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ORANGE
COUNTY AGREEMENT FOR CONSTRUCTION MANAGER AT RISK
NORTH SERVICES
CAROLINA
This AGREEMENT is made and effective on this date:
BETWEEN The Owner:
ORANGE COUNTY
And the Construction Manager {hereinafter referred to as the "CM"):
TELESIS CONSTRUCTION MANAGEMENT, LLC
For services in connection with the Project known as:
The Orange County two story Public Library and three story Office Building located an Margaret Lane in
Hillsborough, North Carolina, as further described in Article 2
For which the Designer is:
Brockwell Associates, Inc., in conjunction with Gardner & McDaniel, PA, Engineered Designs, Inc. and
Summit Consulting Engineers, PLLC, as sub-consultant to Brockwell Associates, Inc.; and Phillip K. Barton,
Library interior space planner.
The Owner and CM, in consideration of their mutual covenants herein, agree asset forth below:
TABLE OF CONTENTS
ARTICLE 1 -RELATIONSHIP OF THE PARTIES ......................................................................................... 4
1.1 Owner and Construction Manager
1.2 Owner and Desiqner
1.3 CM and Contractors
1.4 Relationship of the CM to the Desiqner
ARTICLE 2 -PROJECT DEFINITION .......................................................................................................... 4
ARTICLE 3-CONSTRUCTION MANAGER'S SERVICES ................................................................................ 4
3.1 CM Services
3.2 CM Personnel
3.3 Construction Management Plan
3.4 Consultant Selection
3.5 Time Management
3.6 Cost Management
3.7 Management Information System (MIS)
3.8 Design Phase Services
3.9 Procurement Phase
3.14 Construction Phase
3.11 Post Construction Phase
3.12 Additional Services
ARTICLE 4 - TIME FOR PERFORMANCE .................................................................................................... 15
4.1 Duration
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 GM
4.14 Work by Owner
4.11 Force Maieure
4.12 Notice
4.13 Weather Delays
4.14 Damages for Delay
4.15 Liquidated Damages
ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 18
5.1 Owner Changes
ARTICLE 6 -OWNER'S RESPONSIBILITIES ............................................................................................ ... 18
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 Drawings and Specifications
6.14 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 CM
ARTICLE 7 -GUARANTEED MAXIMUM PRICE AND PAYMENT .................................................................... 19
7.1 Guaranteed Maximum Price
2
7.2 Cost of the Work
7.3 Adiustmentstothe Guaranteed Maximum Price
7.4 Fixed Fee and General Conditions Gosts
ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 22
8.1 CM's Liability Insurance
8.2 Builder's Risk Insurance
8.3 indemnity
ARTICLE 9 -TERMINATION AND SUSPENSION ......................................................................................... 24
9.1 Termination for Convenience
9.2 Termination for Default
9.3 Additional Termination Provisions
9.4 Suspension
ARTICLE 10 -DISPUTE RESOLUTION ....................................................................................................... 26
ARTICLE 11 -ADDITIONAL PROVISIONS .................................................................................................. 26
11.1 Confidentiality
11.2 Signs
11.3 Limitation and Assignment
11.4 Minoritv 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
ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS ......................................................... 27
12.1 Guaranteed Maximum Price
Appendix A -Dispute Resolution
Appendix B -List of Cost Elements [not used]
Appendix C -Orange County Minority Business
Enterprise Policy
Appendix D -Divisions of the Work for Guaranteed Maximum Price [not used]
Appendix E -- Project and Construction Budget
Appendix F -- Master Schedule
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ARTICLE 1
RELATIONSHIP OF THE PARTIES
1.1 Owner and Construction Manager
The CM and the Owner shall pertorm as stated in this
Agreement and each accepts the relationship between them
that is established by this Agreement.
The CM covenants with the Owner to furnish professional
construction management services during the Project. In broad
terms, under this Agreement, the CM will pertorm construction
services, including value engineering reviews and project
management, and field supervision, and shall use its best
efforts to see to it that the Work of the Project is done in a
manner consistent with the interests of the Owner, and in
conformity with the Contract Documents, 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 Desianer
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 CM and Contractors
The CM 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 CM.
1.4 Relationship of the CM to the Desianer
In providing construction management services described in
this Agreement, the GM shall maintain a working relationship
with the Designer. The Designer is solely responsible for the
Project design and shall pertorm in accordance with the
Designer agreement with the Owner and nothing in this
Agreement shall be construed to mean that the CM is
responsible for the design of the Project or that the CM
assumes any of the contractual or customary duties of the
Designer or any other persons or parties not specified by this
Agreement. The CM 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 pertormed under this Agreement.
The Project name and location is the Orange County two story
Public Library and three story Office Building located on
Margaret Lane in Hillsborough, North Carolina. The Project is
intended for use as a public library and a County office building
as described in the Agreement of Intent between the Owner
and the GM, dated November 2, 2046 (the "Agreement of
Intent"), the Orange County Office and Library Complex project
report last updated June 15, 2006 and all site plan and related
documents submitted to the Town of Hillsborough a part of the
Town of Hillsborough approval of the Project and as those
documents are or will fie modified to conform to Project
approvals obtained by the Town of Hillsborough.
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, Addenda, Change Orders, Field
Directives, Approved Submittals and Product Data incorporated
into the Contract Documents.
ARTICLE 3
CONSTRUCTION MANAGER'S SERVICES
3.1 CM Services
The CM shall perform the Services described herein. The
sequence in which they are provided shall be generally as set
forth in the approved Master Schedule.
3.2 CM Personnel
The services to be provided by the CM under this Agreement
shall be pertormed by personnel identified by the CM, and
approved by the Owner, before commencing services. The
4
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.
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 CM 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 GM shall not employ any
individual to perform the functions of any approved personnel
without the advance approval of the Owner, which approval
shall not be unreasonably withheld. The GM shall not, for so
long as any approved person is employed by the CM, change
such person without the Owner's prior written approval, which
shall not be unreasonably withheld. If the Owner becomes
dissatisfied with the quality or timeliness of the services
rendered by any approved person, the CM shall promptly
remove such person and recommend a replacement. If any
approved person ceases employment with the CM, or if the
Owner requests the removal of any such person, then the CM
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. Any replacement
responsible person must be approved by the Owner prior to
commencing pertormance of any services for the Project, which
approval shall not be unreasonably withheld. The CM shall
bear, at its own expense and without reimbursement by the
Owner, all costs associated with replacing, for any reason, any
approved personnel. The CM 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 CM's Proiect Representative
The CM shall designate a Project Representative who has the
authority to act on behalf of the GM 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 CM. 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 construction of the
Project.
3.2.3 CM's Employees
None of the persons employed by the CM shall be considered
employees of the Owner. The CM 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 its employees.
3.3 Construction Management Plan
Within thirty (30) days after execution of this Agreement, the
CM 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 CM 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 CM shall consider the
Owner's schedule, budget, and design requirements for the
Project. The Construction Management Plan shall include a
description of the various bid packages recommended for the
Project and a preliminary Master Schedule. 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 CM 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.
3.4.1 Consultant Contract Preparation
If requested by the Owner, the CM 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 CM shall conduct or assist the
Owner in conducting orientation sessions during which the
5
Consultants shall receive information regarding the Project
scope, schedule, budget, and administrative requirements.
3.5 Time Management
The CM 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 CM
shall prepare a preliminary Master Schedule for the Project.
The preliminary 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 CM
shall submit the Master Schedule to the Owner for preliminary
acceptance.
3.5.2 Updates and Revisions to Master Schedule
As necessary throughout the Project, the CM may make
revisions to the Master Schedule. 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 CM shall update the Master
Schedule and distribute copies to the Owner and Designer
monthly.
3.5.3 Design Phase Milestone Schedule
[Not Used.]
3.5.4 Pre-Bid Construction Schedules
Prior to transmitting Contract Documents to bidders, the CM
shall cause to be prepared aPre-Bid Construction Schedule for
the Project and make the schedule available to the bidders
during the Procurement Phase. The CM 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 Contractors' Construction Schedule
The GM shall provide a copy of the Master Schedule to the
bidders. As part of the notice of award of each contract, the
CM 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.
3.5.6 Master Schedule. After all bids are accepted and all
Contractors have executed their contracts for construction, the
CM shall cause to be prepared and provide to each Contractor
a Master Schedule pursuant to which each Contractor will
perform its division of the Work unless and until revised.
3.6 Cost Management
The CM 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 CM and the Owner as set
forth herein.
3.6.1 Construction Market Survev
In accordance with the Construction Management Plan, the
CM 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 Proiect and Construction Budget
Based on the Construction Management Plan and the
Construction Market Survey, if needed, the CM shall prepare a
Project and Construction Budget based on separate divisions
of the Work required for the Project and shall identify
contingencies for design and construction. The CM shall submit
the Project and Construction Budget to the Owner for
acceptance. If the CM 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 GM
shall make recommendations to the Owner for such services,
with an explanation of why the GM 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
[Not Used.]
3.6.4 Cost Control
6
[Not Used.]
3.6.5 Proiect and Construction Budget Revision
In the event the CM and the Owner concur the Guaranteed
Maximum Price is likely to be exceeded because of any of the
grounds upon which the CM has the right to seek an
adjustment to the Purchase Price as provided in the Agreement
of Purchase and Sale (Library Building) and or the Agreement
of Purchase and Sale (Office Building), or the Owner's Interior
Upfit Allowance is exceeded, the CM 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
In the event the CM and the Owner concur the Guaranteed
Maximum Price is likely to be exceeded because of any of the
grounds upon which the CM has the right to seek an
adjustment to the Purchase Price as provided in the Agreement
of Purchase and Sale (Library Building) and or the Agreement
of Purchase and Sale (Office Building), or because the Owner's
Interior Upfit Allowance is exceeded, the CM 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 CM 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 CM.
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 CM 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.
The CM shall, in participation with the Contractors, determine a
Schedule of Values for each of the construction contracts or, if
the entirety of the Work is to be performed by a single prime, a
consolidated schedule of values. 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 CM 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 CM. The CM
shall then forward a request for proposal to the appropriate
Contractor (or Contractors), accompanied by technical
Drawings and Specifications prepared by the Designer. fn
response to the request for a proposal, the Contractor shall
submit to the GM for evaluation detailed information concerning
the costs and time adjustments, if any, necessary to perform
the proposed change order work. The CM shall review the
Contractor's proposal, shall discuss the 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 CM
shall present its findings to the Owner and Designer. Following
Owner acceptance, the Designer shall prepare the change
order documents for signature by the GM and Owner. Upon
execution of the change order documents between the CM and
Owner, the CM shall prepare change order documents for
signature by the affected Contractor(s). The CM 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 GM shall review the contents of all Contractor-
requested changes to the Contract Time or Contractor's
Contract Price, determine whether an adjustment to the
Guaranteed Maximum Price or the Master Schedule is
warranted under the Contract Documents, and determine the
3.6.9 Schedule of Values (Each Contract) amount or length, if any, of the allowable adjustment to the
Guaranteed Maximum Price and the Master Schedule. If the
7
GM believes that an adjustment to the Contractor's Contract
might be warranted by a Contractor change request, the CM
shall provide the Designer with a copy of the change request,
and the CM shall, in its evaluations of the Contractor's request,
consider the Designer's comments regarding the proposed
changes. The CM 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 CM, the Owner and the
Designer. Upon execution of the change order documents
between the CM and Owner, the CM 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 CM 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
[Not used]
3.6.13 Progress Certificates
In consultation with the Designer, the GM 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 Contractors' Work. The CM 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 CM and delivered to the Owner. The
CM shall make payments that are due to each Contractor,
supplier, and materialman prior to the submission by each
Contractor, supplier and materialman of the next payment
application of each. In addition, the CM shall keep the Project
and the site on which Work is pertormed free and clear of all
liens and claims from Contractors, subcontractors, or suppliers.
Each payment application from each Contractor and the CM
shall contain sales tax information on forms provided by the
Owner.
3.7 Management Information Svstem (MIS)
[Not Used.]
3.7.1 Pre-construction Procedures
[Not Used.]
3.7.2 Schedule Maintenance Reports
The GM 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
design and construction schedules. During the Construction
Phase the reports shall compare the actual construction dates
to scheduled construction dates of each separate construction
contract and to the Master Schedule for the Project.
3.7.3 Proiect Cost Reports
[Not Used.]
3.7.4 Cash Flow Report
[Not Used.]
3.7.5 Change Order Report
The CM 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 CM 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 CM may be aware.
3.7.6 Project and Construction Budget Revisions
8
The CM shall make recommendations to the Owner concerning
construction changes that may result in revisions to the Project
Guaranteed Maximum Price.
3.7.7 Progress Payment Reports
The CM 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 CM and delivered to the Designer and
the Owner.
3.7.8 Contractor's Safety Program
On a monthly basis, the CM shall review the safety programs of
each Contractor and confrm that each Contractor has
established and implemented safety programs as required by
the Contract Documents.
3.7.9 Final Inspections and Commissioning
The CM 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 GM shall prepare final
project accounting and closeout reports.
3.7.11 MIS Reports for Move-in and Occupancy
[Not Used.]
3.8 Design Phase Services
All drawings and specifications shall be prepared by the
Designer and submitted to the Owner for review and
authorization to proceed with procurement and construction.
The CM shall provide the following services related to design of
the Project.
3.8.1 Proiect Conference
In accordance with the approved Construction Management
Plan and Master Schedule, the CM shall conduct a project
conference attended by the Designer, the Owner and others as
necessary. During the Project Conference, the CM shall review
the Construction Management Plan, the Master Schedule, the
Design Phase Milestone Schedule and the Project Guaranteed
Maximum Price. The CM shall conduct and prepare minutes of
this meeting.
3.8.2 Design Phase Information
The CM shall monitor the Designer's compliance with the
Construction Management Plan and the CM shall coordinate
and expedite the flow of information between the Owner,
Designer, the CM and others as necessary.
3.8.3 Progress Meetings
The CM shall participate in regularly scheduled progress
meetings attended by the Owner, CM 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, CM and others.
3.8.4 Review of Design Documents
The GM shall review all design documents, including drawings,
specifications, 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 GM is not responsible for providing, nor does the GM
control, the Project design and contents of the design
documents. By performing the reviews described herein, the
CM 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 CM'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 Design Recommendations
The CM 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 CM shall give to the Designer all data of
which it is aware concerning patents or copyrights for inclusion
in Contract Documents.
3.8.6 Owner Design Reviews
The CM shall compile and convey, in an expedited manner, the
Owner's design review comments to the Designer made after
the execution of this Agreement.
9
3.8.7 Approvals by Regulatory Agencies
The CM 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 CM shall recommend for approval by the Owner the
appropriate Contractor bid packages. The CM 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 CM and the Designer
shall collaborate on the preparation of bid documents
consistent with the bid packages identified by the GM and
approved by the Owner. Consistent with State law, one (single
prime bidding) or more (multi prime bidding) bid packages shall
be prepared as appropriate for the general construction,
electrical, mechanical, fire protection, and plumbing divisions of
the Work of the Project. The CM 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 CM and the Contractors for
construction for the Project shall be based on a form of
Agreement selected by the CM and the General Conditions of
the Orange County Contract For Construction -Construction
Manager at Risk. The form of Agreement selected by the CM
shall be consistent with the Orange County General Conditions
of the Contract For Construction -Construction Manager 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 CM and submitted to the
Owner and the Designer with adequate time for review and
comment before inclusion in bid packages. The Designer and
the CM 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 GM to meet the specific requirements
of the Project using forms approved by the Owner. The CM
shall be afforded a reasonable opportunity to review and
comment on all special warranties and other obligations
imposed on the Contractors by the Specifications.
3.8.9 Public Relations
The CM 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 Protect Funding
The CM 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 6y 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 Preaualifving Bidders
The CM shall develop lists of possible bidders and shall
prequalify 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 CM shall also prepare and transmit to the Owner a bidders
list for each bid package. The Owner shall notify the CM
promptly of any reasonable objections to a proposed bidder,
and the CM shall remove that bidder from the bidders list.
3.9.2 Bidder's Interest Camoaian
[Not used]
3.9.3 Notices and Advertisements
The CM shall prepare and place notices and advertisements to
solicit competitive bids for the Project.
3.9.4 Deliverv of Bid Documents
The CM shall expedite the delivery of bid documents to the
bidders. The CM shall obtain a full set of documents from the
Designer and arrange for printing, binding, wrapping and
delivery to the bidders. The GM shall maintain a record of
bidders receiving documents.
3.9.5 Pre-Bid Conference
In conjunction with the Designer, the CM shall conduct aPre-
Bid Conference. These conferences shall be forums for the
CM and Designer to explain to the bidders the Project
requirements, including information concerning schedule
requirements, time and cost control requirements, access
requirements, contractor interfaces, minority and women's
10
business enterprise goals, the project administrative
requirements and technical information.
3.9.6 Information to Bidders
The CM shall develop and coordinate procedures to provide
answers to bidders' questions.
3.9.7 Addenda
The CM shall receive from the Designer a copy of all addenda.
The CM shall review addenda for clarity, consistency and
coordination. By pertorming the reviews described herein, the
CM 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 CM shall
also distribute a copy of all addenda to each bidder receiving
documents.
3.9.8 Bid Opening
The CM shall conduct bid openings in accordance with statute
and shall evaluate the bids to determine the lowest responsive
and responsible bidder. The CM shall not award or enter into
any contract for Work on the Project until the CM 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
After obtaining Owner's approval, the GM shall prepare,
execute, and deliver the Contract Documents between the CM
and the Contractors. The CM shall also issue the notices to
proceed.
3.9.10 Permits, Insurance and Labor Affidavits
The CM 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 CM shall be responsible for construction administration
and management, overall field supervision, Project safety
program, quality assurance, and other services needed to
construct the Project, using means and methods appropriate
for the Project and 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 CM shall conduct aPre-
Construction Conference during which the GM 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 CM shall provide contract administration and establish and
implement coordination and communication procedures among
the CM, Owner, Designer, and Contractors.
3.10.3 Contract Administration Procedures
The CM 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 CM shall
maintain daily job reports. The CM 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 Proiect Site Meetings
The CM shall conduct coordination meetings at the site with all
Contractors. As set forth in the Master Schedule and the
Contract Documents, the CM shall conduct pre-installation and
preconstruction meetings for key components of the Work.
The CM shall conduct a monthly meeting with the Owner and
the Designer to update them on progress of the Work. The GM
shall cause to be prepared minutes of all project site meetings
and distribute the minutes or cause them to be distributed to all
attendees, the Owner and Designer.
3.10.5 Coordination of Other Independent Consultants
Technical inspection and testing provided by the Designer or
others shall be coordinated by the CM. The CM 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 Contractor's Construction Schedule
The CM shall review 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
11
establishes completion dates that comply with the requirements
of the Master Schedule.
3.10.7 Construction Schedule Report
The CM shall review the progress of construction of each
Contractor on a periodic basis, not less than monthly, 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 CM 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 falls behind schedule (except as a
result of an event described in Section 4.11}, the CM shall
require each Contractor to prepare and submit a recovery
schedule as specified in the Contract Documents. The CM
shall review and ascertain that the Contractor is providing
sufficient resources to regain lost time.
3.10.9 Reauests for Changes to the Contract Time and
Guaranteed Maximum Price
The GM shall review the contents of a request for changes to
the construction contract time or price submitted by a
Contractor, assemble information concerning the request and
endeavor to determine the cause of the request. In instances
where the CM's analysis reveals that the request is valid, the
CM shall prepare a detailed report to the Designer and the
Owner for review, consideration and approval. The CM 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 CM, Designer and Owner.
The CM shall then prepare the necessary documents to effect
a change to the contract with the Contractor. If the Owner
desires the change, the Owner shall approve a change in the
Guaranteed Maximum Price that corresponds with any
approved construction contract change order.
3.10.10 OualitV Review and Warranty
The CM 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 and/or third party
warranties for specified 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 warranties shall either be
provided by the CM 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 CM 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 GM 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 CM that the Work does not conform to the requirements
of the Contract Documents. Except for minor variations as
stated herein, the GM 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 Testing by the GM
The GM shall conduct additional tests and inspections that the
GM 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 CM shall obtain from the Contractors, review and
assemble operation and maintenance manuals, warranties and
12
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 within
thirty (30) days after the Project is substantially 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 GM. All operations and maintenance
manuals, Owner training, and as-built drawings must be
submitted within thirty (30) days of substantial completion.
The CM shall prepare and submit to the Contractors lists
identifying Work that does not conform to the Contract
Documents. The CM shall not request a Certificate of
Substantial Completion from the Designer until the CM 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 CM a deficiency list
identifying all portions of the Work which are known by the
Designer at that time to be incomplete or defective. Within thirty
(30) days of receipt of this deficiency list, the GM 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 Designer
may submit to the GM a supplemental deficiency list, in which
case the CM 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 CM 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. Within thirty (30)
days of the delivery of the Certificate of Final Completion to the
Owner, the CM shall make all remaining payments due to
Contractors.
3.10.15 Protection of the Work, Property and the Public
The CM 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 CM and its Contractors, the CM 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 CM 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 CM
may delegate to Contractors these obligations of the CM under
this Agreement, and may obtain indemnification and insurance
from Contractors as the GM deems reasonable and prudent.
3.10.15.1 The CM 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 doorways, 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 CM shall protect all trees and shrubs designated
to remain in the vicinity of the operations by building substantial
protection around same. The CM 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 CM shall cause to be developed and
implemented 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 CM shall report, to the Owner, any safety
violations and actions taken to protect the safety of persons
and property engaged in the Project. The CM shall require that
all Contractors meet or exceed the Project Safety Program
requirements including where those requirements meet or
exceed State or Federal requirements.
13
3.10.15.5 In the event the Owner implements an Owner
Controlled Insurance Program ("OCIP"), the CM agrees to
cooperate and coordinate with any safety plan or risk
management plan implemented in connection with the OCIP.
3.10.15.6 The CM shall cause to be implemented 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 CM 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 CM 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 CM 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 CM agrees
to implement a Public Hazard Control Pfan 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 CM's Project Representative shall also be
responsible for 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 CM 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 CM 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 CM 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 CM or its Contractors, the CM shall, upon recognizing
the condition, immediately stop Work in the affected area and
report the condition to the Owner and to the Project Designer in
writing. The Owner or the Project property owner if different
from the Owner shall take responsibility for remediation of the
material or substance from the site. If the CM claim's its
progress in completing the Project is delayed because of the
remediation response to the site, the CM shall file notice and a
claim in accordance with this Agreement.
3.10.15.12 Any land-disturbing activity performed by the CM 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.G.A.C. 4A, 4B and 4G).
3.11 Post Construction Phase
The CM shall provide the following ongoing services in
connection with Final Completion of the Work by the
Contractors:
3.11.1 Record Documents
The CM 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 Organize and Index Operations and Maintenance
Materials
Prior to final completion of the Project the CM 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 CM shall assist the Owner and Designer in obtaining an
occupancy permit by accompanying governmental officials
during inspections of the Project, preparing and submitting
documentation to governmental agencies and coordinating final
testing and other activities.
14
3.11.4 Occuoancy/Coordination Plan
m.,~+ +ti~.+., ,a.,,.~ ., . +., c„+,~+~..+:.,i r~,,.,~..,ive..., The CM Shall
consult with the Owner, the Designer and appropriate
regulatory agencies to assist Owner in its plan to occupy the
building (Occupancy Plan?, which Occupancy Plan will be
completed as soon as possible prior to Substantial Completion.
In the event the Occupancy Plan contemplates the Owner
occupying the Project or any part of the Project prior to Final
Completion, the CM. in consultation with the Owner, the
Designer and appropriate requlatorv agencies shall be
r_es~aonsible for insuring that the Occupancy Plan meets all
requlatorv requirements and that it is coordinated with the
Project Construction.
3.12 Additional Services
The CM agrees to pertorm all tasks and functions reasonably
necessary to complete the services described in the preceding
paragraphs in this Article 3, unless the tasks or functions are
explicitly described as Additional Services in this section 3.12.
At the request of the Owner, the GM shall perform Additional
Services and shall be compensated for same as provided in
Article 7 of this Agreement. The CM shall perform Additional
Services only after the Owner and CM 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 or evaluation of existing
conditions 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,
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
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 PERFORMANOE
4.1 Duration
The commencement date for the CM'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 CM a
written instruction to proceed with Services, whichever is
earlier. The duration of the CM'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 CM warranty phase services.
4.2 Master Schedule
The CM'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 CM represents that the Master
15
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 CM's activities are also
shown. The CM further represents that the CM 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 CM 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 CM
for any failure of the CM to so complete the Work shall be
created or implied.
4.4 Schedule Adjustment
If the CM and its Contractors, for reasons beyond their control,
are delayed in beginning any activity, 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 CM 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 GM shall be entitled to an adjustment in
the Contract Price computed in accordance with Article 5.
4.5 Early Start
[Not used]
4.6 Recovery
[Not Used.]
4.7 Schedule Monitoring
The Designer and Owner shall monitor progress of the Work
and the CM 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 CM 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 CM
[Not used]
4.10 Work by Owner
If the CM, within a period of seven (7) working 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 GM, 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
reasonable discretion shall be necessary or appropriate for the
completion of the Work. 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 CM 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 CM
under the Contract Documents related to Work completed prior
to Owner's take over of the project. Such action may be taken
by the Owner only after seven (7) working days written notice
to the CM. All costs incurred by the Owner in taking any such
action shall be charged to the CM and deducted from any
amounts due under the Agreement.
4.11 Force Maieure
The CM may be entitled to an extension of the time for
completion (but no increase in the Guaranteed Maximum Price)
for delays arising from unforeseen causes beyond the control
and without the fault or negligence of the Owner, the GM or the
CM's Contractors as follows:
4.11.1 Acts of God, tornado, fire, hurricane or earthquake that
damage completed Work or stored materials or make it
hazardous, dangerous or impractical to perform the Work.
4.11.2 Acts of the public enemy; acts of the State, Federal, or
local government in their sovereign capacities.
16
4.11.3 Abnormal inclement weather as defined in Paragraph
4.13.
4.12 Notice
The CM and the Gontractors 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 by the tenth {10th) day of the month
following the month in which the instance of delay is
encountered, except excessive inclement weather which shall
be made in accordance with paragraph 4.13. All claims not
filed in accordance with this Article shall be waived by the CM.
Nothing herein shall apply to or be deemed a limitation on the
CM's right to seek an adjustment to the Guaranteed Maximum
Price for the limited reasons reserved in the Agreement of
Intent. Circumstances and activities leading to such claim shall
be indicated or referenced in a construction log for the day{s)
affected. In every such written claim, the CM shall provide the
following information:
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, andlor 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 CM considers that the Project is delayed
by adverse weather conditions, the CM 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 CM 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
JUIy 8
August 6
September 5
October 5
November 5
December 9
If the GM believes that the progress of the Work has been
adversely affected by adverse weather recognized by the
Designer during a particular month, the GM 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 CM 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 unless caused by the sole and direct act or omission of
the Owner and the Owner's employees or agents.
17
4.15 Liquidated Damages
The CM specifically recognizes that a delay by the CM in
achieving the Substantial Completion of the Project wilt
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
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
CM agrees to pay to the Owner, as Liquidated Damages and
not as a penalty, the sum of One Thousand Dollars ($1 •oaa) 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 GM 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 CM's Services specified in Article 3 of this
Agreement. The CM shall within ten (10) business days notify
the Owner of any changes or other events which in the opinion
of the CM entitle the CM to an increase or decrease in the
Guaranteed Maximum Price, the duration of the CM's Services,
or both.
5.1.1 Changes in the CM's Services
Changes in the GM's Services maybe directed by the Owner in
writing, and if so directed to provide different or additional
Services the CM 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
CM. If possible, the amendment shall be executed by the
Owner and CM prior to the CM pertorming the services
required by the amendment, but failure to agree on
compensation for a change in Services shall not be grounds for
the CM to cease or refuse to provide the Services reasonably
requested by the Owner. The CM shall proceed to pertorm the
services required by the amendment only after receiving notice
directing the CM to proceed.
5.1.2 Additional Compensation and Extended Duration
The CM 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 GM shall notify the Owner within ten (10) business
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 CM's Services.
5.1.2.1 Fixed Fee
[Not used]
5.1.2.2 General Conditions
[Not used]
5.1.2.3 Cost of the Work
[Not used]
5.1.3 Pavment of Additional Compensation
The GM 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
6.1 Program
The Owner shall provide to the CM complete information
regarding the Owner's requirements for the Project.
6.2 Decisions
The Owner shall examine information submitted by the CM and
shall render decisions thereto promptly.
6.31nsurance
The Owner shall furnish the insurance that the Owner has
agreed to furnish as specified in Article 8.
18
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 CM.
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
GM, 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 pertorm its services in cooperation with the
GM, 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 CM provided at
the time of the change or revision.
6.7 Budget
[Not used]
6.8 Separate Contracts
[Not used]
6.9 Copies of Drawings and Specifications
The CM shall estimate the reasonable number of copies of
interim and final drawings, specifications and Contract
Documents required by the CM, and shall obtain such copies
from the Designer at the GM's expense. The estimated cost of
such copies shall be included in the Guaranteed Maximum
Price.
6.10 Permits and Approvals
[Not used]
6.11 Funding Requirements
The Owner shall describe the funding for the Project to the CM
and the Designer.
6.12 Communication with Contractors
The Owner, its representatives and consultants, including
Designers, shall communicate with the Contractors only
through the CM.
6.13 Copies of Notices and Communication
The Owner shall send to the CM and shall require the Designer
to send the CM 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 CM acknowledges
that more than one individual might be designated as the
Owner's representative at different times and for different
purposes. The CM 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 CM
The Owner shall make a lump sum payment to the CM upon
the closing of the sale by the CM to the Owner pursuant to the
Agreement of Purchase and Sale by and between the GM and
the Owner of the Project property on the basis of the
Contractor's payment applications that are certified by the GM
and on the basis of the CM's invoice for its services performed
that are certified by the Designer.
ARTICLE 7
GUARANTEED MAXIMUM PRICE AND PAYMENT
7.1 Guaranteed Maximum Price
The GM shall be required to give a Guaranteed Maximum Price
for the Project. The Guaranteed Maximum Price shall be
documented by the CM as defined in Article 12 and, once
established, the Guaranteed Maximum Price shall be subject to
19
modification only as defined in this Agreement and as
otherwise provided in the Agreement of Intent.
7.1.1 Guaranteed Maximum Price Proposal
[Not used]
7.1.2 Consideration of Proposal
[Not used]
7.1.3 Construction Contracts
Construction contracts for the Work required for the Project
shall be between the CM and Contractors. The CM 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 CM shall enter into a
contract with that bidder after receipt of approval of award from
the Owner.
7.1.4 Work by CM
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 CM 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 a pre-qualified
replacement cannot be obtained in a timely manner, and (2)
the Owner approves performance of the Work by the CM,
which approval shall not be unreasonably withheld. In the
event the CM performs a portion of the Work under this
paragraph, the CM shall be compensated as if it were a
replacement Contractor and provided the CM's substituted
construction services do not cause the Project cost to the
Ownerto exceed the Guaranteed Maximum Price.
7.1.5 Elements of the Guaranteed Maximum Price
The Guaranteed Maximum Price shall include the total Cost of
the Work, including the CM Fee for Services, the reimbursable
costs for General Conditions provided by the CM, if any, and
the CM 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 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 CM in its Guaranteed Maximum Price
proposal.
7.1.6 Sales and Use Taxes
The Guaranteed Maximum Price includes those sales and use
taxes applicable to the Project that are legally enacted at the
time the Guaranteed Maximum Price is established. The CM
shall require each Contractor to account for all sales and use
taxes incurred as a condition to such Contractor's receiving
final payment. Each such Contractor shall be required to
maintain a ledger for sales and use taxes paid in the Project
and hard copies of all applicable invoices. Any increase or
decrease in the tax rate of such taxes that affect the
Guaranteed Maximum Price and that are enacted after the
Guaranteed Maximum Price is established shall be
incorporated into that price by change order.
7.1.7 Change in Scope
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 Gost of the Work
[Not used]
7.2.1 Exclusions from Cost of the Work
The Cost of the Work shall not include the following:
7.2.1.1 [Not used]
7.2.1.2 [Not used]
7.2.1.3 [Not used]
7.2.1.4 [Not used]
7.3 Adjustments to the Guaranteed Maximum Price
The CM 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, in which case the Guaranteed Maximum
Price includes allowances. The CM shall notify the Owner if
the CM believes that it is being asked to fix the Guaranteed
20
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 CM 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 CM 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
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 CM 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 Gost of the Work.
7.3.2 Directive to Proceed
In the event the CM 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 CM 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 GM later
determines that the quantities on which unit prices are based
will vary from the quantities utilized by the CM to fix the unit
prices and calculate the Guaranteed Maximum Price, the GM
shall within ten (10) business 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 CM 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 CM, the applicable unit
prices and Guaranteed Maximum Price shall be adjusted.
7.3.4 Unforeseen Conditions
Should the CM 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 CM
shall immediately, and in no event more than ten (10) business
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
andlor 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 CM's review or that could have
been discovered by the CM 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
21
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 Gonditions Costs
[Not used]
7.4.1 Fixed Fees
[Not used]
7.4.2 General Gonditions
[Not used]
7.4.2.1 [Not used]
7.4.2.2 [Not used]
7.4.2.3 [Not used]
7.4.2.4 [Not used]
7.4.2.5 [Not used]
7.4.2.6 [Not used]
7.4.2.7 [Not used]
7.4.2.8 [Not used]
7.4.2.9 [Not used]
7.4.3 Construction Manager's Accounting Records
[Not used]
7.4.4 Payments
[Not used]
7.4.4.1 [Not used]
7.4.4.2 [Not used]
7.4.4.3 [Not used]
7.4.4.4 [Not used]
ARTICLE 8
INSURANCE AND INDEMNITY
8.1 CM Liability Insurance
The CM shall purchase and maintain insurance that shall
protect the CM from the claims set forth below that may arise
out of or result from the CM'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 CM's employees under
applicable employer's liability law;
Claims for damages because of bodily injury or death of any
person other than CM'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 CM 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 CM or the Contractors as required by the
Contract Documents for fabrication or installation of
components of the Project.
The CM 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 CM's commercial general and
22
motor vehicle liability insurance shall be written for not less
than the following limits of liability:
a. Commercial General Liabilitv
1. $2,000,000 Bodily Injury and Property Damage for each
occurrence
2. $4,000,000 Products/Completed Operations Aggregate
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 maybe
included in coverages A, B, and G 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 Liabilitv
1. Minimum Combined Single Limit that shall not be less than
$1,000,000 per occurrence
2. Commercial Automobile Liability insurance to cover all
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 shall be a named insured
on all commercial general liability policies submitted to comply
with this Article. Commercial general liability and excess
liability policies shall be endorsed with a schedule of underlying
liability policies required and obtained from the Contractors.
Coverage under the CM 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 Liabilitv Policies
[Not Used.]
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
any relevant Contractor contract.
8.2 Builder's Risk Insurance
The CM 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
CM 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 CM, 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, or damages resulting from defective
design, negligent workmanship or defective material. The CM
shall obtain approval from the Owner before increasing any
coverage due to increases in construction costs.
23
8.2.2 Other Property Insurance
[Not used]
8.2.3 Partial Occupancv: 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 Recoverv
If requested by the Owner, the CM shall provide the Owner with
copies of all policies thus obtained for the Project. The CM
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 CM 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 GM shall each require appropriate similar
waivers from their contractors, consultants and agents. This
waiver does not apply to design liability.
8.3 Indemnity
To the fullest extent permitted by law, the CM 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 proximately caused by the negligent acts, errors
or omissions of the GM, or any other party for whom the CM is
legally liable, in performance of services under this Agreement.
The CM 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 GM 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 CM has provided indemnification for the Owner under
Paragraph 8.3.
8.3.2 Indemnification by Contractors
The CM shall cause each Contractor to indemnify and hold
harmless the Owner, GM 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, CM 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 CM shall purchase and provide 100% Performance and
Payment Bonds, which Bonds shall comply with the
requirements of the General Conditions of the Orange County
Contract for Construction--Construction Manager at Risk.
ARTICLE 9
TERMINATION AND SUSPENSION
9.1 Termination for Convenience
[Not used]
9.2 Termination for Default
This Agreement may be terminated by either party hereto upon
ten (10) working 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
CM fails to begin or complete the Work within the time specified
for completion in this Agreement as the same may be amended
by change order, or shall commit a material breach in the
performance of the Work or shall discontinue the prosecution of
the Work for seven (7) consecutive work days without excuse
or justification, or if the CM shall become insolvent, be declared
bankrupt, commit any act of bankruptcy or insolvency, allow
any final judgment to stand against the GM 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. Termination under this Paragraph 9.2 for
24
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 ten (10} 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 ten (10) business
days after receipt of notice, the Agreement may not be
terminated for default.
9.2.2 Payment to the GM
In the event of termination pursuant to Paragraph 9.2, the CM
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
including materials purchased or stored but not yet
incorporated into the Work, less any amount by which the total
cost paid by the Owner to complete the Work for which the CM
is responsible, including reasonable Fees and General
Conditions, exceeds the Guaranteed Maximum Price. In
addition, the Owner may deduct from the final payment to the
CM any liquidated damages or other damages for which the
CM 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 CM 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 CM
under those contracts. The CM shall obtain the consent of
each Contractor and supplier, in their respective contracts with
the CM, to this assignment.
9.3 Additional Termination Provisions
In the event of termination under either Paragraph 9.1 or 9.2,
the CM agrees to:
deliver to the Owner all Project as-built records, operating
manuals, warranties and other Project information generated to
date;
deliver to the Owner copies of all shop drawings and other
submittals received to date;
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 CM for the Project; and
provide the Owner with copies of all pending claims under the
CM builder's risk policy.
9.4 Suspension
The Owner may order, in writing, the CM to suspend all or any
part of the CM's services for the Project for the convenience of
the Owner or for work stoppage beyond the control of the
Owner or the CM. 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 accordingly by written change
order.
9.4.1 General Conditions
[Not used]
9.4.2 Reassignment of Personnel
Persons assigned 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 CM 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 CM shall have the
option of requiring that the Guaranteed Maximum Price be
adjusted by written change order so that the CM suffers no loss
or diminution in expectancy by virtue of such suspension.
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
25
The CM 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 CM 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 GM or its Contractors for delays caused by the
CM or any Contractor, unless there is a concurrent delay or
suspension by the Owner, it being understood that the CM
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 pertormance or
nonpertormance 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 CM, by means of its
contracts, shall specifically require its Contractors to be bound
by this Article.
ARTICLE 11
ADDITIONAL PROVISIONS
11.1 GonfdentialitY
The CM 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 CM shall not disclose publicly
information concerning the Project, except for communications
incident to completion of the Project between the CM,
Designer, and Contractor, and their independent professional
engineers, architects and other consultants and
subcontractors, and except for 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 GM shall be permitted to erect one sign to identify the CM
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 CM 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 GM each bind itself, its successors,
assigns, insurers, and legal representatives to the terms of this
Agreement. Neither the Owner nor the GM shall assign or
transfer its rights or interest in this Agreement without the
written consent of the other, except that the CM 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 CM from employing Contractors
or such consultants, associates or subcontractors as the GM
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 CM shall at all times comply with the edition of the Orange
County Minority Business Enterprise Policy in effect at the
effective date of this Agreement. All documentation
26
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 and all other agreements or instruments
expressly referenced herein represent the entire and integrated
agreement between the Owner and the CM and supercedes 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 CM 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 Severabilitv
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:
Orange County, North Carolina
Attn: Pam Jones, Director of Purchasing and Central Services
Post OfFce Box 8181
Hillsborough, North Carolina 27278
with a copy to:
Geoffrey E. Gledhill
Coleman, Gledhill, Hargrave & Peek, P.C.
129 E. Tryon Street
P. O. Drawer 1529
Hillsborough, NC 27278
To th e CM:
Telesis Construction Management, LLC
Attn: George A. Horton, III, MemberlManager
1000 Corporate Drive, Suite 109
Hillsborough, North Carolina 27278
with a copy to:
William D. Bernard
Brown & Bunch, PLLC
101 N. Columbia Street
Chapel Hill, NC 27514
11.9 Bonds
In accordance with N.C. Gen. Stat. §143-128.1, the CM shall
provide a performance bond with a penal sum equal to 100°!0 of
the Guaranteed Maximum Price to guarantee the faithful
performance of the Work, in such form as may be required by
law and approved by the Owner.
In accordance with N.C. Gen. Stat. §143-128.1, the CM shall
provide a payment bond with a penal sum equal to 100°!0 of the
Guaranteed Maximum Price to guarantee the payment of all
labor and material costs or claims in connection with
compliance with the Oontract, in such form as may be required
bylaw and approved 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.
In its Guaranteed Maximum Price, the CM shall include a
program and costs for bonds or other security against default
by Contractors as the CM deems appropriate to protect the CM
and the Owner against such defaults.
11.10 Ownership of Documents
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The CM 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. The CM shall not reproduce or distribute such
documents to any third person or for any purpose other than
bidding, permitting and construction of the Project, or enforcing
its rights under this Agreement. The CM 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 CM agree that the Guaranteed
Maximum Price for the Project is the total of the two
Guaranteed Maximum Prices as defined in the Agreement of
Purchase and Sale (Library Building) and the Agreement of
Purchase and Sale (Office Building}.
12.1.1. Documentation
The Guaranteed Maximum Price documentation shall be
prepared by the CM 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,
specifcations, calculations or other data used to identify the
basis of the Guaranteed Maximum Price. Documentation of the
Guaranteed Maximum Price was developed by the GM from
the design Drawings and Specifications and such other
documents as maybe 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 GM Contingency
The Guaranteed Maximum Price shall include a contingency
amount (the Contingency) for the use of the CM. The
Contingency shall be included in the Guaranteed Maximum
Price. The Contingency is for the use of the CM to defray costs
in excess of the Cost of the Work for which the CM is not
otherwise entitled to an increase in the Guaranteed Maximum
Price under the terms of this Agreement.
12.1.3.1 [Not used]
12.1.3.2 [Not used]
12.1.3.3 [Not used]
12.1.3.4 [Not used]
12.1.4 Construction Contract Price Savings and Overruns
[Not used]
12.1.4.1 [Not used]
12.1.4.2 [Not used]
12.1.4.3 [Not used]
12.1.5 Change of Contractor Ordered by Owner
If the Owner decides to award a contract to a bidder other than
the lowest responsible and responsive pre-qualified bidder for
any potion of the Project, and if the CM consents to the
Owner's decision to do so in writing, 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. Nothing herein shall
abrogate the CM's right to approve the bidders selected to
perform the Work.
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 or the Agreement of
Intent, the GM 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 CM 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.
28
CM: Telesis Construction Management, LLG
1000 Corporate Drive, Suite 109
Hillsborough, NC 27278
By:
George A. Horton, III
Title: ___________
Member/Manager
Attest:
By:
Title:
(Secretary) (Manager) (Witness)
29
OWNER: Orange County
P. O. Box 8181
Hillsborough, NG 27278
By:
Barry Jacobs, Chair
Orange County Board of Commissioners
Attest: ____________
Donna Baker
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
088Orange County Library and Office Complex (Draft #2
01.03.08 CGB RL) ~} containing GEG A~87-980 1 1 0 0 8 final
edits RL.doc
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