with methods defined in this Article, and, if the request seeks an extension of the Contract Time, with atime-related diagram which demonstrates specifically why an increase in construction time is needed. 14.10 When a request for a Change Order involves a Subcontractor, the Contractor shall provide quotation from same on Subcontractor's letterhead. The Subcontractor's quote shall list materials, equipment, and labor separately, and show overhead and profit in the manner provided in paragraph 14.9. ARTICLE 15. CHANGE OF THE CONTRACT PRICE 15.1 The Contract Price constitutes the total compensation payable to the Contractor for performing all Work under the Contract Documents. All duties, responsibilities, and GENERAL CONDITIONS FOR CM AT RISK PROJECT 30 of 42 JUNE 2007 EDITION obligations assigned to or undertaken by the Contractor shall be at its expense without change in the Contract Price. The Contract Price may only be changed by a Change Order. 15.2 Any claim for an adjustment in the Contract Price shall be in writing. Written notice of any event, action, or non-action which may become the basis of a claim shall be delivered to the CMAR within three (3) days of the occurrence, or the beginning of the occurrence, of any such event, action or non-action giving rise to the claim. Such written notice is a condition precedent to the making of a claim, and such notice shall describe the basis of the potential claim with reasonable detail and clarity. A claim shall be made in writing and shall be delivered to the CMAR no later than fourteen (14) days after such notice. The claim shall describe in detail the basis for the claim, with specific reference to any provisions of the Contract Documents, by paragraph, drawing number, or other specific identification, and shall state the amount claimed and how it is calculated. If the Contractor, at the time the claim is made, is unable to state the amount claimed with accuracy, the Contractor shall so state and provide the estimated amount and the basis on which the amount is to be calculated. At the earliest date practicable, but in no event more than thirty (30) days after Contractor's notice of claim, the Contractor shall supplement the claim with an accurate statement of the amount claimed and how it has been calculated. The Contractor shall provide, in writing, in support of the claim all such explanations, arguments, data, receipts, expert opinions, or other documents or information as the Contractor deems appropriate to be considered in support of the claim. A claim may properly be rejected by the CMAR by reason of the Contractor's failure to submit adequate or accurate documentation or information, except that within seven (7) days after being given notice that the claim has been rejected on this basis, the Contractor may submit additional documentation or information. No claim for a change of.the Contract Price shall be considered or granted (except solely at the discretion of the CMAR) unless a claim is so made, nor shall the Contractor be entitled to any increase in the Contract Price unless the Contractor has given notice and made such a written claim within the times required. The CMAR shall decide, after obtaining the advice of the Owner and the Designer, whether an increase in Contract Price is warranted, and the amount of such increase shall be determined as provided in paragraphs 15.3 through 15.4, below. Any change in the - Contract Price resulting from any such claim shall be incorporated in a Change Order. The CMAR shall advise the Contractor of its decision with respect to the claim within thirty (30) days of its receipt, or of the receipt of additional documentation or information if the absence of such has previously been the basis of rejection of the claim. Any claim on which the CMAR has not provided its decision to the Contractor within the applicable time period shall be deemed denied. If the Contractor is not satisfied with the decision of the CMAR, the Contractor may within seven (7) days of receipt of the CMAR's decision initiate the mediation process as described in Appendix A to these General Conditions. 15.3 In deterrnining the amount of a Contract Price adjustment, the parties shall apply the following methods, as appropriate: (a) Change in Work: The CMAR and the Contractor shall negotiate in good faith and attempt.to agree upon the value of any change (extra or decrease) in Work prior to the issuance of a Change Order covering said Work. Such Change Order shall set forth the corresponding adjustment to the Contract Price. In the event the CMAR and the Contractor are unable to agree, the. CMAR shall grant an equitable adjustment in the Contract Price. (b) Emergency Work: In the event of emergency endangering life or property, the Contractor may be directed by the CMAR to proceed on a time and material basis, GENERAL CONDITIONS FOR CM AT RISK PROJECT 31 of 42 JUNE 2007 EDITION whereupon the Contractor shall so proceed and keep accurately, in such form as may `~ be required by the CMAR, a correct account of costs together with all proper invoices, payrolls, and supporting data therefore. 15.4 Where the Contract Price is to be adjusted, the following limitations shall apply in determining the amount of adjustment: (a) In the case of extra or emergency work, the Contract Price shall not be increased by more than the reasonable, actual, and documented net cost of the extra or emergency work plus ten percent (10%) of such net cost on Work performed by the Contractor and five percent (5%) thereof on any subcontracted Work for overhead and profit combined. (b) In the case of a decrease in Work, the Contract Price shall not be decreased by less than the net cost of the deleted Work plus five percent (5%) of such direct net cost for profit and overhead. The term 'net cost' as used herein shall include, as applicable, and shall be limited to, all direct labor, direct material, direct equipment, labor burden, sales taxes, shipping and handling charges, permits and fees, and insurance and bond premium adjustments, if any, attributable to the change. All other items of cost shall be considered as overhead and covered by the percentages allowed in sections (a) and (b) of this paragraph. The Contractor shall provide worksheets or tabulations describing the method by which the direct net cost was calculated, and shall provide all data needed to support the calculation of the direct net cost, all in a form acceptable to the CMAR. ARTICLE 16. UNFORESEEN CONDITIONS 16.1 Should the Contractor encounter unforeseen conditions at the Project site materially differing from those shown on the Drawings or indicated in the Specifications or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the Contractor shall immediately, and in no event more than three (3) days later, give notice to the CMAR of such conditions before they are disturbed. The CMAR shall thereupon promptly notify the Designer and Owner and investigate the conditions. The CMAR shall as soon as practicable request that the Designer make such changes in the Drawings and/or Specifications as the CMAR and the Contractor believe are necessary to continue the Work. Any increase or decrease in the Contract Price resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. The CMAR shall not be liable or responsible for additional work, costs, or changes to the Work that could have been reasonably determined from any reports, surveys, and analyses made available for the Contractor's review or that could have been discovered by the Contractor through the performance of its obligations pursuant to the Contract Documents. ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT 17.1 The Owner and the CMAR have the authority to stop or suspend Work and to order Work removed or to order corrections of defective Work or Work not in compliance with the Contract Documents where such action may be necessary to ensure successful completion of the Work. Any work, materials, fabricated items, or other parts of the Work which have been found by the CMAR, the Owner or the Designer to be defective or not in accordance with the Contract Documents shall be condemned and shall be removed from the Project by the Contractor, and immediately replaced by new Work in accordance with the Contract GENERAL CONDITIONS FOR CM AT RISK PROJECT 32 of 42 JUNE 2007 EDITION Documents at no additional cost to the CMAR. Work or property of the Owner or others damaged or destroyed by virtue of such condemned Work shall be made good at the expense of the Contractor. Correction of condemned Work described above shall be commenced by the Contractor within twenty four (24) hours after notice from the .CMAR ,and shall be pursued to completion. Should the Contractor fail to proceed reasonably with the above-mentioned corrections, the CMAR may, three (3) days after the notice specified in the preceding sentence, proceed with correction, paying the cost, including costs of uncovering such condemned Work, of such corrections from amounts due or to become due to the Contractor. Condemned Work removed shall be the property of the Contractor and shall be removed from the Project by the Contractor within ten (10) days after notice to remove it, and if not then removed, thereafter may be disposed of by the CMAR without compensation to the Contractor and the cost of such disposal shall be deducted from amounts due or to become dueto the Contractor. Should the cost of correction of the Work and, if applicable, disposal of the condemned Work by the CMAR exceed the amount due or to become due the Contractor, the Contractor-and the Contractor's sureties shall be liable for and shall pay to the CMAR the amount of such excess. ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION; WARRANTIES AND GUARANTIES 18.1 No certificate of completion by any party, Final Payment, occupation of the premises by the Owner, any provision of the Contract Documents, or any other act or instrument of the ' CMAR, the Owner or the Designer shall relieve the Contractor from responsibility for negligence, defective material or workmanship, or failure to comply fully with the Contract Documents. 18.2 The Contractor shall, at the Contractor's sole cost and expense, make all necessary repairs, replacements, and corrections of any nature or description, interior or exterior, structural or non-structural, that shall become necessary by reason of defective workmanship or materials which appear within a period of one (1) year from the date of Substantial Completion and acceptance of the Project by the Owner; provided, however that notwithstanding the preceding, if any longer guarantee period is specified for any particular materials or workmanship under the Contract Documents, or under any subcontract, or in connection with any manufactured unit which is installed in the Project, or under the laws of the State of North Carolina, the longer guarantee period shall govern. 18.3 If, within any guarantee period, repairs or changes are required in connection with the Work, which are rendered necessary as the result of the use of materials, equipment, or workmanship which are inferior, defective, or not in accordance with the terms of the Contract Documents, the Contractor shall, promptly upon receipt of notice from the CMAR and without expense to the CMAR: a) Completely repair or replace the Work so that it conforms to the Contract Documents; b) .Correct all defects therein; c) Make good all damage which, in the opinion of the CMAR or the Designer, is the result of the use of materials, equipment, or workmanship which are inferior, defective, or not in accordance with the terms of the Contract Documents; and ( ._ ~ GENERAL CONDITIONS FOR CM AT RISK PROJECT 33 of 42 JUNE 2007 EDITION d) Make good any Work or material, or any equipment or contents disturbed in fulfilling any such guarantee. If, in fulfilling the requirements of the Contract Documents or of any guarantee embraced therein or required thereby, the Contractor disturbs any work, facility, premises, or construction belonging to the Owner, the Contractor shall restore such disturbed work, facility, premises or construction to a condition satisfactory to the Owner, and shall guarantee such restored work to the same extent as if it were Work under the Contract Documents. If the Contractor, after notice, fails to proceed promptly to comply with the terms of the guarantee, the CMAR may have the defects corrected, and the Contractor and the Contractor's sureties shall be liable for all expenses incurred. "Promptly" is defined as within twenty-four (24) hours for systems necessary to normal operation of the building and within seventy-two (72) hours for all other items. All special guarantees applicable to definite parts of the Work that may be shown in or required by Contract Documents shall be subject to the terms of this paragraph during the first year of the life of such special guarantee. Manufacturer's standard guarantees or warranties which do not comply with the time limit specified herein shall be extended by the Contractor automatically without further action on the part of the CMAR. 18.4 In the eleventh calendar month after Substantial Completion of the entire Project, and at the request of the CMAR, the Contractor, the CMAR, the Owner and the Designer shall make an inspection of the Work for the purpose of identifying defective workmanship and/or materials. If the Contractor, having been requested to do so by the CMAR, fails to participate in such inspection, the Contractor shall be conclusively bound by any decision or ruling by the Designer as to any defective workmanship or material and as to the Contractor's responsibility for its repair or replacement. ARTICLE 19. CMAR'S RIGHT TO DO WORK 19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to prosecute the Work properly or to perform any provision of the Contract Documents, the CMAR, after three (3) days written notice to the Contractor from the CMAR, may perform or have performed that portion of the Work and may deduct the cost thereof from any amount due or to become due the Contractor. Notwithstanding any action by the CMAR under this paragraph, all warranties and bonds given or to be given by the Contractor shall remain in effector shall be given by the Contractor. 19.2 Should the cost of such action by the CMAR exceed the amount due or to become due the Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to the CMAR the amount of such excess. ARTICLE 20. PARTIAL PAYMENTS 20.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor for signatures the Contractor shall submit to the CMAR a Schedule of Values. The Schedule of Values shall indicate the value of the Work, including applicable overhead and profit, for each Division and section of the Project Specifications. The CMAR shall be provided with the Contractor's estimate papers, Subcontractor agreements, supplier quotes, or other documents substantiating these values if so requested in writing by the CMAR. The Contractor shall provide the requested documentation within seven (7) days after receipt of the CMAR's written request. The Schedule of Values shall be subject to approval by the CMAR and the Owner, and if the CMAR and the Contractor cannot agree upon the Schedule of Values, the Designer shall prepare it, and the Schedule of Values as GENERAL CONDITIONS FOR CM AT RISK PROJECT 34 of 42 JUNE 2007 EDITION prepared by the Designer shall be binding on the CMAR and the Contractor. No Request for Payment shall be certified by the CMAR until the Schedule of Values has been approved by the Owner. 20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the CMAR a Request for Payment for Work done during the previous calendar month. The Request for Payment shall be in form of AIA Document G702 (latest edition), or other published document approved by the CMAR, and shall show substantially the value of Work done (including the value of material delivered to the Project or stored by the Contractor at another site, subject to the conditions hereinafter set forth) during the previous calendar month, and shall sum up the financial status of the Work with the following information: a) Total Contract Price, including any adjustment thereto made pursuant to the Contract Documents. b) Value of Work completed and materials properly stored to date. c) Less amount retained. d) Less previous payments. e) Current amount due. . f) Contract Price balance remaining. The Contractor, upon request of the CMAR, shall substantiate the Request for Payment with invoices, vouchers, payrolls, ar other evidence. 20.3 When payment is requested or made on account of stored materials, such materials must be stored on the Owner's property or on such, property otherwise designated in writing by the Owner at such places and in such a manner as may be designated by the CMAR. However, if approved by the CMAR, and with permission in writing from the Designer and Owner and under such circumstances as may be required by the CMAR and the Owner, such materials may be stored in a bonded warehouse. Requests for Payment on account of stored materials shall be accompanied by paid invoices, bills of sale, warehouse receipts, or other documentary evidence establishing Owner's title to such materials, evidence that the stored materials are insured against loss and damage, and such other documentation as required by the CMAR. Responsibility for the quantity, quality, and condition of such stored materials, whether stored on the Owner's property or away from the Owner's property, shall remain with the Contractor regardless of ownership or title. No payment shall be made on account of materials stored in a bonded warehouse unless the Contractor has acquired written permission from the CMAR and the Owner for such storage of materials and has complied with all conditions set forth in such permission regarding such storage of materials in a bonded warehouse. 20.4 Any Request for Payment received by the CMAR on or before the fifth (5th) day of the calendar month shall be certified for payment or returned for re-submission fo the Contractor on or before the fifteenth (15th) day of the calendar month. The CMAR's certification shall be for the amount which was requested or that which the CMAR has decided was justly due, and shall state in writing to the Contractor and Owner the reasons for withholding payment of any or all of the amount requested. 20.5 The CMAR may refuse to certify all or part of any payment requested for any of the following reasons: ( ._ GENERAL CONDITIONS FOR CM AT RISK PROJECT 35 of 42 JUNE 2007 EDITION a) Refusal by the Designer to certify or the Owner to pay a payment application by the CMAR for Work by the Contractor. b) Defective Work not corrected. c) Suits, actions, or claims of any character filed against the Contractor, or due to the operations of the Contractor, or information or notice that a suit, action, or claim will be filed or has been made. d) Information or notice that a Subcontractor or a supplier has not received payment from the Contractor. e) The balance unpaid of the Contract Price is insufficient to complete the Work in the judgment of the CMAR. f) Damage to the CMAR, the Owner or another contractor. g) Inability of the Contractor to meet a Completion Date, including an anticipated failure to meet a Completion Date entitling the CMAR to withhold anticipated damages in accordance with paragraphs 13.11 and 13.12 of these General Conditions. h) Failure to furnish Submittal as required by the Contract Documents on a timely basis in accordance with the Submittal Register. i) Such other reason as to the CMAR may appear prudent, proper, or equitable. When grounds for withholding certification have been corrected or removed, the CMAR ~ ~ shall make any payment due with respect to such certification as a part of its next payment after such certification. 20.6 No certificate of payment issued or progress payment made shall constitute an acceptance of the Work or any part thereof. 20.7 The amount certified by the CMAR for payment shall be ninety percent (90%) of the value of Work completed and materials stored since the CMAR's last certification as shown on the Request for Payment, less any amounts not certified in accordance with paragraph 20.4, and this amount shall be paid by the CMAR on or before the last business day of the month, but payment shall not be past due if paid within fifteen (15) days thereafter. 20.8 If the Contractor's Work has progressed in accordance with the Master Schedule as of a target date mutually agreed upon by the Owner, the Designer and the CMAR, and the Contractor has provided to the CMAR the written consent of its sureties to the cessation of further percentage retention, the amount certified for payment with respect to subsequent Requests for Payment may, in the discretion of the CMAR, be one hundred percent (100%) of the value of Work completed and materials stored since the CMAR's last certification as shown on the Request for Payment, less any amounts not certified in accordance with paragraph 20.4; provided, however, that the aggregate of periodic payments shall not exceed ninety-five percent (95%) of the Contract Price. ARTICLE 21. FINAL PAYMENT 21.1 Final Payment shall not be due to the Contractor until Final Completion. 21.2 Upon Substantial Completion, the CMAR in conjunction with the Designer shall prepare and submit to the Contractor deficiency lists identifying all portions of the Work which are GENERAL CONDITIONS FOR CM AT RISK PROJECT 36 of 42 JUNE 2007 EDITION shown at that time to be incomplete or defective. Within thirty (30) days of receipt of any deficiency list, the Contractor shall complete and correct all items on that list along with all other Work required to achieve Final Completion of the Work. At any time prior to completion of the period of warranty, the CMAR may submit to the Contractor supplemental deficiency lists, in which case the Contractor shall complete or correct any and all new items identified on the supplemental deficiency lists within the time period stipulated in paragraph 18.3 of these General Conditions. 21.3 The making and acceptance of Final Payment shall constitute a waiver of all claims by the CMAR except: a) Claims arising from unsettled liens or claims against the Contractor. b) Defective Work or materials appearing after Final Payment. c) Failure of the Contractor to perform the Work in accordance with the Contract Documents. d) As conditioned in the Performance Bond. e) Claims made prior to Final Payment which remain unsettled. fl Amounts due arising under Articles 18 and 28 of these General Conditions. g) Claims for recovery of overpayment based upon incorrect measurement, estimate, or certificate. 21.4 The making and acceptance of Final Payment shall constitute a waiver of all claims by the Contractor except those claims previously made in writing pursuant to paragraph 15.2 of these General Conditions and not finally resolved. 21.5 The CMAR shall not be required to make Final Payment unless and until (i) the Designer has certified based on the Designer's observations and information that all of the Work by the Contractor under the Contract Documents has been completed in accordance with the Contract Documents, and (ii) the Work by the Contractor has been approved by all federal, state and local agencies having jurisdiction. 21.6 The final Request for Payment shall be identified on its face as such and shall be .presented by the Contractor to the CMAR within. thirty (30) days of completion of the Work.. Final payment of the retained amount due the Contractor shall be made by the CMAR within thirty (30) days after the later of (i) full and Final Completion of all Work required of the Contractor by the Contract Documents, and certification of such Work in accordance with paragraph 21.5; (ii) submission of the affidavits and other documentation required by Article 22; (iii) submission by the Contractor of a Request for Payment identified on its face as final. ARTICLE 22. CONTRACTOR, SUBCONTRACTOR AND SUPPLIER AFFIDAVIT 22.1 The Final Payment due the Contractor on account of the Contract Documents shall not become due until the Contractor has furnished to the CMAR: (A) an affidavit by the Contractor signed, sworn, and notarized to the effect that all payments for materials, services, or for any other reason in connection with the Work or performance of the Contract Documents have been satisfied and that no claims or liens exist against the Contractor in connection with the same; (B) affidavits from each Subcontractor and supplier signed, sworn, and notarized to the effect that (i) each such Subcontractor or supplier has been paid in full by the Contractor for all Work performed and/or materials supplied by it in GENERAL CONDITIONS FOR CM AT RISK PROJECT 37 of 42 JUNE 2007 EDITION .connection with the Project, and (ii) that all payments for materials, services, and for any other reason in connection with the subcontract or supply contract have been satisfied and that no claims or liens exist against the Subcontractor or supplier in connection therewith; and (C) the written consent of the Contractor's sureties to Final Payment. In the event that the Contractor cannot obtain an affidavit, as required above, from any Subcontractor or supplier, the Contractor shall state in the Contractor's affidavit that no claims or liens exist against such Subcontractor or supplier to the best of the Contractor's knowledge, and that if any appear afterwards, the Contractor shall indemnify and save the CMAR and the Owner harmless for all costs and expenses, including attorney's fees, on account thereof. ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS 23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its entirety without the prior written consent of the CMAR. Except as may be required under terms of the bonds required by the Contract Documents, no funds or sums of money due or to become due to the Contractor under the Contract Documents may be assigned. ARTICLE 24. MEASUREMENTS 24.1 Before ordering material or doing Work which is dependent for proper size or installation upon coordination with building conditions, the Contractor shall verify all dimensions and shall be responsible for the correctness of same. No consideration will be given for any claim based on differences between the actual dimensions and those indicated in the Contract Documents. Any discrepancies between the Contract Documents and the existing conditions shall be referred to the Designer by the CMAR for adjustment before any Work affected thereby is begun. ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS 25.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor for signatures, the Contractor shall submit to the CMAR for acceptance a current list of the or anizations including those who ersons and her d such of 9 ctors an Subcontra P of names are to furnish materials or equipment fabricated to a special design) proposed for any and all portions of the Work. The Contractor shall provide this list at this time even if the Contractor was required to submit a list of proposed Subcontractors with the Contractor's bid. The CMAR shall promptly reply to the Contractor in writing stating whether or not the CMAR, after due investigation, has objection to any such proposed person or entity or if it needs additional information to evaluate the persons or entities on the list. Failure of the CMAR to reply within ten (10) days after the Contractor has furnished all .required information shall constitute notice of no objection. The Contractor shall not contract with any such proposed person or entity to which the CMAR has made reasonable objection. If the CMAR has reasonable objection to any such proposed person or entity, the Contractor shall submit a substitute to whom the CMAR has no reasonable objection. The Contractor shall make no substitution for any Subcontractor, person; or entity previously allowed without first notifying the CMAR in writing and no substitution may be made if the CMAR makes a reasonable objection to such substitution. 25.2 The Contractor agrees that the terms, of the Contract Documents, including all portions thereof, shall apply to all Subcontractors as if they were the Contractor, and that the Subcontractors shall, by means of their subcontracts, be bound by all the terms of the Contract Documents. 25.3 Payments to Subcontractors by the Contractor shall be made in accordance with the provisions of N.C. Gen. Stat. §143-134.1. i i JUNE 2007 EDITION GENERAL CONDITIONS FOR CM AT RISK PROJECT 38 of 42 ARTICLE 26. USE OF PREMISES 26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers, and the disposal of material to limits indicated by law, ordinances, permits, and directions of the CMAR, if any. 26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that will endanger its safety, intended performance, or configuration. 26.3 The Contractor shall enforce all of the CMAR's instructions, including, but not limited to, those regarding signs, advertisements, fires, and smoking. ARTICLE 27. CUTTING, PATCHING AND FITTING 27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to make its several parts come together properly and fit it to receive or to be received by Work shown in or which can be reasonably implied from the Contract Documents. ARTICLE 28. DISPUTE RESOLUTION 28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Appendix A shall be a part of the Contract Documents. Prior to initiating an action under this Article, any party to this Agreement shall initiate the mediation process as provided in Appendix A to these General Conditions. 28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to provide material, supplies, equipment, work, performance or payment bonds, insurance or indemnification for the construction of the Project or the Work shall be deemed a party to this Agreement solely for the purpose of this Article 28. The Contractor, by means of its subcontracts, shall specifically require its Subcontractors to be bound by this Article. ARTICLE 29. TAXES 29.1 The Contractor has included in the Contract Price, and shall pay, all taxes assessed by any authority on the Work or on the labor and materials used therein. The Contractor shall maintain all tax records during the life of the Project and #urnish the CMAR with a complete listing of all taxes paid by taxing authority, invoice number, date, amount, etc. in a form acceptable to the CMAR and the Owner. The Contractor is required to maintain a file showing taxes paid on the Project for three (3) years after Final Payment or turn said documents over to the Owner for its files. 29.2 The following is a list of requirements to be followed by the Contractor in maintaining proper records and reporting the North Carolina Sales and Use Tax and Local Sales and Use Tax. The Contractor shall comply fully with the requirements outlined below, in order that the Owner may recover the amount of the tax permitted under the law. a) It shall be the Contractor's responsibility to furnish the CMAR documentary evidence showing the materials used and sales and use tax paid by the Contractor and by each of its Subcontractors. Such evidence shall be transmitted to the CMAR with each pay request regardless of whether taxes were paid in that period covered by the pay request. GENERAL CONDITIONS FOR CM AT RISK PROJECT 39 of 42 JUNE 2007 EDITION b) The documentary evidence shall consist of a certified statement by the Contractor and by each of the Contractor's Subcontractors individually, showing total purchases of materials from each separate vendor and total sales and use taxes paid to each vendor. Certified statements must show the invoice number, or numbers, covered, and inclusive dates of such invoices. c) Materials used from Contractor's or Subcontractor's warehouse stock shall be shown in a certified statement at warehouse stock prices. d) The Contractor shall not be required to certify the Subcontractor's statements. ARTICLE 30. OPERATION OF OWNER'S FACILITIES 30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried on in such a manner so as to ensure the regular and continuous operation of the adjoining or adjacent facilities. The Contractor further agrees that the sequence of operations under the Contract Documents shall be scheduled and carried out so as to ensure said regular and continuous operation. The Contractor shall not close any areas of construction until so authorized by the CMAR. The Contractor shall control operations to assure the least inconvenience to the public. Under all circumstances, safety shall be the most important consideration. ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE 31.1 It is specifically agreed between the parties executing the Agreement that, with the specific exception set forth paragraph 7.24 of these General Conditions, and that exception only, the Contract Documents and the provisions therein are not intended to make the public, or any member thereof, athird-party beneficiary of the Agreement, or to authorize anyone not a party to the Contract Documents to maintain a suit for personal injuries or property damage pursuant to the terms of provisions of the Contract Documents. ARTICLE 32. MEASUREMENT OF QUANTITIES 32.1 All Work completed under the Contract Documents shall be measured by the Contractor using United States customary units of measurement. The method of measurement and computations to be used in determination of quantities of material furnished and of Work performed under the Contract Documents shall be those methods set forth in the Contract Documents or, if not specifically set forth therein, the method generally recognized as conforming to good engineering practice. ARTICLE 33. TERMINATION BY THE CMAR FOR CAUSE 33.1 If the Contractor fails to begin or complete the Work under the Contract Documents within the time specified, or fails to perform the Work with sufficient labor and equipment or with sufficient materials to insure the prompt completion of said Work, or shall perform the Work unsuitably or shall discontinue the prosecution of the Work for three (3) consecutive days, or if the Contractor shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the Contractor or its affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner, the CMAR may give notice in writing to the Contractor and the Contractor's sureties of such delay, neglect, or default, specifying the same, and if the Contractor within a period of three (3) days after such notice shall not proceed in good faith and with reasonable speed to correct such delay, neglect, or default in accordance with such notice, the CMAR shall have full power and authority, to the extent permitted by law, without violating the Contract Documents, to take the prosecution of the Work out of the GENERAL CONDITIONS FOR CM AT RISK PROJECT 40 of 42 JUNE 2007 EDITION hands of the Contractor, to appropriate or use any or all materials and equipment at the Project as may be suitable and acceptable, and may enter into an agreement for the completion of the Work or pursue such other methods as in the CMAR's sole discretion and opinion shall be necessary or appropriate for the completion of the Work in an acceptable manner. All costs and charges incurred by the CMAR in proceeding in accordance with the preceding sentence, including attorney's fees, and all costs incurred by the CMAR in completing the Work shall be deducted from any amount due or which becomes due the Contractor: If such costs and expenses incurred by the CMAR shall be less than the sum which would have been payable under Contract Documents if it had been completed by the Contractor, then the Contractor shall be entitled to receive the difFerence, but if such costs and expenses shall exceed the sum which would have been payable under the Contract Documents, the Contractor and the Contractor's surety or sureties shall be liable to the CMAR for and shall pay to the CMAR the amount of such excess. 33.2 If the CMAR terminates the Agreement pursuant to this Article 33 and later it is determined that the Contractor had not substantially failed to perform in accordance with the terms of this Article, then the termination will be considered a termination for convenience under Article 34. ARTICLE 34. TERMINATION OR SUSPENSION BY THE CMAR FOR CONVENIENCE 34.1 The CMAR may, without .cause, order the Contractor to terminate, suspend, delay, or interrupt the Work in whole or in part for such period of time as the CMAR may determine. 34.2 If the Contractor is subsequently ordered by the CMAR to resume the Work, any cost or expenses to which the Contractor may be entitled by reason of the suspension, delay, or interruption shall be recovered by means of a Change Order in accordance with Articles 13 and 14 of these General Conditions and the Contractor's Construction Schedule and the Master Schedule shall be adjusted in accordance with Article 13 of these General Conditions. 34.3 The CMAR shall terminate the Work or portion thereof by written notice when the Contractor is prevented from proceeding with the Work as a direct result of an executive order of the President with respect to the prosecution of war or in the interest of national defense. 34.4 In the event of termination by the CMAR under this Article, the Contractor shall be entitled to receive the reasonable and documented direct costs incurred prior to termination, including the cost of materials purchased .for the Work which purchases cannot be canceled or which material cannot reasonably be used by the Contractor on other work, and the cost of closing down the Project in a safe and efficient manner, plus ten percent (10%) thereof for overhead and profit, subject to the following conditions: a) When 'the Contract is terminated before completion of all items of Work, payment shall be made for the actual number of units or items of Work completed at the applicable contract prices, or as mutually agreed for items of Work partially complete. If a mutual agreement cannot be reached, the CMAR shall have the authority to make such equitable adjustment as it deems warranted and the Final Payment shall be made accordingly. b) Reimbursement for organization of any Work and moving equipment to and from the job shall be considered when not otherwise provided for in the Contract Documents where the volume of completed Work is too small to compensate the Contractor for those expenses under unit prices. If a mutual agreement cannot be GENERAL CONDITIONS FOR CM AT RISK PROJECT 41' of 42 JUNE 2007 EDITION ~° reached, the CMAR will have the authority to make such equitable adjustment as it deems warranted and the Final Payment will be made accordingly. c) Materials obtained by the Contractor for the Work that have been inspected and accepted by the Designer and that are not incorporated in the Work shall, at the request of the Contractor, be purchased from the Contractor at the Contractor's actual cost as shown by receipted bills and actual costs records at such points of delivery as may be determined by the CMAR. d) No payment shall be made by the CMAR to the Contractor except as herein above provided. No claim for loss of anticipated profits shall be considered or allowed. e) Termination of the Contract shall not relieve the Contractor of its responsibilities for any completed portion of the Work nor shall it relieve its sureties of their obligation for and concerning any just claims arising out of the Work performed. In the event of termination or suspension by the CMAR for convenience, the Contractor shall not be entitled to any other compensation, including compensation for lost profit, lost opportunity, or any other direct or consequential cost, loss, or damage. ARTICLE 35. MINORITY BUSINESS ENTERPRISE PROGRAM 35.1 The Contractor shall at all times comply with the latest edition of the Orange County Minority Business Enterprise Policy. All documentation substantiating compliance with the requirements of this program shall be delivered to the CMAR as stipulated in the Contract Documents. A copy of the Orange County Minority Business Enterprise Policy is Appendix C hereof and is included in the Project Manual. ARTICLE 36. GENERAL 36.1 If any provision of the Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 36.2 The titles to Articles herein are for convenience only, are not substantive parts of the General Conditions, and are not to be considered in interpreting the Contract Documents. END OF GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION - CONSTRUCTION MANAGER AT RISK F:\Lisa\orangecounty\Orange County Library and Office Complex General Conditions.doc GENERAL CONDITIONS FOR CM AT RISK PROJECT 42 of 42 JUNE 2007 EDITION Abbreviated Standard ~®rm ®~Agreement between ®wner and Architect AGREEMENT made as of the first day of A~~-L1 in the year of twU thou5u~13 anti Sti?veti. (bz words, indicate day, nzo~ztlz afzd year) BETWEEN the Architect's client identified as the Owner: (Name, address ccnd other irzfornzation) This document has important County of Ornn~e legal consequences. . PltrChi3Sil7~ ~tlcj. Central Services Consultation with an attorney }3ox 8181 is encouraged with respect to Htlls'~D:~rOU~~i, NC: 2727$ its completion or modification. and the Architect: (Name, address arzd other ifzfor•»zatio~z) Corley R~3~oot lack, Inc. 2?7 Cloister Coa><rt C,~iza~l Hill, NC 27514 For the following Project: Pro~asc~3 Oratn~,e. County L'tne-r_~enty S~rvi•ces Center (Irzclzccle detailed description of Project) 501 Mc~"3owlands Drive, Hillsharough, NC 27L7$ Thy Proj~c~t ~ onsists of tht? renovation o~ t'nE~ tws~•-sto~.ry p~:ccion of the Lx:istin~ b~iilding, i"nclilciin~ an a~:~3ition ar ~~~ main f~n~ca~nc~ to ~:~ixse an elevator. (Se:~ at~ac h~=3 f~icoo~:~sa.l 1~~ der ciat~3 March ~ 2$, 2007. The Owner and Architect agree as follows. AIA Document 6151 TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American institute of Architects. All rights reserved. WARNING: This AIAm Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA®Document, 1 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are perm(tted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. ARTICLE 1 ARGHITECT'S RESPONSIBILITIES § 1.1 The services performed by the Architect, Architect's employees and Architect's consultants shall be as enumerated in Articles 2, 3 and 12. § 1.2 The Architect's services shall be performed as expeditiously as is consistent with professional sltill and care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule'for the performance of the Architect's services which may be adjusted as the Project proceeds. This schedule shall mclude allowances for periods of time required for the Owner's review and for approval of submissions by;authonties having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not except for reasonable cause, be exceeded by the Architect or Owner. S~eU :'~cLiclt? 1?_ ~ 12.1. ~':~ § 1.3 The Architect shall designate a representative authorized toact on behalf of the Architect with respect to the Project. ,; § 1:4 The services covered by this Agreement are subject to the time limitations contained in Section 11:5.1. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES S~ti ~ tL:~.ch~rl Ct27 pxoposal Ivor design s;~r_vi~~s §2:1 DEFINITION dar_~rl 3/2$/fl7 Fo•~r ~dciitititzal infoicft~arion icegaicding s~~c~ri~es. K~~. ,The Architect's Basic Services consist of those described in Sections 2:2 through 2:6 and any other services identified in Article 12 as part of Basic Services, and include normal structural, mechanical and electrical engineering services. § 2.2 SCHEMATIC pESIGN PHASE § 2:2.1 The. Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements.:with the Owner. § 2:2.2 The Architect shall provide a preliminary evaluaeion of the Owner's program, schedule and construction budget requirements, each in terms of the other subject to the limitations set forth in Section 5.2.1. ' § 2.2.3 The Architect shall review with the Owner alternative approaches to design and construction of the Project. § 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Architect shall . prepare, for approval by the Owner, Schematic Design Documents consisting of-drawings and other documents illustrating the scale and relationship of Project components. § 2.2.5 The Architect shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or similar conceptual estimating techniques. §2.3 DESIGN DEVELOPMENTPHASE § 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other docutents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. § 2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost § 2.4 CONSTRUCTION DOCUMENTS PHASE § 2.4.1 Based on the approved Design Development Doc.uinents and any further adjustments in the scope or quality of the Project or in the construction budget authorized'by`the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents cons) twig of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. § 2.4.2 The Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. § 2.4.3 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. AIA Document B151TM -1997. Gopyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. Ail rights reserved. WARNING: This AIAm Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA®Document, ,2 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 2.4.4 The Architect shall assist tl7e Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. § 2.5 BIDDING OR NEGOTIATION PHASE The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in-~~~arding and preparing contracts for construction. § 2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT Spa Ar_ Iticle 1?_, 12.2. ~~~K r § 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement coiiunences with the award of the initial Contract for Construction and erminates at the earlier of the issuance to the Owner of the final Certificate for Payment or 60 days after the date of Substantial Completion of the Work. § 2.6.2 The Architect shall provide administration of the Contract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement, ,.unless otherwise provided in this Agreement. Modifications made to the General Conditions, when adopted as part of the Contract Documents, shall be enforceable under this Agreement only to the extent that they are consistent with this Agreement or approved in writing by the Architect. ,, § 2.6.3 Duties, responsibilities and limitations of authority of the Architect„under this Section 2.6 shall not be restricted, modified or extended without written agreement of the Owner and Architect with consent of the Contractor, which consent will not be unreasonably withheld. § 2c6.4 The Architect shall be a representative of and shaIl advise and consult with the Owner during the administration of the Contract for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent`- provided in this Agreement unless otherwise modified by written amendment. § 2.6.5 The Architect, as a representative. of the Owner, shall visit the site at intervals appropriate to the stage of the Contractor's operations, or as otherwise agreed by the Owner and the Architect in Arttcle 12, (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the poi`tion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3)'to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. 'The Architect shall neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Worlc, since these are solely the Contractor's rights and responsibilities under the Contract Documents. S~~ ,.'article 12, 12.2. ~ .~Z > § 2.6.6 The Architect shall report to the Owner known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor. However, the Architect shall not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architect's negligent acts or omissions, but shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the Worlc. § 2.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. § 2.6.8 Except as otherwise provided in this Agreement or when direct communications have been specially authorized, the Owner shall endeavor to communicate with the Contractor through the Architect about matters arising out of or relating to the Contract Documents. Communications by and with the Architect's consultants shall be through the Architect. § 2.6.9 CERTIFICATES FOR PAYMENT . - § 2.6.9.1 The Architect shall review and certify the amounts due the Contractgr and shall issue certificates in such amounts. AIA Document B151TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA®Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA's Document, 3 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 2.6.9.2 The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Worlc as provided. in Section 2.6.5 and on the data comprising the Contractor's Application for Payment, that the Work has progtessed to the point indicated and that, to the best of the Architect's knowledge,. information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject (h) to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and inspections, (3) to correction of min'gr-':deviations from the Contract Documents prior to completion, and (4) to specific qualifications expressed by the Architect. § 2.6.9.3 The issuance of a Certificate for Payment shall not be a representation th~3t the A> chitect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity-oF:ahe Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 2.6.10 The Architect shall have authority to reject Worlc that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have authority to require inspection or testing of the Worlc in accordance with the provisions of the Contract Documents, whether or not such Worlc is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Worlc. § 2.6.11 The Architect shall review and approve or take other- appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be oaken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor:,oi separate contractors, while allowiulg sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducfed''for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or pet~formance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures: The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 2.6.12 If professionah design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Architect shall specify appropriate performance and design criteria that such services must satisfy. Shop Drawings and other submittals related to the Work designed or certhfhed by the design professional retained by the Contractor shall bear such professional's written approval when submitted to the Architect. The Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals. § 2.6.13 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Sections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and tnay authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are consistent with the intent of the Contract Documents. § 2.6.14 The Archhtect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, shall receive from the Contractor and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor, and shall issue a final Certificate for Payment based upon a final inspection indicating the Wotk coiiplies with the requirements of the Contract Documents. - § 2.6.15 The Architect shall interpret and decide matters concerning performance of the Owner and Contractor under,. and requirements of, the Contract Documents on written request of either fhe''Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. AIA Document 8151 TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA'~Document is protected by U.S. Copyright law and International Treaties. Unauthorized reproduction or distribution of this AIA'DDocument, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. 4' Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 2.6.16 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When malting such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, sirti•1-tmt-sirotiv- par-t~kt°y-to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. § 2.6.17 The Architect shall render initial decisions on claims, disputes or other matters in question between the Owner and Contractor as provided in the Contract Documents. However, the Architect's decisions'on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Docuuments. § 2.6.18 The Architect's decisions on claims, disputes or other matters in question,between the Owner and Contractor, except for those relating to aesthetic effect as provided in Section 2.6,1.7,: shall be subject to mediation and arbitration as provided in this Agreement and in the Contract Documents. ARTICLE 3 ADDITIONAL SERVICES Son ~rt~~ht~d Cft7 ~~cc~~sat foe dosign sa~cvicos d~l:eri 3/'28/07 § 3.1 GENERAL fog adt3itional inforlnfikion 'icogar_din~ sarvioes. ~''~~. § 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances , beyond the Architect's control, the Architect shall notify the Owner prior to commencing such services. If the Owner deems that such services described under Section 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the Owner indicates in writing that all or part of such Confirigent Additional Services are not required, the Architect shall have no obligation to provide those services. -S~~ '~~cLiole 12, 12.3. i~.FZ . § 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES § 3.2.1 If more extensive representation at the site than is described in Section 2.6.5 is required, the Architect'shall provide one or more Project Representatives. to assist in carrying out such additional on-site responsibilities. § 3.2.2 Project Representatives shall'be selected, employed and directed by the Architect, and the Architect shall be compensated therefor as agreed by the Owner and Architect. The duties, responsibilities rind limitations of authority of Project Representatives shall be as described in the edition of AIA Document B352 curient as of the date of this Agreement, unless otherwise agreed. § 3.2.3 Through the presence at the site of such Project Representatives, the Architect shall endeavor to provide. further protection for the Owner against defects and deficiencies in the Worit, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. § 3.3 CONTINGENT ADDITIONAL SERVICES § 3.3.1 Malting revisions in drawings, specifications or other documents when such revisions are: .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; .2 required by the enactment or revision of codes, laws or regulations subsequentto the preparation of such documents; or .3 due to changes required as a result of the Owner's failure to render decisions in a timely manner. § 3.3.2 Providing services required because of significant changes in the Project inchlding, but not limited to,-size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction, except for services required under Section 5.2.5. § 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, evaluating Contractor's proposals, and providing other services in connection with Change Orders and Construction Change Directives. § 3.3.4 Providing services in connection with evaluating substitutions proposed by the Contractor and making. subsequent revisions to Drawings, Specifications and other documentation resulting therefrom. § 3.3.5 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Worh. AIA Document 8151 T"~ - 7997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA` Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, rJ or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Worlc of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. § 3.3.7 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Worlc. § 3.3.8 Providing services in connection with a public hearing, a dispute resolution proceedinb or a`legal proceeding except where the Architect is party thereto, § 3.3.9 Preparing documents for alternate, separate or sequential bids or providirtg' services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase. § 3.4 OPTIONAL ADDITIONAL SERVICES § 3.4.1 Providing analyses of the Owner's needs and programinitg the requirements of the Project. § 3.4.2 Providing financial feasibility or other special studies. §8.4.3 Providing planning surveys, site evaluations or comparative studies of prospective sites. § 3.4.4 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. § 3.4.5 Providing services relative to future facilities, systems and-.equipment. § 3.4.6 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. § 3.4.7 Providing services to verify the accuracy of drawings or other information furnished by the Owner. § 3.4.8 Providing coordination of construction performed by separate contractors or by the Owne,i-'s own forces and coordination of services required in connection with construction performed and equpment;supplied by the Owner. § 3.4.9 Providing services in connection with the work of a construction mana`e;or separate consultants retained by the Owner. - § 3.4.10 Providing detailed estimates of Construction Cost. § 3.4.11 Providing detailed quantity surveys or inventories of material, equipment and labor. § 3.4.12 Providing analyses of owning and operating costs. § 3.4.13 Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. § 3.4.14 Providing services for planning tenant or rental spaces. § 3.4.15 Malting investigations, inventories of materials°or equipment, or valuations and detailed appraisals of existing facilities. § 3.4.16 Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked-up punts ,drawings and other data furnished by the Contractor to the Architect. § 3.4.17 Providing assistance in tfie utilization of equipment or systems such as testiriQ, adjusting and balancing, preparation of operation and"maintenance manuals, training personnel for operation and maintenance, and consultation during operation. AIA Document B151T~ -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. Ali rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA®Document, 6 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more titan 60 days after the date of Substantial Completion of the Worlc. § 3.4.19 Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. § 3.4.20 Providing any other services not otherwise included in this Agreement or not custom -ily. furnished in accordance with generally accepted architectural practice. ARTICLE 4 OWNER'S RESPONSIBILITIES § 4.1 The Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner's objectives, schedule, constraints and criteria, including spacerequirements and relationships, flexibility, expaldaUility, special equipment, systems and site requirements. The Owner shall furnish to the Architect, within. IS days after receipt of a written request, information necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights. § 4.2 The Owner shall establish and periodically update an overall budget for the Project, including the Construction Cost, the Owner's other costs. grid reasonable contingencies related to all of these costs. § 4.3 The Owner;shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such designated representative shall render decisions in a timely manner pertaining to documents submitted by the Architect`in order to avoid unreasonable delay in the orderly and'sequential progress of the Architect's services. § 4.4.The Owner shall furnish. surveys to describe physical c~iaracteristics, legal limitations and utility locations for the site .of the Project, and a written legal description of the srte' The surveys and legal information shall include;;as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drarnage; ~.: rights-of--way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations,' dimensions and necessary data' with respect to existing buildings, other improvements and ai'ccs; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 4.5 The Owner shall furnish the services of geotechnical engineers when such services are requested by the Architect. Such services may include but are not limited to test borings, test pits, deteriunations of soil bearing values, percolation tests,>evaluations of hazardous materials, ground corrosion tests and resistivity tests, including necessary operations for anticipating strbsoil conditions, with reports and appropriate recommendations. § 4.6 The Owner shall furnish the services of consultants other than those designated in Section 4.5 when such services are requested by the Architect and are reasonably required by the scope of the Project. § 4.7 The Owner shall furnish structural, mechanical, and chemical tests; tests for air and water polltrtion; tests for hazardous materials; and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. § 4.8 The Owner shall furnish all legal, accounting and insurance services that may be necessary at any time for the Project to meet the Owner's needs and interests. Such services shall include auditing services the Owner may require to verify the Contractor's Applications for Payment or to aseei•Cain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. § 4.9 The services, information, surveys.: and reports required by Sections 4.4 through 4.8 shall be,fnrnishedat the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness th,~reof. § 4.10 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect's Instzuments of Service. AIA Document 8151Tr^ -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA®Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA®Document, 7 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mall The American Institute of Architects' legal counsel, copyright@aia.org. ARTICLE 5 CONSTRUCTION COST § 5.1 DEFINITION § 5.1.1 The Construction Cost shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project designed or specified by the Architect. § 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials:ftzrnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor, plus a reasonable allowance for their overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work. '` § 5.1.3 Construction Cost does not include the compensation of the Ai~cFiYtect and the Architect's consultants, the costs of the land, rights-of-way and financing or other costs that are the responsibility of the Owner as provided in Article 4. § 5.2 RESPONSIBILITY FOR CONSTRUCTION COST § 5.2.1 Evaluations of the Owner's Project budget, the preliminary estimate of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Architect, represent the Architect's judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's Project budget or from. any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. "' § 5.2.2 No fixed limit of Construction Cost shall be estabIishad~ as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by;the parties hereto. If such a fixed limit has been established, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to deternunc what materials, equipment, component systems and (ypes of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope'of the Project and to include in the Contract Documents alternate bids as may be necessary to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the ContracUSun~ occurring after execution of the Contract for Construction. § 5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry. § 5.2.4 If a fixed limit of Construction Cost (adjusted as provided in Section 5.2.3) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall: .1 give written approval of an increase in such fixed limit; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 8.5; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Costa § 5.2.5 If the Owner chooses to proceed under Section 5.2.4.4, the Architect, without additional compensation, shall modify the documents for which flee Architect is responsible; under this Agreement as necessary to comply with the' fixed limit, if established as a condition of this Agreement~~`he modification of such documents without cost to the Owner shall be the limit of the Architect's responsibility:.tar-der this Section 5.2.5. The Architect shall be entifled compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. ~~ ~n3 ~s t'le~+n~rl"r~sc~nable by tht' t~cchi:rPr r_. ~c;; ~ ; ARTICLE 6 USE OF ARCIiITECT'S INSTRUMENTS OF SERVICE § 6:1 Drawings, specifications and other documents, including those in electronic forni~ prepared by the Architect and the Architect's corisultalats are Instruments of Service for use solely with respect to his Project.'The Architect and the Architect's consultants'shall be deemed the authors and owners of their respecrwe Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights. AIA Document B751TM -1997. Copyright ©1974, 1978, 1987; and 1997 by The American Institute of Architects. Ail rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA' Document, $ or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 6.2 Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to reproduce the Architect's Instruments of Service solely for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect's consultants consistent with this Agreement. Any termination of this Agreement prior to completion of the Project shall terminate this license. Upon such termination, the Owner shall refrain from making further reproductions of Instruments of Service and shall return to the Architect within seven days of termination all originals and reproductions in the Owner's. Possession or control. If ::and upon the date the Architect is adjudged in default of this Agreement, the foregoing license shall be deemed terminated and replaced by a second, nonexclusive license permitting the Owner. to authorize other similarly credentialed design professionals to reproduce and, where permitted by law, to make changes, corrections or additions to the Instruments of Service solely for purposes of completing, using. and nantairung the Project. § 6.3 Except for-the licenses granted in Section 6.2, no other license~or right shall be deemed granted or implied under this Agreement: The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. However, the Owner shall be permitted to authorize the Contractor; Subcontractors, Sub-subcontractors and material or equipment suppliers to reproduce :applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by license granted in Section 6:2. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Architect and the Architect's consultants. The Owner shall not use the Instruments of Service for future additions or alterations to this Project or for other projects, unless the.,Owrer obtains the prior written agreement of the ,.. Architect and the Architect's consultants. Any unauthorized use of the instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architecf's''consultants. § 6.4 Prior to the Architect providing to the Owner any ltistruments of Service in electronic form or the Owner providing to the Architect any electronic data for incorporation into the Instruments of Service, the Owner and the Arcliitei;t'shall by separate written agreement set forth thespecific conditions governing the format of such Instruments of Service or electronic data, including any special limitations or licenses not otherwise provided in this Agreement. ARTICLE 7 DISPUTE RESOLUTION § 7.1 MEDIATION ,. , m~;i' ~'~`' § 7.1.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shad be subject to mediation as a condition precedent to arbitration or the institution of legal or'lequitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by arbitration. ~~ if Fc; § 7.1.2 The Owner and A 'hitect shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, ~~ the parties mutually agree eilaer-t~ise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing witiz the other party to this Agreement and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § 7.1.3 The parties shall share tite mediator's fee and any:filiiig fees equally. The mediation shall be held in the place where the Project is located, unless another location is utually agreed upon. Agreements reached in mediatio~i sizall be enforceable as settlement agreements in any court,having jurisdiction thereof. ~ 7:2 ARBLT.B TIO~__ N __ d` ° ~' ~ •` § 7.2.1 Any claim, dispute o'r~titer-matter in question arising out of or- related to this Agree.~entshall-be-subj~ecria'"- arbitration. Prior to arbitration, the~parties s_.1~'ilLend ae~-vo- -r to esQl~isput be.~. nei dration in accordance with .Sect-ion-~: k:----m---~"_..-.-`;...' _"'.'-,--~,-- AIA Document B151TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. Aii rights reserved. WARNING: This AIA®Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA°Document, g or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. ~§ .2.2 Claims, disputes and other matters in question between the parties that are not resolved by mediation shall deci by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Co uction Industry A> b' ation Rtiles of the American Arbitration Association currently in effect. The demand fo - itration shall be filed in writin 'th the other party to this Agreement and with the American Arbitration Ass tion. § ?.2.3 A demand for arbitratt shall be made within a reasonable time after the clai lspute.or other matter in question has arisen. In no event sha he demand for arbitration be made after t ate when trtstitution of legal or equitable proceedings based on such cla>t dispute or other matter in ques i n would be barred by the applicable statute of limitations. § 7.2.4 No arbitration arising out of or relating to this A r~ nt shall include, by consolidation or joinder or in any other manner, an additional person or entity not a ~artto this A went, except by written consent containing a specific reference to this Agreement and signed~by the Owner; Ai-chi nd any other person or entity sought to be joined. Consent to arbitration involvingan'additional person or entity shall n onstitute consent to arbitration of any claim, dispute or other matter m ~e~on not described in the written consent or w> person or entity not named or described therein. The fore 'rfg agreement to arbitrate and other agreements to arbitrate ' h an additional person or entity duly consented t y parties to this Agreement shall be specifically enforceable in accor ce with applicable law in any court havi ~, Iutisdiction thereof. § 7.2~ -te award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in .~ cordance with applicable law in any court having jurisdiction thereof: § 7.3 CLAIMS FOR CONSEQUENTIAL DAMAGES The Architect and Owner waive consequential damages for claims, disputes or other matters in question arising out, of or relating to this Agreement. This mutual waiver. is applicable, without limitation, to all consequential damages du~;:ao either party's termination in accordance with Article 8.' ARTICLE 8 TERMINATION OR SUSPENSION § 8.1 If the Owner fails to make payments to the Architect in accordance with this Agreement; suc11 failure shall be considered substantial nonperformance and cause for termination or, at the Architect's,opr~on cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services, prior to suspension of services, the Architect shall give seven days' written notice to the Owner. Im`tlie'event of a suspension of services, the. Architect shall have no liability to the Owner for delay or damage caused theOwner because of such suspension of services. Before resuming services, the Architect shall be paid ali sums due prior to: suspension and any expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § $.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 8.3 If the Project is suspended or the Architect's services are suspended for more than 90 consecutive days, the Architect may terminate this Agreement by giving not less than seven days' written notice. § 8.4 This Agreement may be terminated by either party'upoia .not less than seven days' written notice should the.other party fail substantially to perform in accordance with.tlleCerms of this Agreement through no fault of the party' initiating the termination. § 8.5 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect for the Owner's convenience and. ~~~ithout-cause. § 8.6 In the event of termmafion not the fault of the Architect, the Architect sl-tall Ue compensa"ted for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Section 8.7. AIA Document B151TM -1997. Copyright©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, 1 O or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 8.7 Termination Expenses are in addition to compensation for the services of the Agreement and include expenses directly attributable to termination for which the Architect is not otherwise compensated, plus an amount for the Architect's anticipated profit on the value of the services not performed by the Archtect. ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 This Agreement shall be governed by the law of the principal place of business of the Archttect,: unless otherwise provided in Article 12. § 9.2 Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agrecn~ent. § 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations commence to run any later than the date when the Architect's services are substantially completed. § 9.4 To the extent damages are covered by property insurance during construction, the Owner and Architect waive all xights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the,d~te'of this Agreement. The Owner or the Architect, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. § 9.5 The Owner and Archtect, respectively, bind thcroselves, then partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with xespect to all covenants of this Agreement. Neither the Owner nor the Archttect'shall:assign this Agreement without the written consent of the other, except that the Owner may assign this Agreemerit'to an institutional lender providing financing for the Project. In such event, the lender shall assume the Owner's'rights and obligations under this Agreement. The Architect shall execute all consents reasonably required to facilitate such assignment. § 9.6 Tlus Agreement represents the entire and integrated agreement between_lhe,Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. § 9.7 Nothing contained in this Agreement shall create a contractual relationship~with or a cause of action in favor of a third party against either the Owner or Architect. § 9.8 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. § 9.9 The Architect shall have the right to include photographic or artistic representations of the design of the Project among. the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential ,oi~ proprietary. The Owner shall provide professional. credit for the Architect in the Owner's promotional materials for the Project. § 9.10 If the Owner requests the Arclitec.t: o execute certificates, the proposed language of suclr,certificates shall be submitted to the Architect for review-at least 14 days prior to the requested dates of executiUn.;,Thc Architect shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. AIA Document 6151 TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, 1,~ or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. ARTICLE 10 PAYMENTS TO THE ARCHITECT § 10.1 DIRECT PERSONNEL EXPENSE Direct Personnel Expense is defined as the direct salaries of the Architect's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes,and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee retirement plans and similar contributions. Sew 31:t~rhr~l. CR7 ~-r_op~sal fog cic~sign services ~at_~~ :3/28/07 § 10.2 REIMBURSABLE EXPENSES for ~cldiltwional infoc+nnton iregaicdn~ s~cvires. ~;/.~, §.10.2:1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and consultants directly related to the Project, as identified in the following Clauses: .1 transportation in connection with the Project, authorised out-of--town travel and subsistence, and electronic communications; .2 fees paid for securing approval of authorities having jurisdiction over the Project; .3 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service; :4 expense of overtime work requiring higher than regular rates if authorized in advance by the Owner; .5 renderings, models and mock-ups requested by the Owner; .6 expense of professional liability insurance dedicated exclusively to this Projector the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Architect and the Architect's consultants; .7 reimbursable expenses as designated in Article 12; .8 other similar direct Project-related expenditures. § 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES § 10.3.1 An initial payment as set forth in Section.a 1:1 is the minimum payment under this Agreement. § 10.3.2 Subsequent payments for Basic Services 'shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of ser-vice, on the basis set forth in Section 11.2.2. § 10:3.3 If and to the extent that the time initially established in Section 11.5.1 of this Ageement is exceeded or extended through no fault of the Architect; compensation for any services rendered`»during the additional period of time shall be computed in the manner set forth in Section 11.3.2. § 10.3.4 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 11.2.2, based on'(1) the lowesEbona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. § 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. § 10.5 PAYMENTS WITHHELD No deductions shall be made from the Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of-the cost of changes in the Work other than those for which the Architect has been adjudged to be liable. § 10.6 ARCHITECT'S ACCOUNTING RECOR..DS - Records of Reimbursable Expenses and expenses pertaining to Additional Services and services, pei-formed on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to the Owner or the Owner's authorized representative at mutually convenient times. AIA Document 8151 TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA~'Document is protected by U.S. Copyright Law and International Treaties: Unauthorized reproduction or distribution of this AIA`D Document, ,~ 2 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. ARTICLE 11 BASIS OF COMPENSATION. The Owner shall compensate the Architect as follows: § 11.1 An Initial Payment of N/A ($ . ~/A )shall be made upon execution of this Agreement and credited to the Owner's account at final payment. § 11.2 BASIC COMPENSATION § 11.2.1 For Basic Services, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows: (bzsert basis of co»ipe~asatio~a, i~acluding stipulated su»zs, multiples or perce~ztnges, ii~zd identify phases to which particular raiethods of cornperasatio~a apply, if ~zecessary.) B~a.sis U.fL canpe9lsation is s stinulated:_ Burn of n.int't~y-ni.nc~ ~hc~usatzd dollars ($99,00'0.00). Des.i~n .and ['nnstcuc t:ion Doct~nent Ph:~se: $69,300 l3iddin~ ~has:~: 4,950 Cons tr~ur tion .Adrninis l:ra Lion Przas;~ : 24, 750 $99,x00 == 100% § 11.2.2 Where compensation is based on a stipulated sum'o>• percentage of Construction Cost, progress payments for Basic Services in each phase; shall total the following percentages of the total Basic Compensation payable: (bzsert additio~aal phases as ceppropriate. ) Sep breo.?ccio~an t~h:~ve. Schematic Design: percent ( %) Design Development Phase: percent ( _' '%)` Construction Documents Phase: percent (. %) Bidding or Negotiation Phase: percent. ( %) Construction Phase: percent ( %) Total Basic Compensation one hundred percent ( 100.00% ) Sew ArLirle 1?_, 12.3, for list ol: Additional § 11.3 COMPENSATION FOR ADDITIONAL SERVICES Se-r_vioes an~3 costs of each s:~r~rice. kph . § 11.3.1 For Project Representation Beyond Basic Services, as described in Section 3.2, compensation shall be computed as follows: Frinc~pal's TimL: $~.?0/nour Arch_iterr°s Time: $ 85/nour En~i.nt~:~r's Tima: ~$110/nour CAOD/Drs~tin~ Time: $ o5/nour Constrt~t~r_ion Adrn:inistrarion: $ 75/nour Ol~htr_ efnL~loyees n r f ~ ~P of 2.75 times ci:iret, ~ hourly wade . -_ AIA Document B151TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. Ail rights reserved. WARNING: This AIA®Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA`D Document, 13 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright v(olations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. § 11.3.2 For Additional Services of the Architect, as described in Articles 3 and 12, other than (1) Additional Project Representation, as described in Section 3.2, and (2) services included in Article 12 as part of Basic Services, but excluding services of consultants, compensation shall be computed as follows: (Insert basis of coczzpensatiozz, including rates and czudtiples of Direct Persomzel Expense for Principals and employees, mzd identify PriJZCipals and classify employees, if regccired. Identify specific services to which particular methods of compensation apply, if necessary.) s~~ ~t.3.i ~.la:~v~. § 11.3.3 For Additional Services of Consultants, including additional structural, mechanical and electrical engineering services and those provided under Section 3 4 I9 or zdentified in Article 12 as part of Additional Services, a multiple of one anti ~/10 ( ~- • 2 ') times the amounts billed to the Architect for such services'. (Identify specific types of consultants icl t1 r•ticle 12, if redccired.) § 11.4 REIMBURSABLE EXPENSES For Reimbursable Expenses, as described in Section 10.2, and any other items included in Article 12 as Reimbursable Expenses, a multiple of c~nt3 ( 1.0 ) tinles'the'expenses incurred by the Architect, the Architect's employees and consultants directly related to the Project. § 11.5 ADDITIONAL PROVISIONS § 11.5.1 If the Basic Services covered by this Agreement have not been completed within ~L~t~Un ( ~.5 )months of the date hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Sections 10.3.3 and 11.3.2. § 11.5.2 Payments are due and payable tW~n~y (20 )days from the date of the Architect's invoice. Amounts unpaid tWPnLy-fitT~ ( 2~ )days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (bzsert rate of interest agreed upon.) Six ncjrcQnt (S'r) (Usury laws and reduirenzents under the Feciernl Trutlz in Lending Act, similar state and local conseei~2er ey-edit laws and other regulations at tJze Owner's and Architect's principal places of business, the location 'of the Project atzd elsewhere may affect t/ie validity, ~f this provision. Specific legal advice should be obtaiz2ed with ~'espect to deletions or modifications, arzd also regarding regicirenzetzts such as written disclosures or waivers,) § 11.5.3 The rates and rmtltiples set forth for Additional Services shall be adjusted in accordance with the normal salary review practices of the Architect. AIA Document 8151 TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAmDocument is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA®Document, 14 or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. ARTICLE 12 OTHER CONDITIONS OR SERVICES (Insert descr•iptiorzs of other services, identify Additional Services included witJzin Basic Corazpensatiorz aazd modifications to the payment and compensation terms included in tJzis Agreement.) S~~ ~r t~cherl !'~r_ tide 1?_ (ua~e 16) . 5~:~ ~ t tac'ne~3 ~xo~os~.l let tec da r_~~ ;3/Z8/U7 . This Agreement entered into as of the day and year first written above. OWNER ARCHITECT ~' ~: . CAUtzty ~f t?.r;~n„~ ,'', Cooley RedEoot 7atk, Irtc. 'gnatz K~rnie~h R. Red~oot, AZA, Vice President (Printed rzarne and title) CAUTION: You should sign an original AIA Contract Document, on which this text appears in RED. An original assures that changes will not be obscured. AIA Document B151TM -1997. Copyright ©1974, 1978, 1987, and 1997 by The American Institute of Architects. Ali rights reserved. WARNING: This AIA° Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA° Document, 15 or any portion of it, may result in severe civil and criminal penalties, and will be, prosecuted to the maximum extent possible under the law. Purchasers are permitted to reproduce ten (10) copies of this document when completed. To report copyright violations of AIA Contract Documents, a-mail The American Institute of Architects' legal counsel, copyright@aia.org. S l//~' {GIiLI. y G~ (Printed n e and title) AIA Document B151-1997 page 16 Orange County Emergency Services Center ARTICLE 12 OTHER CONDITIONS OR SERVICES 12.1 The Designer's ability to adhere to the schedule proposed by the Owner is predicated upon timely receipt of reviews and approvals from the Owner, authorized agencies or agents of the Owner, consultants or contractor hired by the Owner and local or state agencies having jurisdiction over the project. It is CRTs understanding that Resolute Building Company will act as the CM-at-Risk for the project and that the latest schedule provides nvlestone dates which lead to a proposed completion date within the third quarter of 2008. 12.2 CONSTRUCTION PHASE: During the construction phase of the work, the term "INSPECTION" shall be defined as follows: "Inspection shall consist of visual observations of materials, equipment or construction work for the purpose of ascertaining that the work is in substantial conformance with the Contract Documents and with the design intent. Others shall not rely upon such inspection as acceptance of the work, nor should it be construed to relieve the Contractor in any way from the obligations and responsibilities the Contractor assumes under the construction contract. Specifically, but without limitation, inspection by the Design Professional shall not require the Design Professional to assume responsibilities for the means and methods of construction, nor for safety on the jobsite." Add the following paragraph to Article 2.6.5: "Site visits shall be made weekly, for the estimated eight (8)-month construction period and are included under Basic Services. If additional trips are required for whatever reason, these trips shall be deemed as AdditionalServices and will be billed at hourly rates (see 11.3.1). If the completion date of the project is extended, Additional Services.will be billed at hourly rates." 12.3 ADDTITONAL SERVICES: A. .Submittals to the Town of Hillsborough and the Town of Iiillsborough's Board of Adjustment for review and approval (one submittal packet and attendance atone meeting): $4,800 B. Furniture selection and interior design can be provided on an hourly basis. Total fee for Additional Services: ,; $4,800 See Article 11.3 for compensation rates for Additional Services riot listed above. ' ` C. Services not included: - Legal fees - Geotechnical investigation - Town permitting or approval process fees - Renderings or models - Construction Administration beyond Basic Services. - Meetings with Board of Adjustment beyond those scheduled under Additional Services. - Renovations to the existing building beyond those outlined in Basic Services. - Testing of materials during construction period. - Asbestos survey or lead paint removal from existing building. 0607-con.12