HomeMy WebLinkAboutAgenda - 09-19-2007-6a1ORANGE COUNTY AGREEMENT FOR CONSTRUCTION
NORTH CAROLINA MANAGER AT RISK SERVICES
This AGREEMENT is made and effective on this date:
BETWEEN The Owner:
ORANGE COUNTY, NORTH CAROLINA (hereinafter referred to as "Owner" or "the Owner")
And the Construction Manager At Risk (hereinafter referred to as "CMAR" or "the CMAR"):
RESOLUTE BUILDING COMPANY, INC.
For services in connection with the Project known as:
The CENTRAL ORANGE SENIOR CENTER & SPORTSPLEX RENOVATION, Hillsborough, North
Carolina, as further described in Article 2
For which the Designer is:
CORLEY, REDFOOT, ZACKARCHITECTS & ENGINEERS, ATTN: KEN REDFOOT, 222 CLOISTER
COURT, CHAPEL HILL, NC 27514
The Owner and CMAR, in consideration of their mutual covenants herein, agree as set forth below:
TABLE OF CONTENTS
ARTICLE 1 - RELATIONSHIP OF THE PARTIES ......................................................................................... 4
1.1 Owner and Construction Manager At Risk
1.2 Owner and Desioner
1.3 CMAR and Contractors
1.4 Relationshi~of the CMAR to the Designer
ARTICLE 2 -PROJECT DEFINITION .......................................................................................................... 4
ARTICLE 3-CONSTRUCTION MANAGER AT RISK'S SERVICES ................................................................... 4
3.1 CMAR Services
3.2 CMAR Personnel
3.3 Construction Management Plan
3.4 Consultant Selection
3.5 Time Management
3.6 Cost Manaaement
3.7 Management Information System jMISI
3.8 Design Phase Services
3.9 Procurement Phase
3.10 Construction Phase
3.11 Post Construction Phase.
3.12 Additional Services
ARTICLE 4 -TIME FOR PERFORMANCE .................................................................................................... 16
4.1 Duration
4.2 Master Schedule
4.3 Non-waiver
4.4 Schedule Adjustment
4.5 Early Start
4.6 Recaverv
4.7 Schedule Monitorino
4.8 Schedule Revisions
4.9 Withholdino Payment from CMAR
4.10 Work by Owner
4.11 Force Majeure
4.12 Notice
4.13 Weather Delavs
4.14 Damac,~es for Delay
4.15 Liquidated Damages
ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER AT RISK'S SERVICES AND ADDITIONAL 19
COMPENSATION
5.1 Owner Chanoes
ARTICLE 6 -OWNER'S RESPONSIBILITIES ........................................................................................:.:.... 20
6.1 Program
6.2 Decisions
6.3 Insurance
6.4 Notice of Nonconformities
6.5 Approvals
6.6 Designer
6.7 Budget
6.8 Separate Contracts
6.9 Copies of Drawings and Specifications
6.10 Permits and Approvals
6.11 Fundino Requirements
6.12 Communication with Contractors
6.13 Conies of Notices and Communication
6.14 Owner's Representative
6.15 Payments to CMAR
ARTICLE 7 -GUARANTEED MAXIMUM PRICE AND PAYMENT ..................................................................... 21
7.1 Guaranteed Maximum Price
7.2 Cost of the Work
7.3 Adjustments to the Guaranteed Maximum Price
7.4 Fixed Fee and General Conditions Costs
2
ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 25
8.1 CMAR's Liability Insurance .
8.2 Builder's Risk Insurance
8.3 Indemnity
ARTICLE 9 -TERMINATION AND SUSPENSION ......................................................................................... 27
9.1 Termination for Convenience
9.2 Termination for Default
9.3 Additional Termination Provisions
9.4 Suspension
ARTICLE 10 -DISPUTE RESOLUTION ....................................................................................................... 29
ARTICLE 11 -ADDITIONAL PROVI510NS .................................................................................................. 30
11.1 Confidentiality
11.2 Sians
11.3 Limitation and Assignment
11.4 Minority Business Enterprise Program
11.5 Extent of Agreement
11.6 5everability
11.7 Meaning of Terms
11.8 Notices
11.9 Bonds
11.10 Ownership of Documents
ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS ......................................................... 31
12.1 Guaranteed Maximum Price
Appendix A -Dispute Resolution
Appendix B -List of Cost Elements
Appendix C -Orange County Minority Business
Enterprise Policy
Appendix D -Divisions of the Work for Guaranteed Maximum Price
Appendix E -Project and Construction Budget
Appendix F --Master Schedule
3
ARTICLE 1
RELATIONSHIP OF THE PARTIES
1.1 Owner and Construction Manager at Risk
The CMAR and the Owner shall pertorm as stated in this
Agreement and each accepts the relationship between them
that is established by this Agreement.
The CMAR covenants with the Owner to fumish professional
construction management services during the Project. In broad
terms, under this Agreement, the CMAR will perform
construction services, including efficient value engineering
reviews and project management, business administration and
field supervision, and shall use its best efforts to see to it that
the Work of the Project is done in the best and most
expeditious, economical manner consistent with the interests of
the Owner, and in strict conformity with the Contract
Documents, including ail reasonable implications therein, and
to fumish its skill and judgment with due care in accordance
with applicable federal, state, and local laws and regulations
that are in effect on the date of this Agreement first written
above.
1.2 Owner and Designer
The Owner shall contract separately with the Designer to
provide architectural and engineering design for the Project.
The Project is defined in Article 2 of this Agreement. In this
Agreement the term "Drawings and Specifications" shall refer to
the drawings and specifications prepared by the Designer in
accordance with its agreement with the Owner.
1.3 CMAR and Contractors
The CMAR shall enter into contracts for labor, materials and
services in accordance with N.C. Gen. Stat. § 143-128.1 and
other sections of Chapter 143 Article 8 of the North Carolina
General Statutes relating to construction management at risk
contracts. In this Agreement the term "Contractor" or
"Contractors" shall refer to all persons with such contracts with
the CMAR.
1.4 Relationship of the CMAR to the Designer
In providing construction management services described in
this Agreement, the CMAR shall maintain a working
relationship with the Designer. The Designer is solely
responsible for the Project design and shall perform in
accordance with the Designer agreement with the Owner and
nothing in this Agreement shall be construed to mean that the
CMAR is responsible for the design of the Project or that the
CMAR assumes any of the contractual or customary duties of
the Designer or any other persons or parties not specified by
this Agreement. The CMAR and the Designer shall each be
provided with a copy of the other's contract with the Owner.
ARTICLE 2
PROJECT DEFINITION ,
The term "Project" when used in the Agreement shall mean the
total construction of which the Work may be a whole or part of
the Project. The term "Work" required for the "Project" used in
this Agreement shall mean the various parts. of total
construction to be performed under this Agreement.
The Project name and location is the Central Orange Senior
Center & Sportsplex Renovation in Hillsborough, North
Carolina. The Project is intended for use as a Senior Center
and Sportsplex, as more fully described in this Agreement and
all site plan and related documents submitted to The Town of
Hillsborough as part of the Site Plan approval of the Project
and as those documents are or will be modified to conform to
Project approvals obtained by the Owner.
The Project shall be fully described in the Contract Documents,
which are hereby defined to include: This Agreement, the
Orange County, North Carolina General Conditions of the
Contract for Construction -Construction Manager at Risk, June
2007 Edition, plus the Drawings and Specifications prepared by
the Designer, plus allowable Modifications to the Contract
Documents.
ARTICLE 3
CONSTRUCTION MANAGER AT RISK'S SERVICES
3.1 CMAR Services
The CMAR shall pertorm the Services described herein. The
sequence in which they are provided shall be as set forth in the
approved Construction Management Plan.
4
3.2 CMAR Personnel
The services to be provided by the CMAR under this
Agreement shall be pertormed by personnel idenfrfied by the
CMAR, and approved by the Owner, before commencing
services. The furnishing of services by such personnel
throughout the duration of the Project, and any individuals
approved by the Owner to replace them, is of the essence to
this Agreement.
3.2.1 Additions. Removals. Replacements
From time to time, personnel may be added as necessary and
appropriate to the stage of planning, programming, designing
and constructing the Project. The CMAR shall anticipate the
need for such additional personnel by submitting to the Owner,
no later than seven (7) days prior to the need for the additional
personnel, a list of the proposed additional personnel, attaching
the resumes of proposed additional personnel, and stating the
reasons for such additions. The Owner shall promptly review
the proposed additions and either approve or disapprove the
additional personnel in writing. The CMAR shall not employ
any individual to perform the functions of any approved
personnel without the advance approval of the Owner, which
approval may be granted or withheld in its sole discretion. The
CMAR shall not, for so long as any approved person is
employed by the CMAR, remove, substitute or reduce the time
devoted to the Project by such person without .the Owner's
prior written approval, which may be granted or withheld in its
sole discretion. If the Owner is for any reason dissatisfied with
the services rendered by any approved person, the CMAR
shall promptly remove such person and recommend a
replacement. If any approved person ceases employment with
the CMAR, or if the Owner requests the removal of any such
person, then the CMAR shall promptly notify the Owner of a
proposed substitute of at least equal qualifications to perform
the same functions, and provide a resume for the substitute.
Each substitute person must be approved by the Owner prior to
commencing performance of any services for the Project, which
approval may be granted or withheld in the Owner's sole
discretion. The CMAR shall bear, at its own expense and
without reimbursement by the Owner, all costs associated with
replacing, for any reason, any approved personnel. The CMAR
shall remain solely responsible to the Owner, notwithstanding
the Owner's approval of any approved personnel, for the
quality and performance of all services provided by such
personnel.
3.2.2 CMAR's Project Representative
The CMAR shall designate a Project Representative who has
the authority to act on behalf of the CMAR in respect to all
matters that are the subject of this Agreement, including,
without limitation, the power and authority to enter into
agreements or mod cations that contractually bind the CMAR.
The Project Representative shall be available at all times
during all phases of performance of services under this
Agreement to consult with the Owner on matters pertinent to
design and construction of the Project.
3.2.3 CMAR's Employees
None of the persons employed by the CMAR shall be
considered employees of the Owner. The CMAR shall be
solely responsible for any workers' compensation obligations,
withholding taxes, unemployment insurance, compliance with
immigration and licensing laws, and any other employer
obligations with respect to all of their respective employees.
3.3 Construction Management Plan
Within 30 days after execution of this Agreement,
the CMAR shall present to the Owner a Construction
Management Plan for the Project, including dates by which
deliverables required by the Construction Management Plan
will be completed. The CMAR shall make recommendations for
revisions to the Construction Management Plan throughout the
duration of the Project, as may be appropriate. In preparing
the Construction Management Plan, the CMAR shall consider
the Owner's schedule, budget, and design requirements for the
Project. The CMAR shall then develop various alternatives for
the sequencing and management of the Project and shall make
recommendations to the Owner. The Construction
Management Plan shall also include a description of the
various bid packages recommended for the Project. The
Construction Management Plan shall be presented to the
Owner for acceptance. Revisions approved by the Owner shall
be incorporated into the Construction Management Plan.
3.4 Consultant Selection
it requested by the Owner, the CMAR shall assist the Owner in
the selection of designers and other consultants necessary for
the Project (generally referred to in this Agreement as
"Consultants") by developing lists of potential firms, developing
criteria for selection, preparing and transmitting the requests for
proposal, assisting in reviewing written proposals, assisting in
conducting interviews, evaluating candidates and making
recommendations.
5
3.4.1 Consultant Contract Preparation
If requested by the Owner, the CMAR shall assist the Owner in
the preparation and review of Agreements between the Owner
and the Consultants engaged by the Owner.
3.4.2 Consultant Orientation
If requested by the Owner, the CMAR shall conduct or assist
the Owner in conducting orientation sessions during which the
Consultants shall receive information regarding the Project
scope, schedule, budget, and administrative requirements.
3.5 Time Management
The CMAR shall be responsible for Project scheduling and
efficient and timely prosecution and completion of the Work, as
follows:
3.5.1 Master Schedule
In accordance with the Construction Management Plan, the
CMAR shall prepare a Master Schedule for the Project. The
Master Schedule shall specify milestone dates and the
proposed start and finish dates for each major project activity
including all design and construction activities. The CMAR
shall submit the Master Schedule to the Owner for acceptance.
3.5.2 Updates and Revisions to Master Schedule
As necessary throughout the Project, the CMAR may make
revisions to the Master Schedule so long as such revisions do
not alter agreed milestone dates. All adjustments to the Master
Schedule shall be made for the benefit of the Project. The
Owner shall issue change orders to the appropriate parties as
required by this Agreement to implement justified revisions to
the agreed milestone dates in the Master Schedule. During the
Construction Phase, the CMAR shall update the Master
Schedule and distribute copies to the Owner and Designer
monthly.
3.5.3 Design Phase Milestone Schedule
In accordance with the Construction Management Plan, after
the Owner accepts the Master Schedule the CMAR shall
prepare a Milestone Schedule for the Design Phase. The
Design Phase Milestone Schedule may be incorporated into
the contract for the Designer and shall be a method for judging
progress during the Design Phase. The Design Phase
Milestone Schedule activities shall include schematic design
documents, design development documents, construction
documents, permitting, creation of separate specifications and
bid packages, and selection and approval of Tong-lead-time
components of the Project. The CMAR shall monitor
compliance with the Design Phase Milestone Schedule, and
promptly notify the Owner and Designer of any delay ar change
in the Design Phase Milestone Schedule.
3.5.4 Pre-Bid Construction Schedules
Prior to transmitting Contract Documents to bidders, the CMAR
shall prepare aPre-Bid Construction Schedule for each part of
the Project and make the schedule available to the bidders
during the Procurement Phase. The CMAR shall inform the
bidders of their responsibilities regarding the Pre-Bid
Construction Schedule specified in the Instructions to Bidders
or Contract Documents.
3.5.5 Contractor's Construction Schedule
The CMAR shall provide a copy of the Master Schedule to the
bidders. As part of the notice of award of each contract, the
CMAR shall inform each Contractor of the requirements for the
preparation of a construction schedule. The Contractor shall
prepare its own construction schedule in accordance with the
requirements of the Contract Documents. The Contractor's
construction schedule shall establish completion dates that
comply with the requirements of the Master Schedule.
3.6 Cost Management
The CMAR shalt be responsible for implementing a system of
cost control, for the completion of the Project within the
Guaranteed Maximum Price agreed to by the CMAR and the
Owner as set forth herein.
3.6.1 Construction Market Survey
In accordance with the Construction Management Plan, the
CMAR shall, at the written request of the Owner, conduct a
Construction Market Survey to provide current information
regarding the general availability of local construction services,
labor, materials and equipment cost and other economic
factors related to the Project. A report of the Construction
Market Survey shall be provided to the Owner and the
Designer.
3.6.2 Project and Construction Budget
Based nn the Construction Management Plan and the
Construction Market Survey, the CMAR shall prepare a Project
and Construction Budget based on separate divisions of the
6
Work required for the Project and shall identify contingencies
for design and construction. The CMAR shall submit the
Project and Construction Budget to the Owner for acceptance.
It the CMAR believes that additional surveys, geotechnical
investigations, environmental assessments or other testing or
investigation is necessary and reasonable to fashion a reliable
Project and Construction Budget, the CMAR shall make
recommendations to the Owner for such services, with an
explanation of why the CMAR believes that the services are
reasonable and necessary. The decision to procure such
services shall be solely in the discretion of the Owner, and shall
be at the Owner's expense. The Project and Construction
Budget shall be revised as directed by the Owner.
3.6.3 Preliminary Estimate and Budget Analysis
The CMAR shall analyze and report to the Owner the cost of
various design and construction alternatives, including the
assumptions by the CMAR in preparing its analysis, a variance
analysis between budget and preliminary estimate, and
recommendations for any adjustments to the budget. As a part
of the cost analysis, the CMAR shall consider costs relating to
efficiency, usable life, maintenance, energy, and operation.
3.6.4 Cost Control
Following the completion of each design phase milestone, the
CMAR shall prepare an estimate of the construction cost for the
Design Drawings and Spec cations furnished by the Designer.
Each estimate shall be accompanied by a report to the Owner
and Designer identifying variances from the Project and
Construction Budget as well as the assumptions made by the
CMAR in preparing the estimate. The CMAR shall reconcile its
estimates with the Project Budget and the Construction Budget,
and with any independent estimates obtained by the Owner.
The CMAR shall coordinate the activities of the Owner and
Designer and provide cost estimating and value engineering
studies when changes to the design are required to remain
within the Project and Construction Budget.
3.6.5 Project and Construction Budqet Revision
The CMAR shalt make recommendations to the Owner
concerning design changes that may result in revisions to the
Project and Construction Budget and divisions of the Work
required for the Project.
3.6.6 Value Engineering Studies
The CMAR shall provide value engineering recommendations
to the Owner and Designer for major construction components,
including cost evaluations of alternative materials and systems.
3.6.7 Estimates for Addenda
Prior to bidding, the CMAR shall notify the Owner and the
Designer if any addendum issued by the Designer could impact
the Cost of the Work of the Project, and will prepare an
estimate of costs for all such addenda and shall submit the
estimates to the Owner for approval. After approval by the
Owner, addenda shall be transmitted to bidders by the CMAR.
Once bids are received and contracts are awarded to each
Contractor, any addenda issued by the Designer which affects
a Contractor shall be processed through the change order
provisions in the Agreement.
3.6.8 Analyzing Bids: Upon receipt of bids, the CMAR shall
evaluate the bids, including alternate prices and unit prices,
and before award of any construction contract shall provide the
Owner and the Designer with a report summarizing the bids.
3.6.9 Schedule of Values Each Contract)
The CMAR shall, in participation with the Contractors,
determine a Schedule of Values for each of the construction
contracts. The Schedule of Values shall be the basis for the
allocation of the Construction Contract price to the activities
shown on the Contractor's Construction Schedule.
3.6.10 Allocation of Costs to Contractor's Construction
Schedule
[Not used.]
3.6.11 Change Order Control
The CMAR shall establish and implement a change order
control system.
3.6.11.1 All proposed Owner-initiated change orders shall first
be described in detail in writing by the Owner, or the Designer if
so requested by the Owner, and forwarded to the CMAR. The
CMAR shall then forward a request for proposal to the
appropriate Gontractor (or Contractors), accompanied by
technical Drawings and Specifications prepared by the
Designer. In response to the request for a proposal, the
Contractor shall submit to the CMAR for evaluation detailed
information concerning the costs and time adjustments, if any,
necessary to perform the proposed change order work. The
CMAR shall review the Contractor's proposal, shall discuss the
proposed change order with the Contractor and determine the
Contractor's basis for the cost and time to perform the Work
and, as applicable, the effect, if any, on the Guaranteed
7
Maximum Price. The CMAR shall present its findings to the
Owner and Designer. Following Owner acceptance, the
Designer shall prepare the change order documents for
signature by the CMAR and Owner. Upon execution of the
change order documents between the CMAR and Owner, the
CMAR shall prepare change order documents for signature by
the affected Gontractor(s). The CMAR shall verify that any
adjustment of time required by approved change orders has
been incorporated into the Contractor's Construction Schedule.
3.6.11.2 The CMAR shall review the contents of ail Contractor-
requested changes to the contract time or price, determine
whether an adjustment to the Guaranteed Maximum Price or
the Master Schedule is warranted under the Contract, and
determine the amount or length, if any, of the allowable
adjustment to the Guaranteed Maximum Price and the Master
Schedule. if the CMAR believes that an adjustment to this
Contract might be warranted by a Contractor change request,
the CMAR shall provide the Designer with a copy of the change
request, and the CMAR shall, in its evaluations of the
Contractor's request, consider the Designer's comments
regarding the proposed changes. The CMAR shall present its
findings to the Owner and Designer regarding the proposed
changes. If, after review by the Owner and Designer, the
Owner determines that an adjustment to the Guaranteed
Maximum Price or Master Schedule is warranted, the Designer
shall prepare the change order documents for signature by the
CMAR, the Owner and the Designer. Upon execution of the
change order documents between the CMAR and Owner, the
CMAR shall prepare change order documents for signature by
the affected Contractor.
3.6.11.3 In instances where a lump sum or unit price is not
authorized by the Owner in a change order prior to performing
Work described in a request for proposal as provided in
Paragraph 3.5.11, the CMAR shall request from the Contractor
records of the cost of payroll, materials and equipment and the
amount of payments to subcontractors incurred by the
Contractor in performing the Work.
3.6.12 Trade-Off Studies
The CMAR shall provide trade-off studies for various minor
construction components. The results of the trade-off studies
shall be in report form and distributed to the Owner and
Designer.
3.6.13 Progress Payments
In consultation with the Designer, the CMAR shall inspect the
work to determine compliance with the Contract Documents,
review the monthly payment applications submitted by each
Contractor and determine whether the amount requested
reflects the progress of the Contractor's Work. The CMAR
shall make appropriate adjustments to each payment
application and shall prepare and forward to the Designer and
Owner a progress payment report. The report shall state the
total contract price, payments to date, current payment
requested, retainage and actual amounts owed for the current
period. Included in this report shall be a certificate of payment
that shall be signed by the CMAR and delivered to the Owner.
The CMAR shall make payments that are due to all contractors,
suppliers, and material men within seven (7) days following
payment for the work, supplies artd materials by the Owner to
the CMAR as provided in Paragraph 7.4.4. In addition, the
CMAR shall keep the Project and the site on which Work is
performed free and clear of all liens and claims from
Contractors, subcontractors, or suppliers. Each payment
application from each Contractor and the CMAR shall contain
sales tax information on forms provided by the Owner.
3.7 Management Information System (MIS)
The CMAR shall develop a MIS to establish communication
between the Owner, CMAR, Designer, and other parties on the
Project. In developing the MIS, the CMAR shall interview the
Owner's and the Designer's key personnel and others to
determine the type of information for reporting, the reporting
format, and the desired frequency for distribution of the various
reports. At a minimum, the MI5 shall include the elements
described in this section.
3.7.1 Pre-construction Procedures
As part of the MIS, the CMAR shall establish procedures for
reporting, communication, and administration during the Design
Phase and regulatory permitting.
3.7.2 Schedule Maintenance Reports
The CMAR shall prepare and distribute schedule maintenance
reports on a monthly basis that shall contrast actual progress
against scheduled progress for each Phase and the overall
Project and shall make recommendations to the Owner for
corrective action to maintain the Master Schedule and all
design and construction schedules. During the Construction
Phase the reports shall compare the actual construction dates
to scheduled construction dates of each separate construction
contract and to the Master Schedule for the Project.
8
3.7.3 Proiect Cost Reports
The CMAR shall prepare and distribute project cost reports on
a monthly basis that shall indicate estimated costs compared to
the Project Guaranteed Maximum Price and shall make
recommendations to the Owner for corrective action to maintain
all budgets and the Guaranteed Maximum Price. During the
Procurement Phase, the reports shall specify the actual award
prices and construction costs for the Project, compared to the
Project Guaranteed Maxmum Price. During the Construction
Phase the reports shall specify actual Project and construction
costs compared to the Project Guaranteed Maximum Price.
3.7.4 Cash Flow Report
The CMAR shall periodically prepare and distribute a cash flow
report. The reports shall be based on actual award fees and
prices and on actual design and construction costs for the
Project. The reports shall specify the actual cash flow
compared to the projected cash flow.
3.7.5 Chanae Order Report
The CMAR shall prepare and distribute Design Phase reports
on a monthly basis that shall list all Owner-approved addenda,
substitutions and change orders as of the date of the report
and shall state the effect of the changes on the Project and
Construction Budget and the Master Schedule. The CMAR
shall continue to prepare and distribute monthly change order
reports during the Construction Phase. The report shall include
logs of all requests for information, requests for interpretation of
the design documents, requests for proposals, notices of
events that might justify an adjustment in the Guaranteed
Ma~omum Price or Master Schedule, and status of critical
decisions to be made by the Owner or the Designer. The
report shat) list all Owner-approved change orders by number,
a brief description of the change order work, the cost
established in the change order and percent of completion of
the change order work. The report shall also include similar
information for potential change orders or impact on the
Guaranteed Maximum Price of which the CMAR may be aware.
3.7.6 Project and Construction Budoet Revisions
The CMAR shall make recommendations to the ~ Owner
concerning construction changes that may result in revisions to
the Project Guaranteed Maximum Price.
3.7.7 Pro rq ess Payment Reports ]Each Contract]
The CMAR shall prepare and distribute the progress payment
reports. The reports shall state the total construction contract
price, payment to date, cun•ent payment requested, retainage,
sales and use tax paid, and actual amounts owed this period.
A portion of this report shall be a certificate of payment that
shall be signed by the CMAR and delivered to the Designer
and the Owner.
3.7.8 Contractor's Safety Program
On a monthly basis, the CMAR shall review the safety
programs of each Contractor and confirm that each Contractor
has established and implemented safety programs as required
by the Contract Documents.
3.7.9 Final Inspections and Commissioning
The CMAR shall schedule final inspections and, if required by
the Contract Documents, commissioning of systems in the
Project, and shall compile and organize all inspection reports
for the Project records.
3.7.10 Closeout Reports
At the conclusion of the Project, the CMAR shall prepare final
project accounting and closeout reports.
3.7.11 MIS Reports for Move-in and Occupancy
In consultation with the Owner, the Designer and appropriate
regulatory agencies, the CMAR shall prepare and distribute
reports associated with the Occupancy Plan.
3.8 Design Phase Services
All drawings and specifications shall be prepared by the
Designer and submitted to the Owner for review and
authorization to proceed with procurement and construction.
The CMAR shall provide the following services related to
design of the Project.
3.8.1 Project Conference
In accordance with the approved Construction Management
Plan and Master Schedule, the CMAR shall conduct a project
conference attended by the Dosigner, the Owner and others as
necessary. During the Project Conference, the CMAR shall
review the Construction Management Plan, the Master
Schedule, the Design Phase Milestone Schedule, the Project
Guaranteed Maximum Price, and the MIS. The CMAR shall
conduct and prepare minutes of this meeting.
9
3.8.2 Design Phase Information
The CMAR shall monitor the Designer's compliance with the
Construction Management Plan and the MIS and the CMAR
shall coordinate and expedite the flow of information between
the Owner, Designer, the CMAR and others as necessary.
3.8.3 Progress Meetings
The CMAR shall participate in regularly scheduled progress
meetings attended by the Owner, CMAR and others as
necessary. Such meetings shalt serve as a forum for the
exchange of information conceming the Project and the review
of design progress. The Designer shall prepare and distribute
minutes of these meetings to the Owner, CMAR and others.
3.8.4 Review of Design Documents
The CMAR shall review all design documents, including
drawings, spec cations, addenda, and supplemental design
information, for clarity, consistency, constructibility and
coordination among the Contractors. The results of the review
shall be provided in writing as notations on the documents or in
a written report. The CMAR is not responsible for providing,
nor does the CMAR control, the Project design and contents of
the design documents. By performing the reviews described
herein, the CMAR is not acting in a manner so as to assume
responsibility or liability, in whole or in part, for all or any part of
the Project design and design documents. The CMAR's
actions in reviewing the Project design and design documents
and in making recommendations as provided herein are only
advisory to the Owner.
3.8.5 Design Recommendations
The CMAR shall make recommendations to the Owner and
Designer with respect to constructibility, construction cost,
sequence of construction, construction duration, possible
means and methods of construction, time for construction, and
separation of the Project contracts for various categories of
Work. In addition, the CMAR shall give to the Designer all data
of which it is aware conceming patents or copyrights for
inclusion in Contract Documents.
3.8.6 Owner Desion Reviews
The CMAR shall expedite the Owner's design reviews by
compiling and conveying the Owner's comments to the
Designer.
3.8.7 Approvals by Regulatory Agencies
The CMAR shall assist the Designer with transmittal of
documents to regulatory agencies for review and shall advise
of potential problems in completing such reviews.
3.8.8 Construction Contracts and General Conditions
The CMAR shall recommend for approval by the Owner the
appropriate Contractor bid packages. The CMAR shall take
into account the needs of the Project, the Master Schedule, risk
management, and the available resources, and divide the Work
for the best benefit of the Project. The CMAR and the
Designer shall collaborate on the preparation of bid documents
consistent with the bid packages identified by the CMAR and
approved by the Owner. Consistent with State law, one or
more bid packages shall be prepared for each of the general
construction, electrical, mechanical, fire protection, and
plumbing divisions of the Work of the Project. The CMAR shall
prepare any other contract packages for other divisions or
subdivisions of the Work as agreed with the Owner. The form
of agreement and general conditions for use in the contracts
between the CMAR and the Contractors for construction for the
Project shall 6e based on a form of Agreement selected by the
CMAR that is consistent with and the General Gonditions of the
Orange County Contract For Construction -Construction
Manager at Risk. The requirements of this Agreement shall be
included in each construction, contract to the extent applicable
to the construction contract. Supplementary General
Conditions for Contractors shall be prepared by the CMAR and
submitted to the Owner and the Designer with adequate time
for review and comment before inclusion in bid packages. The
Designer and the CMAR will collaborate on the preparation of
the general Division One requirements of the Specifications.
Separate General Conditions far materials and equipment
procurement shall be prepared by the CMAR to meet the
specific requirements of the Project using forms approved by
the Owner. The CMAR shall be afforded a reasonable
opportunity to review and comment on all special warranties
and other obligations imposed on the Contractors by the
Specifications.
3.8.9 Public Relations
The CMAR shall assist the Owner in public relations activities
and shall prepare information for and attend public meetings
regarding the Project as reasonably required by the Owner.
3.8.10 Project Fundino
The CMAR shat) assist the Owner in preparing documents
concerning the Project for use in obtaining or reporting on
10
project funding. The documents shall be prepared in a form
approved by the Owner.
3.9 Procurement Phase
All construction contracts labor materials and services shall be
procured in accordance with N.C. Gen. Stat. § 143-128.1 and
other sections of Chapter 143 Article 8 of the North Carolina
General Statutes relating to construction management at risk
contracts.
3.9:1 Pregualifying_Bidders
The CMAR shall develop lists of possible bidders and shall
prequalify bidders. This service shall include the following:
preparation and transmission of questionnaires; receiving and
analyzing completed questionnaires; interviewing possible
bidders, bonding agents, and financial institutions; and
preparing summary reports regarding this activity to the Owner.
The CMAR shall. also prepare and transmit to the Owner a
bidders list for each bid package. The Owner shat) notify the
CMAR promptly of any reasonable objections to a proposed
bidder, and the CMAR shall remove that bidder from the
bidders list.
3.9.2 Bidder's Interest Campaign
The CMAR shall conduct a telephonic and correspondence
campaign to attempt to create interest among qual~ed bidders,
both to foster competition for the Work of the Project, and to
satisfy the requirements of the Owner's Minority Business
Enterprise Policy, attached to this Agreement as Appendix C.
3.9.3 Notices and Advertisements
The CMAR shall prepare and place notices and advertisements
to solicit competitive bids for the Project.
3.9.4 Delivery of Bid Documents
The CMAR shall expedite the delivery of bid documents to the
bidders. The CMAR shall obtain a full set of documents from
the Designer and arrange for printing, binding, wrapping and
delivery to the bidders. The CMAR shall maintain a record of
bidders receiving documents.
3.9.5 Pre-Bid Conference
In conjunction with the Designer, the CMAR shall conduct a
Pre-Bid Conference. These conferences shall be forums for
the CMAR and Designer to explain to the bidders the Project
requirements, including information concerning schedule
requirements, time and cost control requirements, access
requirements, contractor interfaces, minority and women's
business enterprise goals, the project administrative
requirements and technical information.
3.9.6 Information to Bidders
The CMAR shall develop and coordinate procedures to provide
answers to bidders' questions.
3.9.7 Addenda
The CMAR shall receive from the Designer a copy of all
addenda. The CMAR shall review addenda for clarity,
consistency and coordination. By pertorming the reviews
described herein, the CMAR is not acting in a manner so as to
assume responsibility or liability, in whole or in part, for all or
any part of the Project design or the content of the design
documents. The CMAR shall also distribute a copy of all
addenda to each bidder receiving documents.
3.9.8 Bid Opening
The CMAR shall conduct bid openings in accordance with
statute and shall evaluate the bids to determine the lowest
responsive and responsible bidder. The CMAR shall not award
or enter into any contract for Work on the Project until the
CMAR has provided the Owner with written notice of the intent
to award the contract with reasons for awarding the contract to
the successful bidder. This written notice shall also describe
compliance by the bidder with the Owner's Minority Business
Enterprise Policy, attached to this Agreement as Appendix
C The Owner shall be given reasonable opportunity to
consider the qualifications of the successful bidder, and the
impact of award of the contract on the Project and Construction
Budget.
3.9.9 Construction Contracts
At the direction of the Owner, the CMAR shall prepare,
execute, and deliver the Contract Documents between the
CMAR and the Contractors. The CMAR shall also issue the
notices to proceed.
3.9.10 Permits Insurance and Labor Affidavits
The CMAR shall verify that all required building permits, bonds,
insurance, labor affidavits, and waivers required for the Project
have been obtained.
3.10 Construction Phase
The CMAR shall be responsible for construction administration
and management, overall field supervision, Project safety
program, quality assurance, and other services needed to
11
construct the Project in the most expeditious, economical
manner consistent with the interests of the Owner and the
requirements of the Contract Documents.
3.10.1 Pre-Construction Conference
In connection with the Designer, the CMAR shall conduct a
Pre-Construction Conference during which the CMAR shall
review the reporting procedures, site operations and other
contractual requirements for the Project.
3.10.2 Onsite Management and Construction Phase
Communication Procedures
The CMAR shall provide and maintain a management team on
the Project site to provide contract administration and the
CMAR shall establish and implement coordination and
communication procedures among the CMAR, Owner,
Designer, and Contractors.
3.10.3 Contract Administration Procedures
The CMAR shall establish and implement procedures for
expediting and processing requests for information, shop
drawings, material and equipment sample submittals,
Contractor schedule adjustments, change orders, substitutes,
payment requests and the maintenance of logs. The CMAR
shall maintain daily job reports. The CMAR shall be the party
to whom requests for information, submittals, Contractor
schedule adjustments, substitutes, change order requests and
payment requests shall be submitted by the Contractors.
3.10.4 Project Site Meetings
The CMAR shall conduct weekly coordination meetings at the
site with all Contractors. As set forth in the Master Schedule
and the Contract Documents, the CMAR shall conduct pre-
installation and preconstruction meetings for key components
of the Work. The CMAR shall conduct a monthly meeting with
the Owner and the Designer to update them on progress of the
Work. The CMAR shall record, transcribe and distribute
minutes of all project site meetings to all attendees, the Owner
and Designer.
3.10.5 Coordination of Other Independent Consultants
Technical inspection and testing required by the Designer, the
Owner or others shall be coordinated by the CMAR. The
CMAR shall be provided with a copy of all inspection and
testing reports on the day of the inspection or test or when
issued.
3.10.6 Contractor's Construction Schedule
The CMAR shall review, to the extent required by the CMAR,
each Contractor's Construction Schedule and shall verify that
the schedule is prepared in accordance with the requirements
of the Contract Documents and that it establishes completion
dates that comply with the requirements of the Master
Schedule. The CMAR and the Owner shall together approve
the Contractors for which a Construction Schedule is required.
3.10.7 Construction Schedule Report
The CMAR shall review the progress of construction of each
Contractor on a weekly basis, shall evaluate the percentage
complete of each construction activity as indicated in the
Contractor's Construction Schedule and shall review such
percentages with the Contractor. This evaluation shall serve
as data for input to a monthly Construction Schedule report that
shall be prepared and distributed to the Contractor, the Owner
and Designer. The report shall indicate the actual progress
compared to scheduled progress and shall serve as the basis
for the progress payment to the Contractor. The CMAR shall
determine and implement alternative courses of action that
may be necessary to achieve contract compliance by the
Contractor.
3.10.8 Recovery Schedules
In the event the Project is falling behind schedule, the CMAR
shall require each Contractor to prepare and submit a recovery
schedule as specified in the Contract Documents. The CMAR
shall review and ascertain that the Contractor is providing
sufficient resources to regain lost time.
3.10.9 Reouests for Changes to the Contract Time and
Guaranteed Maximum Price
The CMAR shall review the contents of a request for changes
to the construction contract time or price submitted by a
Contractor, assemble information concerning the request and
endeavor to determine the cause of the request. In instances
where the CMAR's analysis reveals that the request is valid,
the CMAR shall prepare a detailed report to the Designer and
the Owner for review, consideration and approval. The CMAR
shall, prior to the issuance of a change order, determine the
effect on the Master Schedule of time extensions requested by
the Contractor. The Designer shall prepare the necessary
change order documents for signing by the CMAR, Designer
and Owner. The CMAR shall then prepare the necessary
documents to effect a change to the contract with the
Contractor. In its sole discretion the Owner may approve a
12
change in the Guaranteed Ma~amum Price that corresponds
with any approved construction contract change order.
3.10.10 Quality Review and Warranty
The CMAR unconditionally warrants and guarantees all
materials and workmanship against patent defects arising from
faulty materials, faulty workmanship or negligence for a period
of twelve (12) months following the date of substantial
completion of the Work and shall replace such defective
materials or workmanship without cost to the Owner.
3.10.10.1 In addition to the foregoing general warranty, the
Contract Documents may require extended warranties for
specified building components, including without limitation
mechanical and electrical equipment, elevators and escalators,
security equipment, roof, curtain wall, doors and waterproofing.
Extended warranties shall be specified in the Contract
Documents. All such extended warranties shall either be
provided by the CMAR or by a Contractor or manufacturer as
provided in the Contract Documents. Such warranties shall
provide, at a minimum, for the repair or replacement of
defective or non-conforming components within the warranty
period.
3.10.10.2 The CMAR shall establish and implement a program
to monitor the quality of construction. The purpose of the
program shall be to guard the Owner against defects and
deficiency in the work of the Contractors. The CMAR shall
transmit to the Designer and the Contractor a notice of
nonconforming work ahd may require that the Contractors
correct Work at no expense to the Owner when it is the opinion
of the CMAR that the Work does not conform to the
requirements of the Contract Documents. Except for minor
variations as stated herein, the CMAR is not authorized as part
of this service to change, evoke, enlarge, relax, after, or to
release any requirement of the Contract Documents or to
approve or accept any portion of the Work not performed in
accordance with the Contract Documents.
3.10.11 Testing by the CMAR
The CMAR shall recommend to the Owner additional tests and
inspections that the CMAR believes should be conducted to
monitor the quality of construction and compliance with the
Contract Documents. Notice of all such tests and inspections
shall be provided to the Owner and the Designer, and copies of
the results and reports of all such tests and inspections shall be
provided to the Owner and the Designer.
3.10.12 Operation and Maintenance Materials
The CMAR shall obtain ftom the Contractors, review and
assemble operation and maintenance manuals, warranties and
guarantees for materials and equipment installed in the Project,
in accordance with the Contract Documents and the Master
Schedule. It is expected that all operation and maintenance
manuals will be compiled and delivered to the Owner before
the Project is substantially complete, and generally when the
Work is eighty percent complete.
3.10.13 Substantial Completion
Substantial completion is the point in time when the Work, as
determined by the Designer, is sufFciently complete in
accordance with the Contract Documents that it can be utilized
by the Owner for its intended use, and all necessary permits
and permissions for beneficial occupancy and utilization having
been obtained by the CMAR. All operations and maintenance
manuals, Owner training, and as-built drawings must be
submitted prior to Final Completion being achieved.
The CMAR shall, prior to requesting a Certificate of Substantial
Completion, prepare and submit to the Contractors lists
identifying Work that does not conform to the Contract
Documents. The CMAR shall not request a Certificate of
Substantial Completion from the Designer until the CMAR
believes that the Project is substantially complete and certifies
to the Designer that all of the Work is substantially complete.
The Designer shall then determine whether the Project is
substantially complete. Upon Substantial Completion, the
Designer shall prepare and submit to the CMAR a deficiency
list identifying ail portions of the Work which are known by the
Designer at that time to be incomplete or defective. Within
forty-five (45) days of receipt of this deficiency list, the CMAR
shall complete and correct all items on that list along with ail
other Work required to achieve Final Completion of the Work.
At any time prior to completion of the period of warranty, the
Designer may submit to the CMAR a supplemental deficiency
list, in which case the CMAR shall complete or correct any and
all new items identified on the Supplemental deficiency list.
3.10.14 Final Completion
In consultation with the Designer, the CMAR shall determine
when the Project and the Contractor's Work are finally
completed and, following completion of corrections, shall issue
a Certificate of Final Completion to the Owner. Upon delivery
of the Certificate of Final Completion to the Owner, the CMAR
shall make all remaining payments due to Contractors.
13
3.10.15 Protection of the Work. Property and the Public
The CMAR shall be responsible for the entire site and shall
provide all the necessary protections required by the Owner
and by laws or ordinances governing safety and protection of
property. Consistent with the indemnification provisions
elsewhere in this Agreement, and subject to the benefits of any
Owner-controlled or Owner-provided insurance that covers the
interests of the CMAR and its Contractors, the CMAR shall be
responsible for protecting the public and those on the sfte
against all bodily injury or harm, and protecting against any
damage to the Work, to adjacent property, and to property of
others. The CMAR shall have access to the Project at all times.
Subject to its ultimate contractual responsibility for protection of
work, property and the public under this Agreement, and
subject to any non-delegable duties imposed bylaw, the CMAR
may delegate to Contractors these obligations of the CMAR
under this Agreement, and may obtain indemnification and
insurance from Contractors as the CMAR deems reasonable
and prudent.
3.10.15.1 The CMAR shall provide cover and protect all
portions of the structure when the Work is not in progress,
provide and set all temporary roofs, covers for doorways, sash
and windows, barricades, and all other materials necessary to
protect all the Work on the building, whether set by it, or any of
the Contractors. Any completed Work or Work in progress
damaged through the lack of proper protection or from any
other cause shall be repaired or replaced without extra cost to
the Owner.3.10.15.2 No fires of any kind will be allowed inside
or around the operations during the course of construction.
3.10.15.3 The CMAR shall protect all trees and shrubs
designated to remain in the vicinity of the operations by
building substantial protection around same. The CMAR shall
barricade all walks, roads, etc., as authorized by the Owner to
keep the public away from the construction. All trenches,
excavations or other hazards in the vicinity of the Work shall be
well barricaded and properly lighted at night.
3.10.15.4 The CMAR shall develop and implement a Project
Safety Program. The Owner may reject the Project Safety
Program and require that it be rewritten if in the Owner's
reasonable opinion the Safety Program is inadequate. The
CMAR shall report, to the Owner, as part of the MIS, any safety
violations and actions taken to protect the safety of persons
and property engaged in the Project. The CMAR shall require
that all Contractors meet or exceed the Project Safety Program
requirements including where those requirements meet or
exceed State or Federal requirements.
3.10.15.5 In the event the Owner implements an Owner
Controlled Insurance Program (°OCIP"), the CMAR agrees to
cooperate and coordinate with any safety plan or risk
management plan implemented in connection with the OCIP.
3.10.15.6 The CMAR shall implement the Project Safety
Program for the protection of all persons on the job, including
the requirements of the A.G.C. Accident Prevention Manual in
Construction, as amended, and shall fully comply with all state
laws or regulations and North Carolina State Building Code
requirements to prevent accident or injury to persons on or
about the location of the Work. The CMAR shall clearly mark or
post signs warning of hazards existing, and shall barricade
excavations, elevator shafts, stairwells, floor and wall openings
and similar hazards. The CMAR shall protect against damage
or injury resulting from falling materials and shall maintain all
protective devices and signs throughout the progress of the
Work.
3.10.15.7 The CMAR shall, at a minimum, adhere to the rules,
regulations and interpretations of the North Carolina
Department of Labor relating to Occupational Safety and
Heatth Standards for the Construction Industry.
3.10.15.8 As part of the Project Safety Program the CMAR
agrees to implement a Public Hazard Control Plan conforming
to the standards set forth in ANSI A10.34-2005R. The Public
Hazard Control Plan shall be submitted to the Owner for review
and approval before construction begins on the Project.
3.10.15.9 The CMAR shall designate a responsible member of
its organization as safety inspector, whose duties shall include
accident prevention on the Project. The name of the onsite
safety inspector shall be made known to the Project Designer
and Owner at the time the Work is started. The CMAR will
provide the Owner with the name of each Contractor's onsite
safety officer.
3.10.15.10 In the event of emergency affecting the safety of
life, the protection of Work, or the safety of adjoining properties,
the CMAR is hereby authorized to act at its own discretion,
without further authorization from anyone, to prevent such
threatened injury or damage. Any compensation claimed by the
14
CMAR on account of such action shall be determined as
provided for under Article 7 herein.
3.10.15.11 If reasonable precautions are inadequate to prevent
foreseeable bodily injury or death to persons resulting from a
material or substance encountered but not created on the sfte
by the CMAR or its Contractors, the CMAR shall, upon
recognizing the condition, immediately stop Work in the
affected area and report the condition to the Owner and the
Project property owner if different from the Owner and Project
Designer in writing. The Owner or Project property owner if
different from the Owner shall take responsibility for
remediation of the material or substance from the site. If the
CMAR claim's its progress in completing the Project is delayed
because of the remediation response to the site, the CMAR
shall file notice and a claim in accordance with this Agreement.
3.10.15.12 Any land-disturbing activity performed by the CMAR
in connection with the Project shall comply with all erosion
control measures set forth in the Contract Documents and any
additional measures which may be required in order to ensure
that the Project is in full compliance with the Sedimentation
Pollution Control Act of 1973, as implemented by Title 15,
North Carolina Administrative Code, Chapter 4, Sedimentation
Control, Subchapters 4A, 4B and 4C, as amended (15
N.C.A.C. 4A, 46 and 4C).
3.11 Post Construction Phase
The CMAR shall provide the following ongoing services in
connection with Final Completion of the Work by the
Contractors:
3.11.1 Record Documents
The CMAR shall coordinate and expedite submittals of
information from the Contractors for preparation of record
Drawings and Specifications, and shall coordinate and expedite
the transmittal of such record documents to the Owner.
3.11.2 Organize and Index Operations and Maintenance
Materials
Prior to final completion of the Project the CMAR shall compile
manufacturers' operations and maintenance manuals,
warranties and guarantees and bind such documents in an
organized manner. This information shall then be provided to
the Owner.
3.11.3 Occupancy Permit
The CMAR shall assist the Owner and Designer in obtaining an
occupancy permit by accompanying governmental officials
during inspections of the Project, preparing and submitting
documentation to govemmental agencies and coordinating final
testing and other activities.
3.11.4 Occupancy Plan
The CMAR, in consultation with the Owner, the Designer and
appropriate regulatory agencies, shall prepare an Occupancy
Plan for the Project. This plan shall be provided to the Owner
at least thirty days prior to Substantial Completion.
3.12 Additional Services
The CMAR agrees to perform all tasks and functions
reasonably necessary to complete the services described in
the preceding paragraphs in this Article 3, even if not explicitly
described therein, unless the tasks or functions are explicitly
described as Additional Services in this section 3.12. At the
request of the Owner, the CMAR shall perform Additional
Services and shall be compensated for °same as provided in
Article 7 of this Agreement. The CMAR shall perform
Additional Services only after the Owner and CMAR have
executed a written amendment to this Agreement providing for
such services. The following is a list of Services that might
reasonably be anticipated, with indication of whether the
specified services will be considered to be Additional Services
or required Services:
3.12.1 Services related to investigation, appraisal, or evaluation
of existing conditions, facilities, or equipment or determination
of the accuracy of existing drawings or other information
fumished by the Owner are required and are not Additional
Services;
3.12.2 Services related to procurement, storage, maintenance
and installation of Owner-fumished equipment, materials,
supplies and furnishings are Additional Services; provided,
however, that coordination and scheduling of the procurement,
storage, maintenance and installation of Owner-furnished
equipment, materials, supplies and furnishings with the Work of
the Contractors is required and is not an Additional Service;
3.12.3 Services related to determination of space needs,
programming, internal traffic studies or other utilization of the
Project are Additional Services;
15
3.12.4 Warranty inspections during the warranty period of the
Project are required and are not Additional Services;
3.12.5 Services made necessary by the failure to perform by or
bankruptcy of a Contractor is a required Service and is not an
Additional Service;
3.12.6 Preparation for and serving as a witness in connection
with any public or private hearing or arbitration mediation or
legal proceeding relating to the Project is a required Service
and is not an Additional Service;
3.12.7 Assisting the Owner in public relations activities and
preparing information for and attending public meetings is a
required Service, not an Additional Service; and
3.12.8 Services related to move-in including preparing and
soliciting responses to requests for proposals, preparing and
coordinating the execution of contracts, conducting pre-moving
conferences, administering the contract for moving activities in
conjunction with the move-in for the Project and providing on-
site personnel to oversee the relocation of furniture and
equipment by the movers while actual move-in is in progress
are Additional Services; provided, however, that coordination of
the Work of the Contractors with move-in by the Owner in
accordance with the Master Schedule is required and is not an
Additional Service.
ARTIC<_E 4
TIME FOR PERFORMANCE
4.1 Duration
The commencement date for the CMAR's Services shall be the
date of execution of this Agreement by the Owner as stated
herein or the date on which the Owner issues to the CMAR a
written instruction to proceed with Services, whichever is
earlier. The duration of the CMAR's Services under this
Agreement shat) be from the date of this Agreement through
the issuance of the certificate of final completion, plus the one-
year CMAR warranty phase services.
4.2 Master Schedule
The CMAR's Services shall be pertormed for the periods of
time indicated in the approved Master Schedule. Firm dates for
substantial completion and final completion of the Project shall
also be fixed. At that time the CMAR represents that the
Master Schedule has been reviewed in detail, that the
Contractors participated in its preparation, that alt of the
activities which impact, limit, or otherwise affect the time of
completion of the Work are shown in the Master Schedule and
that all of the activities of others which impact, limit, or
otherwise affect the start, duration, or completion of the
CMAR's activities are also shown. The CMAR further
represents that the CMAR can and will complete each activity
within the time shown for that activity. Time is of the essence
with respect to each such activity and completion date.
4.3 Non-waiver
If the CMAR submits a construction schedule, progress report,
or any other document that indicates or otherwise expresses
an intention to achieve completion of the Work prior to any
established completion date, no liability of the Owner to the
CMAR for any failure of the CMAR to so complete the Work
shall be created or implied.
4.4 Schedule Adjustment
If the CMAR and its Contractors, for reasons beyond their
control, are delayed in beginning any activity, the CMAR shall,
nevertheless, have the same number of days as is shown in
the Master Schedule for the activity, and the affected activity
and any succeeding activity that is dependent upon that activity
shall be adjusted accordingly; provided that at any time the.
Owner, by means of a Change Order, may require the CMAR
to work overtime, to increase labor forces or to take any
necessary or appropriate action to decrease the time required
for any activity, and the CMAR shall be entitled to an
adjustment in the Contract Price computed in accordance with
Article 5 of these General Conditions.
4.5 Early Start
[Not used.]
4.6 Recovery
Should the CMAR fail to start a critical activity on the start date
shown in the Master Schedule or as it may have been adjusted
in accordance with this Article, or become delayed, the CMAR
and its Contractors shall, without being entitled to any increase
in the Guaranteed Maximum Price or other compensation, work
overtime, increase labor forces or take such other action as
may be necessary or appropriate to complete the activity by the
16
Completion Date shown on the Master Schedule, or as such
Completion Date may have been adjusted.
4.7 Schedule Monitorino
The Designer and Owner shall monitor progress of the Work
and the CMAR shall cooperate with such monitoring and
provide any and ail information with respect to the progress of
the Work and scheduling as the Owner or Designer may
reasonably require.
4.8 Schedule Revisions
On a monthly basis, the CMAR shall revise the Master
Schedule, showing any adjustments made in accordance with
this Article, by any Change Order, the progress of the Work,
and any days gained or days lost with respect to any activity,
and shall furnish copies thereof to the Owner and Designer.
4.9 Withholdino Payment from CMAR
Should any monthly revision of any Master Schedule show that
the CMAR is behind on any critical activity, the late completion
of which could delay Substantial Completion of the Work, the
Owner shall be entitled to withhold from the next Progress
Payment due the CMAR an amount not exceeding the amount
the Owner would be entitled to in Liquidated Damages, should
Substantial Completion be delayed by the same number of
days that the CMAR is currently behind schedule. if,
subsequently, the Project progress, as shown by any
succeeding monthly revision to the Master Schedule, is such
that the anticipated delay no longer exists, the Owner shall pay
with the Progress Payment next due to the CMAR such
amounts as have been withheld in accordance with this
paragraph.
4.10 Work by Owner
If the CMAR, within a period of five (5) days after notice that it
is behind in a critical activity or is otherwise in default under this
Agreement, shall not proceed in good faith and with reasonable
speed to correct such delay or default in accordance with such
notice, the Owner shall have full power and authority to take
the prosecution of the Work out of the hands of the CMAR, to
appropriate or use any or all materials and equipment at the
Project as may be suitable and acceptable, and to enter into
other agreements for the completion of the Work or pursue
such other methods as in the Owner's sole discretion and
opinion shall be necessary or appropriate for the completion of
the Work in an acceptable manner. The Owner shall have the
right to perform Work, hire and employ labor and craftsmen,
rent equipment, subcontract with other parties, or do anything
that the Owner deems necessary or appropriate to remedy or
cure any delay or default by the CMAR in the progress of the
Work. Such action by the Owner shall not, in any way, affect,
void or limit any warranty, guaranty or other responsibility of the
CMAR under the Contract Documents. Such action may be
taken by the Owner only after five (5) days written notice to the
CMAR. All costs incurred by the Owner in taking any such
action shall be charged to the CMAR and deducted from any
amounts due under the Agreement.
4.11 Force Majeure
The CMAR may be entitled to an extension of the time for
completion (but no increase in the Guaranteed Maximum Price
except as described in this Paragraah 4.11) for delays arising
from unforeseen causes beyond the control and without the
fault or negligence of the Owner, the CMAR or the CMAR's
Contractors as follows:
4.11.1 Acts of God, tornado, fire, hurricane or earthquake that
damage completed Work or stored materials.
4.11.2 Acts of sabotage that damage completed work or stored
materials.
4.11.3 Labor disputes at the project site.
4.11.4 Unavoidable casualties that damage completed work or
stored materials.
4.11.5 Acts of the public enemy.
4.11.6 Acts of the State, Federal, or local government in their
sovereign capacities.
4.11.7 Abnormal inclement weather as defined in
Paragraph 4.13.
if the Force Majeure delay is greater than 120 days, the Owner
shall consider and, if reasonable, approve a request for an
adjustment to the GMP for the addftional costs caused by the
force majeure delay beyond the 120 day period.
4.12 Notice
The CMAR and the Contractors shall not be entitled to and
hereby expressly waive any extension of time resulting from
any condition or cause unless a claim for extension of time is
17
made in writing to the Owner within five (5) days of the first
instance of delay for all delays, except excessive inclement
weather which shall be made in accordance with paragraph
4.13. All claims not filed in accordance with this Article shall be
waived by the CMAR. Circumstances and activities leading to
such claim shall be indicated or referenced in a daily field
inspection report for the day(s) affected. In every such written
claim, the CMAR shall provide the following information:
4.12.1 Nature of the Delay;
4.12.2 Date (or Anticipated Date) Of Commencement of Delay:
4.12.3 Activities on the Progress Schedule affected by the
delay, and/or new activities created by the delay and their
relationship with existing activities;
4.12.4 Identification of person(s) or organization(s) or events(s)
responsible for the delay;
4.12.5 Anticipated extent of the delay; and
4.12.6 Recommended action to avoid or minimize the delay.
4.13 Weather Delavs
On any day that the CMAR considers that the Project is
delayed by adverse weather conditions, the CMAR shall
identify in writing to the Designer and the Owner the adverse
weather conditions affecting each activity, the specific nature of
the activity affected, the number of hours lost, and the number
of and identity (by responsibility or trade) of workers affected
and shall obtain from the Designer written recognition of the
delay. The time for performance of this Contract includes an
allowance for a number of calendar days which may not be
suitable for construction Work by reason of adverse weather.
The Contract Time will be extended only if the number of
calendar days of adverse weather recognized by the Designer
exceeds the number of inclement weather days set forth below,
and the CMAR clearly demonstrates how this adverse weather
negatively impacts activities on the critical path of the Master
Schedule.
Month Number of Inclement Weather Days
January 7
February 6
March 7
April 6
May 7
June 6
July 8
August 6
September 5
October 5
November 5
December 9
if the CMAR believes that the progress of the Work has been
adversely affected by adverse weather recognized by the
Designer during a particular month, the CMAR shall submit a
written request for extension of time to the Designer. Such a
request for time extension of the Contract Time shall be
submitted by the tenth (10th) day of the month following that
month in which the adverse weather is encountered. The
request shall include, but is not limited to, the following
information:
4.13.1 Detailed description of weather's effect on scheduled
activities and its net effect on the critical path of the Project,
and
4.13.2 Weather records from the official weather station
nearest the Project site and records of actual observation as
contained in daily reports, correspondence, or other
contemporaneously prepared documentation.
4.14 Damages for Delay
The CMAR shall not be entitled to any adjustment in the
Guaranteed Maximum Price or other compensation from the
Owner for any delay in the completion of or progress on the
Work that is caused by a force majeure condition or is
otherwise not caused by the sole and direct act or omission of
the Owner and the Owner's employees or agents.
4.15 Liquidated Damages
The CMAR specifically recognizes that a delay by the CMAR in
achieving the Substantial Completion of the Project will
necessarily cause damages, losses, and expenses to the
Owner, including, but not limited to and by way of illustration
only, increased capitalized costs and interests for the Project,
increased and extended Project overhead, Designer's and
Consultant's fees, increased costs of construction, increased
and extended operation costs of other facilities, and inefficiency
18
and loss of productivity, and that such damages, losses, and
expenses may not be readily identifiable or ascertainable at the
time they are incurred or at any time. Therefore, and in
recognition of these factors and the likelihood that actual
damages from his delay will not be readily ascertainable, the
CMAR agrees to pay to the Owner, as Liquidated Damages
and not as a penalty, the sum of One Thousand Dollars
($1,000) as the Liquidated Damages per day, for each day by
which the failure to meet the Substantial Completion Date
shown in the Master Schedule, adjusted in accordance with
this Article, delays the Substantial Completion of the Project.
The sum for Liquidated Damages is the amount reasonably
estimated in advance to cover the losses to be incurred by the
Owner by reason of failure of the CMAR to complete the
Project within the time specified, such time being in the
essence of this contract and a material consideration thereof.
ARTICLE 5
CHANGES IN THE CONSTRUCTION MANAGER'S
SERVICES AND ADDITIONAL COMPENSATION
5.1 Owner Chanoes
The Owner, without invalidating this Agreement, may make
changes in the CMAR's Services specified in Article 3 of this
Agreement. The CMAR shall within five (5) days notify the
Owner of any changes or other events which in the opinion of
the CMAR entitle the CMAR to an increase or decrease the
Guaranteed Maximum Price, the CMAR's compensation, the
duration of the CMAR's Services, or both.
5.1.1 Changes in the CMAR's Services
Changes in the CMAR's Services may be directed by the
Owner in writing, and if so directed to provide different or
additional Services the CMAR shall comply with the directions
of the Owner. Additional compensation shall be settled by a
written amendment to this Agreement executed by the Owner
and the CMAR. if possible, the amendment shall be executed
by the Owner and CMAR prior to the CMAR performing the
services required by the amendment, but failure to agree on
compensation for a change in Services shall not be grounds for
the CMAR to cease or refuse to provide the Services
reasonably requested by the Owner. The CMAR shall proceed
to pertorm the services required by the amendment only after
receiving notice directing the CMAR to proceed.
5.1.2 Additional Compensation and Extended Duration
The CMAR shall be entitled to receive additional compensation
and additional time when the scope or planned duration of
Services is increased or extended through the fault of the
Owner. The CMAR shall notffy the Owner within five (5) days
after changes to the scope of the Project or a part thereof or
after delays caused in whole or in part by the Owner increase
or extend the scope or duration of the CMAR's Services.
5.1.2.1 Fixed Fee
The CMAR shall not be entitled to an increase in the Fixed Fee
unless and until it is finally determined at the completion of the
Project that the approved Cost of the Work exceeds one
hundred and five percent (105%) of the Cost of the Work set
forth in the original agreed Guaranteed Maximum Price. If an
increase in the Fixed Fee is justified, the CMAR shall be
entitled to an increase in the ,Fixed Fee equal to six percent
(6%) of the amount by which the final approved Cost of the
Work exceeds one hundred and five percent (105%) of the
Cost of the Work set forth in the original agreed Guaranteed
Maximum Price. The Owner may in its discretion approve
adjustments to the Fixed Fee prior to the end of the Project.
5.1.2.2 General Conditions
The amount of additional General Conditions costs to be paid
to the CMAR and the amount of extension of the duration of
this Agreement shall be determined on the basis of the
CMAR's reasonable additional General Conditions costs after
determining the increased services and length of the
extensions of the duration of this Agreement. A change in the
Drawings and Specifications or other change in the scope of
the Work shall not automatically entitle the CMAR to an
increase in compensation. Increases in the compensation
payable to the CMAR shall only be payable upon proof of an
increase in the actual duration or level of services being
provided by the CMAR, or both.
5.1.2.3 Cost of the Work
Increases in the Cost of the Work shall be determined in
accordance with the provisions of Article 7 of this Agreement.
5.1.3 Payment of Additional Compensation
The CMAR shall submit invoices for additional compensation
with its invoice for Services and payment shall be made
pursuant to the provisions of Article 7 of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
19
6.1 Program
The Owner shall provide to the CMAR complete information
regarding the Owner's requirements for the Project.
6.2 Decisions
The Owner shall examine information submitted by the CMAR
and shall render decisions thereto promptly.
6.3 Insurance
The Owner shall fumish the insurance that the Owner has
agreed to furnish as specified in Article 8.
6.4 Notice of Nonconformities
If the Owner observes or otherwise becomes aware of any fault
or defect in the Project or nonconformity with the Contract
Documents, the Owner shall give prompt written notice thereof
to the CMAR.
6.5 Approvals
The Owner shall furnish required information and approvals
and perform its responsibilities and activities in a timely manner
to facilitate orderly progress of the Work in cooperation with the
CMAR, consistent with this Agreement, and in accordance with
the planning and scheduling requirements and budgetary
restraints of the Project.
6.6 Designer
The Owner shall retain a Designer whose services, duties and
responsibilities shall- be described in a written agreement
between the Owner and Designer. The services, duties, and
responsibilities of the Designer set out in the agreement
between the Owner and Designer shall be compatible. and
consistent with this Agreement and the Contract Documents.
The Owner shall, in its agreement with the Designer, require
that the Designer perform its services in cooperation with the
CMAR, consistent with this Agreement and in accordance with
the planning, scheduling and budgetary requirements of the
Project as determined by the Owner. The terms and conditions
of the agreement between the Owner and the Designer shall
not be changed or waived without written notice to the CMAR
provided at the time of the change or revision.
6.7 Budget
The Owner shall establish the Project and Construction Budget
and approve subsequent revisions deemed acceptable as
provided in this Agreement.
6.8 Se,~arate Contracts
The Owner reserves the right to contract separately with other
entities to complete portions of the Work of the Project, or to
deploy its own employees to complete portions of the Work. If
the Owner contracts separately with any other parties, the
Owner shall cause ail such agreements to be compatible and
consistent with this Agreement. Each of the agreements shall
include waiver of subrogation as required herein. The CMAR
agrees to cooperate with the Owner arid its separate
contractors and coordinate the Work of ail parties, including the
Owner's forces or separate contractors. Provided the CMAR
has reasonable advance notice of the identity and duties of
separate contractors, the CMAR agrees to include coordination
and support of the Owner's separate contractors in the General
Conditions costs. Disputes or conflicts between the CMAR, the
Owner and any separate contractors shalt be subject to dispute
resolution in accordance with the dispute resolution provisions
in Appendix A.
6.9 Cooies of Drawings and Specifications
The CMAR shall estimate the reasonable number of copies of
interim .and final drawings, specifications and Contract
Documents required by the CMAR, and shall obtain such
copies from the Designer at the CMAR's expense. The
estimated cost of such copies shall be included in the
Guaranteed Maximum Price.
6.10 Permits and Approvals
With the cooperation and assistance of the CMAR and the
Contractors as set forth in this Agreement, the Owner shall in a
timely manner secure, submit and pay for necessary approvals,
easements, assessments, permits and charges required for the
construction, use or occupancy of permanent structures, or for
permanent changes in existing facilities.
6.11 Funding Requirements
The Owner shall describe the funding for the Project to the
CMAR and the Designer.
6.12 Communication with Contractors
The Owner, its representatives and consultants, including
Designers, shall communicate with the Contractors only
through the CMAR.
20
6.13 Copies of Notices and Communication
The Owner shall send to the CMAR and shall require the
Designer to send the CMAR copies of all notices and
communications sent to or received by the Owner or Designer
relating to the Project.
6.14 Owner's Representative
The Owner shall designate, in writing, an ofFicer, employee or
other authorized representative to serve as the Owner's point
of contact and to act in the Owner's behalf with respect to the
Project. This representative shall be available during working
hours and as often as may be required to render decisions and
furnish information in a timely manner. The CMAR
acknowledges that more than one individual might be
designated as the Owner's representative at different times and
for different purposes. The CMAR also acknowledges that
some changes to this Agreement and to the Project might
require authorization by the County Commissioners and
execution by the County Manager in addition to the Owner's
project representative.
6.15 Payment to CMAR
[Not used.]
ARTICLE 7
GUARANTEED MAXIMUM PRICE AND PAYMENT
7.1 Guaranteed Maximum Price
The CMAR shall be required to give a Guaranteed Maximum
Price for the Project. The Guaranteed Maximum Price shall be
documented by the CMAR as defined in Article 12 and, once
established, the Guaranteed Maximum Price shall be subject to
modification only as defined in this Agreement.
7.1.1 Guaranteed Maximum Price Proposal
The Guaranteed Maximum Price shall be provided by the
CMAR when requested by the Owner, but in no event before
the completion of one hundred percent of schematic design
documents for the Project by the Designer, and in no event
later than sixty (60) days after construction documents for the
Project are released by the Designer for permitting, bidding and
construction. The Owner shall accept such Guaranteed
Maximum Price or negotiate and reach agreement with the
CMAR on a different Guaranteed Maximum Price within thirty
(30) days of the date of the receipt unless such time is mutually
agreed to be extended. If the Owner does not accept a
Guaranteed Maximum Price within the time period herein
provided, such price shall be presumed to be rejected by the
Owner.
7.1.2 Consideration of Proposal
In the event the Owner does not accept the CMAR's proposed
Guaranteed Maximum Price, the Owner may terminate the
Agreement in accordance with Article 9.
7.1.3 Construction Contracts
Construction contracts for the Work required for the Project
shall be between the CMAR and Contractors. The CMAR shall
request and receive bids for each contract and shall advise the
Owner with respect to award of a contract to the lowest
responsive and responsible bidder. The CMAR shall enter into
a contract with that bidder after receipt of approval of award
from the Owner.
7.1.4 Work by CMAR
All of the Tabor and materials for the Work of the Project as
described in the Drawings and Specifications developed by the
Designer shall be pertormed by Contractors, except as
specifically provided in this paragraph. The CMAR may
perform a portion of the Work only if (1) bidding produces no
responsible, responsive bidder for that portion of the Work, no
responsive, responsible bidder will execute a contract for the
bid portion of the Work, or a Contractor defaults and apre-
qualified replacement cannot be obtained in a timely manner,
and (2) the Owner approves performance of the Work by the
CMAR. In the event the CMAR performs a portion of the Work
under this paragraph, the CMAR shall be entitled to its actual
direct cost to perform the Work, including direct labor costs with
reasonable burden, actual material costs, actual equipment
costs, and actual subcontract payments, without markup for
ovefiead or profit. Any other direct costs of the Work
performed by the CMAR will only be paid if approved by the
Owner in advance of performing the Work.
7.1.5 Elements of the Guaranteed Maximum Price
The Guaranteed Maximum Price shall include the total Cost of
the Work, including the CMAR Fee for Services, the
reimbursable costs for General Conditions provided by the
CMAR, if any, and the CMAR Contingency, if any, all as
defined herein. The Guaranteed Maximum Price includes the
cost of all labor, equipment, supplies, materials, services and
allowances to complete the Project. The Guaranteed
Maximum Price shall be directly correlated to the specific
21
design Drawings and Specifications in existence at the time the
Guaranteed Maximum Price is prepared. The assumptions
used in the preparation of the Guaranteed Maximum Price shall
be identified by the CMAR in its Guaranteed Maximum Price
proposal.
7.1.6 Sales and Use Taxes
The Guaranteed Maximum Price shall include those sales and
use taxes applicable to the Project that are legally enacted at
the Ume the Guaranteed Maximum Price is established. Sales
and use taxes shall be accounted for separately in the
Guaranteed Maximum Price and in the payment application
submitted by the CMAR. Any increase or decrease in such
taxes that affect the Guaranteed Maximum Price and that are
enacted after the Guaranteed Maximum Price is submitted
shall be incorporated into that price by change order.
7.1.7 Change in Scog_e
The Owner may change the scope of the Project or a part
thereof and the Guaranteed Maximum Price shall then be
adjusted as provided in Paragraph 7.3.
7.2 Cost of the Work
The term "Cost of the Work" shall include all amounts paid by
the Owner to the CMAR other than General Conditions and
Fixed Fee costs for payment to all separate Contractors,
suppliers and equipment lessors for all the Work of the Project
as described in the Design Drawings and Specifications
developed by the Designer. The Cost of the Work shall be
adjusted for all discounts obtained on payments by the CMAR
or any Contractor, which shall be for the benefit of the Project
and the Owner. Trade discounts, rebates, refunds, and
amounts received from sales of surplus or salvaged materials
and equipment shall accrue to the Owner, and the CMAR shall
make provisions so they can be secured and will reduce-the
Guaranteed Maximum Price accordingly. Amounts which
accrue to the Owner in accordance with this paragraph shall be
accounted for and credited to the Owner as a deduction from
the Cost of the Work.
7.2.1 Exclusions from Cost of the Work
The Cost of the Work shall not include the following:
7.2.1.1. The CMAR's fee for Services and reimbursable costs
for General Conditions;
7.2.1.2 All professional fees paid by the Owner to the Designer
or other consultants retained directly by the Owner;
7.2.1.3 All costs paid directly by the Owner to contractors or
suppliers retained directly by the Owner and outside the scope
of the Guaranteed Maximum Price;
7.2.1.4 All Additional Services costs as defined herein.
7.3 Adjustments to the Guaranteed Maximum Price
The CMAR understands, confirms and agrees that its
responsibility hereunder is to construct the Project in
accordance with the Drawings and Specifications. It is
recognized that the Guaranteed Maximum Price is based on
complete design documents unless the Owner requests that
the Guaranteed Maximum Price be fixed at an earlier stage in
the design process: The CMAR shall notify the Owner if the
CMAR believes that it is being asked to fix the Guaranteed
Maximum Price on incomplete, ambiguous or under-developed
drawings and specifications. In those instances in which the
Drawings and Specifications are not fully developed at the Ume
the Guaranteed Maximum Price is established, the CMAR shall
exercise reasonable care and judgment to determine the intent
of the design and shall calculate the Guaranteed Maximum
Price on the basis of the quality of construction, materials, and
finishes that can be reasonably inferred from the design
documents or other specified sources. The CMAR shall
determine unit prices and the Cost of the Work and shall make
those reasonable assumptions regarding the project scope and
the quality of the intended construction as may be necessary to
fully document the Guaranteed Maximum Price.
7.3.1 Changes to the Work
The Owner may, at any time and for any reason, by written
notice or order, make changes or modifications to the Work or
add Work within the general scope of the Project, including
without limitation changes to the Drawings and Spec cations,
the Master Schedule, the sequence, manner or method of
performing the Work, or the work being provided by the Owner
or its separate contractors. The amount of adjustment to
increase or decrease the Cost of the Work resulting from a
change in the Project shall be determined in one or more of the
following ways:
7.3.1.1 By mutual acceptance of a lump sum, properly itemized
and supported by cost data; or
22
7.3.1.2 By unit prices defined in a contract with a Contractor, or
7.3.1.3 By the cost of such Work determined on the basis of
the cost records for the changed work. In the event actual
costs are to be reimbursed, the CMAR shall keep and present
in such form as may be agreeable to the Owner and Designer
an itemized accounting together with appropriate supporting
data of the actual Cost of the Work.
7.3.2 Directive to Proceed
In the event the CMAR and the Owner cannot agree that an
adjustment to the Guaranteed Maximum Price or the Master
Schedule is warranted, or cannot agree on the compensation
for a change in the Work or on an increase in the Guaranteed
Maximum Price, the CMAR shall, if so directed by the Owner in
writing, nevertheless proceed with the Work, and any
adjustment to the Guaranteed Maximum Price shall be
negotiated by the parties at a later date, utilizing the dispute
resolution procedures under this Agreement if necessary.
7.3.3 Unit Prices
If unit prices are utilized in the Guaranteed Maximum Price, the
Guaranteed Maximum Price Proposal shall document the
estimates on which the unit prices are based. If the CMAR
later determines that the quantities on which unit prices are
based will vary from the quantities util'¢ed by the CMAR to fix
the unit prices and calculate the Guaranteed Maximum Price,
the CMAR shall within five (5) days after determining that the
quantities will vary from the estimates notify the Designer and
the Owner in writing and forecast the amount of the variance.
If the estimated quantities available to and used by the CMAR
to establish the unit prices are so changed that application of
the agreed unit prices to the quantities or work proposed cause
substantial inequity to the Owner or the CMAR, the applicable
unit prices and Guaranteed Maximum Price shall be adjusted.
7.3.4 Unforeseen Conditions
Should the CMAR encounter unforeseen conditions at the
Project site materially differing from those shown on the
Drawings or indicated in the Specifications or differing
materially from those ordinarily encountered and generally
recognized as inherent in work of the character provided for in
this Agreement, the CMAR shall immediately, and in no event
more than five (5) days later, give notice to the Owner of such
conditions before they are disturbed. The Owner and the
Designer shall thereupon promptly investigate the conditions
and if they find that they materially differ from those shown on
the Drawings or indicated in the 5pec~cations, they shall at
once make such changes in the Drawings and/or Spec cations
as they may find necessary. Any increase or decrease in the
Guaranteed Maximum Price resulting from such changes shall
be adjusted in the manner provided herein for adjustments as
to extra and/or additional Work and changes. However, neither
the Owner nor the Designer shall be liable or responsible for
additional work, costs, or changes to the Work that could have
been reasonably determined from any reports, surveys, and
analyses made available for the CMAR's review or that could
have been discovered by the CMAR through the performance
of its obligations pursuant to the Contract Documents.
7.3.5 Minor Chanoes
The Designer shall have the authority to order minor changes
in the Project consistent with the intent of the Drawings and
Specifications and not involving an adjustment in the
Guaranteed Maximum Price or change of the construction
completion date. Such changes may be affected by written
order only.
7.4 Fixed Fee and General Conditions Costs
The Owner shall compensate the CMAR for the CMAR's Fixed
Fee and reimbursable General Conditions Costs in accordance
with the terms and conditions of this Agreement as specifically
as follows:
7.4.1 Fixed Fees
The Fixed Fees payable to the CMAR shall be:
Twenty Thousand Dollars ($20,000) for the pre-construction
and procurement phases which amount is included in the GMP
provided the GMP is accepted by the Owner. If the GMP is not
accepted by the Owner the CMAR is entitled to the cost of
services rendered riot to exceed $20,000; and, for the
construction and post-construction phases, a fee equal to six
percent (6%) of the Cost of the Work set forth in the original
agreed Guaranteed Maximum Price. In the event the original
agreed Guaranteed Maximum Price is adjusted between the
time it is fixed and the end of the Project, the Fixed Fee shall
be adjusted in accordance with Paragraph 5.1.2.1 of this
Agreement.
7.4.2 General Conditions
General Conditions Costs shall include the categories of costs
described as General Conditions Costs in the Listing of Cost
23
Elements contained in Appendix B. Within thirty (30) days
after execution of this Agreement, the CMAR shall present a
General Conditions cost proposal, including its ftemization of
estimated General Conditions costs and a cash flow schedule
for payments of General Conditions costs over the duration of
the Project. At the time the Guaranteed Maximum Price is
fixed, General Conditions Costs to be included in the
Guaranteed Maximum Price shall be fixed as a lump sum,
based on line item estimates in a tabulation with cost elements
at least as detailed as the cost elements in Appendix B. The
following guidelines shall apply when calculating the lump sum
for General Conditions:
7.4.2.1 Unless a schedule of personnel rates are agreed to in
writing in an amendment to the Agreement, field personnel
costs may be reimbursed at direct personnel
expenses/employee costs (direct salary) plus all customary
payroll benefits [including but not limited to FICA, SUTA, FUTA,
401 K, vacation leave, sick leave, holidays, jury duty leave and
bereavement leave] with no employee overhead mark up. The
on-site field staff is limited to full time staff which includes the
project manager, project engineer, field engineer,
superintendent(s) actually furnishing services to the Project,
and field clerical staff, as amended from time to time by
agreement of the parties. Other CMAR positions will be
deemed included in the CMAR Fixed Fee;
7.4.2.2 Independent engineers, architects and other
consultants employed by the CMAR and deemed necessary by
the Owner at the reasonable prevailing hourly rates for such
services. Any consultants employed by the CMAR for the
Project must be approved in advance by the Owner prior to
pertorming work.
7.4.2.3 Travel Expenses: All travel, by any conveyance,
required for the Project, outside of Orange County.
7.4.2.4 Temporary Facilities: Field office(s) with telephone
service and high- speed Internet connections and field office
computers, as needed, for Project tracking purposes. All
software for use on computers (accounting, tracking,
scheduling, word processing, AutoCAD, Project management
etc.), otherwise shall be included in General Conditions. Field
office temporary electric, heating, water, sanitation, and
electronic equipment maintenance and field office operation
costs, e.g., stationary, postage, etc., shall be incurred
judiciously. General Condtions shall include maintenance of an
appropriate shipping and receiving system.
7.4.2.5 Plans/Surveys/Permits/Testing: Reproduction of
Construction Documents as needed by the CMAR and
approved in advance by the Owner. Surveyor's services (site
layout, etc.), as required. Apply for and take delivery of all
required permits (fee for permits to be paid directly by Owner
unless otherwise directed by the Owner).
7.4.2.6 Safety/Cleanup: Establish and maintain an on-site
safety program throughout the construction phases. (Note: The
cost of home office safety personnel is included in the CMAR
Fee.) Install and maintain temporary facilities, as required:
safety barricades, partitions, ladders, stairs, site fencing,
signage, first aid, traffic control devices, etc. Provide daily site
clean up, trash collection, and removal. Provide and maintain
site security throughout Project construction phases. Provide
site snow removal, as may be required throughout Project
construction phases.
7.4.2.7 General: Provide temporary weather and dust
protection (that which must practically remain outside of
contracts) as may be required during construction phases.
Provide Feld personnel pagers, and two-way radio throughout
the construction phases, as applicable. Include travel expenses
for field personnel related to off-site equipment/materials
survey and inspections.
7.4.2.8 Insurance/Bond: Provide 100% Performance and
Payment Bonds. Provide liability insurance and provide
builder's risk insurance policy in the amount of the Guaranteed
Maximum Price unless directed otherwise by Owner in
accordance with an OCIP.
7.4.2.9 Close-Out/De-Mobilization: Provide final site/facility
clean up. Provide final release of liens for all contracts. Provide
sets of all Contractor as-built drawings. to the Owner and
Designer; one set will be used by the Designer to prepare as-
builtdrawings.
7.4.3 Construction Manager's Accounting Records
Records for the Cost of the Work, the CMAR's personnel
expenses, independent engineer's fees, other consultant's fees
and direct expenses pertaining to the Project shall be
maintained on the basis of generally accepted accounting
practices and shall be available for inspection by the Owner
24
and the Designer at mutually convenient times throughout the
duration of the Project and for a period of three years after
completion of the CMAR's Services.
7.4.4 Payments
Payments to the CMAR shall be made monthly. The CMAR
shall submit an Application for Payment, acceptable to the
Owner and the Designer, no later than the twenty fifth of each
month. The Owner shall make payment as required by the
accepted application no later than the twentieth of the following
month as follows:
7.4.4.1 Seventy five percent (75%) of the Fixed Fee shall be
paid monthly in amounts prorated equally over the duration of
the CMAR's Services. The duration shall be as set out in
Article 4. The remaining twenty five percent (25%) of the Fixed
Fee shall be payable in full upon final completion of the Project.
7.4.4.2 Payment of General Conditions costs shall be based on
the cash flow schedule of payments prepared by the CMAR
and submitted with the General Conditions cost proposal,
which shall be converted to a fixed schedule of payments when
the Guaranteed Maximum Price is fixed.
7.4.4.3 Payment of the actual verifiable Cost of the Work
completed to date and not previously invoiced and paid, less
retainage withheld from the Contractors. Except with the
Owner's prior approval, payments allocated to the CMAR and
the Contractors shall be subject to a retention of ten (10%).
Whenever any Contractor completes its Work on or before a
target date mutually agreed upon by the Owner, Designer and
the CMAR, and the Designer and Owner agree the Work is
satisfactorily completed, the Owner may reduce the amount of
retainage on that Contractor by fifty percent (50%) for the
remainder of the Project.
7.4.4.4 Payments due to the CMAR that remain unpaid for
more than thirty (30) days from the date of receipt by the
Owner and the Designer of the CMAR's acceptable invoice
shall bear interest at the statutory rate.
ARTICLE 8
INSURANCE AND INDEMNITY
8.1 CMAR Liability Insurance
The CMAR shall purchase and maintain insurance that shall
protect the CMAR from the claims set forth below that may
arise out of or result from the CMAR's performance of services
pursuant to this Agreement:
Claims under Workers' Compensation, disability benefts and
other similar employee benefits acts that are applicable to the
Work performed;
Claims for damages because of bodily injury, occupational
sickness or disease or death of CMAR's employees under
applicable employer's liability law;
Claims for damages because of bodily injury or death of any
person other than CMAR's employees;
Claims for damages insured by usual personal injury liability
coverage that are sustained by any person as a result of an
offense directly related to the employment of such person by
the CMAR or by any other person;
Claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property, including loss or
use therefrom;
Claims for damages because of bodily injury or death of any
person or property damage arising .out of ownership,
maintenance or use of any motor vehicle; and
Claims for professional liability against any design professional
engaged by the CMAR or the Contractors as required by the
Contract Documents for fabrication or installation of
components of the Project.
The CMAR shall include similar requirements in all Contracts
for Contractors, with limits and coverage terms acceptable to
the Owner.
8.1.1 Coveraoe Limits
Worker's Compensation shall be maintained with at least the
minimum statutory limits. The CMAR's commercial general
and motor vehicle liability insurance shall be written for not less
than the following limits of liability:
a. Commercial General Liability
25
1. $2,000,000 Bodily Injury and Property Damage for each
occurrence
2. $4,000,000 Products/Completed Operations Aggregate
3. $4,000,000 General Aggregate
Coverage shall include, but not be limited to, the following
supplementary coverages:
1. Contractual Liability to cover liability assumed under the
agreement
2. Product and Completed Operations Liability insurance
3. Broad Form Property Damage Liability insurance
4. Independent Contractors
5. Such policy shall include all of the coverages, which may be
included in coverages A, B, and C contained in the Commercial
General Liability Policy, without deletion. Such policy must be
issued on an "occurrence" basis, as distinguished from a
"claims made" basis.
6. Completed Operations extended five years after final
payment
7. For contractors with design responsibility, endorsement
CG22 80 and DIC for contractors' professional is requested
b. Commercial Motor Vehicle Liability
1. Minimum Combined Single Limit that shall not be less than
$1,000,000 per occurrence
2. Commercial Automobile Liability insurance to cover all
vehicles owned by, hired by, or used on behalf of the
Contractor
c. Excess/Umbrella Liability
1. $5 Million per Occurrence
2. $5 Million Aggregate
8.1.2 Policies
Commercial general liability insurance may be arranged under
a single policy for the full limits required or by a combination of
underlying policies with the balance provided by an excess or
umbrella liability policy. The Owner and any lender of the
Owner with a loan secured by the property whereon the Project
is located shall be a named insured on all commercial general
liability policies and excess/umbrella liability policies submitted
to comply with this Article. Commercial general liability and
excess liability policies shall be endorsed with a schedule of
underlying liability policies required and obtained from the
Contractors. Coverage under the CMAR commercial liability
policies shall not be limited by any language in the contracts
with the Contractors making the Gonractors liable for losses in
excess of the limits of coverage provided by the Contractors.
8.1.3 Professional Liability Policies
Subject to section a.7 of Paragraph 8.1.1, policies for
professional liability may be provided by the CMAR or by
Contractors or design professionals retained by them, provided
that the CMAR first provides a proposal for insurance coverage
to the Owner and the Designer, and also provides certificates
of insurance for all professional liability insurance provided by
such design professionals. The limits of coverage required for
professional liability shall be included in the CMAR proposal for
insurance, and will be subject to approval by the Owner, taking
into account among any other reasonable factors the risks
insured against, the cost of the insurance, and the
professionals providing the insurance.
8.1.4 Cancellation
The foregoing policies shall contain a provision that coverages
afforded under the policies shall not be cancelled or expire until
at least thirty (30) days written notice has been given to the
Owner and shall include either a liability endorsement covering
this Agreement or an endorsement making. the Owner an
additional insured under the policies. Certificates of Insurance
showing such coverages to be in force shall be fated with the
Owner contemporaneously with execution of this Agreement or
any relevant Contractor contract.
8.2 Builder's Risk Insurance
The CMAR shall be responsible for purchasing and maintaining
insurance satisfactory to the Owner to protect the Project from
perils of physical loss. The Owner shall receive copies of the
builder's risk insurance policies that satisfy this Article. The
CMAR shall be responsible for any deductibles associated with
this coverage.
8.2.1 Coverage Terms
26
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 shat) insure against the loss from the
perils of fire and all risk coverage for physical loss or damage
due to theft, vandalism, collapse, malicious mischief, transit,
flood, earthquake, testing, or damages resulting from defective
design, negligent workmanship or defective material. The
CMAR shall obtain approval from the Owner before increasing
any coverage due to increases in construction costs.
8.2.2 Other Property Insurance
[Not used.]
8.2.3 Partial Occupancy: If the Owner occupies or uses a part
or parts of the Project prior to substantial completion thereof,
such occupancy shall not occur until the Owner obtains
property insurance for the structure.
8.2.4 Notices and Recovery
if requested by the Owner, the CMAR shall provide the Owner
with copies of all policies thus obtained for the Project. The
CMAR shall provide the Owner with thirty (30) days advance
notice of cancellation, non-renewal or endorsement reducing or
restricting coverage.
8.2.5 Waiver of Subrogation
The Owner and the CMAR waive all rights against each other
and against the Contractors, consultants, agents and
employees of the other for damages occurring during
construction and covered by builder's risk and any property
insurance required for this Project, excluding the Owner's
property. insurance. The Owner and the CMAR shall each
require appropriate similar waivers from their contractors,
consultants and agents. This waiver does not apply to design
liability.
8.3 Indemnity
To the fullest extent permitted by law, the CMAR shall
indemnify and hold harmless the Owner, its employees, agents
(including the Designer), officers, directors and partners from
and against any and ail damages and reasonable attorneys'
fees incurred by the Owner caused or arising out of the
negligent acts, errors or omissions of the CMAR, or any other
party for whom the CMAR is legally liable, in performance of
services under this Agreement. The CMAR shalt not be
required to indemnify any person against losses resulting from
a breach of contract or resulting from negligence, misconduct
or violation of laws on the part of any person indemnified
hereunder.
The CMAR shall procure and maintain insurance as required
by and set forth in this Agreement.
8.3.1 Indemnification by Designer
The Owner shall cause the Designer to indemnify and hold
harmless the Owner, its employees, agents and
representatives to the same extent and in the same manner
that the CMAR has provided indemn~cation for the Owner
under Paragraph 8.3.
8.3.2 Indemnification by Contractors
The CMAR shall cause each Contractor to indemnify and hold
harmless the Owner, CMAR and Designer from and against
any and all claims, demands, suits, damages, including
consequential damages and damages resulting from personal
injury or property damage, costs, and expenses and fees that
are asserted against the Owner, CMAR and the Designer and
that arise out of or result from negligent acts or omissions or
the breach of the Construction Contract by the Contractor, its
employees, agents and representatives in performing the
Work.
8.4 Bonds
The CMAR shall purchase and provide 100% Performance and
Payment Bonds, which Bonds shall comply with the
requirements of the General Conditions.
ARTIC<_E 9
TERMINATION AND SUSPENSION
9.1 Termination for Convenience
This Agreement may be terminated in whole or in part by the
Owner for convenience after seven (7) days written notice to
the CMAR. In the event of termination pursuant to Paragraph
9.1, the CMAR shall either cancel or assign to the Owner ail
contracts with Contractors and other suppliers at the option of
the Owrier. The CMAR shall be paid for the Cost of the Work
performed to the date of termination, plus reasonable
termination expenses payable to Contractors under their
respective contracts, which shall each contain a termination for
convenience clause that limits the recovery of the Contractors
in the event of a termination for convenience to the value of the
work actually completed by the Contractor to the date of
27
termination, with no recovery of lost profit or other damages for
wrongful termination of contract. in addition, the CMAR shall
be paid all of its allowable General Conditions costs to the date
of termination, including all termination expenses. Termination
expenses are defined as those expenses arising prior, durjng
and subsequent to termination that are directly attributable to
the termination. In addition,-the CMAR shall be entitled to its
full Fixed Fee for any phase of services completed prior to
termination, plus a reasonable pro-rata portion of its Fixed Fee
for any phase of services not completed at the time of
termination, based on the percentage of such incomplete
services actually completed prior to the date of termination;
provided, however, that if it reasonably appears that the
General Conditions costs being incurred by the CMAR would
have exceed the not-to-exceed limit on General Conditions
costs, then the Owner shall be entitled to reduce the amount of
the Fixed Fee payable to the CMAR upon termination by the
amount by which the General Conditions would have exceeded
the limit on General Conditions costs. After receipt of a notice
of termination under Paragraph 9.1, the CMAR shall submit a
claim for termination fees and expenses in a form and with
certifications as are reasonably required by the Owner. The
termination claim shall be submitted promptly, but in any event
within sixty days of receipt of a notice of termination unless
extended by the Owner. The claim shall be subject to
reasonable audit to the same extent as any other request for
payment of General Conditions.
9.2 Termination for Default
This Agreement may be terminated by either party hereto upon
seven (7) days written notice should the other party fail
substantially to perform in accordance with the terms hereof
through no fault of the terminating party or if the Project in
whole or substantial part is stopped for a period of one hundred
twenty (120) consecutive days under an order of any court or
other public authority having jurisdiction or as a result of an act
of government. Without in any way limiting the scope of this
Paragraph 9.2, the Owner may terminate this Agreement if the
CMAR fails to begin or complete the Work within the time
specked for completion in this Agreement, or shall perform the
Work unsuitably or shall discontinue the prosecution of the
Work for five (5) consecutive days, or if the CMAR shall
become insolvent, be declared bankrupt, commit any act of
bankruptcy or insolvency, allow any final judgment to stand
against the CMAR or its affiliated companies unsatisfied for a
period of forty-eight (48) hours, make an assignment for the
benefd of creditors, or for any other cause whatsoever shall not
carry on the Work in an acceptable manner, Termination under
this Paragraph 9.2 for failure substantially to perform in
accordance with the terms of this Agreement shall be without
prejudice to any other right or remedy that the terminating party
has under the Agreement or at law.
9.2.1 Notice and Time for Cure
Neither party to this Agreement may terminate this Agreement
without first giving the other party five business days notice of
the intent to terminate the Agreement, measured from actual
receipt of the notice. If the grounds for termination stated in the
written notice are removed or cured within five business days
after receipt of notice, the Agreement may not be terminated
for default.
9.2.2 Pakment to the CMAR
In the event of termination pursuant to Paragraph 9.2, the
CMAR shall be paid a reasonable pro-rata portion of the
Guaranteed Maximum Price, based on the percentage of such
incomplete services actually completed prior to the date of
termination, less any amount by which the total cost paid by the
Owner to complete the Work for which the CMAR is
responsible, including Fees and General Conditions, exceeds
the Guaranteed Maximum Price. In addition, the Owner may
deduct from the final payment to the CMAR any liquidated
damages or other damages for which the CMAR is liable under
this Agreement. No payment shall be due under this
Paragraph until the Project is finally complete and all rights and
claims by Contractors for work on the Project have been settled
and paid.
9.2.3 Assignment of Contracts
in the event of termination pursuant 4o Paragraph 9.2, all
construction and supply contracts between the CMAR and all
Contractors and other suppliers for the Project shall be
immediately assignable to the Owner, at the option of the
Owner, on the same terms and conditions applicable to the
CMAR under those contracts. The CMAR shall obtain the
consent of each Contractor and supplier, in their respective
contracts with the CMAR, to this assignment.
9.3 Additional Termination Provisions
in the event of termination under either Paragraph 9.1 or 9.2,
the CMAR agrees to:
28
deliver to the Owner all Project as-built records, operating
manuals, warranties and other Project information generated to
date;
deliver to the Owner copies of all shop drawings and other
submittals received to date;
convey to the Owner or its designees title to all materials,
supplies, partially or wholly fabricated parts and components,
and any other property acquired by the CMAR for the Project;
and
provide the Owner with copies of all pending claims under the
CMAR builder's risk policy.
9.4 Suspension
The Owner may order, in writing, the CMAR to suspend all or
any part of the CMAR's services for the Project for the
convenience of the Owner or for work stoppage beyond the
control of the Owner or the CMAR. If the pertormance of all or
any part of the services for the Project is suspended, an
equitable adjustment in the Guaranteed Maximum Price shall
be made and this Agreement shall be modified in writing
accordingly.
9.4.1 General Conditions
In the event the CMAR's services on the Project are
suspended, the Owner shall reimburse the CMAR for all of the
General Conditions allowed for by this Agreement for the first
thirty (30) days of such suspension. The CMAR shall reduce
the size of staff for the remainder of the suspension period as
directed by the Owner and during such period, the Owner shall
reimburse the CMAR for all costs of reduced General
Conditions. Upon cessation of the suspension, the CMAR shall
restore the construction site and home office staff to its former
size.
9.4.2 Reassignment of Personnel
Persons assigned to another project during such suspension or
period and not available to return to this Project upon cessation
of the suspension shall be replaced. The Owner shall
reimburse the CMAR for reasonable costs incurred in
relocating staff persons returning to the Project or new persons
assigned to the Project.
9.4.3 Protracted Suspension
If the Project is suspended by the Owner for more than one
hundred twenty (120) consecutive days, the CMAR shall have
the option of requiring that the Guaranteed Maximum Price be
renegotiated. Subject to the provisions of this Agreement
relating to termination, a delay or suspension of the Project
does not void this Agreement.
9.4.4 Additional Compensation to Contractors
The CMAR shall include provisions in its contracts with
Contractors substantially the same as this Paragraph 9.4,
allowing for suspension of the Project by the Owner, and
providing that suspension shall not be grounds for termination
of the contracts except on the terms set forth in this Agreement.
If the Owner suspends the Project for reasons other than
default by the CMAR or any of its Contractors, the Guaranteed
Maximum Price will be adjusted by an amount sufficient to
reimburse the reasonable and provable expenses incurred by
the Contractors as a result of the suspension. In no event will
the Guaranteed Maximum Price be increased or any expenses
be paid to the CMAR or its Contractors for delays caused by
the CMAR or any Contractor, even if there is a concurrent
delay or suspension by the Owner, it being understood that the
CMAR bears the risk of delays caused by its Contractors.
ARTIC<.E 10
DISPUTE RESOLUTION
The laws of the State of North Carolina shall apply to the
interpretation and enforcement of this Agreement. Any and all
suits or actions to enforce, interpret, or seek damages with
respect to any provision of, or the pertormance or
nonperformance of, this Agreement shall be brought in the
General Court of Justice of North Carolina sitting in Orange
County, North Carolina, and it is agreed by the parties that no
other court shall have jurisdiction or venue with respect to such
suits or actions. Appendix A to this Agreement shall be a part
of the Contract Documents. Prior to initiating an action under
this Paragraph, any party to this Agreement shall initiate the
mediation process as provided in Appendix A to this
Agreement. Any person or firm that expressly or impliedly
agrees to perform labor or services or to provide material,
supplies, equipment, work, pertormance or payment bonds,
insurance or indemn~cation for the construction of the Project
or the Work shall be deemed a party to this Agreement solely
for the purpose of this Article 10. The CMAR, by means of its
contracts, shall spec~cally require its Contractors to be bound
by this Article.
29
ARTICLE 11
ADDITIONAL PROVISIONS
11.1 Confidentiality
The CMAR will keep confidential and not disclose to any third
party all information designated and marked by the Owner as
"Confidential" unless required to disclose the information by
law. Furthermore, the CMAR shall not disclose publicly
information concerning the Project, except for communications
incident to completion of the Project beiween the CMAR,
Designer, and Contractor, and their independent professional
engineers, architects and other consultants and
subcontractors, and except for information publicity approved
by the Owner and communications in connection with filings
with governmental bodies having jurisdiction over the design or
construction of the Project.
11.2 Sions
The CMAR shall be permitted to erect one sign to identify the
CMAR and other Project participants. The ident~cation sign
shall be of sound construction, shall be neatly lettered, and
shall be subject to approval by the Owner. The Contractor may
only erect other identification signs if approved by the Owner.
In addition to the identification sign, directional signs may be
erected on the property to facilitate deliveries and the
movement of personnel and materials about the site. Any
directional signs shall be subject to approval of the Owner with
respect to size, style and location of such directional signs,
which approval shall not be unreasonably withheld. Such signs
may bear the name of the CMAR and a directional symbol. All
signs must comply with Town of Hillsborough sign, appearance
and traffic ordinances. No other signs will be permitted except
by permission of the Owner.
11.3 Limitation and Assignment
The Owner and the CMAR each bind itself, its successors,
assigns, insurers, and legal representatives to the terms of this
Agreement. Neither the Owner nor the CMAR shall assign or
transfer its rights or interest in this Agreement without the
written consent of the other, except that the CMAR may assign
accounts receivable to a commercial bank for securing loans
without approval of the Owner. However, nothing contained in
this paragraph will prevent the CMAR from employing
Contractors or such consultants, associates or subcontractors
as the CMAR may deem appropriate to assist in performance
of the services and of the Work hereunder in accordance with
this Agreement.
11.4 Minority Business Enterprise Program
The CMAR shall at all times comply with the latest edition of
the Orange County Minority Business Enterprise Policy. All
documentation substantiating compliance with the
requirements of this program shall be delivered to the Owner
as stipulated in the Contract Documents. A copy of the Orange
County Minority Business Enterprise Policy is attached to this
Agreement es Appendix C, and shall be included in the bid
documents submitted to potential Contractors for bids.
11.5 Extent of Agreement
This Agreement represents the entire and integrated
agreement between the Owner and the CMAR and supercedes
all prior negotiations, representations or agreements, either
written or oral. This Agreement may be modified or amended
only by written directives, change orders and other instruments
signed by the Owner and the CMAR as expressly set forth in
the Agreement. Nothing contained in this Agreement is
intended to benefit any third party. The Contractors and
Designer are not intended third party beneficiaries of this
Agreement.
11.6 Severabilitv
If any provision of this Agreement is held as a matter of law to
be unenforceable, the remainder of this Agreement shall be
enforceable without such provision.
11.7 Meaning of Terms
References made in the singular shall include the plural and
the masculine shall include the feminine or neuter. To the
greatest extent possible, the meaning of terms used herein
shall be consistent with the definitions expressed in the
Contract Documents, Designer agreement, and the Contractor
contracts.
11.8 Notices
Whenever any provision of the Contract Documents requires
the giving of written notice, it shall be deemed to have been
validly given if delivered in person to the individual or to a
member of the firm or to an officer of the corporation for whom
it is intended or if delivered or sent by registered or certified
mail, postage prepaid, addressed as follows:
To the Owner:
30
Orange County, North Carolina
Attn: Pam Jones, Director of Purchasing and Central Services
Post Office Box 8181
Hillsborough, North Carolina 27278
To the CMAR:
Resolute Building Company, Inc.
Attn: Kim Vrana, Vice President
Post Office Box 3656
Chapel Hiil, North Carolina 27515
11.9 Bonds
in accordance with N.C. Gen. Stat. §143-128.1, the CMAR
shall provide a performance bond with a penal sum equal to
100% of the Guaranteed Maximum Price to guarantee the
faithful performance of the Work, in such form as may be
required bylaw and by the Owner.
in accordance with N.C. Gen. Stat. §143-128.1, the CMAR
shall provide a payment bond with a penal sum equal to 100%
of the Guaranteed Maximum Price to guarantee the payment of
all labor and material costs or claims in connection with
compliance with the Contract, in such form as may be required
by law and by the Owner.
These bonds shall be dated the same date as the Agreement
and must be accompanied by a current copy of the power of
attomey for the attomey-in-fact executing such bond on behalf
of a surety company licensed to do business in the state of
North Carolina and reasonably acceptable to the Owner. If
required by the Owner, these bonds shall name additional
obligees to include any lender providing financing for the
Project, the North Carolina Local Government Commission and
any other joint obligee reasonably required by the Owner.
In its Guaranteed Maximum Price, the CMAR shall include a
program and costs for bonds or other security against default
by Contractors as the CMAR deems appropriate to protect the
CMAR and the Owner against such defaults.
11.10 Ownership of Documents
The CMAR shall be entitled to maintain possession of a
reasonable number of sets of Contract Documents and record
documents during and after the completion of the Project for its
records. After completion of the Project, the CMAR shall
destroy or return to the Owner all other copies of such
documents as requested by the Owner. The CMAR shall not
reproduce or distribute such documents to any third person or
for any purpose other than bidding, permitting and construction
of the Project. The CMAR shall have no copyright or other
rights in the documents, or other rights to use the documents.
ARTICLE 12
SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS
12.1 Guaranteed Maximum Price
Pursuant to this Agreement and for the Project defined in
Article 2, the Owner and the CMAR have set a Guaranteed
Maximum Price for the Project of an amount not to exceed
12.1.1. Documentation
The Guaranteed Maximum Price documentation shall be
prepared by the CMAR and submitted to the Owner with the
Guaranteed Maximum Price Proposal. The documentation
shall at a minimum describe the Contract Documents on which
the Guaranteed Maximum Price Proposal is based, and set
forth the cost elements of the Guaranteed Maximum Price in
detail. The documentation may include drawings, sketches,
specifications, calculations or other data used to identify the
basis of the Guaranteed Maximum Price. Documentation of the
Guaranteed Maximum Price was developed by the CMAR from
the design Drawings and Specifications and such other
documents as may be described in the Proposal.
12.1.2 Budget Items
The documentation of the Guaranteed Maximum Price shall
include a detailed cost tabulation with at least the elements
described in the Listing of Cost Elements in Appendix B.
12.1.3 CMAR Contingency
The Guaranteed Maximum Price shall include a contingency
amount (the Contingency) for the use of the CMAR. The
Contingency shall be included in the Guaranteed Maximum
Price. The Contingency is for the use of the CMAR to defray
costs in excess of the Cost of the Work for which the CMAR is
not otherwise entitled to an increase in the Guaranteed
Maximum Price under the terms of this Agreement.
12.1.4 Construction Contract Price Savings and Overruns
The CMAR shall as part of cost control under its Basic Services
report the adjusted final actual price of each item or division of
31
the Work the price of which was based on estimated quantities,
allowances or other conditional pricing and, when the final price
is determined, adjust the Guaranteed Maximum Price as
follows:
12.1.4.1 If the final adjusted price of any item or division of the
Work is less than the amount reflected in the approved
Guaranteed Ma~amum Price, as determined in accordance with
the terms of this Agreement, the amount indicated in the
Guaranteed Maximum Price for the cost of such item shall be
reduced by an amount equal to the difference between the final
adjusted cost and the original amount indicated in the
Guaranteed Maximum Price for the cost of such item, and the
Contingency shall be increased by the same difference.
12.1.4.2 If the final adjusted price of any item or division of the
Work is greater than the amount reflected in the approved
Guaranteed Maximum Price, as determined in accordance with
the terms of this Agreement, to the extent that the Contingency
is sufficient, the amount indicated in the Guaranteed Maximum
Price for the cost of such item shall be increased by an amount
equal to the difference between the final adjusted cost and the
original amount indicated in the Guaranteed Maximum Price for
the cost of such item, and the Contingency shall be decreased
by the same difference.
12.1.4.3 Regardless of the final adjusted price of any item or
division of the Work that differs from the amount reflected in the
approved Guaranteed Maximum Price, the Guaranteed
Maximum Price shall not be adjusted, except pursuant to an
approved change order.
12.1.5 Change of Contractor Ordered by Owner
If the Owner directs the CMAR to award a contract to a bidder
other than the lowest responsible and responsive pre-qualified
bidder for any potion of the Project, the Guaranteed Maximum
Price shall be increased by the amount of the difference
between the award price and the price submitted by the lowest
responsible and responsive bidder.
12.1.6 Costs in Excess of Guaranteed Maximum Price
In the event that the sum of the Cost of the Work exceeds the
Guaranteed Maximum Price and any adjustments therein as
may be due pursuant to the terms hereof, the CMAR shall
continue to perform at no additional cost to the Owner until the
Project, defined by this Agreement and all Attachments hereto,
is complete. The CMAR shall be responsible for paying all
costs in accordance with the terms of this Agreement that may
be necessary to complete the Project, even if such amounts
are in aggregate in excess of the Guaranteed Maximum Price.
This Agreement is executed the day and year first written
above.
CMAR: RESOLUTE BUILDING COMPANY, INC.
P.O. Box 3656
Chapel Hill, NC 27515
By:
Title:
(President) (Manager)
Attest:
By:
Title:
(Secretary) (Manager) (Witness)
OWNER: ORANGE COUNTY
P. O. Box 8181
Hillsborough, N.C. 27278
By:
Moses Carey, Jr.
Chair
Orange County Board of Commissioners
Attest:
Donna S. Baker
Clerk to the Board
This instrument has been pre-audited in the manner required
by the local Government Budget and Fiscal Control Act.
Orange County Finance Officer
This instrument is approved as to Form.
Orange County Attorney
FaLisaVormsl0range County Agmt for Construction Mgr form rev by GEG
91207.doc
32