HomeMy WebLinkAboutAgenda - 09-19-2007-6a3,~._-
COUNTY GENERAL CONDITION5 OF THE CONTRACT FOR CONSTRUCTION --
NORTH CONSTRUCTION MANAGER AT RISK
CAROLINA
Table of Contents
Page
Article 1. Defini#ions ........................................................................................................................................3
Article 2. Correlation, Interpretation and Intent of Contract Documents .........................................................6
Article 3. Familiarity with Work, Conditions and Laws .................................................................................... 7
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Article 4. Bonds ........................................................................................... ........... 8
Article 5. Insurance and Indemnity ...............................:.................................................................................. 8
Article 6. Other Record Documents and Submittals .....................................................................................16
Article 7. Contractor ......................................................................................................................................17
Article 8. Owner .............................................................................................................................................24
Article 9. Construction Manager ....................................................................................................................24
Article 10. Designer .........................................................................................................................................25
Article 11. Testing and Surveying ..............................................................:....................................................25
Article 12. Separate Contracts ........................................................................................:...............:............... 25
Article 13. Contract Time ............................................................................................................................:... 26
Article 14. Changes in the Work ...................................................................................................................... 29
Article 15. Change of the Contrac#Price ......................................................................................................... 30
Article 16. Unforeseen Conditions ................................................................................................................... 32
Article 17. Correction of Work before Final Payment ...................................................................................... 32
Article 18. Correction of Work after Substantial Completion; Warranties and Guaranties .............................33
Article 19. CMAR's Right to Do Work .............................................................................................................. 34
Article 20. Partial Payments ............................................................................................................................ 34
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Article 21. Final Payment ....................................................................:........................................ ... 36
Article 22. Contractor, Subcontractor and Supplier Affidavik ........................................................................... 37
Article 23. Assignments and Subcvntracts ..................................................................................................... 38
GENERAL CONDITIONS FOR CM AT RISK PROJECT 1 of 42 JUNE 2007 EDITION
Article 24. Measurernents .................................................................................................................... ....... 38
Article 25. Contractor and Subcontractor Relationships ................................................................................. 38
Article 26. Use of Premises ...................:......................................................................................................... 39
Article 27. Cutting, Patching and Fitting .......................................................................................................... 39
Article 28. Dispute Resolution ......................................................................................................................... 39
Article 29. Taxes .............................................................................................................................................. 39
Article 30. Operation of Owner's Facilities ....................................................................... ........................... 40
Article 31. Third Party Beneficiary Clause ...................................................................................................... 40
Article 32. Measurement of Quantities ....................................................................:.....:................................. 40
Article 33. Termination by the CMAR far Cause ............................................................................................. 40
Article 34. Termination or Suspension by the CMAR for Convenience ..........................................................41
Article 35. Minority Business Enterprise Program ...........................................................................................42
Article 36. General ........................................................................................................................................... 42
GENERAL CONDITIONS FOR CM AT RISK PROJECT 2 of 42 JUNE 2007 EDITION
ARTICLE 1. DEFINITIONS
1.1 Agreement - The Construction Agreement, these General Conditions, and any
Supplementary Conditions.
1.2 AIA -The American Institute of Architects.
1.3 ASTM -The American Society for Testing and Materials.
1.4 Beneficial Occupancy -The point at which the Project can be occupied by the Owner for its
intended purpose, upon achievement of Substantial Completion, as defined in paragraph
1.39 of these General Conditions.
1.5 Change Order - A written order to the Contractor signed by the CMAR, the Owner and the
Designer authorizing an addition, deletion, or revision in the Work and/or an adjustment in
the Contract Price and/or the Contract Time issued after execution of the Construction
Agreement. See paragraph 14.1 of these General Conditions.
1.6 Completion Dates -Those dates identified as the Contractor's Completion Dates in the
Contractor's Construction Schedule, the Master Schedule, or elsewhere in the Contract
Documents.
1.7 Construction Agreement -The document executed by the Contractor and the CMAR to
formally memorialize their consent to the terms of the Agreement.
1.8 Construction Change Directive - A written order to the Contractor signed by the CMAR, the
Owner and the Designer directing an addi#ion, deletion, or revision in the Work after
execution of the Construction Agreement, in circumstances when the parties have been
unable to agree on an adjustment to the Contract Price or the Contract Time, but the
CMAR directs that the Cantractor proceed with said Work subject to adjustment of the
Contract Price and/or Contract Time under the procedures described herein.
1.9 Construction Manager At Risk (CMAR} -The person or firm designated as the CMAR in
the Cantract Documents, or its authorized representatives. The agreement between the
CMAR and the Owner is referred to herein as the CMAR Contract.
1.10 Contractor's Construction Schedule -That schedule described in Article 13 hereof and
identified as the Contractor's Construction Schedule.
1.11 Contract Documents -All of the documents that make up the Agreement, plus the Drawings
and Specifications that describe the scope of the Work, plus allowable Modifications to the
Cantract Documents.
1.12 Contract Price -The total monies payable to the Contractor under the Contract Documents
pursuant to paragraph 15.1 of the Agreement.
1.13 Contract Time -The number of calendar days stated in, ar computed from, the Contract
Documents for the completion of the Work, or any portion thereof. See, particularly, Article
13 hereof. Time of completion as specified therein is of the essence. The time used and
referred to on the Project will be that time which is observed in Hillsborough, North
Carolina, being Eastern Daylight Savings Time (EDT), Eastern Standard Time (EST), or
other as designated by the Designer.
1.14 Contractor -The Contractor shall be that party identified as such in the Agreement.
1.15 Days -Unless otherwise indicated, the term "days" shall mean consecutive calendar days.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 3 of 42 JUNE 2007 EDITION
1.16 Daylight Hours -The hours or portions of hours between sunrise and sunset local time.
1.17 Designer(s) -The person or firm designated as the Designer in the Contract Documents, or
their authorized representatives. The Designer, as referred to herein, shall mean architect,
landscape architect, and/or engineer. They will be referred to hereinafter as if each were of
the singular number, masculine gender.
1.18 Drawings -The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location, and dimensions of
the Work, and generally including plans, elevations, sections, details, schedules and
diagrams. A list of the Drawings is contained in the Supplemental General Conditions.
1.19 Field Order - A written order issued by the Designer which clarifies or interprets the
Contract Documents or orders minor changes in the Work in accordance with the Contract
Documents. See paragraph 14.3 of these General Conditions.
1.20 Final Completion -The point at which the Contractor has, as determined by the Designer,
completed the Work, with the exception of guaranty and warranty obligations, and becomes
entitled, upon the recommendation of the CMAR and the Designer and determination by
the Owner, to final payment.
1.21 The words "furnish," "furnish and install," "install," and "provide" or words with similar
meanings shall be interpreted, unless otherwise stated, to mean furnish and install
complete, in place and ready for service.
1.22 Master Schedule -The CMAR shall prepare and maintain a Master Schedule for the
Project. The Master Schedule shall specify the proposed start and finish dates for each
major project activity including all design and construction activities. The Master Schedule
shall be included in the bid documents presented to bidders. The Master Schedule shall be
revised and updated to include key activities from the approved Contractor's Construction
Schedule, as described in the Contract Documents, including proposed start and finish
dates.
1.23. Modification - (A} a written amendment to the Contract Documents signed by the CMAR
and the Contractor and identified therein as such, (B} a Change Order, (C} Construction
Change Directive, or {D} a Field Order. A Modification may only be issued after execution
of the Agreement.
1.24 Notice -The term "notice" or "written notice" as used herein shat! mean and include all
written notices, demands, instructions, and claims approvals and disapprovals furnished by
the CMAR, the Owner or the Designer to obtain compliance with the requirements of the
Contract Documents, as well as all written notices, demands, instnactions and claims
furnished by the Contractor as required by the Contract Documents. Where notice is
required under the terms of the Contract Documents, written notice shall always be
required, and oral or "constructive" notice shall be insufficient and ineffective as notice.
Email or other electronic delivery shall be insufficient and ineffective as notice unless
specifically allowed by the Supplementary Conditions or a Modification to the Agreement.
Written notice shall be deemed to have been duly served on the date that it is delivered in
person to the individual or to a member of the firm, to an officer of the corporation for whom
it is intended, to an authorized representative of such individual, firm, or corporation, or on
the date that it is mailed by registered or certified mail, return receipt requested, addressed
to the last business address of such individual, firm, or corporation known to the person
giving the notice. Written notice may also be given by facsimile transmission, provided that
proof of delivery is obtained. In the case of delivery in person, such delivery shall not be
effective unless and until a written and signed receipt showing the date and time of delivery
is obtained.
GENERA!- CONDITIONS FOR CM AT RISK PROJECT 4 of 42 JUNE 2007 EDITION
1.25 Notice of Award -The written notice by the CMAR to the Contractor that the Contractor is
the successful Bidder and that upon compliance with the conditions precedent to be fulfilled
by the Contractor within the time specified, the CMAR will execute and deliver the
Agreement to the Contractor.
1.26 Notice to Proceed -See paragraph 13.3 of these General Conditions.
1.27 Owner -The Owner is the person designated as such in the Agreement.
1.28 Owner's Authorized Representative - A person, or persons, employed by the Owner and
designated from time to time by written notice to the Contractor to administer the Contract
Documents, and to observe and monitor the Work on behalf of the Owner with authority
and responsibility as herein specified.
1.29 Project -The total construction of which the Work performed under the Contract
Documents may be the whole or a part.
1.30 Project Manager -That person designated by the Contractor in accordance with paragraph
7.2 who shall be in general charge of the Work and its performance and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.31 Request For Information {RFI) - A written communication from the Contractor to the CMAR
to be forwarded to the Designer far any interpretation of, or information needed, required,
or desired under the Contract Documents. The CMAR reserves the right to determine the
reasonable format and contents required for a RFi. In any RFI, the Contractor shall state a
reasonable date by which a response is necessary in order to avoid delay in progress of
the Work and shall make such request sufficiently in advance of such date as to avoid any
such delay. The CMAR shall obtain a response in writing to the RFI by the date stated by
the Contractor unless the CMAR cannot reasonably do so, in which case the CMAR shall
prior to .that date notify the Contractor of the date by which the CMAR can reasonably
respond. The Contractor shall not be entitled to any additional time for the completion of
the Work ar any portion thereof by reason of the failure to timely respond to an RFI if the
Contractor has not submitted the RFl sufficiently in advance to allow the CMAR and the
Designer a reasonable time within which to respond.
1.32 Request far Payment -The form, in the form of AIA Document G702 (latest edition.) or
other published document approved by the CMAR, which is to be used by the Contractor in
requesting progress payments and which is to include a Schedule of Values as required by
the Contract Documents and an affidavit of the Contractor that progress payments
theretofore received from the CMAR on account of the Work have been applied by the
Contractor to discharge in full all the Contractor's obligations incurred in connection with
Work covered by all prior applications for payment. See paragraph 20.2 of these General
Conditions.
1.33 Resident Superintendent -That person designated by the Contractor in accordance with
paragraph 7.2 who has day-to-day responsibility for the prosecution of the Work and the
obtaining of proper materials and equipment, and adequate labor and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.34 Schedule of Values -Any breakdown of the Contract Price which may be required by the
Contract Documents, and designated as such. See paragraph 20.1 of these General
Conditions.
1.35 Specifications -That portion of the Contract Documents consisting generally of the written
requirements for materials, equipment, construction systems, standards, and workmanship
for the Work and performance of related services.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 5 of 42 JUNE 2007 EDITION
1.36 Subcontractor - A persons firm, or corporation who has entered into a direct contract with
the Contractor to perform any of the Work at the Project.
1.37 Submittal -Shop drawings, product data, samples, and other documents required by the
Contract Documents to be submitted by the Contractor to the GMAR and the Designer.
1.38 Submittal Register -See paragraph 13.2 of these General Conditions.
1.39 Substantial Completion -The point at which the Work, and Work by other Contractors on or
in connection with the Project, as determined by the Designer, is sufficiently complete in
accordance with the Contract Documents that it can be beneficially occupied by the Owner,
and the Work can be utilized by the Owner for its intended use, and all necessary permits
and permissions for Beneficial Occupancy and utilization having been obtained by the
Contractor. All operations and maintenance manuals, Owner training, and as-built
drawings must be submitted prior to Substantial Completion being achieved.
1.40 Sub-subcontractor - A person or entity that has a direct or indirect contract with a
Subcontractor to perform any of the Work at the Project.
1.41 Work -The construction and services required by the Contract Documents, including all
labor, materials, equipment, and services provided or to be provided by the Contractor to
fulfill the Contractor's obligations.
1.42 All references in the Contract Documents to the masculine shall be interpreted as including
the feminine or neuter and all references in the Contract Documents to the singular or the
plural shall be interpreted as including the other, as may be appropriate in the reasonable
interpretation of the Contract Documents.
ARTICLE 2. CORRELATION, INTERPRETATION AND INTENT OF CONTRACT DOCUMENTS
2.1 It is the intent of the Specifications and Drawings and other Contract Documents to
describe a complete Project in accordance with the Contract Documents.
2.2 The Contrac# Documents are complementary; what is called for by one is as binding as if
called for by all. Ef the Contractor finds a conflict, error or discrepancy in the Contract
Documents, the Contractor shall notify the CMAR in writing before proceeding with the
Work affected thereby. In resolving such conflicts, errors and discrepancies, the Contract
Documents shall be given preference in the following order: Construction Agreement,
Modifications, Addenda, Supplemental Conditions, General Conditions, Specifications, and
Drawings. Figure dimensions on Drawings shall govern over scale dimensions, and
detailed Drawings shall govern over genera! Drawings. Any Work that may reasonably be
inferred from the Contract Documents as being required to produce the intended result
shall be supplied whether or not it is specifically called for. Work, materials or equipment
described in words which, so applied, have a well known technical trade meaning shall be
deemed to refer to such meaning and to incorporate any recognized standards which are a
part of such meaning.
2.3 Miscellaneous items, accessories and work which are not specifically mentioned, but which
are essential to produce a complete and properly operating installation, 'or useable
structure or plant providing the indicated function shall be furnished and installed without
change in the Contract Price. Such miscellaneous items and accessories shall be of the
same quality standards, including material, style, finish, strength, class, weight and other
applicable characteristics, as specified for the major component of which the miscellaneous
item or accessory is an essential part, and shall be approved by the Designer before
installation. This requirement is not intended to include major components not covered by
or inferable from the Contract Documents.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 6 of 42 JUNE 2007 EDITION
2.4 The Work of all trades under the Contract Documents shall be coordinated by the
Contractor in such a manner as to obtain the best workmanship possible for the Work and
all components of the Work shall be installed or erected in accordance with the best
practices of the particular trade.
2.5 The Contractor shall fully complete the Work and shall be responsible for all of the Work
under the Contract Documents to which the Construction Agreement applies. If the
Contractor is prevented from doing so by any limitation of the Contract Documents, the
Contractor shall immediately give notice thereof to the CMAR in writing before proceeding
with the construction in the area where the problem or limitation exists.
2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest
revision or printing unless otherwise stated and is intended to establish the minimum
requirements acceptable.
2.7 For those materials specified without the use of brand names, the Contractor shall submit
to the CMAR within thirty {30} days after its receiving the Construction Agreement for
signatures, any product that meets the express requirements of the Specifications, unless a
longer time is agreed to in the Master Schedule.
Such Submittal shall include manufacturer's data, test reports, performance da#a and
certifications, samples, erection details, and other applicable information as required to
permit determination by the Designer whether such proposed products are suitable. The
Designer shall be the sale judge as to the suitability of any proposed product. The burden
of proof of quality rests with the Contractor.
2.8 The Contractor is required to examine and read the complete set of Drawings and
Specifications for the Project for information concerning the Work, because some of the
Work for which the Contractor will be responsible may be indicated on or in documentation
applying primarily to the Work of one yr more other separate prime contractors. No
allowance will be made for the Contractor's failure to become familiar with the complete set
of Project Drawings and Specifications. .
2.9 Contractor's requests for clarification or information shall clearly define the cause{s} of the
Contractor's request and, as appropriate, shall include the Contractor's interpretation and
the Contractor's proposed solution.
ARTICLE 3. FAMILIARITY WITH WORK, CONDITIONS AND LAWS
3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting
the Work, including but not restricted to those bearing upon transportation, disposal,
handling and storage of materials, availability of labor, water, electrical power, roads and
uncertainties of weather, or similar physical conditions at the Project site, and the character
of equipment and facilities needed prior to and during prosecution of the Work. The
Contractor is satisfied as to the character, quality and quantity of surface and subsurface
materials or obstac{es to be encountered insofar as this information is reasonably
ascertainable from inspection of the Project site, including al( exploratory work done by the
Owner, as well as from information presented by the Contract Documents, or any other
information made available to the Contractor prior to receipt of bids. Any failure by the
Contractor to become acquainted with the available information shall not relieve the
Contractor from the responsibility for estimating properly the difficulty or cost of successfully
perfiorming the Work.
3.2 The Contractor shall be entitled to rely upon all information furnished to the Contractor in
writing by the CMAR with respect to the Project site and to make all inferences from it that
GENERAt_ CONDITIONS FOR CM AT RISK PROJECT 7 of 42 JUNE 2007 EDITION
would reasonably be made by a contractor having knowledge and experience with similar
work; however, the Contractor shall not be entitled to infer from CMAR-supplied information
any fact or condition which would not be inferred by a contractor having knowledge and
experience with similar work and, if the CMAR-supplied information is inadequate or
insufficient in any respect, the Contractor shall be required to obtain independently such
other information as a knowledgeable and experienced contractar would prudently obtain in
order to evaluate any such condition.
3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws,
ordinances, rules, and regulations which may in any manner affect those engaged or
employed in the Work, or the materials or equipment in ar about the Work, or in any way
affect the conduct of the Work and agrees that the Contractor and the Contractor's
employees, Subcontractors, and suppliers will, at all times, comply with same. If the
Contractor shall discover any provisions in the Contract Documents which are contrary to
or inconsistent with any such law, ordinance, rule, or regulation, the Contractor shall
immediately give notice thereof to the CMAR .in writing, identifying any items of Work
affected, and the Contractor shall not proceed until the Contractor has received written
direction from the CMAR with respect to these items. If the Contractor performs contrary to
or inconsistently with any such few, ordinance, rule, or regulation without giving such
notice, the Contractor shall bear all costs which are a consequence of such performance.
3.4 At times selected by the CMAR after execution by the Contractor of the Construction
Agreement, apre-construction conference shall be scheduled and conducted for the
benefit of the Project.
ARTICLE 4. BONDS
4.1 A performance bond in the full amount of the Contract Price, and subject to changes in the
Contract Price, may be required of the Contractor to guarantee the faithful performance of
the Work in compliance with the Contract Documents, in such form as may be required by
law and by the Owner. If required, the bond shall be dated the same date as the
Construction Agreement and must be accompanied by a current copy of the power of
attomey for the attorney-in-fact executing such bond on behalf of a surety company
licensed to do business in the state of North Carolina.
4.2 A payment bond in the full amount of the Contract Price, and' subject to changes in the
Contract Price, may be required of the Contractor to guarantee the payment of all labor and
material costs or claims in connection with compliance with the Contract. If required, the
payment bond shall be in such form as may be required by law and by the Owner. Said
bond shall be dated and executed in the. same manner as the performance bond in
paragraph 4.1.
ARTICt_E 5. INSURANCE AND INDEMNITY
5.1 CONTRACTOR PROVIDED INSURANCE
The Contractor shall, without limiting its obligations or liabilities, procure, pay for and
maintain such insurance as is required by law and as is required by the Agreement to
protect the Contractor, the CMAR, the Owner, the Designer and any lender of the Owner
when the loan to the Owner is secured by the property on which the Project is located from
claims for damages for bodily injury, Including death, and from claims for property damage
which may arise from the Contractor's or its representatives', consultants', Subcontractors',
agents', ar employees' operations under this Agreement. Such insurance shall be of the
kinds and have limits of liability and coverages not less than the minimum limits hereinafter
specified or required by law, whichever is greater. The CMAR makes no representation as
to the adequacy or sufficiency of such coverages. The following requirements shall in no
GENERAL CONDITIONS FOR CM AT RISK PROJECT 8 of 42 JUNE 2007 EDITION
way be construed to limit or eliminate the liability of the Contractor, which arises from
pertomtance of Work under the Agreement. The Gontractor is strictly responsible for any
losses, claims, and costs of any kind which exceed the Contractor's limits of liability, or
which may be outside the coverage scope of the policies.
The insurance specified shall be provided by an insurer approved by the CMAR, authorized
to do such business in the State of North Carolina, and on terms approved by the CMAR.
Insurance companies utilized shall have a minimum rating of A- and Class VII as evaluated
by the most current A.M. Best Rating Guide. If the insurer has a Best Rating less than A-
and Class VII, the Contractor must receive specific written approval from the CMAR prior to
proceeding with any Work under the Agreement. Ali agents and brokers shall hold valid
licenses from the State of North Carolina. The.Contractor shall furnish to the CMAR a
certificate or certificates of insurance in a form .satisfactory to the CMAR
contemporaneously with the executed Construction Agreement. Upon request of the
CMAR, the Contractor shall provide the CMAR with certified copies of the insurance
policiess required by this Article, including without limitation declaration pages, conditions,
exclusions and endorsements, and confirmation that each policy premium has been paid
for the required term of this Agreement. Certificates of insurance shall be signed by a
person authorized by that insurer to bind coverage on its behalf. All insurance policies
shall provide, as evidenced by Certificates of Insurance, that the insurance shall not be
canceled, reduced, restricted, or changed in any way without at least thirty (30) days prior
written notice to the CMAR and the Owner. With regard to expira#ion, cancellation,
reduction, restriction, or any other change, certificates shall state: "Should any of the
following described policies be canceled before expiration date or be due to expire within
thirty (30} days, the insurer shall mail thirty (30) days prior written notice to named
certificate holder." In the event of any such cancellation, non-renewal, reduction,
restriction, or change in any insurance, the Contractor is obligated to replace such
insurance within seven (7) days without a gap in coverage and file accordingly such notice
with the CMAR and the Owner, and other interested parties. Failing immediate receipt of
evidence of such replacement of insurance, the CMAR reserves the right to procure such
insurance as the CMAR considers desirable and the Contractor shall pay or reimburse the
cos# of the premium in respect thereof. It is expressly provided, however, that any action or
inaction on the part of the CMAR in this respect shall in no way change or reduce the
Contractor's responsibilities and liabilities under this Agreement. Setf-funded, policy
fronting, or other non-risk transfer insurance mechanisms are not acceptable without prior
written approval of the CMAR. Full disclosure of such a program must be made prior to
commencing mobilization to the Project site. Failure to make a full disclosure constitutes a
material breach of the Agreement, justifying termination for default.
The Contractor shall name the CMAR, the Owner, the Designer and their respective
consultants as additional insureds under all its insurance contracts (except workers'
compensation} with respect to and including without limitation liability arising out of
activities performed by or on behalf of the Contractor, products and completed operations
of the. Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor.
The coverage shall contain no special limitations an the scope of protection afforded to
additional insureds.
For any claims related to this Project, the Contractor's insurance or self-insurance shall be
primary and noncontributory with respect to the CMAR, Owner or Designer insurance. Any
insurance or self-insurance maintained by the CMAR, the Owner or the Designer shall be
excess and noncontributory with respect to the Contractor's insurance.
All policies of insurance except as noted in paragraph 5.2 shall contain a clause waiving
rights of subrogation against the CMAR, the Owner and the Designer, unless the CMAR
approves otherwise in writing.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 9 of 42 JUNE 2007 EDITION
Limits of coverage are not to be amended by deductible clauses of any nature without the
express written consent of the CMAR. The Contractor shall be solely responsible for any
deductible assumptions that may exist in any insurance palicies required under this
Agreement. In addition, the Contractor shall be responsible and shall not be reimbursed for
any losses arising from any risk ar exposure not insured as required herein, or not covered
as a result of a normal policy exclusion ar that falls within the self insured retention, if
Contractor is self insured.
The Contractor's insurance shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability.
The claim provisions in the Contractor's insurance palicies must specifically state the
insurance company or Contractor's third party administrator, if self insured, has bath the
right and duty to adjust a claim and provide defense.
The palicies shall not contain any provision or definition which would serve to exclude or
eliminate from coverage third party claims, including exclusions of claims for bodily or other
injury to shareholders, partners, officers, directors, or employees of the insured, the
premises owner, real estate manager, or the insured's Subcontractor, or any family relative
of such persons.
If the policies contain any warranty stating that coverage is null and void {or words to that
effect) if the Contractor does not comply with the most stringent regulations governing the
Work, it shall be modified so that coverage shall be afforded in all cases except for the
Contractor's willful or intentional noncompliance with applicable government regulations.
Any failure by any person to comply with reporting or other provisions of the policy
including breach of warranties, shall not affect coverage provided to the CMAR and the
Owner and their respective representatives, officials, and employees.
The insolvency or bankruptcy of the Insured or of the lnsured's estate shall not relieve the
insurance companies of their obligations under these policies. Any clauses to the contrary
are unacceptable and must be stricken.
Failure to comply with these requirements shat{ be a material breach of this Agreement
justifying termination for default.
5.1.1 Worker's Compensation and Employers' Liability Insurance
The Contractor and its Subcontractors shall procure and maintain Workers' Compensation
Insurance in the amount and type required by the State of North Carolina and federal law
for all employees employed under the Agreement who may come within the protection of
Workers' Compensation Laws and covering all operations under the Agreement whether
performed by the Contractor ar by its Subcontractors. In jurisdictions not providing
complete Workers' Compensation protection, the Contractor and its Subcontractors shall
maintain employers' liability insurance in an amount, form, company, and agency
satisfactory to the State of North Carolina and the CMAR far the benefit of all employees
not protected by Workers' Compensation Laws and covering all operations under the
Agreement whether performed by the Contractor or by its Subcontractors.
The Contractor shall pay such assessments as will protect the Contractor and the CMAR
from claims under the Workers' Compensation Laws, workers' or workmen's compensation
disability benefits, and other similar employee benefit acts. The current Experience
Modification Factor shall be indicated on the Certificate of Insurance.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 10 of 42 JUNE 2007 EDITION
Coverage under this section shall be as required by federal and state Workers'
Compensation and Occupational Disease Statutes, and shall have minimum limits as
follows:
Coverage A: Statutory, State of North Carolina
Employers' Liability: Each Accident $1,000,000
Disease -Policy Limit $1,000,000
Disease -Each Employee $1,000,000
Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation
in favor of the CMAR as well as other endorsements that may be required by applicable
jurisdictions, i.e. United States Longshoremen and Harbor Workers Act and maritime
coverage (Jones Act).
5.1.2 Automobile Liability Insurance
The Contractor shall procure and maintain automobile insurance against liability for bodily
injury and property damage as described below, that may arise with respect to the Work
being performed under the Agreement, and as will provide protection from claims which
may arise out of or result from the Contractor's performance of the Work and the
Contractor's other obligations under the Agreement, whether such performance of the Work
is by the Contractor, by any representative or Subcontractor, by anyone, both officially and
personaAy, directly or indirectly employed by any of them, or by anyone for whose acts any
of them maybe liable.
This policy of insurance shall carry the following minimum Limit of Liability:
Combined Single Limit
$1,000,000
The policy of insurance shall contain or be endorsed to include the following:
a) owned, hired, and non-owned automobile liability.
b) If the policy contains a warranty stating that coverage is null and void .(or words to
that effect} if the transporter does not comply with the most stringent regulations
governing the Work, it shall be modified so that coverage shall be afforded in all
cases except for the transporter's willful or intentional noncompliance with applicable
government regulations.
Any failure by any party to comply with reporting or other provisions of the policy including
breach of warranties, shall not affect coverage provided to the CMAR, the Owner, and their
respective representatives, officials, and employees.
No subcontracting of waste hauling shall be permitted without prior, written approval of the
CMAR. .
5.1.3 General Liability
This policy must be written on an Occurrence basis, with the fallowing minimum Limits of
Liability:
General Aggregate per project $2,000,000.00
Products/Completed Operations Aggregate $2,000,000.00
Bodily Injury and Property Damage cs!/each occurrence $1,000,000.00
Personal Injury and Advertising Injury $2,000,000.00
GENERAL CONDITIONS FOR CM AT RISK PROJECT 11 of 42 JUNE 2007 EDITION
The policy of insurance shall contain or be endorsed to include the following:
a} Blanket Contractual Liability covering Contractor's indemnification obligations
under this Agreement, in accordance with ISO policy fattn GG 00 01. Modifications
to the standard provision will not be acceptable if they serve to reduce coverage.
b) PremiseslOperations Liability.
c) Explosion, collapse, and underground fault.
d) Independent Contractors and Independent Subcontractors coverage.
e) Broad Form Property Damage.
f} Personallnjury.
g} Cross LiabilitytSeverability of Interest clause.
h) Employer's Stop-Gap Liability endorsement, if applicable.
Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily
injury or property damage caused by heat, smoke, or fumes from a hostile fire.
j) Designated General Aggregate Limit Endorsement if required by the
Supplementary Conditions.
k} For contractors with design responsibility, endorsement CG22 80 and D1C for
contractors' professional is requested.
Coverage shall remain continuously in effect and without interruption for at least six (6}
years from the date of the Notice of Award and shall include coverage for exposures arising
from operations that have been completed. The Contractor shall furnish the CMAR and
each other addifional insured listed in the Agreement to whom the Cerkificates have been
issued, evidence satisfactory to the CMAR of continuation of such insurance at the date of
Substantial Completion and each year thereafter.
5.1.4 Pollution Legal Liability (PLL}
Pollution Legal Liability coverage will be provided if required by the Supplementary
Conditions.
5.1.5 Professional Liability
Policies for professional liability must be provided by the Contractor or its independent
design professional if the Contractor is required to provide any professional design services
under the Contract Documents. Alternatively, compliance with paragraph 5.1.3 (k} is
acceptable. The limits of coverage required for professional liability shalt be included in the
Contract Documents, and will be subject to approval by the CMAR, taking into account
among any other reasonable factors the risks insured against, the cost of the insurance,
and the professionals providing the insurance.
5.1.6 Claims
The Contractor shall notify the CMAR within twenty-four {24) hours of any claims or alleged
claims received by the Contractor covered by any of the policies of insurance required of
GENERAL CONDITIONS FOR CM AT RISK PROJECT 12 of 42 JUNE 2007 EDITION
Contractor in this Agreement. The Contractor shall provide a written copy of the claim or
alleged claim to the CMAR within three (3) days of the Contractor's receipt of the claim or
alleged claim. if a claim is settled to the satisfaction of the claimant, the Contractor shaft
submit a copy of the claimant's release to the CMAR.
If a claim or alleged claim is rejected by the Contractor and/or its insurance company, the
Contractor shall immediately report this fact to the CMAR.
Should thirty {30} days elapse after the claim or alleged claim has been received by the
Contractor, and the Contractor is not able to report a settlement or rejection of the claim, it
shall report to the CMAR the steps being taken with respect to the claim.
Without limiting the foregoing, the Contractor shall notify the CMAR in writing of any paid or
incurred claims which may impair annual aggregate or general liability.
5.1.7 Deductibles and Self-insured Retentions
Any deductibles orself-insured retentions must be declared to and approved by the CMAR.
At the option of the CMAR, either: the insurer shall reduce to a maximum of $250,000 or
eliminate such deductibles or self-insured retentions with respect to the CMAR, or the
Contractor shall provide evidence of collateral provided to insurers or procure a bond
guaranteeing payment of losses and related investigations, claim administration, and
defense expenses within the deductible or self-insured retention amount. Any self-insured
retention or deductible amount on the policy shalt not reduce the amount of collectible limits
or liability.
5.1.8 Subcontractors
The Contractor shall include all Subcontractors as Insureds under its policies, or shall
furnish separate certificates, policies, and endorsements for each Subcontractor the
Contractor intends to use. If a Subcontractor does not take out insurance in its own name
and the Contractor wishes to provide insurance protection for such Subcontractor and such
Subcontractor's employees, the Contractor shall either (a) procure appropriate policies in
the name of the Subcontractor, or {b) cause a rider or riders to be attached to the
Contractor's policies which shall identify the Subcontractor thereby covered; provided,
however, in the case of the latter option, such a rider need not be attached to the
Contractor's workers' compensation policy if such policy by its terms is sufficiently broad to
cover the employees of all Subcontractors performing Work under the Contract Documents.
Except as otherwise approved by the CMAR in writing, Limits of Liability and coverage
scope must be at a minimum as stringent as required of the Contractor by the Contract
Documents. All Wark performed for the Contractor by any Subcontractor shall be pursuant
to an appropriate agreement between the Gontractor and the Subcontractor which shall
contain provisions that waive all rights the contracting parties may have against one
another for damages caused by fire or other perils covered by insurance as provided
herein. Insurance monies received from any loss shall be divided as the respective interest
of the parties affected shall appear.
5.2 PROPERTY INSURANCE
The CMAR shall be responsible far purchasing and maintaining insurance to protect the
Project from perils of physical loss. The insurance shall provide for the cost of replacement
for the Work at the time of any loss. The insurance shall include as named insureds the
Owner, the CMAR, the Contractors and their Subcontractors and shall insure against the
loss from the perils of fire and all risk coverage for physical loss or damage due to theft,
vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, damages
resulting from defective design, negligent workmanship or defective material. The CMAR
GENERAL CONDITIONS FOR CM AT RISK PROJECT 13 of 42 JUNE 2007 EDITION
shall increase the coverage limits as necessary to reflect changes in the estimated
replacement cast of the Project.
The CMAR shall provide the Contractor, if requested, with copies of all policies thus
obtained for the Project. The CMAR shall provide the Contractor with thirty (30) days
notice of cancellation, non-renewal or endorsement reducing ar restricting coverage.
The Contractor and the CMAR waive all rights against each other and against the other
separate contractors, the Owner, and their respective consultants, agents and employees
far damages occun-ing during construction and covered by builder's risk and any property
insurance required for this Project excluding Owners' Property insurance. The Contractor
and the CMAR shall each require appropriate similar waivers from the Owner, the other
separate contractors, their Subcontractors, and their consultants and agents. This waiver
does not apply to design liability.
The Contractor is responsible for all physical damage to owned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor and/or
Subcontractors} in the performance of the Work. The insurance coverage evidencing such
shall include a waiver of subrogation in favor of the CMAR, the Owner and the Designer
and their respective consultants and agents.
The Contractor shall provide valuable papers and records insurance with coverage in an
amount commensurate with project scope as set forth in the Supplementary General
Conditions.
if the Project includes as addition to or is adjacent to an existing structure, the CMAR, the
separate Contractors and the Subcontractors shall be named as additional insureds for the
Owner's property insurance covering such structure and its contents.
If the Owner occupies or uses a part or parts of the Project prior to Substantial Completion
thereof, such occupancy shall not occur until the Owner obtains property insurance for the
structure and until all insurance companies providing insurance for the Project consent to
such occupancy by endorsement to the insurance policies.
5.3 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE
In the event the Owner elects to purchase project-specific insurance affording coverage to
the Contractor and Subcontractors, the terms and conditions of such coverage shall be set
forth in the Supplementary Conditions.
5.4 CONTRACTOR AS JOINT VENTURE
if the Contractor is completing this Project on a joint venture basis, both joint venture
partners retain all liabilities assumed by this Agreement, individually and collectively. This
may include, but is not limited to, a(I premiums due, deductibleslself-insured retentions,
coinsurance provisions, claim provisions, insurance policy conditions, and indemnification
provisions hereunder.
Evidence of a Blanket Joint Venture Endorsement must be obtained from the General
Liability and Contractor's Pollution Legal Liability carriers of each joint venture partner
substantially as follows:
With respect fo "your work ;and the "producfs-completed operations hazard ;you are an
insured for your liability arising out of the conducf of any partnership or joint venture of
which you were a partner or member, even though this partnership or joint venture is not
shown as a Named Insured in fhe Declarations. This coverage is excess over any
GENERAL CONDITIONS FOR GM AT RISK PROJECT 14 of 42 JUNE 2047 EDITION
available liability purchased specifically to insure the partnership or joint venture. This
coverage will not inure fo the benefit of any ofher party except you. "
5.5
INDEMNIFICATION
The Contractor, to the fullest extent not expressly prohibited by law, shall defend,
indemnify, and save harmless the CMAR, the Owner, the Designer, and their respective
officials, afticers, employees, and agents from and against any and all liabilities
(foreseeable or unforeseeable), penalties, fines, forfeitures, demands, claims, causes of
actions, suits, judgments, and costs and expenses incidental thereto, (including, without
limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable
attorneys' fees), which any or all of them may hereafter suffer, incur, be responsible for, or
pay out as a result of but not limited to:
a} bodily injury (including sickness, disease, or death) to any person including, but not
limited to, the Contractor's employees or its representatives while on the site of the
Project; or
b) actual or alleged damage {including Loss of use) to any property (public or private,
including the Project or other property an the Project site); or
c} contamination of or adverse effects on the environment arising directly or indirectly out
of or in connection with the performance of the Work, including but not limited to any
hazardous or toxic waste, substance, or constituent of any substance subject to
regulation under CERCt~1, RCRA, TSCA, and other Federal and state authorities that
is spilled, released, threatening to release, or disposed of or destroyed by the
Contractor or its Subcontractors on or oft the site of the Project or while in transport to
or from the site; or
d} any violation or alleged violation of laws and regulations, arising out of or in any way
connected with the Work,
caused in whole or in park by the Contractor, any Subcontractor or supplier or any
representatives of the Contractor. The Contractor shall not be required to indemnify any
person against losses resulting from a breach of contract or resulting from negligence,
misconduct or violation of laws on the part of any person indemnified hereunder.
The Contractor further agrees to obtain, maintain, and pay for such liability insurance
coverages and endorsements as will insure the provisions of this paragraph 5.4.
Furthermore, the Contractor agrees to be liable for and to indemnify and reimburse the
CMAR and the Owner for al! legal fees and disbursements paid or incurred to enforce the
provisions of this paragraph 5.4. The indemnification obligations under this paragraph 5.4
shall not be limited in any way by the amount or type of damages, compensation or
benefits payable under worker's compensation ~ acts, disability benefit acts, other
employment benefit acts, or the amount of insurance carried or recovered.
The CMAR acknowledges that hazardous or toxic waste, material, chemicals, compounds
or substances, or other environmental hazards, contamination or pollution, (referred to
hereinafter as "environmental hazards") may be present at the Project site that were not
created, generated, or released at the Project site by the Gontractor or its Subcontractors,
agents or employees, acting alone or in concert with others. Unless the remediation,
abatement or handling of such environmental hazards is part of the scope of the Work
under this Agreement, then upon the discovery of such environmental hazards, the
Contractor shall immediately, and in no event more than three days after such discovery,
give notice to the CMAR of the environmental hazards before they are disturbed. The
CMAR, the Owner and the Designer shall thereupon promptly investigate the
GENERAL CONDITIONS FOR CM AT RISK PROJECT 15 of 42 JUNE 2007 EDITION
environmental hazards, and make such changes in the Drawings andlor Specifications as
they may find necessary to abate, remediate, isolate or handle the environmental hazards.
Any increase or decrease in the Contract Price or the Contract Time resulting from such
changes shall be adjusted in the manner provided herein far adjustments as to extra and/or
additional Work and changes. It is agreed that the Contractor shall have no liability under
this Agreement for any environmental hazards existing at, on or in the Project site prior to
the date that Work commences under this Agreement unless the Contractor or its
Subcontractors, agents or employees, acting alone or in concert with others, by their own
negligence or misconduct, release or expose the Owner or third parties to the
environmental hazards.
The provisions of this paragraph 5.4 shall survive the termination or cancellation or
completion of this Agreement.
ARTICLE fi. OTHER RECORD DOCUMENTS AND SUBMITTALS
6.1 The CMAR shall furnish to the Contractor the number of copies of Drawings and
Specifications stated in the Supplementary Conditions. Additional copies of Drawings and
Specifications may be obtained at the cost of reproduction and handling.
6.2 The Contractor shall submit to the CMAR for forwarding to the Designer all Submittals
required by the Contract Documents. The Contractor shall submit four (4) reproducible
prints of al! shop drawings plus the number of copies sufficient for its requirements. The
Contractor shall submit samples in quantities required by the Contract Documents. The
Contractor shall submit product data in five (5) copies, plus the number of copies sufficient
far the Contractor's requirements. All shop drawings shall be reviewed by the Contractor
and shall bear the Contractor's stamp of approval before being forwarded to the CMAR and
the Designer. Submittals shall be submitted in such time as to cause na delay to the Work
or any part thereof and in accordance with the Contractor's Construction Schedule and
Submittal Register. The CMAR shall review and process the submittal with reasonable
promptness, noting desired corrections, if any. The CMAR shall retain three (3} copies of
the submittal and shall retum the balance of the reviewed submittal to the Contractor for
action. The Contractor shall furnish any corrected submittal to the CMAR for forwarding to
the Designer. The CMAR shall retain three {3) copies of the corrected submittal for the
records of the CMAR and the. Designer, and will return the balance of the reviewed
submittal to the Contractor.
Subject to paragraph 6.3 herein, no substitutions will be accepted after the bids have been
received. All substitutions prior to the receipt of bids shall be in accordance with the
Contract Documents.
The Contractor acknowledges that the processing of shop drawings and other submittals is
directly impacted by the clarity, completeness, and accuracy of said documents and that it
is the Contractor's responsibility to (i} review and coordinate each submittal with all other
related or affected Work and (ii) approve each submittal before submitting same to the
CMAR for approval,
6.3 No substitutions and no deviations from any requirement of the Contract Documents shall
be deemed allowed unless the Contractor has specifically informed the CMAR in writing of
such deviations at the time of submittal and the Designer and the Owner have given written
and specific approval to the substitu#ions or deviations. In proposing a deviation or
substitution, the Contractor warrants to the CMAR, notwithstanding any review, allowance
or approval by the Designer or the Owner, that the deviation or substitution is at least equal
to or better in quality and for the purpose intended, and that the Contractor shat{ not by
reason of any such review, allowance or approval be relieved from any obligation or
responsibility contained in the Contract Documents.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 16 of 42 JUNE 2007 EDITION
6.4 Review of submittals by the CMAR and the Designer shall not be construed as relieving the
Contractor from responsibility for compliance with terms or designs of the Contract
Documents nor from responsibility for errors of any sort in the submittal.
6.5 The Contractor shall keep one record copy marked "As-Built" of all Specifications,
Drawings, Addenda, Modifications, and Submittals at the Project in good order and
annotated at least monthly to show all changes made during the construction process.
Such monthly annotations and their approval by the CMAR shall be a condition precedent
to approval by the CMAR of each monthly Request for Payment. Said record copy shall be
stored at the Project and fully protected from damage by fire or other hazard. This record
copy shall be available to the CMAR, the Designer and the Owner for inspection at all
times. The complete record copy shall be delivered to the CMAR for review and transmittal
to the Designer for the Owner's purposes prior to the Designer's certifying Substantial
Completion of the Work.
6.6 At completion of the Project and before Final Payment, the Contractor shall assemble and
deliver to the CMAR one complete set of all as-built drawings and one complete set of all
approved submittals, product data, and samples which were reviewed by the Designer.
These drawings and submittals shall be on paper, or in electronic or other media if required
by the Supplementary Conditions. These drawings and submittals shall be categorized
and packaged as directed by the Designer.
ARTICLE 7. CONTRACTOR
7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as may be set forth specifically in the Contract Documents, the
Contractor shall be solely responsible for the means, methods, techniques, sequences, and
procedures of construction, and for safety precautions and programs in connection with the
Work. The Gontractor shall be responsible to see that the finished Work complies
accurately with the Contract Documents.
7.2 The Contractor shall appoint a competent Project Manager with general authority to
manage the Project for the Cantractor. The Contractor also shall keep on the Project at all
kimes during the Work of the Contractor a competent Resident Superintendent and
necessary assistants who shall not be replaced without prior written approval by the CMAR
except under extraordinary circumstances, in which event immediate written notice shall be
given to the CMAR. If approved by the CMAR, taking into account the scope and
complexity of the Work of the Contractor, the Project Manager and the Resident
Superintendent may be the same person. At any time, the CMAR, in its sole and absolute
discretion, may require the Contractor to replace the Project Manager or Resident
Superintendent with an experienced and competent person or persons upon seven (7}
days written notice from the CMAR to the Contractor. Such replacement shall be at the
Contractor's expense and at no cost to the CMAR.
Both the Project Manager and the Resident Superintendent shalt have authority to act on
behalf of the Contractor, and instructions, directions or notices given to either of them shall
be as binding as if given to the Contractor.
7.3 The Cantractor shall provide sufficient competent and suitably qualified personnel,
equipment, and supplies to lay out the Work and perform construction as required by the
Contract Documents. The Contractor will at all times maintain good discipline and order at
the site, and will comply with all applicable OSHA standards.
Any person employed by the Contractor, by any Subcontractor, or by any sub-
subcontractor who, in the opinion of the CMAR, the Designer or the Owner, does not
perform its Work in a proper and skillful manner or is intemperate or disorderly shall, at the
GENERAt_ CONDITIONS FOR CM AT RISK PROJECT 1 ~ of 42 JUNE 2007 EDITION
written request of the CMAR, be removed forthwith by the Contractor, Subcontractor, or
sub-subcontractor employing such person without cost to the CMAR, and shall not be
employed again in any portion of the Work without the prior written approval of the CMAR.
Should the Contractor fail to remove such person or persons or fail to furnish suitable and
sufficient personnel far the proper prosecution of the Work within three (3) days after
written order, the CMAR may withhold further payment by written notice until compliance
with such order.
7.4 If, in the opinion of the CMAR, the Designer or the Owner, any Subcontractor on the
. Project is incompetent or otherwise unsatisfactory, such Subcontractor shall be replaced by
the Gontractor with no increase in the Contract Price if and when directed by the CMAR in
writing.
7.5 The Contractar shall furnish all materials, equipment, labor, transportation, construction
equipment and machinery, tools appliances, fuel, light, heat, and all other facilities and
incidentals necessary for the execution, maintenance, initial operation, and completion of
the Work, other than those specifically excluded by the Contract Documents and to be
furnished by the CMAR or others. When use or storage of hazardous materials or
equipment or methods of more than ordinary risk are necessary in accomplishing the Work,
the Contractor shall give the CMAR reasonable advance notice.
If any materials are to be furnished or installed by the CMAR or others under the terms of
the Contract Documents, said materials shall be made available to the Contractor at the
location(s) specified in the Contract Documents. All costs of handling, transportation from
the specified location to the Project, storage, and installing of materials furnished by others
shall be included in the Contract Price. The Contractor shall be responsible for any
demurrage, damage, loss, or other deficiencies which may occur during the Contractor's
handling, storage, or use of material furnished by others. The CMAR shall deduct from any
monies due or to become due the Contractar any cost incurred by the CMAR in making
goad any such damage, loss, or deficiency.
All equipment which is proposed to be used in the Work shall be of sufficient size and in
such mechanical condition as to meet the requirements of the Work and produce a
satisfactory quality of work. Equipment used on any portion of the Work shall be such that
no injury to previously completed Work, adjacent property, or existing facilities shall result
from its use:
When the methods and equipment to be used by the Contractor accomplishing the Work
are not prescribed in the Contract Documents, the Contractor shall be free to use any
methods or equipment that wit! accomplish the Work in conformity with the requirements of
the Contract Documents.
When the Contract Documents specify the use of certain methods and equipment, such
methads and equipment shall be used unless others are authorized in writing by the
CMAR. If the Contractor desires to use a method or type of equipment other than that
specified in the Contract Documents,.the Contractor may request authority from the CMAR
to do so. The request shall be in writing and shall include a full description of the methods
and equipment proposed and of the reasons far desiring to make the change. If approval is
given, it shall be on the condition that the Contractor shall be fully responsible for producing
Work in conformity with the requirements of the Contract Documents. If, after trial use of
the substituted methods or equipment, the CMRR or the Designer determines that the Work
produced does not meet the requirements of the Contract Documents, the Contractor shall
discontinue the use of the substitute method or equipment and shall complete the
remaining Work with the specified methods and equipment at no additional cost to the
Owner. The Contractor shall remove any deficient Work and replace it with Work of
GENERAL CONDITIONS FOR CM AT R{SK PROJECT 18 of 42 JUNE 2007 EDITION
specified quality, or take such other corrective action as the CMAR may direct. No change
in the Contract Price or in Contract Time shall be made as a result of authorizing a change
in methods or equipment under this paragraph.
7.6 All materials and equipment shall be new, except as otherwise provided in the Contract
Documents. When special makes or grades of material which are normally packaged by
the supplier or manufacturer are specified or approved, such materials shall be delivered to
the Project site in their original packages 'or containers with seals unbroken and labels
intact.
Materials shall be so stored as to assure the preservation of their quantity, quality and
fitness for the Work. Stored materials, even though approved before storage, may again be
inspected by the CMAR, the Designer or the Owner prior to their use in the Work and shall
be required to meet the requirements of the Contract Documents at the time they are
incorporated into the Work. Stored materials shall be located sa as to facilitate their prompt
inspection. The Contractor shall coordinate the storage of all materials with the CMAR.
Materials to be stored at the Project or on the Owner's property shall not create an
obstruction to the Owner's or other contractor's reasonable activities. Private property shall
not be used for storage purposes without written approvals consistent with the provisions of
paragraph 20.3 of these General Conditions. The Contractor shall make all arrangements
and bear all expenses for the storage of materials an private property. Upon request, the
Contractor shall furnish the CMAR a copy of the property owner's permission. All storage
sites an private or the Owner's properly shall be restored to their original condition by the
Contractor at its entire expense, except as otherwise agreed to (in writing) by the owner or
lessee of the property.
7.7 All materials and equipment shall be applied, installed, connected, erected, used, cleaned
and conditioned in accordance with the instructions of the applicable manufacturer,
fabricator, or processor, except as otherwise provided in the Contract Documents.
7.8 The Contractor will be fully responsible for all acts and omissions of its Subcontractors and
of persons directly or indirectly employed by them and of persons for whose acts any of
them may be liable to the same extent that the Contractor is responsible for the acts and
omissions of the Contractor's own employees. Nothing in the Contract Documents shall
create any contractual relationship between any Subcontractor or supplier and the CMAR,
the Owner or the Designer, ar any obligation on the part of the GMAR, the Owner or the
Designer to pay or see to the payment of any money due any such Subcontractor or
material furnisher except as may otherwise be required by law. The CMAR may furnish to
any Subcontractor or supplier, to the extent practicable, evidence of amounts paid to the
Contractor on account of speck Work done.
7.9 The divisions and sections of the Specifications and the identifications of any Drawings
shall not control the Contractor in dividing the Work among Subcontractors.
7.10 The Contractor agrees to bind specifically every Subcontractor to the terms and conditions
of the Contract Documents far the benefit of the CMAR and to furnish written evidence
thereof to the CMAR within seven (7) days after written request by the CMAR.
7.11 The Contractor shall attend jab progress conferences and all other meetings or
conferences as directed by the CMAR. The Contractor. shall be represented at these job
progress conferences by a representative having the authority of the Project Manager and
by such other representatives as the CMAR may direct. Job progress conferences shall be
open to Subcontractors, suppliers and any others who may contribute beneficially toward
maintaining required job progress, and such personnel shall be encouraged by the
Contractor to attend. It shall be the principal purpose of job progress conferences to effect
coordination, cooperation and assistance in every practical way toward the end of
GENERAL CONDITIONS FOR CM AT RISK PROJECT 19 of 42 JUNE 2007 EDITION
maintaining progress of the Project on schedule and to complete the Work and the Project
by the specified Completion Dates. The Contractor shall be prepared to assess progress of
the Work as required in the Contract Documents and to recommend remedial measures for
correction of progress as may be appropriate. The CMAR shall preside as chairman and
arrange for minutes to be taken and circulated.
In the event that the prosecution of the Work is discontinued for any reason, the Contractor
shall notify the CMAR at least forty-eight (48) hours in advance of resuming operations.
Shou{d the terms of the Contract documents require completion of one or more portions of
the Work for the Beneficial Occupancy of the Owner prior to completion of the entire Wark,
the Contractor shall complete such portion{s} of the Work on or before the date specified.
Such completion shall include the obtaining of all government or other permits, permission,
and/or approvals necessary to occupancy. The Contractor steal! independently estimate the
difficulties involved in arranging the Work to permit such Beneficial Occupancy and shall
not claim any additional compensation or time extension by reason of any delay or
increased cost due to completing such portions} of the Work. The Owner's possession and
use of such portion(s) of the Work shall not be deemed an acceptance of any Work not
completed in accordance with the Contract Documents. The Owner shall be responsible far
the security, maintenance, utilities, and insurance of all portions of the Work completed and
beneficially occupied by the Owner.
7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the
use of any invention, design process, or device which is the subject of patent rights or
copyrights held by others, except for inventions, design processes, or devices specified by
the Designer in the Contract Documents. The Contractor shall indemnify and hold harmless
the CMAR, the Owner, the Designer, and anyone directly employed by any of them, from
and against all claims, damages, losses and expenses, including attorney's fees and costs
of defense, arising out of any infringement or alleged infringement of such rights during or
after completion of the Work, and shall defend all such claims in connection with any actual
or alleged infringement of such rights.
7.13 The Contractor shall secure and pay for all permits, including without limitation construction
permits and licenses, and will pay all governmental charges and inspection fees necessary
for the prosecution of the Work.
7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and
regulations applicable to the Work and shall protect and indemnify the CMAR, the Owner,
the Designer, and their respective officials, officers, agents, employees or servants against
any claim or liability arising from or based on the violation of any such law, ordinance,
regulation, order, or decree, whether by the Contractor ar by the Contractor's employees,
Subcontractors, sub-subcontractors, or their employees.
7.15 The Contractor shall be responsible for the reasonable and necessary protection and
security of its Work and its property and the property of others at the site, as required by
laws or ordinances governing such conditions, or by custom or sound construction
practices, and shaA share such responsibilities for protection of property at the site as may
be directed by the Contract Documents and the CMAR. The Contractor shall be
responsible for any damage to the Owner's property, or that of others, by the Gontractor or
the Contractor's employees, Subcontractors, sub-subcontractors, or their employees or
agents, and shall make good such damages. The Contractor shall be responsible for and
pay for any such claims made against the CMAR or the Owner.
7.16 The Contractor shall comply with the Project Safety Program and Public Hazard Control
Plan implemented by the CMAR. The Contractor shall protect existing improvements
GENERAL CONDITIONS FOR CM AT RISK PROJECT 20 of 42 JUNE 2007 EDITION
designated to remain in the vicinity of the operations and barricade all walks, roads, and
areas as necessary to keep tha public away from the construction.
7.17 The Contractor shall provide cover and/or protect al( portions of the Work and provide all
materials necessary to protect the Work whether performed by the Contractor or any of the
Subcontractors or sub-subcontractors. Any Work damaged through the lack of proper
protection, or from any other cause, shall be repaired or replaced without extra cost to the
CMAR or extension to the Contract Time.
The Contractor shall maintain the Work during construction and until the Work is accepted.
This maintenance shall constitute continuous and effective effort prosecuted day by day,
with adequate equipment and forces so that the Work is maintained in satisfactory
condition at all times. All costs of maintenance shall be included in the Contract Price and
the Contractor will not be paid an additional amount for such effort. Should the CMAR
observe that the Contractor at any time has failed to maintain the Work as provided herein,
the CMAR may immediately notify the Contractor of such non-compliance. Such notification
shall specify a reasonable time within which the Contractor shall be required to remedy
such unsatisfactory maintenance condition. Should the Contractor fail to properly respond
to the CMAR's notification, the CMAR may, at the Contractor's expense, take such action
as it may deem appropriate to remedy the defective maintenance, including suspension of
the Contractor's Work or any part thereof. Any such expense incurred by the CMAR shall
be deducted from monies due or to become due the Contractor.
Parking lots, streets, and walks connecting to the Project area shall 'at all times be
protected by the Contractor from deposits of mud, sand, stone, litter, or debris in any form.
Pedestrian traffic areas around the construction limits must be maintained in a clean and
safe condition at all times with required barricades and covered walkways. When
excavation or other operations outside the Project limits is required, the Contractor shall,
immediately following that work, return the area to its original condition.
All catch basins and storm drain lines in the vicinity of the Project site shall be protected at
all times from entry of dirt, rubble and other debris. The residue from the~cleaning of trucks,
wheelbarrows, concrete buggies, etc. must be prevented from entering the drainage
system, and if cleaning is done, the residue must be contained and removed from the
Project site with other refuse.
7.18 No burning of refuse ar debris shall be allowed inside or around the Project during the
course of construction.
7.19 The Contractor shall provide for and maintain necessary safety measures and safety
programs for the protection of its employees and other persons at the Project site, and shall
comply at all times with the requirements of the most current edition of the CAGC Safety
and Health Manual [or the AGC Accident Prevention Manual in Construction], or the
equivalent requirements of the Contractor's safety program, and shall fully comply with al{
Federal, State, and local laws, rules, regulations, and building code requirements so as to
prevent accidents or injuries to persons on or about the Project site. The Contractor shall
clearly mark or post signs warning of existing hazards, and shall barricade excavations,
elevator shafts, stairways, floor and wall openings and similar hazards. The Contractor
shall protect against damage or injury resulting from falling materials, and shall maintain al{
protective devices and signs throughout the progress of the Work.
All trenches, excavations, or other hazards in the vicinity of the Work shall be well
barricaded, and properly lighted at night. When Work requires closing pf an area normally
used by the Owner or the public, the Contractor shall furnish, erect, and maintain temporary
GENERAL CONDITIONS FOR CM AT RISK PROJECT 21 of 42 JUNE 2007 EDITION
barricades, and properly light the area. The Contractor shall comply with any directions and
public authorities in this respect.
7.20 The Contractor shall adhere to the rules, regulations, and interpretations of the North
Carolina Department of Labor's Occupational Safety and Health Standards for the
Construction Industry (29 GFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29
CFR Part 1910 General Industry Safety and Health Standards applicable to construction)
and N.C. Gen. Stat. §95-126 through 155 (Occupational Safety and Health) as well as all
revisions and amendments to such standards or statutes as may occur throughout the
performance of the Work.
7.21 Any land-disturbing activity performed by the Contractor in connection with the Project shall
comply with all erosion control measures set forth in the Contract Documents and any
additional measures which may be required in order to ensure that the Project is in full
compliance with the Sedimentation Poi{ution Control Act of 1973, as implemented by Title
15 North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A,
4B and 4C, as amended {15 NCAC 4A, 4B, and 4C), and as may be revised or amended in
the future. Upon receipt of notice that aland-disturbing activity is in violation of said Act, the
Contractor shall be responsible for ensuring that all steps or actions necessary to bring the
Project in compliance with said Act are promptly taken. The Contractor shall be responsible
for all penalties assessed pursuant to N.C. Gen. Stat. 113A-64 with respect to its Work, and
shall indemnify and hold harmless the CMAR and the Owner from all costs and expenses,
including aftarney's fees and costs of defense, arising out of or related to the enforcement
of the Act against any party or person described in this Article.
7.22 The Contractor shall designate a responsible officer or employee as safety inspector,
whale duties shall include accident prevention on the Project as well as implementation of
the Contractor's safety measures and safety programs on the Project. The name of the
safety inspector shall be made known to the CMAR at the pre-construction conference.
7.23 !n emergencies affecting the safety of persons, the Work, or property at the Project site or
adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent
threatened damage, injury, ar lass. As soon as practicable, the Contractor shall notify the
CMAR of such emergency. The Contractor shall give the CMAR prompt written notice of
any significant changes in the Work or deviations from the Contract Documents caused by
such emergency. if the Contractor believes that additional work done in an emergency
entitles the Contractor to an increase in the Contract Price or an extension of the Contract
Time, the Contractor may make a claim therefore as provided in Articles 14 and/or 15 of
these General Conditions.
7.24 The Contractor shall at all times keep the premises free from accumulation of waste
materials or rubbish caused by the Work. At least weekly and at the completion of the
Work, the Contractor shall remove all waste materials and rubbish attributable to the
Contractor's Work from and about the Project. At the completion of the Work, the
Contractor shall remove all tools, construction equipment, machinery, and surplus
materials. The Contractor shall leave the Wark in condition for occupancy by the Owner
such that no cleaning or other operations are required. Material cleared from the Project
and deposited on adjacent property shall not be considered as having been disposed of
satisfactorily. If the Contractor fails to keep the Project clean and free of waste materials or
rubbish, fails to satisfactorily clean-up weekly or at the completion of the Work, the CMAR
may do so and the costs thereof may be deducted from any amounts due or to become
due the Contractor.
7.25 Utilities, temporary facilities, and signs shall be provided as described in the Contract
Documents. Absent a contrary direction in the Supplementary Conditions, the Contractor
GENERAL CONDITIONS FOR CM AT RISK PROJECT 22 of 42 JUNE 2007 EDITION
shall pay all bills for its consumption of water, electricity, or other public utility service to the
Project site.
7.26 The Contractor shall indemnify and hold the CMAR, the Owner, the Designer, the
Designer's consultants, and their respective officers, agents, and employees harmless
against. all costs, damages, and expenses, including attorney's fees and costs of defense,
arising out of claims by any separate contractor or by any Subcontractor, sub-
subcontractor, or supplier engaged by or employed by the Contractor ar employed by any
of the Subcontractors claiming through hirn, including without (imitation damages, losses,
and expenses arising out of ar relating to any inconvenience, delay, interference, or other
action or non-action of the Contractor or the Contractor's Subcontractors on the Project.
The Contractor acknowledges that should the Contractor or any of the Contractor's
Subcontractors be damaged by any breach of contract by any other separate contractor on
the Project, the Contractor may invoke applicable dispute resolution procedures with said
other separate contractor.
7.27 Prior to completion of the Work and Final Payment of the Contract Price, excepting only
those portions of the Work deemed accepted in accordance with the Contract Documents,
the Contractor shall have charge and care of the Work, and shall take every precaution
against injury or damage to any party due to the action of the elements or from any other
cause, whether arising from the execution or from the non-execution of the Work. The
Contractor shall, as required by the CMAR, replace, rebuild, repair, restore, and make good
all injury or damage to any portion of the Work occasioned by any of the above causes
before Final Completion and shall bear the expenses thereof.
7.28 In the event that the Wark, or any portion thereof, is suspended at any time pursuant to an
order of the Owner, the Contractor shall obey all instructions of the CMAR regarding
storage of materials, drainage, protection of the Work, and erection of temporary structures
during the suspension period.
7.29 The CMAR shall be responsible for the coordination of the Work of the separate
contractors, bath as to space and time. The CMAR shall incorporate the Contractor's
Construction Schedule into the Master Schedule and coordinate the implementation of the
Contractor's Construction Schedule. The CMAR shall also coordinate close-out of the
Project, including but not limited to all testing, inspection, certifications, and approvals
required by public agencies.
The Contractor shall notify the CMAR promptly of any event or condition which could affect
the conduct or progress of the Work and shall cooperate fully with the CMAR and all other
separate contractors on the Project site.
7.30 The Owner has delegated to the CMAR all of its duties to coordinate and to expedite the
Work not expressly reserved to the Owner by other provisions of the Contract Documents.
7.31 Ail Work performed pursuant to the Gontract Documents shall conform in all respects to the
North Carolina State Building Gode and all other state, local, and national codes in effect at
the time of and applicable to this Work.
7.32 The CMAR shall coordinate and supervise the installation of all sleeves, inserts, chases or
other components of the Work needed for mechanical, p{umbing, electrical or other work by
the various contractors. The responsibility for exact location of such items shall be that of
the mechanical, plumbing, electrical or other prime contractor that requires the item for
passage ar support of its work. Generally, the mechanical, plumbing, electrical or other
contractor that requires such items far support or passage of its work shall set its sleeves,
inserts, chases or other devices. If necessary to maintain the progress of and complete its
GENERAL CONDITIONS FOR CM AT RISK PROJECT 23 of 42 JUNE 2007 EDITION
ARTICLE 1t}. DESIGNER
10.1 The Designer is charged with responsibility for preparation and inierpretation of the
Contract Documents. The Designer's decisions relating to aesthetic matters shall be final.
10.2 All Work completed under the Contract Documents shall be subject to review by the
Designer. No Work is to be covered without the Designer's review or prior authorization.
Any Work so covered without the Designer's review or prior authorization shall be
uncovered at the Contractor's expense. The Contractor shall notify the CMAR in writing at
leasttwenty-four (24) hours in advance of covering any Work.
10.3 The Designer shall not be responsible for the construction means, methods, techniques,
sequences, procedures, or the safety precautions and programs incident thereto, and shall
not be responsible for the Contractor's failure to perform the Work in accordance with the
Contract Documents, but shall be entitled to enforce any requirements in the Contract
Documents specifying particular means, methods, techniques, sequences, or procedures.
10.4 The Designer shat! be an Owner's agent during the construction period. The duties,
responsibilities and authority of the Designer as the Owner's representative during
construction are as set forth in the Contract Documents.
ARTICLE 11. TESTING AND SURVEYING
11.1 Laboratory and field tests to determine compliance of construction with the Contract
Documents shall be made by the Owner or testing consultants employed by the Owner
except those required elsewhere in the Contract Documents to be paid for by the
Contractor. The costs and expenses of providing samples for and assistance in any testing
shall be borne by the Gontractor and are included in the Contract Price. Any Work in which
untested materials are used without approval or written permission of the CMAR and the
Designer shall be removed and replaced at the Contractor's expense. Work found to be
unacceptable or unauthorized will not be paid for and, if directed by the CMAR, shall be
removed and replaced at the Contractor's expense. Unless otherwise designated, tests in
accordance with the cited standard methods of ASTM or other generally recognized or
specifically authorized methods which are current on the date of advertisement for bids
shall be made at the expense of the Owner; provided, however, in the event that after such
testing any Work is found to be defective or does not meet the requirements of the Contract
Documents, the costs of retesting such Work and the costs of inspection services shall be
paid by the Contractor. Samples shall be taken by a testing laboratory employed by the
Owner. All materials being used are subject #o inspection, tests, or rejection at any time
prior to or during incorporation into the Work. Copies of all Owner test reports will be
furnished to the Contractor at its written request. Copies of Contractor test reports shall be
furnished to the CMAR upon written request.
11.2 The CMAR shall have the right to •deduct the casts of additional testing as described in
paragraph 11.1 from any money due or to become due the Contractor; or if no money is
due the Contractor, the CMAR shall have the right to recover. these costs from the
Contractor, from its sureties, or from both.
11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly
licensed in the State of North Carolina.
ARTICLE 12. SEPARATE CONTRACTS
12.1 It is expressly understood that the CMAR and the Owner may deploy their own employees
or engage other separate contractors to perform Work as a part of the Project whose work
will be performed simultaneously and sequentially with the performance of the Work by the
GENERAL CONDITIONS FOR CM AT RISK PROJECT 25 of 42~ JUNE 2007 EDITION
Contractor. It shall be necessary for the Contractor to coordinate construction activities with
such other contractors, particularly with respect to access to work areas, storage of
materials, and use of elevators and other common facilities. The Contractor shall diligently
and in good faith cooperate with the CMAR, the Owner, the Designer, and all other
contractors with respect to such matters and shall regularly and faithfully attend any and all
meetings called by the CMAR with respect to such matters. Any disputes between the
Contractor and any other separate prime contractor with respect to such matters shall be
resolved in accordance with the claim and dispute resolution procedures in the Agreement.
ARTICt_E 13. CQNTRACT TIME
13.1 Within fourteen (14} days after initial receipt of the Construction Agreement by the
Contractor far signatures, the Contractor shall prepare and submit to the CMAR for review
and approval a preliminary Contractor's Construction Schedule for the Work pursuant to the
requirements stated in the Contract Documents.
13.2 Within fourteen (14) days after initial receipt of the Construction Agreement by the
Contractor for signatures, the Contractor shall submit to the CMAR a Submittal Register
listing all Submittals the Contractor is required to make or proposes to make under the
Contract Documents, the dates on which the Contractor proposes to make such Submittals
and the dates by which the Contractor reasonably requires a response from the CMAR and
the Designer with respect to each Submittal. The dates submitted shall be incorporated into
the Contractor's Construction Schedule as Completion Dates when they have been
approved or modified by the Owner. The CMAR and the Designer shall not be required to
review any Submittal from the Contractor until a Submittal Register acceptable to and
approved by the CMAR has been submitted by the Contractor.
13.3 Not later than thirty (30} days following execution and delivery of the Construction
Agreement by the CMAR to the Contractor, the CMAR shall deliver to the Contractor a
Notice to Proceed. The Notice to Proceed shaft state a commencement date on which it is
expected that the Contractor will begin the Work to be performed under the Agreement.
The Contract Time shall be measured from said specified commencement date. The
commencement date stated in the Notice to Proceed shall not be earlier than three (3) days
after the Notice to Proceed is served on the Contractor.
If, other than by mutual agreement, said specified commencement date is more than thirty
(30} days after the date of execution and delivery of the Agreement from the CMAR to the
Contractor and the Gontractor believes said delay justifies an increase in Contract Price
and/or an extension of Contract Time, the Contractor may make a claim therefore as
provided in Article 14 and/or Article 15 of these General Conditions.
No Work shall be done prior to the date specified in the Notice to Proceed.
The Gontractor shall submit a final Contractor's Construction Schedule far approval by the
CMAR no later than fourteen (14) days after issuance of the Notice to Proceed. No
payments shall be due the Contractor until this schedule is approved by the CMAR.
13.4 The Master Schedule is a Contract Document. The Contractor represents that the Master
Schedule has been reviewed in detail and taken into account in preparing its bid. The
Contractor's Construction Schedule shall be incorporated into the CMAR's Project Master
Schedule. The Contractor's Construction Schedule shall include all of its activities which
impact, limit, or otherwise affect the time of completion of the Project as shown in the
Master Schedule, and all of the activities of others which impact, limit, ar otherwise affect
the start, duration, or completion of the Contractor's activities. The Contractor further
represents that the Contractor can and will complete each activity within the time shown for
GENERAL CONDITIONS FOR CM AT RISK PROJECT 26 of 42 JUNE 2007 EDITION
Work, however, the Contractor may be required to build or set sleeves, inserts, chases or
.other components of the Work needed far mechanical, plumbing, electrical or other work by
other contractors.
7.33 The Contractor shall be responsible fvr permanently fixed service facilities and systems in
use during progress of the Work and shall strictly adhere to the following procedures:
a} Prior to acceptance of the Work by the Owner, the Contractor shall remove and.
replace any part of the permanent building systems damaged through use during
construction.
b) Temporary filters shall be installed in each of the heating and air conditioning units,
return air grilles, and other locations to preven# intrusion of dust, dirt, and debris
during construction. Temporary filters shall be removed and replaced with new
filters immediately prior to Substantial Completion.
c} Extra effort shall be maintained to keep the building clean and. under no
circumstances shall air systems be operated if finishing operations are creating
dust in excess of what would be considered normal if the building were occupied.
d} When the permanent Lighting system is used during construction, lamps shall be
replaced and shall be new on the date of Substantial Completion.
ARTICLE 8. OWNER
8.1 The Owner shalt issue communications and notices to the Contractor through the CMAR to
the extent contemplated by the Contract Documents.
8.2 In case of termination of the employment of the Designer, the Owner shall appoint as
Designer a qualified person who shall have and assume all rights and duties held by the
original Designer.
8.3 The Owner shall have the right to .take possession of and use any portion of the Work
notwithstanding the fact that the time for completion of such portion of the Work may not
have expired, but such taking possession and use shall not be deemed an acceptance of
any Work not completed in accordance with the Contract Documents.
8.4 A waiver on the part of the Owner of any breach of any part of the Agreement by the
Contractor shall not be held to be a waiver of any other or subsequent breach.
8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter
deposits for permanent utilities.
ARTICLE 9. CONSTRUCTION MANAGER
9.1 The Owner has engaged the CMAR for the purpose of (i} assisting the Owner and
Designer in developing and administering budgets and cast controls, {ii} in evaluating
constructability and value engineering proposals, (iii) in establishing and maintaining a
critical path method (CPM) schedule, (iv) in caordina#ing and/or expediting all Work on the
Project, (v) in coordinating.all Work on the Project with other projects being constructed by
the Owner or others adjacent to or near the Work, and (vi} for such other purposes as the
Owner may deem appropriate.
GENERAL CONDITIONS FOR GMAT RISK PROJECT 24 of 42 JUNE 20l)7 EDITION
that activity on the Contractor's Constructioh Schedule. Time is of the essence with respect
to each such activity and Completion Date.
13.5 if the Contractor submits a construction schedule, progress report, or any other document
that indicates or otherwise expresses an intention to achieve completion of the Work prior
to any Completion Date required by the Contract Documents or prior to expiration of the
Contract Time, no liability of the CMAR to the Contractor for any failure of the Contractor to
so complete the Work shall be created ar implied.
13.6 If the Gontractor, for reasons beyond the Contractor's control, is delayed in beginning any
activity, the Contractor shall, nevertheless, have the same number of days as is shown in
the Master Schedule for the activity, and the affected activity and any succeeding activity
that is dependent upon that activity shall be adjusted accordingly; provided tha# at any time
the CMAR, by means of a Change Order, may require the Contractor to work overtime, to
increase labor farces or to take any necessary or appropriate action to decrease the time
required for any activity, and the Contractor shall be entitled to an adjustment in the
Contract Price computed in accordance with Article 15 of these General Conditions.
13.7 At any time, the CMAR may order the Contractor, on seven {7) days written notice, to begin
any activity earlier than the starting date shown on the Master Schedule.
13.8 Should the Contractor fail to start any activity on the start date shown in the Master
Schedule or as it may have been adjusted in accordance with paragraphs 13.6 or 13.7
above, or become delayed, the Contractor shall, without being entitled to any increase in
the Contract Price or other compensatipn, work overtime, increase labor forces or take
such other action as may be necessary or appropriate to complete the activity by the
Completion Date shown on the Master Schedule, or as such Completion Date may have
been adjusted.
13.8 The CMAR shall monitor progress of the Work at all times and the Contractor shall
cooperate with such monitoring and provide any and all information with respect to the
progress of the Work and scheduling as the CMAR may reasonably require.
13.10 On a monthly basis, in consultation with the Contractor, the CMAR shall revise the Master
Schedule, showing any adjustments made in accordance with paragraphs 13.6 or 13.7,
above, by any Change Order, the progress of the Work, and any days gained or days lost
with respect to any activity, and shall furnish copies thereof to the Contractor.
13.11 Should any monthly revision of the Master Schedule show that the Contractor is behind on
any activity, the late completion of which could delay Substantial Completion of the Work,
the CMAR shall be entitled to withhold from the next Progress Payment due the Contractor
an amount sufficient to reimburse the CMAR for any and all delay damages, should
Substantial Completion be delayed by the same number of days that the Contractor is
currently behind schedule. If, subsequently, the Contractor's progress, as shown by any
succeeding monthly revision to the Master Schedule, is such that the anticipated delay no
longer exists, the CMAR shall pay with the Progress Payment next due to the Contractor
such amounts as have been withheld in accordance with this paragraph.
13.12 The CMAR shall have the right to perform Work, hire and employ labor and craftsmen, rent
equipment, subcontract with other parties, or do anything that the CMAR deems necessary
or appropriate to remedy or cure any delay by the Contractor in the progress of the Work.
Such action by the CMAR shall not, in any way, affect, void or limit any warranty, guaranty
or other responsibility of the Gontractor under the Contract Documents. Such action may
be taken by the CMAR only after three (3} days written notice to the Contractor. All costs
incurred by the CMAR in taking any such action shall be charged to the Contractor and
deducted from any amounts remaining due under the Agreement.
GENERAt_ CONDITIONS FOR CM AT RISK PROJECT 27 of 42 JUNE 2007 EDITION
13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in the
Contract Price) for delays arising from unforeseen causes beyond the control and without
the fault or negligence of the Owner, the Designer, the CMAR, the Contractor or the
Contractor's Subcontractors as follows:
a) Labor disputes and strikes that directly impact the critical path activities of the
Master Schedule;
b) Acts of God, tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that
damage completed Work or stored materials.
c) Acts of the public enemy; acts of the State, Federal, or local government in their
sovereign capacities.
d} Abnormal inclement weather as defined in Article 13.14.
13.14 On any day that the Contractor considers that the Project is delayed by adverse weather
conditions, the Contractor shall identify in writing to the CMAR the adverse weather
conditions affecting each activity, the specific nature of the activity affected, the number of
hours lost, and the number of and identity (by responsibility ar trade} of workers affected
and shall obtain from the CMAR written recognition of the delay. The time for pertormance
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 wilt be
extended only if the number of calendar days of adverse weather recognized by the CMAR
exceeds the number of inclement weather days set forth below, and the Contractor
demonstrates how this adverse weather impacts activities on the critical path of the Master
Schedule.
Month Number of Inclement Weather Days
January ~
February 6
March 7
April 6
May 7
June Ei
July 8
August 6
September 5
October 5
November 5
December 9
13.15 If the Contractor believes that the progress of the Work has been adversely affected by
adverse weather recognized by the CMAR during a particular month, the Contractor shall
submit a written request for extension of time to the CMAR. Such a request for time
extension of the Contract Time shall be submitted by the tenth (10th} day of the month
following that month in which the adverse weather is encountered. The request shall
include, but is not limited to, the following information:
a) Detailed description of weather's effect on scheduled activities and its net effect an
the critical path of the Project, and
b} Weather records from the official weather station nearest the Project site and
records of actual observation as contained in daily reports, correspondence, or
other documentation.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 28 of 42 JUNE 2007 EDITION
13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any
Completion Date can have the effect of delaying the Substantial Completion of the Project,
or could farce the CMAR to accelerate the Contractor's Work or the ,work of other
contractors. Such delay in achieving a Completion Date will necessarily cause damages,
losses, and expenses to the CMAR, including, but not limited to and by way of illustration
only, liquidated damages payable to the Owner, damages payable to other contractors,
increased and extended Project overhead, increased fees, increased costs of construction,
increased and extended operation casts of other facilities, and inefficiency and loss of
productivity. Such damages, lasses, and expenses may be recovered from the Contractor
and, if the Contractor is banded, its surety.
13. 17 The sum for liquidated damages payable to the Owner is the amount stipulated in the
CMAR Contract and reasonably estimated in advance to cover the losses to be incurred by
the Owner by reason of failure of said CMAR and the Contractor(s) to complete the Project
withih the time specified in the Construction Management Contrac#, such time being in the
essence of this Agreement and a material consideration thereof.
ARTICLE 14. CHANGES IN THE WORK
14.1 Without invalidating the Contract Documents, the CMAR may, at any time, or from time to
time order additions, deletions, or revisions in the Work. Said additions, deletions, or
revisions shall be authorized only by written Change Orders, Construction Change
Directives or Field Orders. Upon receipt of a Change Order, Construction Change Directive
or Field Order, the Contractor shall proceed with the Work involved. AI! such Work shall be
executed under the applicable conditions of the Contract Documents. if any change causes
an increase or decrease in the Contract Price and/or an extension or shortening of the
Contract Time, adjustments shall be made as provided in Article 14 and/or Article 15 of
these General Conditions.
14.2 If possible, Work shall not begin on any change or alteration to the Work until a written
Change Order is executed settling any change in the Contract Price or Contract Time. In
the event the Contractor and the CMAR cannot agree that an adjustment to the Contract
Price or the Contract Tirne is warranted, or cannot agree on the appropriate adjustment to
the Contract Price or the Contract Tirne, in order to expedite the Work and avoid or
minimize delay in the Work that might affect the Contract Price or Contract Tirne, the
Contractor shall, if so directed by the CMAR in writing, nevertheless proceed with the Work,
and any adjustment to the Contract Price or Contract Time shall be negotiated by the
parties at a later date, utilizing the dispute resolution procedures under this Agreement if
necessary. Any claim for an adjustment in Contract Price ar Contract Time, if not defined in
the Construction Change Directive, shall be promptly made in writing in accordance with
the procedures defined in Article 15.2 of these General Conditions.
14.3 The Designer, through the CMAR, may authorize minor changes or alterations in the Work
not involving change in the Contract Price or in the Contract Time and not inconsistent with
the overaEl intent of the Contract Documents. These may be accomplished by a Field
Order. Such alterations shall not invalidate the Contract Documents nor release the surety.
If the Contractor believes that any minor change or alteration authorized by the Designer
entitles the Contractor to an increase in the Contract Price and/or an extension of Contract
Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15
of these Genera! Conditions.
14.4 Except in an emergency endangering life or property, no change shall be made by the
Contractor except upon prior written Change Order, Construction Change Directive or Field
Order authorizing such change.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 29 of 42 JUNE 2007 EDITION
14.5 Increases in the Contract Price and/or extensions of the Contract Time for additional Work
performed by the Contractor shall only be in accordance with a written Change Order or
Construction Change Directive signed by the CMAR. The Contractor shall not be entitled
to additional time or to additional compensation for any Work performed or material
supplied which is claimed to have been authorized or settled by an "oral" change, or by a
"constructive" ar "implied" change, or by a course of conduct, or by any action ornon-action
by the CMAR, or any other persons, or by any means whatsoever other than by a written
Change Order or Construction Change Directive for such Work or material signed by the
GMAR.
14.6 Changes in the Work resulting from emergency shall nat invalidate the Contract Documents
nor release the surety if the Contractor is bonded.
14.7 The CMAR shall not be responsible for verbal instructions which have not been confirmed
in writing, and in na case shall such instructions be interpreted as permitting a departure
from the Contract Documents unless such instruction is confirmed in writing and supported
by a proper Change Order, Construction Change Directive or Field Order, whether or not
the cast is affected.
14.8 if the Contractor is bonded, the CMAR, in its sole discretion, may require that the
Contractor notify the Contractor's sureties of any changes affecting the general scope of
the Work or change in the Contract Price, and that the amount of applicable bonds shall be
adjusted accordingly. If this requirement is exercised, the Contractor shall furnish proof of
such adjustment to the CMAR.
If this requirement is exercised, the Change Orders and Construction Change Directives
shall require written consent of the Contractor's surety. At the time of signing a Change
Order, the Contractor shall be required to certify as follows:
"i certify that all sureties have been notified that my contract has been altered by
the amount of this Change Order or Construction Change Directive and that a copy
of the approved Change Order or Construction Change Directive will be mailed to
all sureties upon its receipt by me."
If this requirement is exercised, no payment to the Contractor on account of any Change
Order or Construction Change Directive shall become due or payable until written evidence
of the surety`s consent to the Change Order or Construction Change Directive has been
furnished to the CMAR, and the furnishing of such written consent is a condition precedent
to such payment.
14.9 The Contractor shall support all requests for Change Orders with a detailed cost
breakdown showing cost of materials, labor, equipment, transportation, other items,
Contractor's overhead and profit, and total cost, in accordance with methods defined in this
Article, and, if the request seeks an extension of the Contract Time, with atime-related
diagram which demonstrates specifically why an increase in construction time is needed.
14.10 When a request for a Change Order involves a Subcontractor, the Contractor shall provide
quotation from same on Subcontractor's letterhead. The Subcontractor's quote shall list
materials, equipment, and labor separately, and show overhead and profit in the manner
provided in paragraph 14.9.
ARTICLE 15. CHANGE OF TWE CONTRACT PRICE
15.1 The Contract Price constitutes the total compensation payable to the Gontractor for
performing all Work under the Contract Documents. All duties, responsibilities, and
GENERAL CONDITIONS FOR CM AT RISK PROJECT 30 of 42 JUNE 2007 EDITION
obligations assigned to or undertaken by the Contractor shall be at its expense without
change in the Contract Price. The Contract Price may only be changed by a Change Order.
15.2 Any claim for an adjustment in the Contract Price shall be in writing. Written notice of any
event, action, or non-action which may become the basis of a claim shall be delivered to
the CMAR within three (3) days of the occurrence, or the beginning of the occurrence, of
any such event, action or non-action giving rise to the claim. Such written notice is a
condition precedent to the making of a claim, and such notice shall describe the basis of
the potential claim with reasonable detail and clarity.
A claim shall be made in writing and shall be delivered to the CMAR no later than fourteen
(14) days after such notice. The claim shall describe in detail the basis for the claim, with
specific reference to any provisions of the Contract Documents, by paragraph, drawing
number, or other specitc identification, and shall state the amount claimed and how it is
calculated. If the Contractor, at the time the claim is made, is unable to state the amount
claimed with accuracy, the Contractor shall so state and provide the estimated amount and.
the basis on which the amount is to be calculated. At the earliest date practicable, but in no
event more than thirty {30) days after Contractor's notice of claim, the Contractor shah
supplement the claim with an accurate statement of the amount claimed and how it has
been calculated. The Contractor shall provide, in writing, in support of the claim all such
explanations, arguments, data, receipts, expert opinions, or other documents or information
as the Contractor deems appropriate to be considered in support of the claim. A claim may
properly be rejected by the CMAR by reason of the Contractor's failure to submit adequate
or accurate documentation or information, except that within seven (7) days after being
given notice that the claim has been rejected an this basis, the Contractor may submit
additional documentation or information. No claim for a change of the Contract Price shall
be considered or granted (except solely at the discretion of the CMAR) unless a claim is so
made, nor shall the Contractor be entitled to any increase in the Contract Price unless the
Contractor has given notice and made such a written claim within the times required. The
CMAR shall decide, after obtaining the advice of the Owner and the Designer, whether an
increase in Contract Price is warranted, and the amount of such increase shall be
determined as provided in paragraphs 15.3 through 15.4, below. Any change in the
Contract Price resulting from any such claim shall be incorporated in a Change Order.
The CMAR shall advise the Contractor of its decision with respect to the claim within thirty
(30} days of its receipt, ar of the receipt of additional documentation or information if the
absence of such has previously been the basis of rejection of the claim. Any claim on which
the CMAR has not provided its decision to the Contractor within the applicable time period
shall be deemed denied. .
If the Contractor is not satisfied with the decision of the CMAR, the Contractor may within
seven (7} days of receipt of the CMAR's decision initiate the mediation process as
described in Appendix A to these General Conditions.
15.3 In determining the amount of a Contract Price adjustment, the parties shall apply the
following methods, as appropriate:
(a) Change in Work: The CMAR and the Contractor shall negotiate in good faith and
attempt to agree upon the value of any change (extra or decrease) in Work prior to the
issuance of a Change Order covering said Work. Such Change Order shall set forth
the corresponding adjustment to the Contract Price. 1n the event the CMAR and the
Contractor are unable to agree, the CMAR shall grant an equitable adjustment in the
Contract Price.
(b} Emergency Work: In the event of emergency endangering life or property, the
Contractor may be directed by the CMAR to proceed on a time and material basis,
GENERAL CONDITIONS FOR CM AT RISK PROJECT 31 of 42 JUNE 2007 EDITION
whereupon the Contractor shall so proceed and keep accurately, in such form as may
be required by the CMAR, a correct account of costs together with ali proper invoices,
payrolls, and supporting data therefore.
15.4 Where the Contract Price is to be adjusted, the following limitations shall apply in
determining the amount of adjustment:
(a) In the case of extra or emergency work, the Contract Price shall not be increased by
more than the reasonable, actual, and documented net cost of the extra or emergency
work plus ten percent (10%) of such net cost on Work performed by the Contractor and
five percent (5%) thereof on any subcontracted Work for overhead and profit combined.
(b) In the case of a decrease in Work, the Contract Price shall not be decreased by less
than the net cost of the deleted Work plus five percent (5%) of such direct net cast for
profit and overhead.
The term 'net cost' as used herein shall include, as applicable, and shall be .limited to, all
direct labor, direct material, direct equipment, labor burden, sales taxes, shipping and
handling charges, permits and fees, and insurance and band premium adjustments, if any,
attributable to the change. All other items of cost shall be considered as overhead and
covered by the percentages allowed in sections (a) and (b) of this paragraph.
The Contractor shall provide worksheets or tabulations describing the method by which the
direct net cost was calculated, and shall provide all data needed to support the calculation
of the direct net cost, all in a form acceptable to the CMAR.
ARTICLE 16. UNFORESEEN CONDITIONS
16.1 Should the Contractor encounter unforeseen conditions at the Project site materially
differing from those shown on the Drawings or indicated in the Specifications or differing
materially from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Agreement, the Contractor shall immediately, and in no
event more than three (3) days later, give notice to the CMAR of such conditions before
they are disturbed. The CMAR shall thereupon promptly notify the Designer and Owner
ahd investigate the conditions. The CMAR shall as soon as practicable request that the
Designer make such changes in the Drawings and/or Specifications as the CMAR and the
Contractor believe are necessary to continue the Work. Any increase or decrease in the
Contrac# Price resulting. from such changes shall be adjusted in the manner provided
herein for adjustments as to extra and/or additional Work and changes. The CMAR shall
not be liable or responsible for additional work, costs, or changes to the Work that could
have been reasonably determined from any reports, surveys, and analyses made available
for the Contractor's review or that could have been discovered by the Contractor through
the performance of its obligations pursuant to the Contract Documents.
ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT
17.1 The Owner and the CMAR have the authority to stop or suspend Work and to order Work
removed or to order corrections of defective Work or Work not in compliance with the
Contract Documents where such action may be necessary to ensure successful completion
of the Work.
Any work, materials, fabricated items, or other parts of the Work which have been found by
the CMAR, the Owner or the Designer to be defective or not in accordance with the
Contract Documents shall be condemned and shall be removed from the Project by the
Contractor, and immediately replaced by new Work in accordance with the Contract
GENERAL CONDITIONS FOR CM AT RISK PROJECT 32 of 42 JUNE 2007 EDITION
Documents at no additional cost to the CMAR. Work or property of the Owner or others
damaged or destroyed by virtue of such condemned Work shall. be made good at the
expense of the Contractor.
Correction of condemned Work described above shall be commenced by the Contractor
within twenty-four {24} hours after notice from the CMAR and shall be pursued to
completion. Should the Contractor fail to proceed reasonably with the above-mentioned
corrections, the CMAR may, three (3) days after the notice specified in the preceding
sentence, proceed with correction, paying the cost, including costs of uncovering such
condemned Work, of such corrections from amounts due or to become due to the
Contractor.
Condemned Work removed shall be the property of the Contractor and shall be removed
from the Project by the Contractor within ten {10) days after notice to remove it, and if not
then removed, thereafter may be disposed of by the CMAR without compensation to the
Contractor and the cost of such disposal shall be deducted from amounts due or to become
due to the Contractor.
Should the cost of correction of the Work and, if applicable, disposal of the condemned
Work by the CMAR exceed the amount due or to become due the Contractor, the
Contractor and the Contractor's sureties shall be liable for and shall pay to the CMAR the
amount of such excess.
ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION; WARRANTIES AND
GUARANTIES
18.1 No certificate of completion by any party, Final Payment, occupation of the premises by the
Owner, any provision of the Contract Documents, or any other act or instrument of the
CMAR, the Owner or the Designer shall relieve the Contractor from responsibility for
negligence, defective material or workmanship, or failure to comply fully with the Contract
Documents.
18.2 The Contractor sha11, at the Contractor's sole cast and expense, make all necessary
repairs, replacements, and corrections of any nature or description, interior or exterior,
structural or non-structural, that shall become necessary by reason of defective
workmanship or materials which appear within a period of one {1 }year from the date of
Substantial Completion and acceptance of the Project by the Owner; provided, however
that notwithstanding the preceding, if any longer guarantee period 'is specified for any
particular materials or workmanship under the Contract Documents, or under any
subcontract, or in connection with any manufactured unit which is installed in the Project, or
under the laws of the State of North Carolina, the longer guarantee period shall govern.
18.3 If, within any guarantee period, repairs ar changes are required in connection with the
Work, which are rendered necessary as the result of the use of materials, equipment, or
workmanship which are inferior, defective, or not in accordance with the terms of the
Contract Documents, the Contractor shall, promptly upon receipt of notice from the CMAR
and without expense to the CMAR:
a) Completely repair or replace the Work sa that it conforms to the Contract
Documents;
b} Correct all defects therein;
c} Make good all damage which, in the opinion of the CMAR or the Designer, is the
result of the use of materials, equipment, or workmanship which are inferior,
defective, or not in accordance with the terms of the Contract Documents; and
GENERAL CONDlT10NS FOR CM AT RISK PROJECT 33 of 42 JUNE 2007 EDITION
d) Make good any Work or material, or any equipment ar contents disturbed in
fulfilling any such guarantee.
If, in fulfilling the requirements of the Contract Documents or of any guarantee embraced
therein or required thereby, the Contractor disturbs any work, facility, premises, or
construction belonging to the Owner, the Contractor shall restore such disturbed work,
facility, premises or construction to a condition satisfactory to the Owner, and shall
guarantee such restored work to the same extent as if it were Work under the Contract
Documents.
if the Contractor, after notice, fails to proceed promptly to comply with the terms of the
guarantee, the CMAR may have the defects corrected, and the Contractor and the
Contractor's sureties shall be liable for all expenses incurred. "Promptly" is defined as
within twenty-four (24} hours for systems necessary to normal operation of the building and
within seventy-two {72) hours for ail other items. All special guarantees applicable to
definite parts of the Work that maybe shown in or required by Contract Documents shall be
subject to the terms of this paragraph during the first year of the life of such special
guarantee. Manufacturer's standard guarantees or warranties which do not comply with the
time limit specified herein shall be extended by the Contractor automatically without further
action on the part of the CMAR.
18.4 In the eleventh calendar month after Substantial Completion of the entire Project, and. at
the request of the CMAR, the Contractor, the CMAR, the Owner and the Designer shall
make an inspection of the Work for the purpose of identifying defective workmanship
and/or materials. If the Contractor, having been requested to do so by the CMAR, fails to
participate in such inspection, the Contractor shall be conclusively bound by any decision
or ruling by the Designer as to any defective workmanship or material and as to the
Contractor's responsibility for its repair or replacement.
ARTICLE 19. CMAR'S RIGHT TO DO WORK
19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to
prosecute the Work properly or to perform any provision of the Contract Documents, the
CMAR, after three (3) days written notice to the Contractor from the CMAR, may perform or
have performed that portion of the Work and may deduct the cast thereof from any amount
due. or to become due the Contractor. Notwithstanding any action by the CMAR under this
paragraph, all warranties and bonds given or to be given by the Contractor shall remain in
effector shall be given by the Contractor.
192 Should the cost of such action by the CMAR exceed the amount due or to become due the
Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to
the CMAR the amount of such excess.
ARTICLE 20. PARTIAL PAYMENTS
20.1 Within thirty {30) days after initial receipt of the Construction Agreement by the Contractor
for signatures the Contractor shall submit to the CMAR a Schedule of Values. The
Schedule of Values shall indicate the value of the Work, including applicable overhead and
profit, for each Division and section of the Project Specifications. The CMAR shall be
provided with the Contractor's estimate papers, Subcontractor agreements, supplier
quotes, or other documents substantiating these values if so requested in writing by the
CMAR. The Contractor shall provide the requested documentation within seven (7} days
after receipt of the CMAR's written request. The Schedule of Values shall be subject to
approval by the CMAR and the Owner, and if the CMAR and the Gontractor cannot agree
upon the Schedule of Values, the Designer shall prepare it, and the Schedule of Values as
GENERAL CONDiT1ONS FOR CM AT RISK PROJECT 34 of 42 JUNE 2007 EDITION
prepared by the Designer shaft be binding an the CMAR and the Contractor. No Request
for Payment shall be certified by the CMAR until the Schedule of Values has been
approved by the Owner.
20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the
CMAR a Request for Payment for Work done during the previaus calendar month. The
Request for Payment shay! be in form of AIA Document G702 (latest edition), or other
published .document approved by the CMAR, and shall show substantially the value of
Work done (including the value of material delivered to the Project or stored by the
Contractor at another site, subject to the conditions hereinafter set forth} during the
previous calendar month, and shall sum up the financial status of the Wark with the
following information:
a) Total Contract Price, including any adjustment thereto made pursuant to the
Contract Documents.
b} Value of Work completed and materials properly stored to date.
c) Less amount retained.
d} Less previous payments.
e) Current amount due.
f) Contract Price balance remaining.
The Contractor, upon request of the CMAR, shall substantiate the Request for Payment
with invoices, vouchers, payrolls, or other evidence.
20.3 When payment is requested or made on account of stored materials, such materials must
be stored on the Owner's property or on such property otherwise designated in writing by
the Owner at such places and in such a manner as may be designated by the CMAR.
However, if approved by the CMAR, and with permission in writing from the Designer and
Owner and under such circumstances as may be .required by the CMAR and the Owner,
such materials may be stared in a bonded warehouse. Requests for Payment on account
of stored materials shall be accompanied by paid invoices, bills of sale, warehouse
receipts, or other documentary evidence establishing Owner's title to such materials,
evidence that the stored materials are insured against loss and damage, and such other
documentation as required by the CMAR. Responsibility for the quantity, quality, and
condition of such stored materials, whether stored on the Owner's property or away from
the Owner's property, shall remain with the Contractor regardless of ownership or title. No
payment shall be made on account of materials stored in a bonded warehouse unless the
Contractor has acquired written permission from the CMAR and the Owner for such storage
of materials and has complied with all conditions set forth in such permission regarding
such storage of materials in a bonded warehouse.
20.4 Any Request for Payment received by the CMAR on ar before the fifth (5th} day of the
calendar month shall be certified for payment or returned for re-submission to the
Contractor on or before the fifteenth (15th) day of the calendar month. The CMAR's
certification shall be for the amount which was requested or that which the CMAR has
decided was justly due, and shall state in writing to the Contractor and Owner the reasons
for withholding payment of any or all of the amount requested.
20.5 The CMAR may refuse to certify all or part of any payment requested for any of the
following reasons:
GENERAL CONDITIONS FOR CM AT RISK PROJECT 35 of 42 .TUNE 2007 EDITION
a} Refusal by the Designer to certify or the Owner to pay a payment application by the
CMAR for Work by the Contractor.
b) Defective Work not corrected.
c) Suits, actions, or claims of any character filed against the Contractor, or due to the
operations of the Contractor, or information or notice that a suit, action, or claim will
be filed or has been made.
d) Information ar notice that a Subcontractor or a supplier has not received payment
from the Contractor.
e) The balance unpaid of the Contract Price is insufficient to complete the Work in the
judgment of the CMAR.
f) Damage to the-CMAR, the Owner or another contractor.
g} Inability of the Contractor to meet a Completion Date, including an anticipated
failure to meet a Completion Date entitling the CMAR to withhold anticipated
damages in accordance with paragraphs 13.11 and 13.12 of these General
Conditions.
h) Failure to furnish Submittal as required by the Contract Documents on a timely
basis in accordance with the Submittal Register.
i) Such other reason as to the CMAR may appear prudent, proper, or equitable.
When grounds for withholding certification have been corrected or removed, the CMAR
shall make any payment due with respect to such certification as a part of its next payment
after such certification.
20.6 No certificate of payment issued or progress payment made shall constitute an acceptance
of the Work or any part thereof:
20.7 The amount certified by the CMAR for payment shall be ninety percent (90%) of the value
of Work completed and materials stored since the CMAR's last certification as shown on
the Request far Payment, less any amounts not certified in accordance with paragraph
20.4, and this amount shall be paid by the CMAR on or before the last business day of the
month, but payment shall not be past due if paid within fifteen (15} days thereafter.
20.$ if the Contractor's Work has progressed in accordance with the Master Schedule as of a
target date mutually agreed upon by the Owner, the Designer and the CMAR, and the
Gontractor has provided to the CMAR the written consent of its sureties to the cessation of
further percentage retention, the amount certified for payment with respect to subsequent
Requests for Payment may, in the discretion of the CMAR, be one hundred percent (100%}
of the value of Work completed and materials stored since the CMAR's last certification as
shown on the Request for Payment, less any amounts not certified in accordance with
paragraph 20.4; provided, however, that the aggregate of periodic payments shall not
exceed ninety-,five percent (95%) of the Gontract Price.
ARTICLE 21. F1NAL PAYMENT
21.1 Final Payment shall•not be due to the Contractor until Final Completion.
21.2 Upon Substantial Completion, the CMAR in conjunction with the Designer shall prepare
and submit to the Contractor deficiency fists identifying all portions of the Work which are
GENERAL CONDITIONS FOR CM AT RISK PROJECT 36 of 42 JUNE 2007 EDITION
spawn at that time to be incomplete or defective. Within thirty (30) days of receipt of any
deficiency list, the Contractor shall complete and correct alt items on that list along with all
other Work required to achieve Final Completion of the Work. At any time prior to
completion of the period of warranty, the CMAR may submit to the Contractor supplemental
deficiency lists, in which case the Gontractor shall complete or correct any and all new
items identified on the supplemental deficiency lists within the time period stipulated in
paragraph 18.3 of these General Conditions.
21.3 The making and acceptance of Final Payment shat! constitute a waiver of all claims by the
CMAR except:
a) Claims arising from unsettled liens or claims against the Contractor.
b) Defective Work or materials appearing after Final Payment. .
c} Failure of the Contractar to perform the Wark in accordance with the Contract
Documents.
d) As conditioned in the Performance Bond.
e} Claims made prior to Final Payment which remain unsettled.
f} Amounts due arising under Articles 18 and 28 of these General Conditions.
g} Claims for recovery of overpayment based upon incorrect measurement, estimate,
or certificate.
21.4 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
Contractor except those claims previously made in writing pursuant to paragraph 15.2 of
these General Conditions and not finally resolved.
21.5 The CMAR shall not be required to make Final Payment unless and until (i) the Designer
has certified based on the Designer's observations and information that all of the Work by
the Contractor under the Contract Documents has been completed in accordance with the
Contract Documents, and (ii) the Work by the Contractor has been approved by all federal,
state and local agencies having jurisdiction.
21.6 The final Request .for Payment shall be identified on its face as such and shall be
presented by the Contractor to the CMAR within thirty (30) days of completion of the Work.
Final payment of the retained amount due the Contractor shall be made by the CMAR
within thirty (30) days after the later of (i} full and Final Completion of all Work required of
the Contractor by the Contract Documents, and certification of such Work in accordance
with paragraph 21.5; (ii) submission of the affidavits and other documentation required by
Article 22; (iii) submission by the Contractor of a Request for Payment identified on its face
as final.
ARTICLE 22. CONTRACTOR SUBCONTRACTOR AND SUPPLIER AFFIDAVIT
22.1 The Final Payment due the Contractor an account of the Contract Documents shall not
become due until the Contractar has furnished to the CMAR: (A) an affidavit by the
Contractor signed, sworn, and notarized to the effect that all payments for materials,
services, or far any other reason in connection with the Work or performance of the
Contract Documents have been satisfied and that no claims ar liens exist against the
Contractor in connection with the same; (B) affidavits from each Subcontractor and supplier
signed, sworn, and notarized to the effect that (i) each such Subcontractor or supplier has
been paid in full by the Contractor for all Work performed and/or materials supplied by it in
GENERAL. CONDITIONS FOR CM AT RISK PROJECT 37 of 42 JUNE 2007 EDITION
connection with the Project, and (ii} that all payments for materials, services, and for any
other reason in connection with the subcontract or supply contract have been satisfied and
that no claims or liens exist against the Subcontractor or supplier in connection therewith;
and (C) the written consent of the Contractor's sureties to Finat Payment. In the event that
the Contractor cannot obtain an affidavit, as required above, from any Subcontractor or
supplier, the Contractor shall state in the Contractor's affidavit that no claims or liens exist
against such Subcontractor or supplier to the best of the Contractor's knowledge, and that if
any appear afterwards, the Contractor shall indemnify and save the CMAR and the Owner
harmless for all costs and expenses, including attorney's fees, on account thereof.
ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS
23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the CMAR. Except as may be required under
terms of the bonds required by the Contract Documents, no funds or sums of money due or
to become due to the Contractor under the Contract Documents may be assigned.
ARTICLE 24. MEASUREMENTS
24.1 Before ordering material or doing Work which is dependent for proper size or installation
upon coordination with building conditions, the Contractor shall verify all dimensions and
shall be responsible for the correctness of same. Na consideration will be given far any .
claim based on differences between the actual dimensions and those indicated in the
Contract Documents. Any discrepancies between the Contract Documents and the existing
conditions shall be referred to the Designer by the CMAR for adjustment before any Work
affected thereby is begun.
ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS
25.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor
for signatures, the Contractor shall submit to the CMAR for acceptance a current list of the
names of Subcontractors and such other persons and organizations (including those who
are to furnish materials or equipment fabricated to a special design) proposed for any and
all portions of the Work. The Gontractor shall provide this list at this time even if the
Contractor was required to submit a list of proposed Subcontractors with the Contractor's
bid. The CMAR shall promptly reply to the Contractor in writing stating whether or not the
CMAR, after due investigation, has objection to any such proposed person or entity or if it
needs additional information to evaluate the persons or entities on the list. Failure of the
CMAR to reply within ten {10) days after the Contractor has furnished all required
information shall constitute notice of no abjection.
The Contractor shall not contract with any such proposed person or entity to which the
CMAR has made reasonable objection. tf the CMAR has reasonable objection to any such
proposed person or entity, the Contractor shall submit a substitute to whom the CMAR has
no reasonable objection. The Contractor shall make no substitution for any Subcontractor,
person, or entity previously allowed without first notifying the CMAR in writing and no
substitution may be made if the CMAR makes a reasonable objection to such substitution.
25.2 The Contractor agrees that the terms of the Contract Documents, including all portions
thereof, shall apply to alt Subcontractors as if they were khe Contractor, and that the
Subcontractors shall, by means of their subcontracts, be bound by all the terms of the
Contract Documents.
25.3 Payments to Subcontractors by the Contractor shall be made in accordance with the
provisions of N.C. Gen. Stat. §143-134.1.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 38 of 42 JUNE 20x7 EDITION
ARTICLE 26. USE OF PREMISES
26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers,
and the disposal of material to limits indicated bylaw, ordinances, permits, and directions of
the CMAR, if any.
26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that
will endanger its safety, intended performance, or configuration.
26.3 The Gontractor shall enforce all of the CMAR's instructions, including, but not limited to,
those regarding signs, advertisements, fires, and smoking.
ARTICLE Z7. CUTTING, PATCHING AND FITTING
27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to
make its several parts come together properly and fit it to receive or to be received by Work
shown in or which can be reasonably implied from the Contract Documents.
ARTICLE 28. DISPUTE RESOLUTION
28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with
respect to any provision of, or the performance or nonperformance of, this Agreement shall
be brought in the General Court of Justice of North Carolina sitting in Orange County. North
Carolina, and it is agreed. by the parties that no other court shall have jurisdiction or venue
with respect to such suits or actions. Appendix A shall be a part of the Contract Documents.
Prior to initiating an action under this Article, any party to this Agreement shall initiate the
mediation process as provided in Appendix A to these General Conditions.
28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to
provide material, supplies, equipment, work, performance or payment bonds; insurance or
indemnification for the construction of the Project or the Work shall be deemed a party to
this Agreement safely for the purpose of this Article 28. The Gontractor, by means of its
subcontracts, shall specifically require its Subcontractors to be bound by this Article.
ARTICLE 29. TAXES
29.1 The Contractor has included in the Contract Price, and shall pay, all taxes assessed by any
authority on the Work or on the labor and materials used therein. The Contractor shall
maintain all tax records during the life of the Project and furnish the CMAR with a complete
listing of all taxes paid by taxing authority, invoice number, date, amount, etc. in a form
acceptable to the CMAR and the Owner. The Contractor is required to maintain a file
showing taxes paid on the Project for three (3) years after Final Payment or turn said
documents aver to the Owner for its files.
29.2 The following is a list of requirements to be followed by the Contractor in maintaining
proper records and reporting the North Carolina Sales and Use Tax and Local Sales and
Use Tax. The Contractor shall comply fully with the requirements outlined below, in order
that the Owner may recover the amount of the tax permitted under the law.
a} It shall be the Contractor's responsibility to fumish the CMAR documentary
evidence showing the materials used and sales and use tax paid by the Contractor
and by each of its Subcontractors. Such evidence shall be transmitted to the
CMAR with each pay request regardless of whether taxes were paid in that period
covered by the pay request.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 39 of 42 JUNE 2007 EDITION
b) The documentary evidence shall consist of a certified statement by the Contractor
and by each of the Contractor's Subcontractors individually, showing total
purchases of materials from each separate vendor and total sales and use taxes
paid to each vendor. Certified statements must show the invoice number, or
numbers, covered, and inclusive dates of such invoices.
c) Materials used from Contractor's or Subcontractor's warehouse stock shall be
shown in a certified statement at warehouse stock prices.
d) The Contractor shall not be required to certify the Subcontractor's statements.
ARTICLE 30. OPERATION OF OWNER'S FACILITIES
30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried
on in such a manner so as to ensure the regular and continuous operation of the adjoining
or adjacent facilities. The Contractor further agrees that the sequence of operations under
the Contract Documents shall be scheduled and carried out so as to ensure said regular
and continuous operation. The Contractor shall not close any areas of construction until.so
authorized by the CMAR. The Contractor shall control operations to assure the least
inconvenience to the public. Under all circumstances, safety shall be the most important
consideration.
ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE
31.1 It is specifically agreed between the parties executing the Agreement that, with the specific
exception set forth paragraph 7.24 of these General Conditions, and that exception only,
the Contract Documents and the provisions therein are not intended to make the public, or
any member thereof, athird-party beneficiary of the Agreement, or to authorize anyone not
a party to the Contract Documents to maintain a suit far personal injuries or property
damage pursuant to the terms of provisions of the Contract Documents.
ARTICLE 32. MEASUREMENT OF QUANTITIES
32.1 A11 Work completed under the Contract Documents shall be measured by the Contractor
using United Skates customary units of measurement. The method of measurement and
computations to be used in determination of quantities of material furnished and of Work
performed under the Contract Documents shall be those methods set forth in the Contract
Documents or, if not specifically set forth therein, the method generally recognized as
conforming to good engineering practice.
ARTICLE 33. TERMINATION BY THE CMAR FOR CAUSE
33.1 If the Contractor fails to begin or complete the Work under the Contract Documents within
the time specified, or fails to perform the Work with sufficient labor and equipment or with
sufficient materials to insure the prompt completion of said Work, or shall perform the Work
unsuitably or shall discontinue the prosecution of the Work for three (3) consecutive days,
or if the Contractor shall became insolvent, be declared bankrupt, commit any act of
bankruptcy or insolvency, allow any final judgment to stand against the Contractor or its
affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment
far the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in
an acceptable manner, the CMAR may give notice in writing to the Contractor and the
Contractor's sureties of such delay, neglect, or default, specifying the same, and if the
Contractor within a period of three (3) days after such notice shall not proceed in good faith
and with reasonable speed to correct such delay, neglect, or default in accordance with
such notice, the CMAR shall have full power and authority, to the extent permitted by law,
without violating the Contract Documents, to take the prosecution of the Work out of the
GENERAt_ CONDITIONS FOR CM AT RISK PROJECT 40 of 42 JUNE 2007 EDITION
hands of the Contractor, to appropriate or use any or all materials and equipment at the
Project as may be suitable and acceptable, and may enter into an agreement for the
completion of the Work or pursue such other methods. as in the CMAR's sole discretion and
opinion shall be necessary or appropriate for the completion of the Work in an acceptable
manner. A11 costs and charges incurred by the CMAR in proceeding in accordance with the
preceding sentence, including attorney's fees, and all costs incurred by the CMAR in
completing the Work shall be deducted from any amount due or which becomes due the
Contractor. If such costs and expenses incurred by the CMAR shall be less than the sum
which would have been payable under Contract Documents if it had been completed by the
Contractor, then the Contractor shall be entitled to receive the difference, but if such costs
and expenses shall exceed the sum which would have been payable under the Contract
Documents, the Contractor and the Contractor's surety or sureties shall be liable to the
CMAR for and shall pay to the CMAR the amount of such excess.
33.2 If the CMAR terminates the Agreement pursuant to this Article 33 and later it is determined
that the Contractor had not substantially failed to perform in accordance with the terms of
this Article, then the termination will be considered a termination for convenience under
Article 34.
ARTICLE 34. TERMINATION OR SUSPENSION BY THE CMAR FOR CONVENIENCE
34.1 The CMAR may, without cause, order the Contractor to terminate, suspend, delay, or
interrupt the Work in whole or in part for such period of time as the CMAR may determine.
34.2 !f the Contractor is subsequently ordered by the CMAR to resume the Work, any cost or
expenses to which the Contractor may be entitled by reason of the suspension, delay, or
interruption shall be recovered by means of a Change Order in accordance with Articles 13
and 14 of these General Conditions and the Contractor's Construction Schedule and the
Masker Schedule shall be adjusted in accordance with Article 13 of these General
Conditions.
34.3 The CMAR shall terminate the Work or portion thereof by written notice when the
Contractor is prevented from proceeding with the Work as a direct result of an executive
order of the President with respect to the prosecution of war or in the interest of national
defense.
34.4 In the event of termination by the CMAR under this Article, the Contractor shall be entitled
to receive the reasonable and documented direct costs incurred prior to termination,
including the cost of materials purchased far the Work which purchases cannot be
canceled or which material cannot reasonably be used by the Contractor on other work,
and the cost of closing down the Project in a safe and efficient manner, plus ten percent
(10%) thereof for overhead and profit, subject to the following conditions:
a) When the Contract is terminated before completion of al! items of Work, payment
shall be made for the actual number of units or items of Work completed at the
applicable contract prices, or as mutually agreed for items of Work partially
complete. If a mutual agreement cannot be reached, the CMAR shall have the
authority to make such equitable adjustment as it deems warranted and the Final
Payment shall be made accordingly.
b} Reimbursement for organization of any Work and moving equipment to and from
the job shall ~be considered when not otherwise provided far in the Contract
Documents where the volume of completed Work is too small to compensate the
Contractor for those expenses under unit prices. if a mutual agreement cannot be
GENERAL CONDITIONS FOR CM AT RISK PROJECT 41 of 42 JUNE 2007 EDETION
reached, the CMAR will have the authority to make such equitable adjustment as it
deems warranted and the Finai Payment will be made accordingly.
c} Materials obtained by the Contractor for the Work that have been inspected and
accepted by the Designer and that are not incorporated in the Work shall, at the
request of the Contractor, be purchased from the Contractor at the Contractor's
actual cost as shown by receipted bills and actual casts records at such points of
delivery as maybe determined by the CMAR.
d} No payment shall be made by the CMAR to the Contractor except as herein above
provided. No claim far loss of anticipated profits shall be considered or allowed.
e) Termination of the Contract shall not relieve the Contractor of its responsibilities for
any completed portion of the Work nor shall it relieve its sureties of their obligation
for and concerning any just claims arising out of the Work performed.
In the event of termination or suspension by the CMAR for convenience, the Contractor
shall not be entitled to any other compensation, including compensation for lost profit, last
opportunity, ar any other direct or consequential cost, loss, ar damage.
ARTICLE 35. MINORITY BUSINESS ENTERPRISE PROGRAM
35.1 The Contractor shall at all times comply with the latest edition of the Orange County
Minority Business Enterprise Policy. All documentation substantiating compliance with the
requirements of this program shall be delivered to the CMAR as stipulated in the Contract
Documents. A copy of the Orange County Minority Business Enterprise Policy is Appendix
C hereof and is included in the Project Manual.
ARTICLE 36. GENERAL
36.1 if any provision of the Agreement shall be declared invalid or unenforceable, the remainder
of the Agreement shall continue in full force and effect.
36.2 The titles to Articles herein are for convenience only, are not substantive parts of the
General Conditions, and are not to be considered in interpreting the Contract Documents.
END OF GENERAL CONDITIONS OF THE
CONTRACT FOR CONSTRUCTION
CONSTRUCTION MANAGER AT RISK
F:\Lisa\orangecounty\Orange County Library and Office Complex General Gonditions.doc
GENERAL CONDITIONS FOR CM AT RISK PROJECT 42 of 42 JUNE 2007 EDITION