HomeMy WebLinkAboutAgenda - 06-26-2007-4ddORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: June 26, 2007
Action Agenda t
Item No. ~- ' c~ c~
SUBJECT: County Campus Approval of Purchase Agreement and Construction Manager
at Risk Contract
DEPARTMENT: County Attorney & Purchasing PUBLIC HEARING: (Y/N) No
ATTACHMENT(S):
Resolution
Form of Purchase Agreement
Form of Construction Manager at Risk
(Due to size, these attachments are
available on the Board meeting. agenda
section of the County's website, or from
the Clerk's office)
INFORMATION CONTACT:
Pam Jones, (919) 245-2652
Geoffrey Gledhill (919) 732-2196
PURPOSE: To consider approving a Purchase Agreement(s) and Construction Manager at
Risk (CMAR) agreement(s) associated with the purchase and construction of facilities on the
county campus off of West Margaret Lane, Hillsborough.
BACKGROUND: On November 2, 2006, the Board of Commissioners approved an Agreement
of Intent for the construction and purchase of two buildings on the County campus off of West
Margaret Lane, essentially in the location of the-previous Southern States building. The County
Attorney and County staff have been working for several months with the developer and his
attorneys to arrive at the terms of a purchase agreement(s) for the two buildings, as well a
construction agreement(s) for the construction of the facilities. These agreements are presented
for Board of Commissioner approval.
Terms of the Agreement(s) are consistent with the Agreement of Intent. Highlights are
summarized below, with additional detail contained in the form of Agreements:
• Two buildings: office building approximately 46,716 square feet; and Library
approximately 23,454 square feet;
• Purchase price: $17,939,079;
• Land under each of the buildings, associated parking around the buildings and other
amenities are included in the purchase price and will be owned by the County.
• County will have access to a total of 246 parking spaces provided through a combination
of surface parking around the buildings, with the remaining spaces provided on the
parking deck.
o Note: Parking on the deck is allowed by license from the developer. An
agreement will be presented for consideration by the Board closer to completion of
parking deck construction.
• The campus is being constructed through a CMAR contract with Telesis Construction
Company, Hillsborough, which is attached for the Board's consideration.
FINANCIAL IMPACT: The cost of this project was included in the County and School Project
Debt Issuance Schedule as presented in the fall 2006. The project is funded contingent upon
LGC approval.
RECOMMENDATION (S): The Manager recommends that the Board approve attached
Resolution; and authorize the Chair to sign the Agreements on behalf of the Board.
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Resolution Providing Approval of
Agreements for the Construction of and
Sale and Purchase of the County Campus
Office Building and Library
WHEREAS, on November 6, 2006, the Orange County Board of Commissioners
("the Board") approved an Agreement of Intent between Orange County ("the County" or
"County") and Telesis Construction Management, LLC ("Telesis") for the Telesis
construction of and the Telesis sale of and the County purchase of the Office Building
and Library, both part of a new "County Campus" located in Hillsborough, North
Carolina;
WHEREAS, the County attorney has made available to the Board draft
agreements relating to carrying out the Agreement of Intent with respect to the Office
Building and the Library which draft agreements are attached hereto.
NOW, THEREFORE, BE IT RESOLVED by the Board as follows:
Approval of Documents; Direction To Execute Documents -The
Board approves the form of the agreements submitted to this meeting. The Board
authorizes and directs the Board's Chair and the County Manager, or either of them, to
execute and deliver the agreements in their final forms. The Board authorizes and directs
the County Finance Officer to complete any preauditing certificate as required by law.
The agreements in their respective final forms must be in substantially the forms
presented, with such changes as the Chair or the County Manager may approve. The
execution and delivery of any agreement by an authorized County officer will be
conclusive evidence of his or her approval of any such changes. The Agreements in final
form, however, must provide for the total amount due Telesis by the County not to
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exceed $17,939,079, plus amounts that may be needed to pay other necessary and related
County costs.
2. Authorization to County Manager to Complete Closing -The Board
authorizes and directs the County Manager to take all appropriate action to complete the
agreements with Telesis in accordance with this Resolution. The Board authorizes and
directs the County Manager to hold executed copies of all agreements authorized or
permitted by this Resolution in escrow on the County's behalf until any and all conditions
for their delivery have been completed to such officer's satisfaction, and thereupon to
release the executed copies of such documents for delivery to the appropriate persons or
organizations.
Without limiting the generality of the foregoing, the Board specifically authorizes
the County Manager to approve changes to any agreements or certifications previously
signed by County officers or employees, provided that such changes do not conflict with
this Resolution or substantially alter the intent from that expressed in the form originally
signed. The County Manager's authorization of the release of any such document for
delivery will constitute conclusive evidence of such officer's approval of any such
changes.
3. Miscellaneous Provisions -All County officers and employees are
authorized and directed to take all such further action as they may consider necessary or
desirable in furtherance of the purposes of this Resolution, including the execution and
delivery of additional agreements as they may determine to be in the County's best
interest. All such prior actions of County officers and employees are ratified, approved
and confirmed. Upon the absence, unavailability or refusal to act of the County Manager,
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the Board's Chair or the Finance Officer, any other of such officers may assume any
responsibility or carry out any function assigned in this resolution. All other Board
proceedings, or parts thereof, in conflict with this resolution are repealed, to the extent of
the conflict. This Resolution takes effect immediately.
Upon motion of Commissioner ~ ,seconded by Commissioner ,
the foregoing resolution was adopted this the day of , 2007.
I, Donna S. Baker, Clerk to the Board of Commissioners for the County of Orange, North
Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so much of the
proceedings of said Board at a meeting held on
as relates in any way to
the adoption of the foregoing and that said proceedings are recorded in the Minute Book of the
Board.
WITNESS my hand and the seal of said County, this day of , 2007.
Clerk to the Board of Commissioners
AGREEMENT OF PURCHASE AND SALE
(LIBRARY BUILDING)
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into,
effective as of the Date of Agreement {as hereinafter defined), by and between TELESIS
CONSTRUCTION MANAGEMENT, LLC, a North Carolina. limited liability company ("Seller"}, and
ORANGE COL7NTY, NORTH CAROLINA, a body corporate and politic and a political subdivision of
the State of North Carolina ("Purchaser").
WITNESSETH THAT:
WHEREAS, Seller is the owner of the Property {as hereinafter defined); and
WHEREAS, subject to the terms and conditions set forth below, Seller desires to sell the Property to
Purchaser and Purchaser desires to purchase the Property from Seller.
NOW, THEREFORE, in consideration of the agreements contained herein and other goad and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
covenant and agree as follows:
SECTION 1. Property. Subject to the provisions of this Agreement, Seller shall sell to Purchaser
and Purchaser shall purchase from Seller the fallowing property:
1.01 All of that certain tract or parcel of land located in Hillsborough, Orange County,
North Carolina, as identified and described in the attached EXHIBIT A, together with the Building (as
hereinafter defined) and any and all other improvements and fixtures now or hereafter located thereon, and
any and all other lights and easements appurtenant thereto (collectively the "Real Property").
1.02 All equipment, machinery, appliances, fixtures (not a part of the Real Property} and
other tangible personal property owned by Seller attached to or located an the Real Property and necessary
far the occupancy, use and/or operation of the Real Property for its intended purpose{s) (collectively the
"Equipment").
1.03 All local, state and federal permits, licenses, certificates (including certificate(s) of
occupancy} and approvals necessary to occupy, use and/or operate the Real Property for its intended
purpase(s} (collectively the "PerYnits"), to the extent assignable or transferable.
1.04 All site plans, surveys, sail and substrata studies, architectural drawings, plans and
specifications, engineering plans and studies, floor plans, environmental studies, assessments or
examinations, landscape plans, appraisals and other plans and studies of any kind in Seller's possession that
relate to the Real Property. Seller makes no representations ar warranties with respect to these documents.
1.05 All keys and other materials of any kind in Seller's possession necessary for the
occupancy, use and/or operation of the Property for its intended purpose{s).
1.06 All rights, titles and interests of Seller in and to any condemnation award made or to
be made in respect of the Real Property and in and to any unpaid award for damage to the Real Property by
reason of change of grade of any street; and Seller shall execute and deliver to Purchaser, at Closing {as
hereinafter defined); all proper instruments for the conveyance of such title and the assignment and collection
of any such award.
1.07 Any and all other rights, pm~ileges and appurtenances owned by Seller and in any
way related to, or used in connection with, the occupancy, use andlor operation of the Real Property for its
intended purpose(s).
The term "Property," as used in this Agreement, shall mean, collectively, all of the real property and
all of the tangible and intangible personal property described in this SECTION 1, including, but not limited
to, the Real Property, the Building, the Equipment and the Permits.
SECTION2. Purchase Price.
2A1 The purchase price (the "Purchase Price"} for the Property shall be Six Million Six
Hundred Sixty-Two Thousand Nine Hundred Fifty-Seven and No1100 Dollars ($6,662,957.00), adjusted as
provided in this Section and in SECTION 3, payable in immediately available funds to Seller at Closing.
2.02 The Purchase Price shall be increased by such amount{s) as may be necessary to
compensate Seller for (a} any increase in Building construction costs and'or expenses reasonably incurred by
Seller resulting fiom changes made by Purchaser to the Interior Upfit {as hereinafter defined}, (b} the amount
by which the cost of the Interior Upfit shall exceed $55.00 per square foot (the "Interior Upfit :allowance"},
(c} any Building construction costs and,~or expenses not included in the Guaranteed Maximum Price (as
hereinafter defined) that are compensable pursuant to the Agreement For Construction A•Zanagement Services
by and between Seller and Purchaser.
2.03 The Purchase Price shall be decreased by the amount of any payment made by
Purchaser to Seller pursuant to the Agreement For Construction Management by and between Seller and
Purchaser with respect to any sen~ice provided by Seller to the extent the cost of such service is included in
Seller's pricing far the construction of the shell of the Building, exterior improvements to the Real Property
and the Interior Upfit Allowance (the "Guaranteed A-7aximum Price").
2.04 The Purchase Price shall be decreased by the amount of any payment made by
Purchaser to any design professional whose contract is assigned to Purchaser pursuant to NCGS Section 143-
64.31 to the extent the amount of such contract is included in the Guaranteed Z\ laximum Price.
SECTION 3. Costs and Prorations.
3.01 Seller shall pay the cost of deed preparation and any and all real estate excise tax,
transfer tax, revenue tax or other imposition of any nature applicable to this transaction. Purchaser shall pay
the cost of its title examination, the title insurance premium charged by Purchaser's title insurer for owner's
and lender's title insurance coverage, the cast of any updated survey required by Purchaser, Purchaser's
lender ar Purchaser's title insurer and the per page cost of recording the deed. Each party shall pay its own
attorneys' fees.
3.02 All ad valorem real and personal property taxes assessed against the Property for the
calendar year in which the Closing occurs shall be paid by Seller at Closing. All ad valorem real and
personal property taxes assessed against the Property for the calendar year in which the Closing occurs shall
be prorated as of the Closing Date on a calendar year basis. The Purchase Price shall be increased by the
amount of Purchaser's share of such prorated taxes. If the tax bill for the calendar year in which Closing
occurs is not available at the time of Closing, the parties shall estimate the ad valorem real and personal taxes
for the calendar year in which Closing occurs based upon the assessed value of the Property as of January 1
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of the calendar year in wluch Closing occurs and the tax rate in effect for the Property on the Closing Date (as
hereinafter defined).
3.03 In the event any adjustments pursuant to this Section are, subsequent to Closing,
found to be erroneous, then either party hereto is entitled to additional monies and shall invoice the other
party for such additional amounts as may be awing, and such amount shall be paid promptly by the other
party upon receipt of the invoice. Such im~oice shall be accompanied by reasonable substantiating evidence.
SECTION 4. Title. At Closing, Seller shall furnish and deliver to Purchaser, at Seller's expense,
the following:
4.01 Seller shall com~ey gaol, marketable, fee simple and insurable title to the Real
Property to Purchaser by general warranty deed. The Real Property shall not be subject to any {a) deed of
trust, security agreement, judgment, unpaid assessments for improvements, lien or claim of lien, or any other
title exception or defect that is monetary in nature, ar (b) any lease, rental agreement or other right of
occupancy of any kind, whether written or oral. Seller agrees to pay and satisfy of record any such title
defects or exceptions prior to or at Closing at Seller's expense. The Property may be subject to easements and
rights of ~vay far utilities and vehicular and pedestrian access to and from adjoining properties of Seller and
others (including the parking deck to be constructed by or for Seller} and tiU. Margaret Lane, N & K Street
and/or S. Churton Street, whether now existing or hereafter granted by Seller in connection with its
development of the Property and adjoining properties, and to such other matters, exclusive of any title
exception ar defect described in (a}, (b) or (c) above, as are noted in Schedule B - Part I of Investors Title
Insurance Company owners policy of title insurance no. 200700432CH {collectively the "Permitted
Exceptions"}, and no such Permitted Exception shall constitute a basis far any title objection by Purchaser.
As to any other title exceptions or defects {the "Title Exceptions"), Purchaser shall have until and including
the day which is thirty (30) calendar days prior to the Closing Date (the "Title Exceptions Date"} within
which to examine title to the Real Property and to notify Seller, in writing, of any Title Exceptions to wluch
Purchaser objects. If Purchaser fails to deliver to Seller written notice of objection to any Title Exceptions on
ar- before the Title Objections Date, Purchaser shall be deemed to have waived its right to object to any Title
Exceptions except those arising after the Title Exceptions Date. If Purchaser delivers to Seller written notice
of abjection to any Title Exceptions on or before the Title Exceptions Date, Seller shall then have the right,
but not the obligation, for a period of fifteen (15) calendar days after receipt of such written notice within
which to cure or satisfy such objection. If the objection is not cured or satisfied by Seller within such fifteen
(I5} day period, or if Seller is unable to provide Purchaser with reasonable assurance within such fifteen (15}
day period that such objection will be cured at or before Closing, then Purchaser shall have the right to
terminate this Agreement, in which event neither party shall have any further rights, obligations ar duties to
one another under this Agreement. If Seller cures or satisfies the objection within such fifteen (15) day
period, or provides reasonable assurance to Purchaser with such fifteen (15) day period that such abjection
will be cured at or before Closing, then this Agreement shall continue in effect. Purchaser shall have the right
at any time to waive any objection to any Title Exceptions that it may have made and thereby preserve this
Agreement in effect.
4.02 An assignment in a form and content reasonably satisfactory to Purchaser, dated as
of the Closing Date, which assigns to Purchaser all of Seller's rights, titles and interests in and to all
Contracts, Permits and other Property which Purchaser has elected to purchase and assume and which may
properly be assigned to Purchaser thereby.
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4.03 A Uill of sale in a form and content reasonably satisfactory to Purchaser, dated as of
the Closing Date, which conveys to Purchaser all of the Equipment and other Property which Purchaser has
elected to purchase and which may properly be conveyed to Purchaser thereby.
4.04 An affidavit and agreement regarding debts and liens executed by Seller and Seller's
contractors) and dated as of the Closing Date, stating that there are no unpaid debts for any work that has
been done or materials furnished to the Real Property prior to and as of the Closing Date and further stating
that Seller shall indemnify, save and protect Purchaser and Purchaser's lender (if any) and title insurer
harmless from and against any and all claims, liabilities, losses, damages, causes of action, and expenses
(including court casts and reasonable attorneys' fees related thereto) arising out of, in connection with, or
resulting from, any such debts and liens in a foixn and substance mutually acceptable to counsel for Seller and
Purchaser.
4.05 An affidavit of title with respect to the Real Property executed by Seller and Seller's
contractor(s) in a form acceptable to Purchaser's title insurer to issue title insurance without exception for
mechanics' or materialmen's or other statutory liens or for the rights of parties in possession.
4.06 To the extent available, the originals of all Contracts, Permits anti other items
identified in paragraph 5.01.
4.07 An affidavit stating that Seller is not a "Foreign Person" within the meaning of IRC
Section 1445{f)3.
4.08 Such instruments or documents as are necessary, or reasonably required by
Purchaser or Purchaser's title insurer, to e~,idence the authority of Seller to consummate the purchase and sale
transaction contemplated herein and to execute anct deliver the required closing documents, including without
limitation, copies of Seller's organizational documents and the originals of such documents as are required to
evidence the due authorization and approval of the transaction contemplated herein.
4.09 Such other documents as may be reasonably required by Purchaser, Purchaser's
counsel, Purchaser's lender or the title insurer to carry out the teens and provisions of this :agreement.
SECTION 5. Closing.
5.01 Subject to the provisions of SECTION 6, the closing or settlement ("Closing") of
the transaction contemplated by this Agreement shall be held at the office of Purchaser's counsel in
Hillsborough, North Carolina, ar at any other place in Orange County, North Carolina. that may be designated
by Purchaser. Closing shall occur during regular business hours not later than thirty (30} calendar days after
the Completion Date {as hereinafter defined}. The exact date ("Closing Date"), time and place of Closing
shall be as agreed upon by Purchaser and Seller.
5.02 As a condition precedent to Purchaser's obligation to close the purchase of the
Property, there shall have occurred no material adverse change in any of the following from that which
existed on the Date of Agreement with respect to: (a) the zoning applicable to the Real Property anti the real
Property's compliance with all applicable zoning, land use regulations and special permits; (b) the status of
the record title to the Real Property; {c) the status of Hazardous h~Iaterials {as hereinafter defined} on or
affecting the Real Property or the Real Property's compliance with Environmental Laws (as hereinafter
defined}; (d) the restrictions applicable to the Real Property and the Real Property's compliance with all such
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restrictions; and (e} the truth ar accuracy of any warranty ar representation made by Seller in this Agreement.
Seller shall notify Purchaser in writing of any such material adverse change of which Seller is
knowledgeable.
5.03 As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, construction of the Building, including the Interior Upfit and the exterior improvements to the
Real Property, shall be finally complete in a manner that satisfies the requirements of "final completion"
pursuant to the Agreement for Construction Management Services by and bettween Seller and Purchaser and a.
Certificate of Occupancy for the Building shall have been issued by the Town of Hillsborough.
5.04 As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, Seller and Purchaser shall have made and entered into a written license agreement pursuant to
which Seller shall license to Purchaser, upon terms and conditions mutually satisfactory to Seller and
Purchaser, the exclusive use of the Allocated Parking Spaces. As used herein, "Allocated Parking Spaces"
shall mean the number of parking spaces in the parking deck under construction by Seller on a tract of land
lying south of the Property and north of N & K Street which shall be allocated far the exclusive use of the
owner of the Building and such a~wner's tenants, employees, customers, guests, licensees and invitees.
Allocated Parking Spaces shall be determined by subtracting from tvvo hundred forty-six (246) the number of
parking spaces wluch shall have been licensed by Seller to Purchaser or otherwise made available or reserved
for the exclusive use of Purchaser within the project complex (including the Real Property, the parking deck,
the proposed Orange County office building tract and the Gateway Center Building tract}. Seller and
Purchaser acknowledge that it is their intent that a total of two hundred forty-six (246) parking spaces shall be
allocated to Purchaser within the project complex far Purchaser's use of the Building, Units 200 and 300 in
the Gateway Center Building and the proposed Orange County office building. Only to the extend that such
parking spaces cannot be accommodated iwithin the project complex and outside the parking deck, shall
parking spaces be allocated to Purchaser witlun the parking deck.
5.05 As a further condition precedent to Purchaser's obligation to close the purchase of
the Property, Purchaser must have received North Carolina Local Government Approval of installment
purchase financing totaling at least $25,000,000 to enable Purchaser to purchase the Property, and other
property making up the Orange CountS~ Office and Library Carnplex.
SECTION b. Construction of the Building.
6.01 Subject to the terms, covenants and conditions set forth in this Agreement, Seller
shall construct, ar cause to be canstiuctect, a hwa story commercial building upon the Real Property
containing approximately 23,454 square feet (building footprint), the purpose of which building shall be to
serve as a public library (the "Building"}. The shell of the Building and the exterior improvements to the
Real Property shall be constructed and completed substantially in accordance with the Building Plans and
Specifications (as hereinafter defined) and all applicable municipal, state and federal approvals, ordinances,
codes, statutes and laws. The improvement, upfit and finishing of the interior of the Building (the "Interior
Upfit"} shall be constructed and completed substantially in accordance with the Interior Upfit Plans and
Specifications (as hereinafter defined} and all applicable municipal, state and federal approvals, ordinances,
codes, statutes and laws. Unless delayed by reason of the public bid process or matters beyond Seller's
reasonable control, construction of the Building will commence not later than ninety (90) days after the date
of Purchaser's delivery of the Interior Upfit Plans and specifications to Seller. Seller will make a reasonable
effort to have construction of the Building, the exterior improvements to the Real Property and the Interior
Upfit substantially complete, and the Building ready for occupancy (including issuance of a certificate of
occupancy) not later than ten (10) months after the date on which construction of the Building shall
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commence (the "Completion Date"). Subject to the provisions of paragraph 2.02, construction of the shell of
the Building and the exterior improvements to the Real Property shall be performed and completed
substantially in accordance with the Building Plans and Specifications at Seller's sole cost and expense.
Subject to the provisions of paragraph 2A2, the Interior Upfit shall be performed and completed substantially
in accordance with the Interior Upfit Plans and Specifications at Seller's sale cost and expense. As used
herein, "Building Plans and Specifications" shall mean the plans and specifications for the construction of
the shell of the Building and the exterior improvements to the Real Property as same may be amended,
modified and/or supplemented from time to time. The Building Plans and Specifications shall be
identified and described on the attached EXHIBIT B. As used herein, "Interior Upfit Plans and
Specifications" shall mean the plans and specifications for the improvement, upfit and finishing of the
interior of the Building as same may be amended, maclified and/or supplemented from time to time. The
Interior Upfit Plans and Specifications shall be identified and described on the attached EXHIBIT C.
6.02 No amendment and/or modification of or to the Building Plans and Specifications
which shall materially alter or change the size ar layout of the Building ar the means of access to the Building
shall be made at any time subsequent to the Date of Agreement unless approved in writing by both parties.
6.03 Purchaser shall cause the Interior Upfit Plans and Specifications to be prepared at
Purchaser's sale cost and expense. Purchaser shall make a reasonable effort to cause the Interior Upfit Plans
and Specifications to be prepared and delivered to Seller on or before June 11, 2447. Purchaser
acknowledges that construction of the Building may not commence for a period of up to ninety {94) days
after the date an which Purchaser delivers the Interior Upfit Plans and Specifications to Seller and that the
Building may not be substantially complete and ready for occupany for a period of up to thirteen (13) months
after the date on which Purchaser delivers the Interior Upfit Plans and Specifications to Seller. No material
amendment and/or modification of or to the Interior Upfit Plans and Specifications shall be made at any time
subsequent to the delivery of the Interior Upfit Plans and Specifications to Seller unless approved in writing
by bath parties.
6.04 At any time from and after the Date of Agreement and until the Closing,
Purchaser may enter upon the Real Property and perform, at the sole cost and expense of Purchaser (but
not in a manner which shall unreasonably disrupt or delay construction of the Building or the Interior
Upfit), such analysis, review, tests or inspections of the Real Property, including construction of the
Building and the Interior Upfit, ar any other aspect of the Real Property as may be pertinent and material
to Purchaser in its sole and absolute discretion.
SECTIQN 7. Risk of Lass. Subject to the provisions hereof, the risk of loss or damage to the
Property occurring prior to Closing shall be borne by Seller. If the Property is damaged by fire, storm, wind
or other casualty prior to Closing, Seller shall give prompt written notice thereof to Purchaser. Purchaser
may, at any time within thirty (34) days fallowing the receipt of such notice from Seller, terminate this
Agreement effective upon delivery of written notice of termination to Seller. Upon such termination the
parties shall have no further liability to one another hereunder. If Purchaser elects not to terminate tlus
Agreement pursuant to this Section, this Agreement shall continue in effect and, notwithstanding the
occurrence of such casualty and c><arnage, Closing shall proceed as provided far herein. All insurance
proceeds collected with respect to such loss shall be assigned to Purchaser.
SECTIQN 8. Eminent Domain and Assessments. Seller has not received any notice of any
pending condemnation, assessment or similar proceeding or charge affecting the Real Property or any portion
thereof and has no knowledge that any such proceeding or charge is contemplated. If Seller receives notice
of the commencement or threatened commencement of eminent domain or assessment or other like
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proceedings against the Real Property or any portion thereof at any time between the Date of Agreement and
the Closing Date, Seller shall immediately notify Purchaser in writing, and Purchaser shall elect within ten
(10) days from and after such notice either: {a) to terminate this Agreement, in which event the Earnest
A•~Ioney shall be returned to Purchaser and this Agreement shall terminate and be of no further farce and
effect; ar (b) to close the transaction contemplated by this Agreement in accordance with the terms hereof but
subject to such proceedings, in which event the Purchase Price shall not Ue reduced and Seller shall assign to
Purchaser all of Seller's rights in any condemnation award or proceeds. Purchaser shall deliver notice of its
election to Seller in writing. If Purchaser does not make its election within the aforesaid time period,
Purchaser shall be deemed to have elected to close the transaction contemplated hereby in accordance with
clause (b} above.
SECTIQN 9. Representations and Warranties of Seller. Seller represents and warrants to
Seller (each of which representations and warranties shall be true as of the Date of Agreement and as of the
Closing) as follows:
9.01 Seller is a limited liability company duly organized, validly existing and in good
standing in accordance with the laws of the State of North Carolina. Seller has full right, power and authority
to enter into this Agreement anct to consummate the sale contemplated herein, all required action necessary to
authorize Seller to enter into this Agreement and to consummate the sale contemplated herein has been taken,
and the joinder of na person ar entity other than Seller will be necessary to convey the Property fully and
completely to Purchaser at Closing.
9.02 There are no adverse or other parties in possession of the Property or of any part
thereof. Na person has been granted any license, lease ar other right relating to the use or possession of the
Properly or of any part thereof.
9.03 To the best of Seller's knowledge, there is na action, suit ar proceedings pending ar
threatened against ar affecting the Property or any part thereof, or relating to or arising out of Seller's
ownership of the Property or any part thereof, or by any federal, state, county ar municipal department,
commission, board, bureau ar agency ar other governmental instrumentality, nor is there any attachment,
execution, assignment for the benefit of creditors or voluntary or im~oluntary proceeding in bankruptcy or
under other debtor relief laws contemplated by or pending or threatened against Seller ar the Property.
9.04 There exist no contracts, service agreements or obligations affecting the Property
which are in addition to or different from those which have been furnished or otherwise disclosed to
Purchaser.
9.05 Seller has no knowledge of any release, discharge or storage of any Hazardous
Material an or upon the Real Properly or any part thereof in violation of any Environmental Laws. Seller will
not permit, suffer ar allow any such Hazardous Material to be released, discharged or stored upon the Real
Property or any part thereof in violation of any Environmental Laws at any time prior to Closing.
Far purposes of this Agreement, Hazardous Materials means and includes petroleum,
petroleum byproducts, {including, but not limited to,) crude oil, diesel oil, fuel oil, gasoline, lubrication ail,
oil refuse, ail mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless of specific
gratrity, natural or synthetic gas products, asbestos, PCB, and/or any hazardous substance or material, waste,
pollutant or contaminant, defined as such in (or far the purposes of} any Environmental Laws. Far purposes
of this Agreement, Enti°ironmental Laws means the Comprehensive Environmental Response, Compensation
and Liability Act as amended, the Resource Conservation Recovery Act as amended, the Clean Air Act, the
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Clean ~~'ater Act, any "Supei~und" or "Superlien" law, the North Carolina. Oil Pollution and Hazardous
Substance Control Act of 1976, or any other federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning
any petroleum, petroleum byproduct (including, but not limited to, crude ail, diesel oil, fuel oil, gasoline,
lubrication oil, oil refuse, oil mixed with other waste, oil sludge, and all other liquid hydrocarbons, regardless
of specific gravity), natural or synthetic gas, asbestos, PCB, products and/or hazardous substance or material,
toxic or dangerous waste, substance or material, pollutant or contaminant, as may now or at any time
hereafter be in effect.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN
THIS AGREEMENT AND IN THE AGREEh~IENT FOR CONSTRUCTION MANAGEh~lENT
SERVICES BY AND BETWEEN SELLER AND PURCHASER, THE PROPERTY SHALL BE SOLD
TO PURCHASER IN "AS-IS", "WHERE AS" CONDITION. EXCEPT TO THE EXTENT
OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, ELSEWHERE IN THIS AGREEA~IENT
AND IN THE AGREEI\~IENT FOR CONSTRUCTION R~IANAGEMENT SERVICES BY AND
BETWEEN SELLER AND PURCHASER, NEITHER SELLER, NOR ANY OF ITS MEMBERS,
MANAGERS, AFFILIATES, EMPLOYEES, ATTORNEYS, ACCOUNTANTS, CONTRACTORS,
CONSULTANTS, AGENTS OR REPRESENTATIVES, NOR ANY PERSON PURPORTING TO
REPRESENT ANY OF THE FOREGOING, HAVE MADE ANY REPRESENTATION, WARRANTY,
GUARANTY, PROh~SE, PROJECTION OR PREDICTION WHATSOEVER TO PURCHASER WITH
RESPECT TO THE PROPERTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, ARISING BY
OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
REPRESENTATION OR ~~'ARRANTY AS TO (A} THE CONDITION, SAFETY, QUANTITY,
QUALITY, USE, OCCUPANCI' OR OPERATI{_)N OF THE PROPERTY, OR {B) THE PAST,
PRESENT OR FUTURE REVENUES OR EXPENSES L~TTH RESPECT TO THE PROPERTY.
SECTION 10. ~~~arranties of Purchaser. Purchaser represents, warrants and covenants to Seller
that Purchaser is a body corporate and politic and a political subdivision of the State of North Carolina duly
created, validly existing and in good standing in accordance with the laws of the State of North Carolina.
Purchaser has full right, poFVer and authority to enter into this Agreement and to consummate the purchase of
the Property as provided herein, and, except for action by Purchaser necessary to obtain the approval required
by SECTION 5.45 and that approval, all required action necessary to authorize Purchaser to enter into tlus
Agreement and to consummate the purchase of the Property as provided herein has been taken.
SECTION 11. Commissions.
11.01 The parties acknowledge and agree that there are no brokerage fees, real estate
commissions, finder's fees, acquisition costs or other compensation due to any real estate agent, broker or
other third party in connection with this transaction.
11.02 Seller and Purchaser do hereby represent each to the other that neither knows of any
real estate agent, broker or other party involved in this transaction who is entitled to, or has a claim for, a real
estate commission or fee and neither party has employed any such person. Seller and Purchaser hereby
covenant and agree each with the other to indemnifi~ and forever hold the other harmless from and against
any loss, liability, costs, claims, demands, damages, actions, causes of action and suits arising out of or in any
manner related to the alleged employment or use by the indemnifying party of any real estate agent, broker or
other party.
-8-
SECTION 12. Notices. All notices and statements required or permitted by tlus Agreement to be
given to the parties or to either of them shall be deemed sufficiently given and delivered when made in
writing and personally delivered to the parties or delivered by next day courier service {i.e. FedEx, UPS, etc.),
or delivered by the United States Postal Service via certified mail, return receipt requested, postage prepaid
anti addressed to the appropriate party(ies) at the following address(es):
If to Seller: Telesis Construction IVlanagement, LLC
1000 Coi7~orate Drive, Suite 109
Hillsborough, NC 27278
Attention: George A. Horton, III
If to Purchaser: Orange County, North Carolina
P.O. Bax 8181
Hillsborough, NC 27278
Attention: Pam Jones, Director of Purchasing and Central Services
Any such notice or statement delivered by personal delivery shall be deemed delivered and received
as of the date of personal delivery. Any notice or statement delivered by next day courier service or United
States certified mail as prodded above shall be deemed delivered when delivered to the next day courier
service or deposited in the United States mail, and the delivery confirmation or return receipt therefrom, as
applicable, shall be deemed prima facie evidence that such notice or statement was received on the date stated
on such delivery confirmation or return receipt.
SECTION 13. Remedies. In the event this transaction fails to close by reason of Purchaser's
failure to perform its obligations under this Agreement, Seller shall have the right to pursue any and all rights
and remedies available to it at law or in equity far Seller's breach, including, without limitation, the right, to
the extent permitted by law, to sue for specific performance. In the event Seller fails or refuses to convey the
Property to Purchaser in accordance with the terms of this Agreement or otherwise perform its obligations
hereunder, then Purchaser shall have the right to pursue any and all rights and remedies available to it at law
or inequity for Seller's breach, including, without limitation, the right to sue for specific performance.
SECTION 14. ~~aiver. No term, condition or covenant contained in this Agreement shall be
deemed waived by any act, omission or forbearance, or any series of same, by either Purchaser or Seller. The
only waivers that shall be effective under tlus Agreement shall be those which are in writing and signed by
the party to be cha bed. No prior notice of non-waiver need be given by a party who has previously forborne
from exercising a right hereunder.
SECTION 1S. Complete And Exclusive Agreement. Seller and Purchaser agree and understand
that all prior negotiations, representations, understandings and agreements pertaining to the subject matter of
this Agreement and the transactions contemplated herein are merged into and do not sure°ive the execution of
this Agreement. The parties expressly agree that this written Agreement, including exhibits, is the sole,
complete and exclusive statement of the terms of the parties' agreement, and that no other negotiations,
representations, understandings, or agreements exist, except as may appear herein. Furthermore, the parties
agree that this written Agreement, being the sole, complete and exclusive statement of the terms of the
parties' agreement, is exclusive of any course of performance, course of dealing or usage of trade.
SECTION lb. No Joint ~~enture. Nothing in this Agreement shall constitute or be construed to
constitute a joint venture between Purchaser and Seller.
-9-
SECTION 17. No Third Party Beneficiaries. Neither party intends to confer any rights under this
Agreement upon any third party. Standing to enforce this Agreement shall rest exclusively in the parties
hereto.
SECTION 18. Time of Essence. Time is of the essence of this Agreement.
SECTION 19. Headings. The section and paragraph headings in this Agreement are inserted for
comTenience only and are in no way intended to interpret, define, or limit the scope of content of this
Agreement ar any provision hereof.
Closing
SECTION 20. Possession. Seller shall deliver actual possession of the Property to Purchaser at
SECTION 21. Surviving Clauses. The provisions of this Agreement relating to tax and other pro-
rations after Closing and Seller's and Purchaser's respective indemnifications shall survive Closing or any
termination of this Agreement by either party whether as a matter of right ar in breach of this Agreement,
notwithstanding any other provision in this Agreement to the contrary. Except as set forth in the preceding
sentence or as otherwise expressly set forth herein, all other provisions of this Agreement shall not survive
Closing or any termination hereof by either party as a matter of right.
SECTION 22. 1031 Exchange. Notwithstanding any provision to the contrary in this
Agreement, Purchaser acknowledges and agrees that Seller shall have the right, at Closing, to sell the
Property as a part of a transaction intended to qualify as a tax-free exchange under Section 1431 of the
Code (a "Tax-Free Exchange"}. If Seller elects to effect aTax-Free Exchange pursuant to this paragraph,
Purchaser shall execute and deliver such documents as may be required to effect the Tax-Free Exchange
which are in form and substance reasonably acceptable to Purchaser, and otherwise cooperate with Seller
in all reasonable respects to effect the Tax-Free Exchange. Notwithstanding the foregoing, the Tax-Free
Exchange shall not diminish Purchaser's rights, nor increase Purchaser's liabilities or obligations, under
this Agreement. Seller shall pay far all fees, costs and expenses in connection with such Tax-Free
Exchange.
SECTION 23. Governing La~~~ and Jw•isdiction. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws and decisions of the State of North Carolina.
Any action or proceeding brought by any party to construe, interpret ar enforce this Agreement ar any
provision hereof shall be brought in the state or federal courts of North Carolina. Each of the parties to this
Agreement hereby submits and consents to the jurisdiction of such courts.
SECTION 24. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of Seller and Purchaser and their respective successors and assigns, if any.
SECTION 25. Exhibits. The exhibits referred to in and attached to this Agreement are
incorporated herein by this reference.
SECTION 2b. Date of Agreement. As used herein, the term "Date of Agreement" shall mean the
date as of which this Agreement is executed by both Purchaser and Seller as indicated below.
SECTION 27. Counte-•parts. Tlus :agreement may be executed and delivered in several
counterparts, and all such counterparts so delivered and executed shall constitute but one and the same
instrument.
-10-
IN WITNESS WHEREOF, Seller and Purchaser have each caused this Agreement to be executed
by its duly authorized representative{s) as of the day and year indicated below.
SELLER:
Telesis Construction Management, LLC, a North Caralina.
limited liability company
By: (SEAL)
George A. Horton, III, Ivlember/Manager
By: (SEAL)
James W. Parker, Jr., Member/Manager
Date
PURCHASER:
Orange County, North Caralina, a bady politic and
corporate and a political subdivision of the State of North
Carolina
By: (SEAL}
Name:
Title:
Date:
12925101'~,hi'~,082Purchase Agreement- Librai~}~ Buiiduig (05.20.0? ~~i~DB RL Draft #2)
-11-
EXHIBIT A
LEGAL DESCRIPTION
Being all of Lot ,consisting of acres, more or less, as shown on that certain plat of survey
recorded in Plat Book , Pages} ,Orange County Registry, reference to which plat of
survey is hereby made for a more particular description of such Lot.
-12-
EXHIBIT B
BUILDING CONSTRUCTION PL.~NS AND SPECIFICATIONS
-13-
EXHIBIT C
INTERIOR LTPFIT PUNS AND SPECIFICATIONS
ORANGE
COUNTY GENERAL CONDITIONS OF THE CONTRACT FOR CONSTRUCTION --
NORTH CONSTRUCTION MANAGER AT RISK
CAROLINA
Table of Contents
Page
Article 1. Definitions ........................................................................................................................ .................3
Article 2. Correlation, Interpretation and Intent of Contract Documents ......................................... .................6
Article 3. Familiarity with Work, Conditions and Laws .................................................................... .................7
Article 4. Bonds ............................................................................................................................... .................8
Article 5. Insurance and Indemnity ................................................................................................. .................8
Article 6. Other Record Documents and Submittals ....................................................................... ...............16
Article 7. Contractor ........................................................................................................................ ...............17
Article 8. Owner .............................................................................................................................. ...............24
Article 9. Construction Manager ..................................................................................................... ...............25
Article 10. Designer .......................................................................................................................... ...............25
Article 11. Testing and Surveying ..................................................................................................... ...............25
Article 12. Separate Contracts .......................................................................................................... ...............26
Article 13. Contract Time ................................................................................................................. ...............26
Article 14. Changes in the Work ....................................................................................................... ...............29
Article 15. Change of the Contract Price .......................................................................................... ...............31
Article 16. Unforeseen Conditions .................................................................................................... ...............32
Article 17. Correction of Work before Final Payment ....................................................................... ...............33
Article 18. Correction of Work after Substantial Completion; Warranties and Guaranties ............... ...............33
Article 19. CM's Right to Do Work .................................................................................................... ...............34
Article 29. Partial Payments ............................................................................................................. ...............35
Article 21. Final Payment .................................................................................................................. ...............37
Article 22. Contractor, Subcontractor and Supplier Affidavit ............................................................ ...............38
GENERAL CONDITIONS FOR CM AT RISK PROJECT 1 of 43 JUNE 2007 EDITION
Article 23. Assignments and Subcontracts ...................................................................... ................................38
Article 24. Measurements ................................................................................................ ................................38
Article 25. Contractor and Subcontractor Relationships .................................................. ................................38
Article 26. Use of Premises ............................................................................................. ................................39
Article 27. Cutting, Patching and Fitting .......................................................................... ................................39
Article 28. Dispute Resolution ......................................................................................... ................................39
Article 29. Taxes .............................................................................................................. ................................40
Article 39. Operation of Owner's Facilities ....................................................................... ................................43
Article 31. Third Party Beneficiary Clause ....................................................................... ................................41
Article 32. Measurement of Quantities ............................................................................ ................................41
Article 33. Termination by the CM for Cause .................................................................. ................................41
Article 34. Termination or Suspension by the CM for Convenience ................................ ................................41
Article 35. Minority Business Enterprise Program ........................................................... ................................43
Article 36. General ........................................................................................................... ................................43
GENERAL CONDITIONS FOR CM AT RISK PROJECT 2 of 43 JUNE 2007 EDITION
ARTICLE 1. DEFINITIONS
1.1 Agreement - The Construction Agreement, these General Conditions, and any
Supplementary Conditions.
1.2 AIA -The American Institute of Architects.
1.3 ASTM -The American Society for Testing and Materials.
1.4 Beneficial Occupancy -The point at which the Project can be occupied by the Owner for its
intended purpose, upon achievement of Substantial Completion, as defined in paragraph
1.39 of these General Conditions.
1.5 Change Order - A written order to the Contractor signed by the CM, the Owner and the
Designer authorizing an addition, deletion, or revision in the Work and/or an adjustment in
the Contract Price and/or the Contract Time issued after execution of the Construction
Agreement. See paragraph 14.1 of these General Conditions.
1.6 Completion Dates -Those dates identified as the Contractor's Completion Dates in the
Contractor's Construction Schedule, the Master Schedule, or elsewhere in the Contract
Documents.
1.7 Construction Agreement -The document executed by the Contractor and the CM to
formally memorialize their consent to the terms of the Agreement.
1.8 Construction Change Directive - A written order to the Contractor signed by the CM, the
Owner and the Designer directing an addition, deletion, or revision in the Work after
execution of the Construction Agreement, in circumstances when the parties have been
unable to agree on an adjustment to the Contract Price or the Contract Time, but the CM
directs that the Contractor proceed with said Work subject to adjustment of the Contract
Price and/or Contract Time under the procedures described herein.
1.9 Construction Manager -The person or firm designated as the Construction Manager or the
CM in the Contract Documents, or its authorized representatives. The agreement between
the CM and the Owner is referred to herein as the CM Contract or the Construction
Management Contract.
1.1l7 Contractor's Construction Schedule -That schedule described in Article 13 hereof and
identified as the Contractor's Construction Schedule.
1.11 Contract Documents -All of the documents that make up the Agreement, plus the Drawings
and Specifications that describe the scope of the Work, plus allowable Modifications to the
Contract Documents.
1.12 Contract Price -The total monies payable to the Contractor under the Contract Documents
pursuant to paragraph 15.1 of the Agreement.
1.13 Contract Time -The number of calendar days stated in, or computed from, the Contract
Documents for the completion of the Work, or any portion thereof. See, particularly, Article
13 hereof. Time of completion as specified therein is of the essence. The time used and
referred to on the Project will be that time which is observed in Hillsborough, North
Carolina, being Eastern Daylight Savings Time (EDT), Eastern Standard Time (EST), or
other as designated by the Designer.
1.14 Contractor -The Contractor shall be that party identified as such in the Agreement.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 3 of 43 JUNE 2007 EDITION
1.15 Days -Unless otherwise indicated, the term "days" shall mean consecutive calendar days.
1.16 Daylight Hours -The hours or portions of hours between sunrise and sunset local time.
1.17 Designer(s) -The person or firm designated as the Designer in the Contract Documents, or
their authorized representatives. The Designer, as referred to herein, shall mean architect,
landscape architect, and/or engineer. They will be referred to hereinafter as if each were of
the singular number, masculine gender.
1.18 Drawings -The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location, and dimensions of
the Work, and generally including plans, elevations, sections, details, schedules and
diagrams. A list of the Drawings is contained in the Supplemental General Conditions.
1.19 Field Order - A written order issued by the Designer which clarifies or interprets the
Contract Documents or orders minor changes in the Work in accordance with the Contract
Documents. See paragraph 14.3 of these General Conditions.
1.20 Final Completion -The point at which the Contractor has, as determined by the Designer,
completed the Work, with the exception of guaranty and warranty obligations, and becomes
entitled, upon the recommendation of the CM and the Designer and determination by the
Owner, to final payment.
1.21 The words "furnish," "Furnish and install," "install," and "provide" or words with similar
meanings shall be interpreted, unless otherwise stated, to mean furnish and install
complete, in place and ready for service.
1.22 Master Schedule -The CM shall prepare and maintain a Master Schedule for the Project.
The Master Schedule shall specify the proposed start and finish dates for each major
project activity including all design and construction activities. The Master Schedule shall
be included in the bid documents presented to bidders. The Master Schedule shall be
revised and updated to include key activities from the approved Contractor's Construction
Schedule, as described in the Contract Documents, including proposed start and finish
dates.
1.23 Modification - (A) a written amendment to the Contract Documents signed by the CM and
the Contractor and identified therein as such, (B} a Change Order, (C) Construction
Change Directive, or (D} a Field Order. A Modification may only be issued after execution
of the Agreement.
1.24 Notice -The term "notice" or "written notice" as used herein shall mean and include all
written notices, demands, instructions, and claims approvals and disapprovals furnished by
the CM, the Owner or the Designer to obtain compliance with the requirements of the
Contract Documents, as well as all written notices, demands, instructions and claims
furnished by the Contractor as required by the Contract Documents. Where notice is
required under the terms of the Contract Documents, written notice shall always be
required, and oral or "constructive" notice shall be insufficient and ineffective as notice.
Email or other electronic delivery shall be insufficient and ineffective as notice unless
specifically allowed by the Supplementary Conditions or a Modification to the Agreement.
Written notice shall be deemed to have been duly served on the date that it is delivered in
person to the individual or to a member of the firm, to an officer of the corporation for whom
it is intended, to an authorized representative of such individual, firm, or corporation, or on
the date that it is mailed by registered or certified mail, return receipt requested, addressed
to the last business address of such individual, firm, or corporation known to the person
GENERAL CONDITIONS FOR CM AT RISK PROJECT 4 of 43 JUNE 2007 EDITION
giving the notice. Written notice may also be given by facsimile transmission, provided that
proof of delivery is obtained. In the case of delivery in person, such delivery shall not be
effective unless and until a written and signed receipt showing the date and time of delivery
is obtained.
1.25 Notice of Award -The written notice by the CM to the Contractor that the Contractor is the
successful Bidder and that upon compliance with the conditions precedent to be fulfilled by
the Contractor within the time specified, the CM will execute and deliver the Agreement to
the Contractor.
1.26 Notice to Proceed -See paragraph 13.3 of these General Conditions.
1.27 Owner -The Owner is the person designated as such in the Agreement.
1.28 Owner's Authorized Representative - A person, or persons, employed by the Owner and
designated from time to time by written notice to the Contractor to administer the Contract
Documents, and to observe and monitor the Work on behalf of the Owner with authority
and responsibility as herein specified.
1.29 Project -The total construction of which the Work performed under the Contract
Documents may be the whole or a part.
1.3i~ Project Manager -That person designated by the Contractor in accordance with paragraph
7.2 who shall be in general charge of the Work and its performance and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.31 Request For Information (RFI) - A written communication from the Contractor to the CM to
be forwarded to the Designer for any interpretation of, or information needed, required, or
desired under the Contract Documents. The CM reserves the right to determine the
reasonable format and contents required for a RFI. In any RFI, the Contractor shall state a
reasonable date by which a response is necessary in order to avoid delay in progress of
the Work and shall make such request sufficiently in advance of such date as to avoid any
such delay. The CM shall obtain a response in writing to the RFI by the date stated by the
Contractor unless the CM cannot reasonably do so, in which case the CM shall prior to that
date notify the Contractor of the date by which the CM can reasonably respond. The
Contractor shall not be entitled to any additional time for the completion of the Work or any
portion thereof by reason of the failure to timely respond to an RFI if the Contractor has not
submitted the RFI sufficiently in advance to allow the CM and the Designer a reasonable
time within which to respond.
1.32 Request for Payment -The form, in the form of AIA Document G702 {latest edition.) or
other published document approved by the CM, which is to be used by the Contractor in
requesting progress payments and which is to include a Schedule of Values as required by
the Contract Documents and an affidavit of the Contractor that progress payments
theretofore received from the CM on account of the Work have been applied by the
Contractor to discharge in full all the Contractor's obligations incurred in connection with
Work covered by all prior applications for payment. See paragraph 2a.2 of these General
Conditions.
1.33 Resident Superintendent -That person designated by the Contractor in accordance with
paragraph 7.2 who has day-to-day responsibility for the prosecution of the Work and the
obtaining of proper materials and equipment, and adequate labor and who shall have the
authority set forth in the last sentence of paragraph 7.2.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 5 of 43 JUNE 2007 EDITION
1.34 Schedule of Values -Any breakdown of the Contract Price which may be required by the
Contract Documents, and designated as such. See paragraph 20.1 of these General
Conditions.
1.35 Specifications -That portion of the Contract Documents consisting generally of the written
requirements for materials, equipment, construction systems, standards, and workmanship
for the Work and performance of related services.
1.36 Subcontractor - A person, firm, or corporation who has entered into a direct contract with
the Contractor to perform any of the Work at the Project.
1.37 Submittal -Shop drawings, product data, samples, and other documents required by the
Contract Documents to be submitted by the Contractor to the CM and the Designer.
1.38 Submittal Register -See paragraph 13.2 of these General Conditions.
1.39 Substantial Completion -The point at which the Work, and Work by other Contractors on or
in connection with the Project, as determined by the Designer, is sufficiently complete in
accordance with the Contract Documents that it can be beneficially occupied by the Owner,
and the Work can be utilized by the Owner for its intended use, and all necessary permits
and permissions for Beneficial Occupancy and utilization having been obtained by the
Contractor. All operations and maintenance manuals, Owner training, and as-built
drawings must be submitted prior to Substantial Completion being achieved.
1.40 Sub-subcontractor - A person or entity that has a direct or indirect contract with a
Subcontractor to perform any of the Work at the Project.
1.41 Work -The construction and services required by the Contract Documents, including all
labor, materials, equipment, and services provided or to be provided by the Contractor to
fulfill the Contractor's obligations.
1.42 All references in the Contract Documents to the masculine shall be interpreted as including
the feminine or neuter and all references in the Contract Documents to the singular or the
plural shall be interpreted as including the other, as may be appropriate in the reasonable
interpretation of the Contract Documents.
ARTICLE 2. CORRELATION, INTERPRETATION AND INTENT OF CONTRACT DOCUMENTS
2.1 It is the intent of the Specifications and Drawings and other Contract Documents to
describe a complete Project in accordance with the Contract Documents.
2.2 The Contract Documents are complementary; what is called for by one is as binding as if
called for by all. If the Contractor finds a conflict, error or discrepancy in the Contract
Documents, the Contractor shall notify the CM in writing before proceeding with the Work
affected thereby. In resolving such conflicts, errors and discrepancies, the Contract
Documents shall be given preference in the following order: Construction Agreement,
Modifications, Addenda, Supplemental Conditions, General Conditions, Specifications, and
Drawings. Figure dimensions on Drawings shall govern over scale dimensions, and
detailed Drawings shall govern over general Drawings. Any Work that may reasonably be
inferred from the Contract Documents as being required to produce the intended result
shall be supplied whether or not it is specifically called for. Work, materials or equipment
described in words which, so applied, have a well known technical trade meaning shall be
deemed to refer to such meaning and to incorporate any recognized standards which are a
part of such meaning.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 6 of 43 JUNE 2007 EDITION
2.3 Miscellaneous items, accessories and work which are not specifically mentioned, but which
are essential to produce a complete and properly operating installation, or useable
structure or plant providing the indicated function shall be furnished and installed without
change in the Contract Price. Such miscellaneous items and accessories shall be of the
same quality standards, including material, style, finish, strength, class, weight and other
applicable characteristics, as specified for the major component of which the miscellaneous
item or accessory is an essential part, and shall be approved by the Designer before
installation. This requirement is not intended to include major components not covered by
or inferable from the Contract Documents.
2.4 The Work of all trades under the Contract Documents shall be coordinated by the
Contractor in such a manner as to obtain the best workmanship possible for the Work and
all components of the Work shall be installed or erected in accordance with the best
practices of the particular trade.
2.5 The Contractor shall fully complete the Work and shall be responsible for all of the Work
under the Contract Documents to which the Construction Agreement applies. If the
Contractor is prevented from doing so by any limitation of the Contract Documents, the
Contractor shall immediately give notice thereof to the CM in writing before proceeding with
the construction in the area where the problem or limitation exists.
2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest
revision or printing unless otherwise stated and is intended to establish the minimum
requirements acceptable.
2.7 For those materials specified without the use of brand names, the Contractor shall submit
to the CM within thirty (30) days after its receiving the Construction Agreement for
signatures, any product that meets the express requirements of the Specifications, unless a
longer time is agreed to in the Master Schedule.
Such Submittal shall include manufacturer's data, test reports, pertormance data and
certifications, samples, erection details, and other applicable information as required to
permit determination by the Designer whether such proposed products are suitable. The
Designer shall be the sole judge as to the suitability of any proposed product. The burden
of proof of quality rests with the Contractor.
2.8 The Contractor is required to examine and read the complete set of Drawings and
Specifications for the Project for information concerning the Work, because some of the
Work for which the Contractor will be responsible may be indicated on or in documentation
applying primarily to the Work of one or more other separate prime contractors. No
allowance will be made for the Contractor's failure to become familiar with the complete set
of Project Drawings and Specifications.
2.9 Contractor's requests for clarification or information shall clearly define the cause(s) of the
Contractor's request and, as appropriate, shall include the Contractor's interpretation and
the Contractor's proposed solution.
ARTICLE 3. FAMILIARITY WITH WORK, CONDITIONS AND LAWS
3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting
the Work, including but nat restricted to those bearing upon transportation, disposal,
handling and storage of materials, availability of labor, water, electrical power, roads and
uncertainties of weather, or similar physical conditions at the Project site, and the character
of equipment and facilities needed prior to and during prosecution of the Work. The
GENERAL CONDITIONS FOR CM AT RISK PROJECT 7 of 43 JUNE 2007 EDITION
Contractor is satisfied as to the character, quality and quantity of surface and subsurface
materials or obstacles to be encountered insofar as this information is reasonably
ascertainable from inspection of the Project site, including all exploratory work done by the
Owner, as well as from information presented by the Contract Documents, or any other
information made available to the Contractor prior to receipt of bids. Any failure by the
Contractor to become acquainted with the available information shall not relieve the
Contractor from the responsibility for estimating properly the difficulty or cost of successfully
performing the Work.
3.2 The Contractor shall be entitled to rely upon all information furnished to the Contractor in
writing by the CM with respect to the Project site and to make all inferences from it that
would reasonably be made by a contractor having knowledge and experience with similar
work; however, the Contractor shall not be entitled to infer from CM-supplied information
any fact or condition which would not be inferred by a contractor having knowledge and
experience with similar work and, if the CM-supplied information is inadequate or
insufficient in any respect, the Contractor shall be required to obtain independently such
other information as a knowledgeable and experienced contractor would prudently obtain in
order to evaluate any such condition.
3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws,
ordinances, rules, and regulations which may in any manner affect those engaged or
employed in the Work, or the materials or equipment in or about the Work, or in any way
affect the conduct of the Work and agrees that the Contractor and the Contractor's
employees, Subcontractors, and suppliers will, at all times, comply with same. If the
Contractor shall discover any provisions in the Contract Documents which are contrary to
or inconsistent with any such law, ordinance, rule, or regulation, the Contractor shall
immediately give notice thereof to the CM in writing, identifying any items of Work affected,
and the Contractor shall not proceed until the Contractor has received written direction from
the CM with respect to these items. If the Contractor performs contrary to or inconsistently
with any such law, ordinance, rule, or regulation without giving such notice, the Contractor
shall bear all costs which are a consequence of such performance.
3.4 At times selected by the CM after execution by the Contractor of the Construction
Agreement, a pre-construction conference shall be scheduled and conducted for the
benefit of the Project.
ARTICLE 4. BONDS
4.1 A performance bond in the full amount of the Contract Price, and subject to changes in the
Contract Price, may be required of the Contractor to guarantee the faithful performance of
the Work in compliance with the Contract Documents, in such form as may be required by
law and approved by the Owner. If required, the bond shall be dated the same date as the
Construction Agreement and must be accompanied by a current copy of the power of
attorney for the attorney-in-fact executing such bond on behalf of a surety company
licensed to do business in the state of North Carolina.
4.2 A payment bond in the full amount of the Contract Price, and subject to changes in the
Contract Price, may be required of the Contractor to guarantee the payment of all labor and
material costs or claims in connection with compliance with the Contract. If required, the
payment bond shall be in such form as may be required by law and approved by the
Owner. Said bond shall be dated and executed in the same manner as the performance
bond in paragraph 4.1.
ARTICLE 5. INSURANCE AND INDEMNITY
GENERAL CONDITIONS FOR CM AT RISK PROJECT 8 of 43 JUNE 2~~/ EDITION
5.1 CONTRACTOR PROVIDED INSURANCE
The Contractor shall, without limiting its obligations or liabilities, procure, pay for and
maintain such insurance as is required by law and as is required by this Agreement to
protect the Contractor, the CM, the Owner and the Designer from claims far damages for
bodily injury, including death, and from claims for property damage which may arise from
the Contractor's or its representatives', consultants', Subcontractors', agents', or
employees' operations under this Agreement. Such insurance shall be of the kinds and
have limits of liability and coverages not less than the minimum limits hereinafter specified
or required by law, whichever is greater. The CM makes no representation as to the
adequacy or sufficiency of such coverages. The following requirements shall in no way be
construed to limit or eliminate the liability of the Contractor, which arises from performance
of Work under the Agreement. The Contractor is strictly responsible for any losses, claims,
and costs of any kind which exceed the Contractor's limits of liability, or which may be
outside the coverage scope of the policies.
The insurance specified shall be provided by an insurer approved by the CM, authorized to
do such business in the State of North Carolina, and on terms approved by the CM.
Insurance companies utilized shall have a minimum rating of A- and Class VII as evaluated
by the most current A. M. Best Rating Guide. If the insurer has a Best Rating less than A-
and Class VII, the Contractor must receive specific written approval from the CM prior to
proceeding with any Work under the Agreement. All agents and brokers shall hold valid
licenses from the State of North Carolina. The Contractor shall furnish to the CM a
certificate or certificates of insurance in a form satisfactory to the CM contemporaneously
with the executed Construction Agreement. Upon request of the CM, the Contractor shall
provide the CM with certified copies of the insurance policies required by this Article,
including without limitation declaration pages, conditions, exclusions and endorsements,
and confirmation that each policy premium has been paid for the required term of this
Agreement. Certificates of insurance shall be signed by a person authorized by that
insurer to bind coverage on its behalf. All insurance policies shall provide, as evidenced by
Certificates of Insurance, that the insurance shall not be canceled, reduced, restricted, or
changed in any way without at least thirty (30} days prior written notice to the CM and the
Owner. With regard to expiration, cancellation, reduction, restriction, or any other change,
certificates shall state: "Should any of the following described policies be canceled before
expiration date or be due to expire within thirty (30) days, the insurer shall mail thirty
(30} days prior written notice to named certificate holder." In the event of any such
cancellation, non-renewal, reduction, restriction, or change in any insurance, the Contractor
is obligated to replace such insurance within seven (7) days without a gap in coverage and
file accordingly such notice with the CM and the Owner, and other interested parties.
Failing immediate receipt of evidence of such replacement of insurance, the CM reserves
the right to procure such insurance as the CM considers desirable and the Contractor shall
pay or reimburse the cost of the premium in respect thereof. It is expressly provided,
however, that any action or inaction on the part of the CM in this respect shall in no way
change or reduce the Contractor's responsibilities and liabilities under this Agreement.
Self-funded, policy fronting, or other non-risk transfer insurance mechanisms are not
acceptable without prior written approval of the CM. Full disclosure of such a program
must be made prior to commencing mobilization to the Project site. Failure to make a full
disclosure constitutes a material breach of the Agreement, justifying termination for default.
The Contractor shall name the CM, the Owner, the Designer and their respective
consultants as additional insureds under all its insurance contracts (except workers'
compensation) with respect to and including without limitation liability arising out of
activities performed by or on behalf of the Contractor, products and completed operations
of the Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 9 of 43 JUNE 2001 EDITION
The coverage shall contain no special limitations on the scope of protection afforded to
additional insureds.
For any claims related to this Project, the Contractor's insurance or self-insurance shall be
primary and noncontributory with respect to the CM, Owner or Designer insurance. Any
insurance or self-insurance maintained by the CM, the Owner or the Designer shall be
excess and noncontributory with respect to the Contractor's insurance.
All policies of insurance except as noted in paragraph 5.2 shall contain a clause waiving
rights of subrogation against the CM, the Owner and the Designer, unless the CM
approves otherwise in writing.
Limits of coverage are not to be amended by deductible clauses of any nature without the
express written consent of the CM. The Contractor shall be solely responsible for any
deductible assumptions that may exist in any insurance policies required under this
Agreement. In addition, the Contractor shall be responsible and shall not be reimbursed far
any losses arising from any risk or exposure not insured as required herein, or not covered
as a result of a normal policy exclusion or that falls within the self insured retention, if
Contractor is self insured.
The Contractor's insurance shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability.
The claim provisions in the Contractor's insurance policies must specifically state the
insurance company or Contractor's third party administrator, if self insured, has both the
right and duty to adjust a claim and provide defense.
The policies shall not contain any provision or definition which would serve to exclude or
eliminate from coverage third party claims, including exclusions of claims for bodily or other
injury to shareholders, partners, officers, directors, or employees of the insured, the
premises owner, real estate manager, or the insured's Subcontractor, or any family relative
of such persons.
If the policies contain any warranty stating that coverage is null and void (or words to that
effect) if the Contractor does not comply with the most stringent regulations governing the
Work, it shall be modified so that coverage shall be afforded in all cases except for the
Contractor's willful or intentional noncompliance with applicable government regulations.
Any failure by any person to comply with reporting or other provisions of the policy
including breach of warranties, shall not affect coverage provided to the CM and the Owner
and their respective representatives, officials, and employees.
The insolvency or bankruptcy of the Insured or of the Insured's estate shall not relieve the
insurance companies of their obligations under these policies. Any clauses to the contrary
are unacceptable and must be stricken.
Failure to comply with these requirements shall be a material breach of this Agreement
justifying termination for default.
5.1.1 Worker's Compensation and Employers' Liability Insurance
The Contractor and its Subcontractors shall procure and maintain Workers' Compensation
Insurance in the amount and type required by the State of North Carolina and federal law
far all employees employed under the Agreement who may come within the protection of
Workers' Compensation Laws and covering all operations under the Agreement whether
GENERAL CONDITIONS FOR CM AT RISK PROJECT 10 of 43 JUNE 2007 EDITION
performed by the Contractor or by its Subcontractors. In jurisdictions not providing
complete Workers' Compensation protection, the Contractor and its Subcontractors shall
maintain employers' liability insurance in an amount, form, company, and agency
satisfactory to the State of North Carolina and the CM for the benefit of all employees not
protected by Workers' Compensation Laws and covering all operations under the
Agreement whether performed by the Contractor or by its Subcontractors.
The Contractor shall pay such assessments as will protect the Contractor and the CM from
claims under the Workers' Compensation Laws, workers' or workmen's compensation
disability benefits, and other similar employee benefit acts. The current Experience
Modification Factor shall be indicated on the Certificate of Insurance.
Coverage under this section shall be as required by federal and state Workers'
Compensation and Occupational Disease Statutes, and shall have minimum limits as
follows:
Coverage A: Statutory, State of North Carolina
Employers' Liability: Each Accident $1,000,000
Disease -Policy Limit $1,OOD,000
Disease -Each Employee $1,OOD,000
Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation
in favor of the CM as well as other endorsements that may be required by applicable
jurisdictions, i.e. United States Longshoremen and Harbor Workers Act and maritime
coverage {Jones Act}.
5.1.2 Automobile Liability Insurance
The Contractor shall procure and maintain automobile insurance against liability for bodily
injury and property damage as described below, that may arise with respect to the Work
being performed under the Agreement, and as will provide protection from claims which
may arise out of or result from the Contractor's performance of the Work and the
Contractor's other obligations under the Agreement, whether such performance of the Work
is by the Contractor, by any representative or Subcontractor, by anyone, both officially and
personally, directly or indirectly employed by any of them, or by anyone for whose acts any
of them may be liable.
This policy of insurance shall carry the following minimum Limit of Liability:
Combined Single Limit
$1, 000, 000
The policy of insurance shall contain or be endorsed to include the following:
a) owned, hired, and non-owned automobile liability.
b) If the policy contains a warranty stating that coverage is null and void {or words to
that effect) if the transporter does not comply with the most stringent regulations
governing the Work, it shall be modified so that coverage shall be afforded in all
cases except for the transporter's willful or intentional noncompliance with applicable
government regulations.
Any failure by any party to comply with reporting or other provisions of the policy including
breach of warranties, shall not affect coverage provided to the CM, the Owner, and their
respective representatives, officials, and employees.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 11 of 43 JUNE 2007 EDITION
No subcontracting of waste hauling shall be permitted without prior, written approval of the
CM.
5.1.3 General Liability
This policy must be written on an Occurrence basis, with the following minimum Limits of
Liability:
General Aggregate per project $2,000,000.00
Products/Completed Operations Aggregate $2,000,000.00
Bodily Injury and Property Damage csl/each occurrence $1,000,000.00
Personal Injury and Advertising Injury $2,000,000.00
The policy of insurance shall contain or be endorsed to include the following:
a) Blanket Contractual Liability covering Contractor's indemnification obligations
under this Agreement, in accordance with ISO policy form CG 00 01. Modifications
to the standard provision will not be acceptable if they serve to reduce coverage.
b) PremiseslOperations Liability.
c) Explosion, collapse, and underground fault.
d) Independent Contractors and Independent Subcontractors coverage.
e) Broad Form Property Damage.
f} Personallnjury.
g) Cross Liability/Severability of Interest clause.
h) Employer's Stop-Gap Liability endorsement, if applicable.
i) Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily
injury or property damage caused by heat, smoke, or fumes from a hostile fire.
j} Designated General Aggregate Limit Endorsement if required by the
Supplementary Conditions.
k) For contractors with design responsibility, endorsement CG22 86 and DIC for
contractors' professional is requested.
Coverage shall remain continuously in effect and without interruption for at least six (6)
years from the date of the Notice of Award and shall include coverage for exposures arising
from operations that have been completed. The Contractor shall furnish the CM and each
other additional insured listed in the Agreement to whom the Certificates have been issued,
evidence satisfactory to the CM of continuation of such insurance at the date of Substantial
Completion and each year thereafter.
5.1.4 Pollution Legal Liability (PLL}
Pollution Legal Liability coverage will be provided if required by the Supplementary
Conditions.
5.1.5 Professional Liability
GENERAL CONDITIONS FOR CM AT RISK PROJECT 12 of 43 JUNE 2007 EDITION
Policies for professional liability must be provided by the Contractor or its independent
design professional if the Contractor is required to provide any professional design services
under the Contract Documents. Alternatively, compliance with paragraph 5.1.3 (k) is
acceptable. The limits of coverage required for professional liability shall be included in the
Contract Documents, and will be subject to approval by the CM, taking into account among
any other reasonable factors the risks insured against, the cost of the insurance, and the
professionals providing the insurance.
5.1.6 Claims
The Contractor shall notify the CM within twenty-four (24) hours of any claims or alleged
claims received by the Contractor covered by any of the policies of insurance required of
Contractor in this Agreement. The Contractor shall provide a written copy of the claim or
alleged claim to the CM within three (3} days of the Contractor's receipt of the claim or
alleged claim. If a claim is settled to the satisfaction of the claimant, the Contractor shall
submit a copy of the claimant's release to the CM.
If a claim or alleged claim is rejected by the Contractor and/or its insurance company, the
Contractor shall immediately report this fact to the CM.
Should thirty (30} days elapse after the claim or alleged claim has been received by the
Contractor, and the Contractor is not able to report a settlement or rejection of the claim, it
shall report to the CM the steps being taken with respect to the claim.
Without limiting the foregoing, the Contractor shall notify the CM in writing of any paid or
incurred claims which may impair annual aggregate or general liability.
5.1.7 Deductibles and Self-insured Retentions
Any deductibles orself-insured retentions must be declared to and approved by the CM. At
the option of the CM, either: the insurer shall reduce to a maximum of $250,000 or
eliminate such deductibles or self-insured retentions with respect to the CM, or the
Contractor shall provide evidence of collateral provided to insurers or procure a bond
guaranteeing payment of losses and related investigations, claim administration, and
defense expenses within the deductible or self-insured retention amount. Any self-insured
retention or deductible amount on the policy shall not reduce the amount of collectible limits
or liability.
5.1.8 Subcontractors
The Contractor shall include all Subcontractors as Insureds under its policies, or shall
furnish separate certificates, policies, and endorsements for each Subcontractor the
Contractor intends to use. If a Subcontractor does not take out insurance in its own name
and the Contractor wishes to provide insurance protection for such Subcontractor and such
Subcontractor's employees, the Contractor shall either (a) procure appropriate policies in
the name of the Subcontractor, or (b) cause a rider or riders to be attached to the
Contractor's policies which shall identify the Subcontractor thereby covered; provided,
however, in the case of the latter option, such a rider need not be attached to the
Contractor's workers' compensation policy if such policy by its terms is sufficiently broad to
cover the employees of all Subcontractors performing Work under the Contract Documents.
Except as otherwise approved by the CM in writing, Limits of Liability and coverage scope
must be at a minimum as stringent as required of the Contractor by the Contract
Documents. All Work performed for the Contractor by any Subcontractor shall be pursuant
to an appropriate agreement between the Contractor and the Subcontractor which shall
GENERAL CONDITIONS FOR CM AT RISK PROJECT 13 of 43 JUNE 2007 EDITION
contain provisions that waive all rights the contracting parties may have against one
another for damages caused by fire or other perils covered by insurance as provided
herein. Insurance monies received from any loss shall be divided as the respective interest
of the parties affected shall appear.
5.2 PROPERTY INSURANCE
The CM shall be responsible for purchasing and maintaining insurance to protect the
Project from perils of physical loss. The insurance shall provide for the cost of replacement
for the Work at the time of any loss. The insurance shall include as named insureds the
Owner, the CM, the Contractors and their Subcontractors and shall insure against the loss
from the perils of fire and all risk coverage for physical lass or damage due to theft,
vandalism, collapse, malicious mischief, transit, flood, earthquake, testing, damages
resulting from defective design, negligent workmanship or defective material. The CM shall
increase the coverage limits as necessary to reflect changes in the estimated replacement
cost of the Project.
The CM shall provide the Contractor, if requested, with copies of all policies thus obtained
for the Project. The CM shall provide the Contractor with thirty (30} days notice of
cancellation, non-renewal or endorsement reducing or restricting coverage.
The Contractor and the CM waive all rights against each other and against the other
separate contractors, the Owner, and their respective consultants, agents and employees
for damages occurring during construction and covered by builder's risk and any property
insurance required for this Project excluding Owners' Property insurance. The Contractor
and the CM shall each require appropriate similar waivers from the Owner, the other
separate contractors, their Subcontractors, and their consultants and agents. This waiver
does not apply to design liability.
The Contractor is responsible for all physical damage to awned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor andlor
Subcontractors} in the performance of the Work. The insurance coverage evidencing such
shall include a waiver of subrogation in favor of the CM, the Owner and the Designer and
their respective consultants and agents.
The Contractor shall provide valuable papers and records insurance with coverage in an
amount commensurate with project scope as set forth in the Supplementary General
Conditions.
If the Project includes as addition to or is adjacent to an existing structure, the CM, the
separate Contractors and the Subcontractors shall be named as additional insureds for the
Owner's property insurance covering such structure and its contents.
If the Owner occupies or uses a part or parts of the Project prior to Substantial Completion
thereof, such occupancy shall not occur until the Owner obtains property insurance far the
structure and until all insurance companies providing insurance far the Project consent to
such occupancy by endorsement to the insurance policies.
5.3 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE
In the event the Owner elects to purchase project-specific insurance affording coverage to
the Contractor and Subcontractors, the terms and conditions of such coverage shall be set
forth in the Supplementary Conditions.
5.4 CONTRACTOR AS JOINT VENTURE
GENERAL CONDITIONS FOR CM AT RISK PROJECT 14 of 43 JUNE 2007 EDITION
If the Contractor is completing this Project on a joint venture basis, both joint venture
partners retain all liabilities assumed by this Agreement, individually and collectively. This
may include, but is not limited to, all premiums due, deductibles/self-insured retentions,
coinsurance provisions, claim provisions, insurance policy conditions, and indemnification
provisions hereunder.
Evidence of a Blanket Joint Venture Endorsement must be obtained from the General
Liability and Contractor's Pollution Legal Liability carriers of each joint venture partner
substantially as follows:
With respect to "your work'; and the 'products-completed operations hazard'; you are an
insured for your liability arising out of the conduct of any partnership or joint venture of
which you were a partner or member, even though this partnership or joint venture is not
shaven as a Named lnsured in the Declarations. This coverage is excess over any
available liability purchased specifically to insure the partnership or joint venture. This
coverage veil! not inure to the benefit of any other party except you. "
5.5 INDEMNIFICATION
The Contractor, to the fullest extent not expressly prohibited by law, shall defend,
indemnify, and save harmless the CM, the Owner, the Designer, and their respective
officials, officers, employees, and agents from and against any and all liabilities
(foreseeable or unforeseeable), penalties, fines, forfeitures, demands, claims, causes of
actions, suits, judgments, and costs and expenses incidental thereto, (including, without
limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable
attorneys' fees), which any or all of them may hereafter suffer, incur, be responsible for, or
pay out as a result of but not limited to:
a) bodily injury (including sickness, disease, or death) to any person including, but not
limited to, the Contractor's employees or its representatives while on the site of the
Project; or
b) actual or alleged damage (including loss of use) to any property (public or private,
including the Project or other property on the Project site); or
c) contamination of or adverse effects on the environment arising directly or indirectly out
of or in connection with the performance of the Work, including but not limited to any
hazardous or toxic waste, substance, or constituent of any substance subject to
regulation under CERCLA, RCRA, TSCA, and other Federal and state authorities that
is spilled, released, threatening to release, or disposed of or destroyed by the
Contractor or its Subcontractors on or off the site of the Project or while in transport to
or from the site; or
d) any violation or alleged violation of laws and regulations, arising out of or in any way
connected with the Work,
caused in whole or in part by the Contractor, any Subcontractor or supplier or any
representatives of the Contractor. The Contractor shall not be required to indemnify any
person against losses resulting from a breach of contract or resulting from negligence,
misconduct or violation of laws on the part of any person indemnified hereunder.
The Contractor further agrees to obtain, maintain, and pay for such liability insurance
coverages and endorsements as will insure the provisions of this paragraph 5.4.
Furthermore, the Contractor agrees to be liable for and to indemnify and reimburse the CM
and the Owner for all legal fees and disbursements paid or incurred to enforce the
GENERAL CONDITIONS FOR CM AT RISK PROJECT 15 of 43 JUNE 2007 EDITION
provisions of this paragraph 5.4. The indemnification obligations under this paragraph 5.4
shall not be limited in any way by the amount or type of damages, compensation or
benefits payable under worker's compensation acts, disability benefit acts, other
employment benefit acts, or the amount of insurance carried or recovered.
The CM acknowledges that hazardous or toxic waste, material, chemicals, compounds or
substances, or other environmental hazards, contamination or pollution, (referred to
hereinafter as "environmental hazards") may be present at the Project site that were not
created, generated, or released at the Project site by the Contractor or its Subcontractors,
agents or employees, acting alone or in concert with others. Unless the remediation,
abatement or handling of such environmental hazards is part of the scope of the Work
under this Agreement, then upon the discovery of such environmental hazards, the
Contractor shall immediately, and in no event more than three days after such discovery,
give notice to the CM of the environmental hazards before they are disturbed. The CM, the
Owner and the Designer shall thereupon promptly investigate the environmental hazards,
and make such changes in the Drawings and/or Specifications as they may find necessary
to abate, remediate, isolate or handle the environmental hazards. Any increase or
decrease in the Contract Price or the Contract Time resulting from such changes shall be
adjusted in the manner provided herein for adjustments as to extra and/or additional Work
and changes. It is agreed that the Contractor shall have no liability under this Agreement
for any environmental hazards existing at, on or in the Project site prior to the date that
Work commences under this Agreement unless the Contractor or its Subcontractors,
agents or employees, acting alone or in concert with others, by their own negligence or
misconduct, release or expose the Owner or third parties to the environmental hazards.
The provisions of this paragraph 5.4 shall survive the termination or cancellation or
completion of this Agreement.
ARTICLE 6. OTHER RECORD DOCUMENTS AND SUBMITTALS
6.1 The CM shall furnish to the Contractor the number of copies of Drawings and Specifications
stated in the Supplementary Conditions. Additional copies of Drawings and Specifications
may be obtained at the cost of reproduction and handling.
6.2 The Contractor shall submit to the CM for fonrvarding to the Designer all Submittals required
by the Contract Documents. The Contractor shall submit four (4) reproducible prints of all
shop drawings plus the number of copies sufficient for its requirements. The Contractor
shall submit samples in quantities required by the Contract Documents. The Contractor
shall submit product data in five (5) copies, plus the number of copies sufficient for the
Contractor's requirements. All shop drawings shall be reviewed by the Contractor and shall
bear the Contractor's stamp of approval before being forwarded to the CM and the
Designer. Submittals shall be submitted in such time as to cause no delay to the Work or
any part thereof and in accordance with the Contractor's Construction Schedule and
Submittal Register. The CM shall review and process the submittal with reasonable
promptness, noting desired corrections, if any. The CM shall retain three (3) copies of the
submittal and shall return the balance of the reviewed submittal to the Contractor for action.
The Contractor shall furnish any corrected submittal to the CM for forwarding to the
Designer. The CM shall retain three {3) copies of the corrected submittal for the records of
the CM and the Designer, and will return the balance of the reviewed submittal to the
Contractor.
Subject to paragraph 6.3 herein, no substitutions will be accepted after the bids have been
received. All substitutions prior to the receipt of bids shall be in accordance with the
Contract Documents.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 16 of 43 JUNE 2007 EDITION
The Contractor acknowledges that the processing of shop drawings and other submittals is
directly impacted by the clarity, completeness, and accuracy of said documents and that it
is the Contractor's responsibility to (i} review and coordinate each submittal with all other
related or affected Work and (ii} approve each submittal before submitting same to the CM
far approval.
6.3 No substitutions and no deviations from any requirement of the Contract Documents shall
be deemed allowed unless the Contractor has specifically informed the CM in writing of
such deviations at the time of submittal and the Designer and the Owner have given written
and specific approval to the substitutions or deviations. In proposing a deviation or
substitution, the Contractor warrants to the CM, notwithstanding any review, allowance or
approval by the Designer or the Owner, that the deviation or substitution is at least equal to
or better in quality and for the purpose intended, and that the Contractor shall not by
reason of any such review, allowance or approval be relieved from any obligation or
responsibility contained in the Contract Documents.
6.4 Review of submittals by the CM and the Designer shall not be construed as relieving the
Contractor from responsibility for compliance with terms or designs of the Contract
Documents nor from responsibility for errors of any sort in the submittal.
6.5 The Contractor shall keep one record copy marked "As-Built" of all Specifications,
Drawings, Addenda, Modifications, and Submittals at the Project in good order and
annotated at least monthly to show all changes made during the construction process.
Such monthly annotations and their approval by the CM shall be a condition precedent to
approval by the CM of each monthly Request for Payment. Said record copy shall be
stored at the Project and fully protected from damage by fire or other hazard. This record
copy shall be available to the CM, the Designer and the Owner for inspection at all times.
The complete record copy shall be delivered to the CM for review and transmittal to the
Designer for the Owner's purposes prior to the Designer's certifying Substantial Completion
of the Work.
6.6 At completion of the Project and before Final Payment, the Contractor shall assemble and
deliver to the CM one complete set of all as-built drawings and one complete set of all
approved submittals, product data, and samples which were reviewed by the Designer.
These drawings and submittals shall be on paper, or in electronic or other media if required
by the Supplementary Conditions. These drawings and submittals shall be categorized
and packaged as directed by the Designer.
ARTICLE 7. CONTRACTOR
7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as may be set forth specifically in the Contract Documents, the
Contractor shall be solely responsible for the means, methods, techniques, sequences, and
procedures of construction, and for safety precautions and programs in connection with the
Work. The Contractor shall be responsible to see that the finished Work complies
accurately with the Contract Documents.
7.2 The Contractor shall appoint a competent Project Manager with general authority to
manage the Project for the Contractor. The Contractor also shall keep on the Project at all
times during the Work of the Contractor a competent Resident Superintendent and
necessary assistants who shall not be replaced without prior written approval by the CM
except under extraordinary circumstances, in which event immediate written notice shall be
given to the CM. If approved by the CM, taking into account the scope and complexity of
the Work of the Contractor, the Project Manager and the Resident Superintendent may be
GENERAL CONDITIONS FOR CM AT RISK PROJECT 1 l of 43 JUNE 2007 EDITION
the same person. At any time, the CM, in its sole and absolute discretion, may require the
Contractor to replace the Project Manager or Resident Superintendent with an experienced
and competent person or persons upon seven (7) days written notice from the CM to the
Contractor. Such replacement shall be at the Contractor's expense and at no cost to the
CM.
Both the Project Manager and the Resident Superintendent shall have authority to act on
behalf of the Contractor, and instructions, directions or notices given to either of them shall
be as binding as if given to the Contractor.
7.3 The Contractor shall provide sufficient competent and suitably qualified personnel,
equipment, and supplies to lay out the Work and perform construction as required by the
Contract Documents. The Contractor will at all times maintain good discipline and order at
the site, and will comply with all applicable OSHA standards.
Any person employed by the Contractor, by any Subcontractor, or by any sub-
subcontractor who, in the opinion of the CM, the Designer or the Owner, does not perform
its Work in a proper and skillful manner or is intemperate or disorderly shall, at the written
request of the CM, be removed forthwith by the Contractor, Subcontractor, or sub-
subcontractor employing such person without cost to the CM, and shall not be employed
again in any portion of the Work without the prior written approval of the CM.
Should the Contractor fail to remove such person or persons or fail to furnish suitable and
sufficient personnel for the proper prosecution of the Work within three (3) days after
written order, the CM may withhold further payment by written notice until compliance with
such order.
7.4 If, in the opinion of the CM, the Designer or the Owner, any Subcontractor on the Project is
incompetent or otherwise unsatisfactory, such Subcontractor shall be replaced by the
Contractor with no increase in the Contract Price if and when directed by the CM in writing.
7.5 The Contractor shall furnish all materials, equipment, labor, transportation, construction
equipment and machinery, tools appliances, fuel, light, heat, and all other facilities and
incidentals necessary for the execution, maintenance, initial operation, and completion of
the Work, other than those specifically excluded by the Contract Documents and to be
furnished by the CM or others. When use or storage of hazardous materials or equipment
or methods of more than ordinary risk are necessary in accomplishing the Work, the
Contractor shall give the CM reasonable advance notice.
If any materials are to be furnished or installed by the CM or others under the terms of the
Contract Documents, said materials shall be made available to the Contractor at the
location(s) specified in the Contract Documents. All costs of handling, transportation from
the specified location to the Project, storage, and installing of materials furnished by others
shall be included in the Contract Price. The Contractor shall be responsible for any
demurrage, damage, loss, or other deficiencies which may occur during the Contractor's
handling, storage, or use of material furnished by others. The CM shall deduct from any
monies due or to become due the Contractor any cost incurred by the CM in making good
any such damage, loss, or deficiency.
All equipment which is proposed to be used in the Work shall be of sufficient size and in
such mechanical condition as to meet the requirements of the Work and produce a
satisfactory quality of work. Equipment used on any portion of the Work shall be such that
no injury to previously completed Work, adjacent property, or existing facilities shall result
from its use.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 18 of 43 JUNE 2007 EDITION
When the methods and equipment to be used by the Contractor accomplishing the Work
are not prescribed in the Contract Documents, the Contractor shall be free to use any
methods or equipment that will accomplish the Work in conformity with the requirements of
the Contract Documents.
When the Contract Documents specify the use of certain methods and equipment, such
methods and equipment shall be used unless others are authorized in writing by the CM. If
the Contractor desires to use a method or type of equipment other than that specified in the
Contract Documents, the Contractor may request authority from the CM to do so. The
request shall be in writing and shall include a full description of the methods and equipment
proposed and of the reasons far desiring to make the change. If approval is given, it shall
be on the condition that the Contractor shall be fully responsible for producing Work in
conformity with the requirements of the Contract Documents. If, after trial use of the
substituted methods or equipment, the CM or the Designer determines that the Work
produced does not meet the requirements of the Contract Documents, the Contractor shall
discontinue the use of the substitute method or equipment and shall complete the
remaining Work with the specified methods and equipment at no additional cost to the
Owner. The Contractor shall remove any deficient Work and replace it with Work of
specified quality, or take such other corrective action as the CM may direct. No change in
the Contract Price or in Contract Time shall be made as a result of authorizing a change in
methods or equipment under this paragraph.
7.6 All materials and equipment shall be new, except as otherwise provided in the Contract
Documents. When special makes or grades of material which are normally packaged by
the supplier or manufacturer are specified or approved, such materials shall be delivered to
the Project site in their original packages or containers with seals unbroken and labels
intact.
Materials shall be so stored as to assure the preservation of their quantity, quality and
fitness for the Work. Stored materials, even though approved before storage, may again be
inspected by the CM, the Designer or the Owner prior to their use in the Work and shall be
required to meet the requirements of the Contract Documents at the time they are
incorporated into the Work. Stored materials shall be located so as to facilitate their prompt
inspection. The Contractor shall coordinate the storage of all materials with the CM.
Materials to be stored at the Project or on the Owner's property shall not create an
obstruction to the Owner's or other contractor's reasonable activities. Private property shall
not be used for storage purposes without written approvals consistent with the provisions of
paragraph 20.3 of these General Conditions. The Contractor shall make all arrangements
and bear all expenses for the storage of materials on private property. Upon request, the
Contractor shall furnish the CM a copy of the property owner's permission. All storage sites
on private or the Owner's property shall be restored to their original condition by the
Contractor at its entire expense, except as otherwise agreed to (in writing) by the owner or
lessee of the property.
7.7 All materials and equipment shall be applied, installed, connected, erected, used, cleaned
and conditioned in accordance with the instructions of the applicable manufacturer,
fabricator, or processor, except as otherwise provided in the Contract Documents.
7.8 The Contractor will be fully responsible for all acts and omissions of its Subcontractors and
of persons directly or indirectly employed by them and of persons for whose acts any of
them may be liable to the same extent that the Contractor is responsible far the acts and
omissions of the Contractor's own employees. Nothing in the Contract Documents shall
create any contractual relationship between any Subcontractor or supplier and the CM, the
Owner or the Designer, or any obligation on the part of the CM, the Owner or the Designer
to pay or see to the payment of any money due any such Subcontractor or material
GENERAL CONDITIONS FOR CM AT RISK PROJECT 19 of 43 JUNE 2007 EDITION
furnisher except as may otherwise be required by law. The CM may furnish to any
Subcontractor or supplier, to the extent practicable, evidence of amounts paid to the
Contractor on account of specific Work done.
7.9 The divisions and sections of the Specifications and the identifications of any Drawings
shall not control the Contractor in dividing the Work among Subcontractors.
7.10 The Contractor agrees to bind specifically every Subcontractor to the terms and conditions
of the Contract Documents far the benefit of the CM and to furnish written evidence thereof
to the CM within seven (7) days after written request by the CM.
7.11 The Contractor shall attend job progress conferences and all other meetings or
conferences as directed by the CM. The Contractor shall be represented at these job
progress conferences by a representative having the authority of the Project Manager and
by such other representatives as the CM may direct. Job progress conferences shall be
open to Subcontractors, suppliers and any others who may contribute beneficially toward
maintaining required job progress, and such personnel shall be encouraged by the
Contractor to attend. It shall be the principal purpose of job progress conferences to effect
coordination, cooperation and assistance in every practical way toward the end of
maintaining progress of the Project on schedule and to complete the Work and the Project
by the specified Completion Dates. The Contractor shall be prepared to assess progress of
the Work as required in the Contract Documents and to recommend remedial measures for
correction of progress as may be appropriate. The CM shall preside as chairman and
arrange for minutes to be taken and circulated.
In the event that the prosecution of the Work is discontinued for any reason, the Contractor
shall notify the CM at least forty-eight (48) hours in advance of resuming operations.
Should the terms of the Contract Documents require completion of one or more portions of
the Work for the Beneficial Occupancy of the Owner prior to completion of the entire Work,
the Contractor shall complete such portion(s) of the Work on or before the date specified.
Such completion shall include the obtaining of all government or other permits, permission,
and/or approvals necessary to occupancy. The Contractor shall independently estimate the
difficulties involved in arranging the Work to permit such Beneficial Occupancy and shall
not claim any additional compensation or time extension by reason of any delay or
increased cost due to completing such portion(s) of the Work. The Owner's possession and
use of such portion{s) of the Work shall not be deemed an acceptance of any Work not
completed in accordance with the Contract Documents. The Owner shall be responsible for
the security, maintenance, utilities, and insurance of all portions of the Work completed and
beneficially occupied by the Owner.
7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the
use of any invention, design process, or device which is the subject of patent rights or
copyrights held by others, except for inventions, design processes, or devices specified by
the Designer in the Contract Documents. The Contractor shall indemnify and hold harmless
the CM, the Owner, the Designer, and anyone directly employed by any of them, from and
against all claims, damages, losses and expenses, including attorney's fees and costs of
defense, arising out of any infringement or alleged infringement of such rights during or
after completion of the Work, and shall defend all such claims in connection with any actual
or alleged infringement of such rights.
7.13 The Contractor shall secure and pay for all permits, including without limitation construction
permits and licenses, and will pay all governmental charges and inspection fees necessary
for the prosecution of the Work.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 20 of 43 JUNE 2007 EDITION
7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and
regulations applicable to the Work and shall protect and indemnify the CM, the Owner, the
Designer, and their respective officials, officers, agents, employees or servants against
any claim or liability arising from or based on the violation of any such law, ordinance,
regulation, order, or decree, whether by the Contractor or by the Contractor's employees,
Subcontractors, sub-subcontractors, or their employees.
7.15 The Contractor shall be responsible for the reasonable and necessary protection and
security of its Work and its property and the property of others at the site, as required by
laws or ordinances governing such conditions, or by custom or sound construction
practices, and shall share such responsibilities for protection of property at the site as may
be directed by the Contract Documents and the CM. The Contractor shall be responsible
for any damage to the Owner's property, or that of others, by the Contractor or the
Contractor's employees, Subcontractors, sub-subcontractors, or their employees or agents,
and shall make goad such damages. The Contractor shall be responsible for and pay for
any such claims made against the CM or the Owner.
7.16 The Contractor shall comply with the Project Safety Program and Public Hazard Control
Plan implemented by the CM. The Contractor shall protect existing improvements
designated to remain in the vicinity of the operations and barricade all walks, roads, and
areas as necessary to keep the public away from the construction.
7.17 The Contractor shall provide cover and/or protect all portions of the Work and provide all
materials necessary to protect the Work whether performed by the Contractor or any of the
Subcontractors or sub-subcontractors. Any Work damaged through the lack of proper
protection, or from any other cause, shall be repaired or replaced without extra cost to the
CM or extension to the Contract Time.
The Contractor shall maintain the Work during construction and until the Work is accepted.
This maintenance shall constitute continuous and effective effort prosecuted day by day,
with adequate equipment and forces so that the Work is maintained in satisfactory
condition at all times. All costs of maintenance shall be included in the Contract Price and
the Contractor will not be paid an additional amount for such effort. Should the CM observe
that the Contractor at any time has failed to maintain the Work as provided herein, the CM
may immediately notify the Contractor of such non-compliance. Such notification shall
specify a reasonable time within which the Contractor shall be required to remedy such
unsatisfactory maintenance condition. Should the Contractor fail to properly respond to the
CM's notification, the CM may, at the Contractor's expense, take such action as it may
deem appropriate to remedy the defective maintenance, including suspension of the
Contractor's Work or any part thereof. Any such expense incurred by the CM shall be
deducted from monies due or to become due the Contractor.
Parking lots, streets, and walks connecting to the Project area shall at all times be
protected by the Contractor from deposits of mud, sand, stone, litter, or debris in any form.
Pedestrian traffic areas around the construction limits must be maintained in a clean and
safe condition at all times with required barricades and covered walkways. When
excavation or other operations outside the Project limits is required, the Contractor shall,
immediately following that work, return the area to its original condition.
All catch basins and storm drain lines in the vicinity of the Project site shall be protected at
all times from entry of dirt, rubble and other debris. The residue from the cleaning of trucks,
wheelbarrows, concrete buggies, etc. must be prevented from entering the drainage
system, and if cleaning is done, the residue must be contained and removed from the
Project site with other refuse.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 21 of 43 JUNE 2007 EDITION
7.18 No burning of refuse or debris shall be allowed inside or around the Project during the
course of construction.
7.19 The Contractor shall provide far and maintain necessary safety measures and safety
programs for the protection of its employees and other persons at the Project site, and shall
comply at all times with the requirements of the most current edition of the CAGC Safety
and Health Manual [or the AGC Accident Prevention Manual in Construction], or the
equivalent requirements of the Contractor's safety program, and shall fully comply with all
Federal, State, and local laws, rules, regulations, and building code requirements so as to
prevent accidents or injuries to persons on or about the Project site. The Contractor shall
clearly mark or post signs warning of existing hazards, and shall barricade excavations,
elevator shafts, stairways, floor and wall openings and similar hazards. The Contractor
shall protect against damage or injury resulting from falling materials, and shall maintain all
protective devices and signs throughout the progress of the Work.
All trenches, excavations, or other hazards in the vicinity of the Work shall be well
barricaded, and properly lighted at night. When Work requires closing of an area normally
used by the Owner or the public, the Contractor shall furnish, erect, and maintain temporary
barricades, and properly light the area. The Contractor shall comply with any directions and
public authorities in this respect.
7.20 The Contractor shall adhere to the rules, regulations, and interpretations of the North
Carolina Department of Labor's Occupational Safety and Health Standards for the
Construction Industry (29 CFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29
CFR Part 1910 General Industry Safety and Health Standards applicable to construction)
and N.C. Gen. Stat. §95-126 through 155 (Occupational Safety and Health) as well as all
revisions and amendments to such standards or statutes as may occur throughout the
performance of the Work.
7.21 Any land-disturbing activity performed by the Contractor in connection with the Project shall
comply with all erosion control measures set forth in the Contract Documents and any
additional measures which may be required in order to ensure that the Project is in full
compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title
15 North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A,
4B and 4C, as amended (15 NCAC 4A, 4B, and 4C), and as may be revised or amended in
the future. Upon receipt of notice that aland-disturbing activity is in violation of said Act, the
Contractor shall be responsible for ensuring that all steps or actions necessary to bring the
Project in compliance with said Act are promptly taken. The Contractor shall be responsible
for all penalties assessed pursuant to N.C. Gen. Stat. 113A-64 with respect to its Work, and
shall indemnify and hold harmless the CM and the Owner from all costs and expenses,
including attorney's fees and costs of defense, arising out of or related to the enforcement
of the Act against any party or person described in this Article.
7.22 The Contractor shall designate a responsible officer or employee as safety inspector,
whose duties shall include accident prevention on the Project as well as implementation of
the Contractor's safety measures and safety programs on the Project. The name of the
safety inspector shall be made known to the CM at the pre-construction conference.
7.23 In emergencies affecting the safety of persons, the Work, or property at the Project site or
adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent
threatened damage, injury, or loss. As soon as practicable, the Contractor shall notify the
CM of such emergency. The Contractor shall give the CM prompt written notice of any
significant changes in the Work or deviations from the Contract Documents caused by such
emergency. If the Contractor believes that additional work done in an emergency entitles
GENERAL CONDITIONS FOR CM AT RISK PROJECT 22 of 43 JUNE 2007 EDITION
the Contractor to an increase in the Contract Price or an extension of the Contract Time,
the Contractor may make a claim therefore as provided in Articles 14 and/or 15 of these
General Conditions.
7.24 The Contractor shall at all times keep the premises free from accumulation of waste
materials or rubbish caused by the Work. At least weekly and at the completion of the
Work, the Contractor shall remove all waste materials and rubbish attributable to the
Contractor's Work from and about the Project. At the completion of the Work, the
Contractor shall remove all tools, construction equipment, machinery, and surplus
materials. The Contractor shall leave the Work in condition for occupancy by the Owner
such that no cleaning or other operations are required. Material cleared from the Project
and deposited on adjacent property shall not be considered as having been disposed of
satisfactorily. If the Contractor fails to keep the Project clean and free of waste materials or
rubbish, fails to satisfactorily clean-up weekly or at the completion of the Work, the CM may
do so and the costs thereof may be deducted from any amounts due or to become due the
Contractor.
7.25 Utilities, temporary facilities, and signs shall be provided as described in the Contract
Documents. Absent a contrary direction in the Supplementary Conditions, the Contractor
shall pay all bills for its consumption of water, electricity, or other public utility service to the
Project site.
7.26 The Contractor shall indemnify and hold the CM, the Owner, the Designer, the Designer's
consultants, and their respective officers, agents, and employees harmless against all
costs, damages, and expenses, including attorney's fees and costs of defense, arising out
of claims by any separate contractor or by any Subcontractor, sub-subcontractor, or
supplier engaged by or employed by the Contractor or employed by any of the
Subcontractors claiming through him, including without limitation damages, losses, and
expenses arising out of or relating to any inconvenience, delay, interference, or other action
or non-action of the Contractor or the Contractor's Subcontractors on the Project.
The Contractor acknowledges that should the Contractor or any of the Contractor's
Subcontractors be damaged by any breach of contract by any other separate contractor on
the Project, the Contractor may invoke applicable dispute resolution procedures with said
other separate contractor.
7.27 Prior to completion of the Work and Final Payment of the Contract Price, excepting only
those portions of the Work deemed accepted in accordance with the Contract Documents,
the Contractor shall have charge and care of the Work, and shall take every precaution
against injury or damage to any party due to the action of the elements or from any other
cause, whether arising from the execution or from the non-execution of the Work. The
Contractor shall, as required by the CM, replace, rebuild, repair, restore, and make good all
injury or damage to any portion of the Work occasioned by any of the above causes before
Final Completion and shall bear the expenses thereof.
7.28 In the event that the Work, or any portion thereof, is suspended at any time pursuant to an
order of the Owner, the Contractor shall obey all instructions of the CM regarding storage of
materials, drainage, protection of the Work, and erection of temporary structures during the
suspension period.
7.29 The CM shall be responsible for the coordination of the Work of the separate contractors,
both as to space and time. The CM shall incorporate the Contractor's Construction
Schedule into the Master Schedule and coordinate the implementation of the Contractor's
Construction Schedule. The CM shall also coordinate close-out of the Project, including
GENERAL CONDITIONS FOR CM AT RISK PROJECT 23 of 43 JUNE 2007 EDITION
but not limited to all testing, inspection, certifications, and approvals required by public
agencies.
The Contractor shall notify the CM promptly of any event or condition which could affect the
conduct or progress of the Work and shall cooperate fully with the CM and all other
separate contractors on the Project site.
7.30 The Owner has delegated to the CM all of its duties to coordinate and to expedite the Work
not expressly reserved to the Owner by other provisions of the Contract Documents.
7.31 All Work performed pursuant to the Contract Documents shall conform in all respects to the
North Carolina State Building Cade and all other state, local, and national codes in effect at
the time of and applicable to this Work.
7.32 The CM shall coordinate and supervise the installation of all sleeves, inserts, chases or
other components of the Work needed for mechanical, plumbing, electrical or other work by
the various contractors. The responsibility for exact location of such items shall be that of
the mechanical, plumbing, electrical or other prime contractor that requires the item for
passage or support of its work. Generally, the mechanical, plumbing, electrical or other
contractor that requires such items for support or passage of its work shall set its sleeves,
inserts, chases or other devices. If necessary to maintain the progress of and complete its
Work, however, the Contractor may be required to build or set sleeves, inserts, chases or
other components of the Work needed for mechanical, plumbing, electrical or other work by
other contractors.
7.33 The Contractor shall be responsible for permanently fixed service facilities and systems in
use during progress of the Work and shall strictly adhere to the following procedures:
a) Prior to acceptance of the Work by the Owner, the Contractor shall remove and
replace any part of the permanent building systems damaged through use during
construction.
b) Temporary filters shall be installed in each of the heating and air conditioning units,
return air grilles, and other locations to prevent intrusion of dust, dirt, and debris
during construction. Temporary filters shall be removed and replaced with new
filters immediately prior to Substantial Completion.
c) Extra effort shall be maintained to keep the building clean and under no
circumstances shall air systems be operated if finishing operations are creating
dust in excess of what would be considered normal if the building were occupied.
d) When the permanent lighting system is used during construction, lamps shall be
replaced and shall be new on the date of Substantial Completion.
ARTICLE 8. OWNER
8.1 The Owner shall issue communications and notices to the Contractor through the CM to the
extent contemplated by the Contract Documents.
8.2 In case of termination of the employment of the Designer, the Owner shall appoint as
Designer a qualified person who shall have and assume all rights and duties held by the
original Designer.
8.3 The Owner shall have the right to take possession of and use any portion of the Work
notwithstanding the fact that the time for completion of such portion of the Work may not
GENERAL CONDITIONS FOR CM AT RISK PROJECT 24 of 43 JUNE 2007 EDITION
have expired, but such taking possession and use shall not be deemed an acceptance of
any Work not completed in accordance with the Contract Documents.
8.4 A waiver on the part of the Owner of any breach of any part of the Agreement by the
Contractor shall not be held to be a waiver of any other or subsequent breach.
8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter
deposits for permanent utilities.
ARTICLE 9. CONSTRUCTION MANAGER
9.1 The Owner has engaged the CM for the purpose of (i) assisting the Owner and Designer in
developing and administering budgets and cost controls, (ii} in evaluating constructability
and value engineering proposals, (iii) in establishing and maintaining a critical path method
(CPM) schedule, {iv} in coordinating and/or expediting all Work on the Project, (v) in
coordinating all Work on the Project with other projects being constructed by the Owner or
others adjacent to or near the Work, and (vi) for such other purposes as the Owner may
deem appropriate.
ARTICLE 10. DESIGNER
10.1 The Designer is charged with responsibility for preparation and interpretation of the
Contract Documents. The Designer's decisions relating to aesthetic matters shall be final.
10.2 All Work completed under the Contract Documents shall be subject to review by the
Designer. No Work is to be covered without the Designer's review or prior authorization.
Any Work so covered without the Designer's review or prior authorization shall be
uncovered at the Contractor's expense. The Contractor shall notify the CM in writing at
least twenty-four (24) hours in advance of covering any Work.
10.3 The Designer shall not be responsible for the construction means, methods, techniques,
sequences, procedures, or the safety precautions and programs incident thereto, and shall
not be responsible for the Contractor's failure to perform the Work in accordance with the
Contract Documents, but shall be entitled to enforce any requirements in the Contract
Documents specifying particular means, methods, techniques, sequences, or procedures.
10.4 The Designer shall be an Owner's agent during the construction period. The duties,
responsibilities and authority of the Designer as the Owner's representative during
construction are as set forth in the Contract Documents.
ARTICLE 11. TESTING AND SURVEYING
11.1 Laboratory and field tests to determine compliance of construction with the Contract
Documents shall be made by the Owner or testing consultants employed by the Owner
except those required elsewhere in the Contract Documents to be paid for by the
Contractor. The costs and expenses of providing samples for and assistance in any testing
shall be borne by the Contractor and are included in the Contract Price. Any Work in which
untested materials are used without approval or written permission of the CM and the
Designer shall be removed and replaced at the Contractor's expense. Work found to be
unacceptable or unauthorized will not be paid for and, if directed by the CM, shall be
removed and replaced at the Contractor's expense. Unless otherwise designated, tests in
accordance with the cited standard methods of ASTM or other generally recognized or
specifically authorized methods which are current on the date of advertisement far bids
shall be made at the expense of the Owner; provided, however, in the event that after such
GENERAL CONDITIONS FOR CM AT RISK PROJECT 25 of 43 JUNE 2007 EDITION
testing any Work is found to be defective or does not meet the requirements of the Contract
Documents, the costs of retesting such Work and the costs of inspection services shall be
paid by the Contractor. Samples shall be taken by a testing laboratory employed by the
Owner. All materials being used are subject to inspection, tests, or rejection at any time
prior to or during incorporation into the Work. Copies of all Owner test reports will be
furnished to the Contractor at its written request. Copies of Contractor test reports shall be
furnished to the CM upon written request.
11.2 The CM shall have the right to deduct the costs of additional testing as described in
paragraph 11.1 from any money due or to become due the Contractor; or if no money is
due the Contractor, the CM shall have the right to recover these costs from the Contractor,
from its sureties, or from both.
11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly
licensed in the State of North Carolina.
ARTICLE 12. SEPARATE CONTRACTS
12.1 It is expressly understood that the CM and the Owner may deploy their own employees or
engage other separate contractors to perform Work as a part of the Project whose work will
be performed simultaneously and sequentially with the performance of the Work by the
Contractor. It shall be necessary for the Contractor to coordinate construction activities with
such other contractors, particularly with respect to access to work areas, storage of
materials, and use of elevators and other common facilities. The Contractor shall diligently
and in good faith cooperate with the CM, the Owner, the Designer, and all other contractors
with respect to such matters and shall regularly and faithfully attend any and all meetings
called by the CM with respect to such matters. Any disputes between the Contractor and
any other separate prime contractor with respect to such matters shall be resolved in
accordance with the claim and dispute resolution procedures in the Agreement.
ARTICLE 13. CONTRACT TIME
13.1 Within fourteen (14) days after initial receipt of the Construction Agreement by the
Contractor for signatures, the Contractor shall prepare and submit to the CM for review and
approval a preliminary Contractor's Construction Schedule for the Work pursuant to the
requirements stated in the Contract Documents.
13.2 Within fourteen (14) days after initial receipt of the Construction Agreement by the
Contractor for signatures, the Contractor shall submit to the CM a Submittal Register listing
all Submittals the Contractor is required to make or proposes to make under the Contract
Documents, the dates on which the Contractor proposes to make such Submittals and the
dates by which the Contractor reasonably requires a response from the CM and the
Designer with respect to each Submittal. The dates submitted shall be incorporated into the
Contractor's Construction Schedule as Completion Dates when they have been approved
or modified by the Owner. The CM and the Designer shall not be required to review any
Submittal from the Contractor until a Submittal Register acceptable to and approved by the
CM has been submitted by the Contractor.
13.3 Not later than thirty (30) days following execution and delivery of the Construction
Agreement by the CM to the Contractor, the CM shall deliver to the Contractor a Notice to
Proceed. The Notice to Proceed shall state a commencement date on which it is expected
that the Contractor will begin the Work to be performed under the Agreement. The Contract
Time shall be measured from said specified commencement date. The commencement
date stated in the Notice to Proceed shall not be earlier than three (3} days after the Notice
to Proceed is served on the Contractor.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 26 of 43 JUNE 2007 EDITION
If, other than by mutual agreement, said specified commencement date is more than thirty
{30} days after the date of execution and delivery of the Agreement from the CM to the
Contractor and the Contractor believes said delay justifies an increase in Contract Price
and/or an extension of Contract Time, the Contractor may make a claim therefore as
provided in Article 14 and/or Article 15 of these General Conditions.
No Work shall be done prior to the date specified in the Notice to Proceed.
The Contractor shall submit a final Contractor's Construction Schedule for approval by the
CM no later than fourteen {14) days after issuance of the Notice to Proceed. No payments
shall be due the Contractor until this schedule is approved by the CM.
13.4 The Master Schedule is a Contract Document. The Contractor represents that the Master
Schedule has been reviewed in detail and taken into account in preparing its bid. The
Contractor's Construction Schedule shall be incorporated into the CM's Project Master
Schedule. The Contractor's Construction Schedule shall include all of its activities which
impact, limit, or otherwise affect the time of completion of the Project as shown in the
Master Schedule, and all of the activities of others which impact, limit, or otherwise affect
the start, duration, or completion of the Contractor's activities. The Contractor further
represents that the Contractor can and will complete each activity within the time shown for
that activity on the Contractor's Construction Schedule. Time is of the essence with respect
to each such activity and Completion Date.
13.5 If the Contractor submits a construction schedule, progress report, or any other document
that indicates or otherwise expresses an intention to achieve completion of the Work prior
to any Completion Date required by the Contract Documents or prior to expiration of the
Contract Time, no liability of the CM to the Contractor for any failure of the Contractor to so
complete the Work shall be created or implied.
13.6 If the Contractor, for reasons beyond the Contractor's control, is delayed in beginning any
activity, the Contractor shall, nevertheless, have the same number of days as is shown in
the Master Schedule for the activity, and the affected activity and any succeeding activity
that is dependent upon that activity shall be adjusted accordingly; provided that at any time
the CM, by means of a Change Order, may require the Contractor to work overtime, to
increase labor forces or to take any necessary or appropriate action to decrease the time
required for any activity, and the Contractor shall be entitled to an adjustment in the
Contract Price computed in accordance with Article 15 of these General Conditions.
13.7 At any time, the CM may order the Contractor, on seven {7) days written notice, to begin
any activity earlier than the starting date shown on the Master Schedule.
13.8 Should the Contractor fail to start any activity on the start date shown in the Master
Schedule or as it may have been adjusted in accordance with paragraphs 13.6 or 13.7
above, or become delayed, the Contractor shall, without being entitled to any increase in
the Contract Price or other compensation, work overtime, increase labor forces or take
such other action as may be necessary or appropriate to complete the activity by the
Completion Date shown on the Master Schedule, or as such Completion Date may have
been adjusted.
13.9 The CM shall monitor progress of the Work at all times and the Contractor shall cooperate
with such monitoring and provide any and all information with respect to the progress of the
Work and scheduling as the CM may reasonably require.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 27 of 43 JUNE 2007 EDITION
13.10 On a monthly basis, in consultation with the Contractor, the CM shall revise the Master
Schedule, showing any adjustments made in accordance with paragraphs 13.6 or 13.7,
above, by any Change Order, the progress of the Work, and any days gained or days lost
with respect to any activity, and shall furnish copies thereof to the Contractor.
13.11 Should any monthly revision of the Master Schedule show that the Contractor is behind on
any activity, the late completion of which could delay Substantial Completion of the Work,
the CM shall be entitled to withhold from the next Progress Payment due the Contractor an
amount sufficient to reimburse the CM for any and all delay damages, should Substantial
Completion be delayed by the same number of days that the Contractor is currently behind
schedule. If, subsequently, the Contractor's progress, as shown by any succeeding monthly
revision to the Master Schedule, is such that the anticipated delay no longer exists, the CM
shall pay with the Progress Payment next due to the Contractor such amounts as have
been withheld in accordance with this paragraph.
13.12 The CM shall have the right to perform Work, hire and employ labor and craftsmen, rent
equipment, subcontract with other parties, or do anything that the CM deems necessary or
appropriate to remedy or cure any delay by the Contractor in the progress of the Work.
Such action by the CM shall not, in any way, affect, void or limit any warranty, guaranty or
other responsibility of the Contractor under the Contract Documents. Such action may be
taken by the CM only after three (3) days written notice to the Contractor. All costs incurred
by the CM in taking any such action shall be charged to the Contractor and deducted from
any amounts remaining due under the Agreement.
13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in the
Contract Price) for delays arising from unforeseen causes beyond the control and without
the fault or negligence of the Owner, the Designer, the CM, the Contractor or the
Contractor's Subcontractors as follows:
a) Labor disputes and strikes that directly impact the critical path activities of the
Master Schedule;
b) Acts of God, tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that
damage completed Work or stored materials.
c) Acts of the public enemy; acts of the State, Federal, or local government in their
sovereign capacities.
d) Abnormal inclement weather as defined in Article 13.14.
13.14 On any day that the Contractor considers that the Project is delayed by adverse weather
conditions, the Contractor shall identify in writing to the CM 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 CM 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 CM exceeds the
number of inclement weather days set forth below, and the Contractor demonstrates how
this adverse weather impacts activities on the critical path of the Master Schedule.
Month Number of Inclement Weather Days
January 7
February 6
March 7
GENERAL CONDITIONS FOR CM AT RISK PROJECT 28 of 43 JUNE 2007 EDITION
April 6
May 7
June 6
July 8
August 6
September 5
October 5
November 5
December 9
13.15 If the Contractor believes that the progress of the Work has been adversely affected by
adverse weather recognized by the CM during a particular month, the Contractor shall
submit a written request for extension of time to the CM. Such a request for time extension
of the Contract Time shall be submitted by the tenth (10th) day of the month following that
month in which the adverse weather is encountered. The request shall include, but is not
limited to, the following information:
a) Detailed description of weather's effect on scheduled activities and its net effect on
the critical path of the Project, and
b) Weather records from the official weather station nearest the Project site and
records of actual observation as contained in daily reports, correspondence, or
other documentation.
13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any
Completion Date can have the effect of delaying the Substantial Completion of the Project,
or could force the CM to accelerate the Contractor's Work or the work of other contractors.
Such delay in achieving a Completion Date will necessarily cause damages, losses, and
expenses to the CM, including, but not limited to and by way of illustration only, liquidated
damages payable to the Owner, damages payable to other contractors, increased and
extended Project overhead, increased fees, increased costs of construction, increased and
extended operation costs of other facilities, and inefficiency and loss of productivity. Such
damages, losses, and expenses may be recovered from the Contractor and, if the
Contractor is bonded, its surety.
13.17 The sum for liquidated damages payable to the Owner is the amount stipulated in the
Construction Management Contract and reasonably estimated in advance to cover the
losses to be incurred by the Owner by reason of failure of said CM and the Contractor(s) to
complete the Project within the time specified in the Construction Management Contract,
such time being in the essence of this Agreement and a material consideration thereof.
ARTICLE 14. CHANGES IN THE WORK
14.1 Without invalidating the Contract Documents, the CM may, at any time, or from time to time
order additions, deletions, or revisions in the Work. Said additions, deletions, or revisions
shall be authorized only by written Change Orders, Construction Change Directives or Field
Orders. Upon receipt of a Change Order, Construction Change Directive or Field Order, the
Contractor shall proceed with the Work involved. All such Work shall be executed under the
applicable conditions of the Contract Documents. If any change causes an increase or
decrease in the Contract Price andlor an extension or shortening of the Contract Time,
adjustments shall be made as provided in Article 14 andlor Article 15 of these General
Conditions.
14.2 If possible, Work shall not begin on any change or alteration to the Work until a written
Change Order is executed settling any change in the Contract Price or Contract Time. In
GENERAL CONDITIONS FOR CM AT RISK PROJECT 29 of 43 JUNE 2007 EDITION
the event the Contractor and the CM cannot agree that an adjustment to the Contract Price
or the Contract Time is warranted, or cannot agree on the appropriate adjustment to the
Contract Price ar the Contract Time, in order to expedite the Work and avoid or minimize
delay in the Work that might affect the Contract Price or Contract Time, the Contractor
shall, if so directed by the CM in writing, nevertheless proceed with the Wark, and any
adjustment to the Contract Price or Contract Time shall be negotiated by the parties at a
later date, utilizing the dispute resolution procedures under this Agreement if necessary.
Any claim for an adjustment in Contract Price or Contract Time, if not defined in the
Construction Change Directive, shall be promptly made in writing in accordance with the
procedures defined in Article 15.2 of these General Conditions.
14.3 The Designer, through the CM, may authorize minor changes or alterations in the Work not
involving change in the Contract Price or in the Contract Time and not inconsistent with the
overall intent of the Contract Documents. These may be accomplished by a Field Order.
Such alterations shall not invalidate the Contract Documents nor release the surety. If the
Contractor believes that any minor change or alteration authorized by the Designer entitles
the Contractor to an increase in the Contract Price and/or an extension of Contract Time,
the Contractor may make a claim therefore as provided in Article 14 and/or Article 15 of
these General Conditions.
14.4 Except in an emergency endangering life or property, no change shall be made by the
Contractor except upon prior written Change Order, Construction Change Directive or Field
Order authorizing such change.
14.5 Increases in the Contract Price and/or extensions of the Contract Time for additional Work
performed by the Contractor shall only be in accordance with a written Change Order or
Construction Change Directive signed by the CM. The Contractor shall not be entitled to
additional time or to additional compensation for any Work performed or material supplied
which is claimed to have been authorized or settled by an "oral" change, or by a
"constructive" or "implied" change, or by a course of conduct, or by any action ornon-action
by the CM, or any other persons, or by any means whatsoever other than by a written
Change Order or Construction Change Directive for such Work or material signed by the
CM.
14.6 Changes in the Work resulting from emergency shall not invalidate the Contract Documents
nor release the surety if the Contractor is bonded.
14.7 The CM shall not be responsible for verbal instructions which have not been confirmed in
writing, and in no case shall such instructions be interpreted as permitting a departure from
the Contract Documents unless such instruction is confirmed in writing and supported by a
proper Change Order, Construction Change Directive or Field Order, whether or not the
cost is affected.
14.8 If the Contractor is bonded, the CM, in its sole discretion, may require that the Contractor
notify the Contractor's sureties of any changes affecting the general scope of the Work or
change in the Contract Price, and that the amount of applicable bonds shall be adjusted
accordingly. If this requirement is exercised, the Contractor shall furnish proof of such
adjustment to the CM.
If this requirement is exercised, the Change Orders and Construction Change Directives
shall require written consent of the Contractor's surety. At the time of signing a Change
Order, the Contractor shall be required to certify as follows:
"I certify that all sureties have been notified that my contract has been altered by
the amount of this Change Order or Construction Change Directive and that a copy
GENERAL CONDITIONS FOR CM AT RISK PROJECT 30 of 43 JUNE 2007 EDITION
of the approved Change Order or Construction Change Directive will be mailed to
all sureties upon its receipt by me."
If this requirement is exercised, no payment to the Contractor on account of any Change
Order or Construction Change Directive shall become due or payable until written evidence
of the surety's consent to the Change Order or Construction Change Directive has been
furnished to the CM, and the furnishing of such written consent is a condition precedent to
such payment.
14.9 The Contractor shall support all requests for Change Orders with a detailed cost
breakdown showing cost of materials, labor, equipment, transportation, other items,
Contractor's overhead and profit, and total cost, in accordance with methods defined in this
Article, and, if the request seeks an extension of the Contract Time, with atime-related
diagram which demonstrates specifically why an increase in construction time is needed.
14.10 When a request for a Change Order involves a Subcontractor, the Contractor shall provide
quotation from same on Subcontractor's letterhead. The Subcontractor's quote shall list
materials, equipment, and labor separately, and show overhead and profit in the manner
provided in paragraph 14.9.
ARTICLE 15. CHANGE OF THE CONTRACT PRICE
15.1 The Contract Price constitutes the total compensation payable to the Contractor for
performing all Work under the Contract Documents. All duties, responsibilities, and
obligations assigned to or undertaken by the Contractor shall be at its expense without
change in the Contract Price. The Contract Price may only be changed by a Change Order.
15.2 Any claim for an adjustment in the Contract Price shall be in writing. Written notice of any
event, action, or non-action which may become the basis of a claim shall be delivered to
the CM within three (3) days of the occurrence, or the beginning of the occurrence, of any
such event, action or non-action giving rise to the claim. Such written notice is a condition
precedent to the making of a claim, and such notice shall describe the basis of the potential
claim with reasonable detail and clarity.
A claim shall be made in writing and shall be delivered to the CM no later than fourteen
(14) days after such notice. The claim shall describe in detail the basis for the claim, with
specific reference to any provisions of the Contract Documents, by paragraph, drawing
number, or other specific identification, and shall state the amount claimed and how it is
calculated. If the Contractor, at the time the claim is made, is unable to state the amount
claimed with accuracy, the Contractor shall so state and provide the estimated amount and
the basis on which the amount is to be calculated. At the earliest date practicable, but in no
event more than thirty (30) days after Contractor's notice of claim, the Contractor shall
supplement the claim with an accurate statement of the amount claimed and how it has
been calculated. The Contractor shall provide, in writing, in support of the claim all such
explanations, arguments, data, receipts, expert opinions, or other documents or information
as the Contractor deems appropriate to be considered in support of the claim. A claim may
properly be rejected by the CM by reason of the Contractor's failure to submit adequate or
accurate documentation or information, except that within seven (7) days after being given
notice that the claim has been rejected on this basis, the Contractor may submit additional
documentation or information. No claim for a change of the Contract Price shall be
considered or granted (except solely at the discretion of the CM) unless a claim is so made,
nor shall the Contractor be entitled to any increase in the Contract Price unless the
Contractor has given notice and made such a written claim within the times required. The
CM shall decide, after obtaining the advice of the Owner and the Designer, whether an
increase in Contract Price is warranted, and the amount of such increase shall be
GENERAL CONDITIONS FOR CM AT RISK PROJECT 31 of 43 JUNE 2007 EDITION
determined as provided in paragraphs 15.3 through 15.4, below. Any change in the
Contract Price resulting from any such claim shall be incorporated in a Change Order.
The CM shall advise the Contractor of its decision with respect to the claim within thirty (30)
days of its receipt, or of the receipt of additional documentation or information if the
absence of such has previously been the basis of rejection of the claim. Any claim on which
the CM has not provided its decision to the Contractor within the applicable time period
shall be deemed denied.
If the Contractor is not satisfied with the decision of the CM, the Contractor may within
seven (7} days of receipt of the CM's decision initiate the mediation process as described in
Appendix A to these General Conditions.
15.3 In determining the amount of a Contract Price adjustment, the parties shall apply the
following methods, as appropriate:
(a} Change in Work: The CM and the Contractor shall negotiate in good faith and attempt
to agree upon the value of any change (extra or decrease} in Work prior to the
issuance of a Change Order covering said Work. Such Change Order shall set forth
the corresponding adjustment to the Contract Price. In the event the CM and the
Contractor are unable to agree, the CM shall grant an equitable adjustment in the
Contract Price.
(b) Emergency Work: In the event of emergency endangering life or property, the
Contractor may be directed by the CM to proceed on a time and material basis,
whereupon the Contractor shall so proceed and keep accurately, in such form as may
be required by the CM, a correct account of costs together with all proper invoices,
payrolls, and supporting data therefore.
15.4 Where the Contract Price is to be adjusted, the following limitations shall apply in
determining the amount of adjustment:
(a) In the case of extra or emergency work, the Contract Price shall not be increased by
more than the reasonable, actual, and documented net cost of the extra or emergency
work plus ten percent (10%) of such net cost on Work performed by the Contractor and
five percent (5%) thereof on any subcontracted Work for overhead and profit combined.
(b) In the case of a decrease in Work, the Contract Price shall not be decreased by less
than the net cast of the deleted Work plus five percent (5%) of such direct net cost for
profit and overhead.
The term 'net cost' as used herein shall include, as applicable, and shall be limited to, all
direct labor, direct material, direct equipment, labor burden, sales taxes, shipping and
handling charges, permits and fees, and insurance and bond premium adjustments, if any,
attributable to the change. All other items of cost shall be considered as overhead and
covered by the percentages allowed in sections (a) and (b) of this paragraph.
The Contractor shall provide worksheets or tabulations describing the method by which the
direct net cost was calculated, and shall provide all data needed to support the calculation
of the direct net cost, all in a form acceptable to the CM.
ARTICLE 16. UNFORESEEN CONDITIONS
16.1 Should the Contractor encounter unforeseen conditions at the Project site materially
differing from those shown on the Drawings or indicated in the Specifications or differing
GENERAL CONDITIONS FOR CM AT RISK PROJECT 32 of 43 JUNE 2007 EDITION
materially from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Agreement, the Contractor shall immediately, and in no
event more than three (3) days later, give notice to the CM of such conditions before they
are disturbed. The CM shall thereupon promptly notify the Designer and Owner and
investigate the conditions. The CM shall as soon as practicable request that the Designer
make such changes in the Drawings and/or Specifications as the CM and the Contractor
believe are necessary to continue the Work. Any increase or decrease in the Contract
Price resulting from such changes shall be adjusted in the manner provided herein for
adjustments as to extra and/or additional Work and changes. The CM shall not be liable or
responsible for additional work, costs, or changes to the Work that could have been
reasonably determined from any reports, surveys, and analyses made available for the
Contractor's review or that could have been discovered by the Contractor through the
performance of its obligations pursuant to the Contract Documents.
ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT
17.1 The Owner and the CM have the authority to stop or suspend Work and to order Work
removed or to order corrections of defective Work or Work not in compliance with the
Contract Documents where such action may be necessary to ensure successful completion
of the Work.
Any work, materials, fabricated items, or other parts of the Work which have been found by
the CM, the Owner or the Designer to be defective or not in accordance with the Contract
Documents shall be condemned and shall be removed from the Project by the Contractor,
and immediately replaced by new Work in accordance with the Contract Documents at no
additional cost to the CM. Work or property of the Owner or others damaged or destroyed
by virtue of such condemned Work shall be made good at the expense of the Contractor.
Correction of condemned Work described above shall be commenced by the Contractor
within twenty-four (24) hours after notice from the CM and shall be pursued to completion.
Should the Contractor fail to proceed reasonably with the above-mentioned corrections, the
CM may, three (3) days after the notice specified in the preceding sentence, proceed with
correction, paying the cost, including costs of uncovering such condemned Work, of such
corrections from amounts due or to become due to the Contractor.
Condemned Work removed shall be the property of the Contractor and shall be removed
from the Project by the Contractor within ten (10) days after notice to remove it, and if not
then removed, thereafter may be disposed of by the CM without compensation to the
Contractor and the cost of such disposal shall be deducted from amounts due or to become
due to the Contractor.
Should the cost of correction of the Work and, if applicable, disposal of the condemned
Work by the CM exceed the amount due or to become due the Contractor, the Contractor
and the Contractor's sureties shall be liable for and shall pay to the CM the amount of such
excess.
ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION; WARRANTIES AND
GUARANTIES
18.1 No certificate of completion by any party, Final Payment, occupation of the premises by the
Owner, any provision of the Contract Documents, or any other act or instrument of the CM,
the Owner or the Designer shall relieve the Contractor from responsibility for negligence,
defective material or workmanship, or failure to comply fully with the Contract Documents.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 33 of 43 JUNE 2007 EDITION
18.2 The Contractor shall, at the Contractor's sole cost and expense, make all necessary
repairs, replacements, and corrections of any nature or description, interior or exterior,
structural or non-structural, that shall become necessary by reason of defective
workmanship or materials which appear within a period of one (1 }year from the date of
Substantial Completion and acceptance of the Project by the Owner; provided, however
that notwithstanding the preceding, if any longer guarantee period is specified far any
particular materials or workmanship under the Contract Documents, or under any
subcontract, or in connection with any manufactured unit which is installed in the Project, or
under the laws of the State of North Carolina, the longer guarantee period shall govern.
18.3 If, within any guarantee period, repairs or changes are required in connection with the
Work, which are rendered necessary as the result of the use of materials, equipment, or
workmanship which are inferior, defective, or not in accordance with the terms of the
Contract Documents, the Contractor shall, promptly upon receipt of notice from the CM and
without expense to the CM:
a) Completely repair or replace the Work so that it conforms to the Contract
Documents;
b) Correct all defects therein;
c} Make good all damage which, in the opinion of the CM or the Designer, is the result
of the use of materials, equipment, or workmanship which are inferior, defective, or
not in accordance with the terms of the Contract Documents; and
d} Make good any Work or material, or any equipment or contents disturbed in
fulfilling any such guarantee.
If, in fulfilling the requirements of the Contract Documents or of any guarantee embraced
therein or required thereby, the Contractor disturbs any work, facility, premises, or
construction belonging to the Owner, the Contractor shall restore such disturbed work,
facility, premises or construction to a condition satisfactory to the Owner, and shall
guarantee such restored work to the same extent as if it were Work under the Contract
Documents.
If the Contractor, after notice, fails to proceed promptly to comply with the terms of the
guarantee, the CM may have the defects corrected, and the Contractor and the
Contractor's sureties shall be liable for all expenses incurred. "Promptly" is defined as
within twenty-four (24) hours for systems necessary to normal operation of the building and
within seventy-two (72} hours for all other items. All special guarantees applicable to
definite parts of the Work that may be shown in or required by Contract Documents shall be
subject to the terms of this paragraph during the first year of the life of such special
guarantee. Manufacturer's standard guarantees or warranties which do not comply with the
time limit specified herein shall be extended by the Contractor automatically without further
action on the part of the CM.
18.4 In the eleventh calendar month after Substantial Completion of the entire Project, and at
the request of the CM, the Contractor, the CM, the Owner and the Designer shall make an
inspection of the Work for the purpose of identifying defective workmanship andlor
materials. If the Contractor, having been requested to do so by the CM, fails to participate
in such inspection, the Contractor shall be conclusively bound by any decision or ruling by
the Designer as to any defective workmanship or material and as to the Contractor's
responsibility for its repair or replacement.
ARTICLE 19. CM'S RIGHT TO DO WORK
GENERAL CONDITIONS FOR CM AT RISK PROJECT 34 of 43 JUNE 2007 EDITION
19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to
prosecute the Work properly or to perform any provision of the Contract Documents, the
CM, after three (3) days written notice to the Contractor from the CM, may perform or have
performed that portion of the Work and may deduct the cost thereof from any amount due
or to become due the Contractor. Notwithstanding any action by the CM under this
paragraph, all warranties and bonds given or to be given by the Contractor shall remain in
effect or shall be given by the Contractor.
19.2 Should the cost of such action by the CM exceed the amount due or to become due the
Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to
the CM the amount of such excess.
ARTICLE 20. PARTIAL PAYMENTS
20.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor
for signatures the Contractor shall submit to the CM a Schedule of Values. The Schedule of
Values shall indicate the value of the Work, including applicable overhead and profit, for
each Division and section of the Project Specifications. The CM shall be provided with the
Contractor's estimate papers, Subcontractor agreements, supplier quotes, or other
documents substantiating these values if so requested in writing by the CM. The Contractor
shall provide the requested documentation within seven (7} days after receipt of the CM's
written request. The Schedule of Values shall be subject to approval by the CM and the
Owner, and if the CM and the Contractor cannot agree upon the Schedule of Values, the
Designer shall prepare it, and the Schedule of Values as prepared by the Designer shall be
binding on the CM and the Contractor. No Request for Payment shall be certified by the
CM until the Schedule of Values has been approved by the Owner.
20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the
CM a Request for Payment for Work done during the previous calendar month. The
Request for Payment shall be in form of AIA Document G702 (latest edition), or other
published document approved by the CM, and shall show substantially the value of Work
done (including the value of material delivered to the Project or stored by the Contractor at
another site, subject to the conditions hereinafter set forth) during the previous calendar
month, and shall sum up the financial status of the Work with the following information:
a) Total Contract Price, including any adjustment thereto made pursuant to the
Contract Documents.
b) Value of Work completed and materials properly stored to date.
c) Less amount retained.
d) Less previous payments.
e) Current amount due.
Contract Price balance remaining.
The Contractor, upon request of the CM, shall substantiate the Request for Payment with
invoices, vouchers, payrolls, or other evidence.
20.3 When payment is requested or made on account of stored materials, such materials must
be stored on the Owner's property or on such property otherwise designated in writing by
the Owner at such places and in such a manner as may be designated by the CM.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 35 of 43 JUNE 2007 EDITION
However, if approved by the CM, and with permission in writing from the Designer and
Owner and under such circumstances as may be required by the CM and the Owner, such
materials may be stored in a bonded warehouse. Requests for Payment on account of
stored materials shall be accompanied by paid invoices, bills of sale, warehouse receipts,
or other documentary evidence establishing Owner's title to such materials, evidence that
the stored materials are insured against lass and damage, and such other documentation
as required by the CM. Responsibility for the quantity, quality, and condition of such stored
materials, whether stored on the Owner's property or away from the Owner's property, shall
remain with the Contractor regardless of ownership or title. No payment shall be made on
account of materials stored in a bonded warehouse unless the Contractor has acquired
written permission from the CM and the Owner for such storage of materials and has
complied with all conditions set forth in such permission regarding such storage of
materials in a bonded warehouse.
20.4 Any Request for Payment received by the CM on or before the fifth {5th) day of the
calendar month shall be certified for payment or returned for re-submission to the
Contractor on or before the fifteenth (15th) day of the calendar month. The CM's
certification shall be for the amount which was requested or that which the CM has decided
was justly due, and shall state in writing to the Contractor and Owner the reasons for
withholding payment of any or all of the amount requested.
20.5 The CM may refuse to certify all or part of any payment requested for any of the following
reasons:
a) Refusal by the Designer to certify or the Owner to pay a payment application by the
CM for Work by the Contractor.
b) Defective Work not corrected.
c) Suits, actions, or claims of any character filed against the Contractor, or due to the
operations of the Contractor, or information or notice that a suit, action, or claim will
be filed or has been made.
d) Information or notice that a Subcontractor or a supplier has not received payment
from the Contractor.
e) The balance unpaid of the Contract Price is insufficient to complete the Work in the
judgment of the CM.
Damage to the CM, the Owner or another contractor.
g) Inability of the Contractor to meet a Completion Date, including an anticipated
failure to meet a Completion Date entitling the CM to withhold anticipated damages
in accordance with paragraphs 13.11 and 13.12 of these General Conditions.
h) Failure to furnish Submittal as required by the Contract Documents on a timely
basis in accordance with the Submittal Register.
i) Such other reason as to the CM may appear prudent, proper, or equitable.
When grounds for withholding certification have been corrected or removed, the CM shall
make any payment due with respect to such certification as a part of its next payment after
such certification.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 36 of 43 JUNE 2007 EDITION
20.6 No certificate of payment issued or progress payment made shall constitute an acceptance
of the Work or any part thereof.
20.7 The amount certified by the CM for payment shall be ninety percent (90%) of the value of
Work completed and materials stored since the CM's last certification as shown on the
Request for Payment, less any amounts not certified in accordance with paragraph 20.4,
and this amount shall be paid by the CM on or before the last business day of the month,
but payment shall not be past due if paid within fifteen (15) days thereafter.
20.8 If the Contractor's Work has progressed in accordance with the Master Schedule as of a
target date mutually agreed upon by the Owner, the Designer and the CM, and the
Contractor has provided to the CM the written consent of its sureties to the cessation of
further percentage retention, the amount certified for payment with respect to subsequent
Requests for Payment may, in the discretion of the CM, be one hundred percent (100%) of
the value of Work completed and materials stored since the CM's last certification as
shown on the Request for Payment, less any amounts not certified in accordance with
paragraph 20.4; provided, however, that the aggregate of periodic payments shall not
exceed ninety-five percent (95%} of the Contract Price.
ARTICLE 21. FINAL PAYMENT
21.1 Final Payment shall not be due to the Contractor until Final Completion.
21.2 Upon Substantial Completion, the CM in conjunction with the Designer shall prepare and
submit to the Contractor deficiency lists identifying all portions of the Work which are shown
at that time to be incomplete or defective. Within thirty (30) days of receipt of any deficiency
list, the Contractor shall complete and correct all items on that list along with all other Work
required to achieve Final Completion of the Work. At any time prior to completion of the
period of warranty, the CM may submit to the Contractor supplemental deficiency lists, in
which case the Contractor shall complete or correct any and all new items identified on the
supplemental deficiency lists within the time period stipulated in paragraph 18.3 of these
General Conditions.
21.3 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
CM except:
a) Claims arising from unsettled liens or claims against the Contractor.
b) Defective Work or materials appearing after Final Payment.
c) Failure of the Contractor to perform the Work in accordance with the Contract
Documents.
d) As conditioned in the Performance Bond.
e) Claims made prior to Final Payment which remain unsettled.
Amounts due arising under Articles 18 and 28 of these General Conditions.
g) Claims for recovery of overpayment based upon incorrect measurement, estimate,
or certificate.
21.4 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
Contractor except those claims previously made in writing pursuant to paragraph 15.2 of
these General Conditions and not finally resolved.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 37 of 43 JUNE 2007 EDITION
21.5 The CM shall not be required to make Final Payment unless and until (i) the Designer has
certified based on the Designer's observations and information that all of the Work by the
Contractor under the Contract Documents has been completed in accordance with the
Contract Documents, and (ii) the Work by the Contractor has been approved by all federal,
state and local agencies having jurisdiction.
21.6 The final Request for Payment shall be identified on its face as such and shall be
presented by the Contractor to the CM within thirty (30} days of completion of the Work.
Final payment of the retained amount due the Contractor shall be made by the CM within
thirty (30) days after the later of (i) full and Final Completion of all Work required of the
Contractor by the Contract Documents, and certification of such Work in accordance with
paragraph 21.5; (ii} submission of the affidavits and other documentation required by Article
22; (iii) submission by the Contractor of a Request far Payment identified on its face as
final.
ARTICLE 22. CONTRACTOR, SUBCONTRACTOR AND SUPPLIER AFFIDAVIT
22.1 The Final Payment due the Contractor on account of the Contract Documents shall not
become due until the Contractor has furnished to the CM (A} an affidavit by the Contractor
signed, sworn, and notarized to the effect that all payments for materials, services, or for
any other reason in connection with the Work or performance of the Contract Documents
have been satisfied and that no claims or liens exist against the Contractor in connection
with the same; (B} affidavits from each Subcontractor and supplier signed, sworn, and
notarized to the effect that (i) each such Subcontractor or supplier has been paid in full by
the Contractor for all Work performed and/or materials supplied by it in connection with the
Project, and (ii) that all payments for materials, services, and for any other reason in
connection with the subcontract or supply contract have been satisfied and that no claims
or liens exist against the Subcontractor or supplier in connection therewith; and (C) the
written consent of the Contractor's sureties to Final Payment. In the event that the
Contractor cannot obtain an affidavit, as required above, from any Subcontractor or
supplier, the Contractor shall state in the Contractor's affidavit that no claims or liens exist
against such Subcontractor or supplier to the best of the Contractor's knowledge, and that if
any appear aften~vards, the Contractor shall indemnify and save the CM and the Owner
harmless for all costs and expenses, including attorney's fees, on account thereof.
ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS
23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the CM. Except as may be required under
terms of the bonds required by the Contract Documents, no funds or sums of money due or
to become due to the Contractor under the Contract Documents may be assigned.
ARTICLE 24. MEASUREMENTS
24.1 Before ordering material or doing Work which is dependent for proper size or installation
upon coordination with building conditions, the Contractor shall verify all dimensions and
shall be responsible for the correctness of same. No consideration will be given for any
claim based on differences between the actual dimensions and those indicated in the
Contract Documents. Any discrepancies between the Contract Documents and the existing
conditions shall be referred to the Designer by the CM for adjustment before any Work
affected thereby is begun.
ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS
GENERAL CONDITIONS FOR CM AT RISK PROJECT 38 of 43 JUNE 2007 EDITION
25.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor
for signatures, the Contractor shall submit to the CM for acceptance a current list of the
names of Subcontractors and such other persons and organizations (including those who
are to furnish materials or equipment fabricated to a special design} proposed for any and
all portions of the Work. The Contractor shall provide this list at this time even if the
Contractor was required to submit a list of proposed Subcontractors with the Contractor's
bid. The CM shall promptly reply to the Contractor in writing stating whether or not the CM,
after due investigation, has objection to any such proposed person or entity or if it needs
additional information to evaluate the persons or entities on the list. Failure of the CM to
reply within ten (10} days after the Contractor has furnished all required information shall
constitute notice of no objection.
The Contractor shall not contract with any such proposed person or entity to which the CM
has made reasonable objection. If the CM has reasonable objection to any such proposed
person or entity, the Contractor shall submit a substitute to whom the CM has no
reasonable objection. The Contractor shall make no substitution for any Subcontractor,
person, or entity previously allowed without first notifying the CM in writing and no
substitution may be made if the CM makes a reasonable objection to such substitution.
25.2 The Contractor agrees that the terms of the Contract Documents, including all portions
thereof, shall apply to all Subcontractors as if they were the Contractor, and that the
Subcontractors shall, by means of their subcontracts, be bound by all the terms of the
Contract Documents.
25.3 Payments to Subcontractors by the Contractor shall be made in accordance with the
provisions of N.C. Gen. Stat. ;143-134.1.
ARTICLE 26. USE OF PREMISES
26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers,
and the disposal of material to limits indicated by law, ordinances, permits, and directions of
the CM, if any.
26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that
will endanger its safety, intended performance, or configuration.
26.3 The Contractor shall enforce all of the CM's instructions, including, but not limited to, those
regarding signs, advertisements, fires, and smoking.
ARTICLE 27. CUTTING, PATCHING AND FITTING
27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to
make its several parts come together properly and fit it to receive or to be received by Work
shown in or which can be reasonably implied from the Contract Documents.
ARTICLE 28. DISPUTE RESOLUTION
28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with
respect to any provision of, or the performance or nonperformance of, this Agreement shall
be brought in the General Court of Justice of North Carolina sitting in Orange County, North
GENERAL CONDITIONS FOR CM AT RISK PROJECT 39 of 43 JUNE 2007 EDITION
Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue
with respect to such suits or actions. Appendix A shall be a part of the Contract Documents.
Prior to initiating an action under this Article, any party to this Agreement shall initiate the
mediation process as provided in Appendix A to these General Conditions.
28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to
provide material, supplies, equipment, work, performance or payment bonds, insurance or
indemnification for the construction of the Project or the Work shall be deemed a party to
this Agreement solely far the purpose of this Article 28. The Contractor, by means of its
subcontracts, shall specifically require its Subcontractors to be bound by this Article.
ARTICLE 29. TAXES
29.1 The Contractor has included in the Contract Price, and shall pay, all taxes assessed by any
authority on the Work or on the labor and materials used therein. The Contractor shall
maintain all tax records during the life of the Project and furnish the CM with a complete
listing of all taxes paid by taxing authority, invoice number, date, amount, etc. in a farm
acceptable to the CM and the Owner. The Contractor is required to maintain a file showing
taxes paid on the Project for three (3) years after Final Payment or turn said documents
over to the Owner far its files.
29.2 The following is a list of requirements to be followed by the Contractor in maintaining
proper records and reporting the North Carolina Sales and Use Tax and Local Sales and
Use Tax. The Contractor shall comply fully with the requirements outlined below, in order
that the Owner may recover the amount of the tax permitted under the law.
a) It shall be the Contractor's responsibility to furnish the CM documentary evidence
showing the materials used and sales and use tax paid by the Contractor and by
each of its Subcontractors. Such evidence shall be transmitted to the CM with each
pay request regardless of whether taxes were paid in that period covered by the
pay request.
b) The documentary evidence shall consist of a certified statement by the Contractor
and by each of the Contractor's Subcontractors individually, showing total
purchases of materials from each separate vendor and total sales and use taxes
paid to each vendor. Certified statements must show the invoice number, or
numbers, covered, and inclusive dates of such invoices.
c) Materials used from Contractor's or Subcontractor's warehouse stock shall be
shown in a certified statement at warehouse stock prices.
d) The Contractor shall not be required to certify the Subcontractor's statements.
ARTICLE 3Q. OPERATION OF OWNER'S FACILITIES
30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried
on in such a manner so as to ensure the regular and continuous operation of the adjoining
or adjacent facilities. The Contractor further agrees that the sequence of operations under
the Contract Documents shall be scheduled and carried out so as to ensure said regular
and continuous operation. The Contractor shall not close any areas of construction until so
authorized by the CM. The Contractor shall control operations to assure the least
inconvenience to the public. Under all circumstances, safety shall be the most important
consideration.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 40 of 43 JUNE 2007 EDITION
ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE
31.1 It is specifically agreed between the parties executing the Agreement that, with the specific
exception set forth paragraph 1.24 of these General Conditions, and that exception only,
the Contract Documents and the provisions therein are not intended to make the public, or
any member thereof, athird-party beneficiary of the Agreement, or to authorize anyone not
a party to the Contract Documents to maintain a suit for personal injuries or property
damage pursuant to the terms of provisions of the Contract Documents.
ARTICLE 32. MEASUREMENT OF QUANTITIES
32.1 All Work completed under the Contract Documents shall be measured by the Contractor
using United States customary units of measurement. The method of measurement and
computations to be used in determination of quantities of material furnished and of Work
performed under the Contract Documents shall be those methods set forth in the Contract
Documents or, if not specifically set forth therein, the method generally recognized as
conforming to good engineering practice.
ARTICLE 33. TERMINATION BY THE CM FOR CAUSE
33.1 If the Contractor fails to begin or complete the Work under the Contract Documents within
the time specified, or fails to perform the Work with sufficient labor and equipment or with
sufficient materials to insure the prompt completion of said Work, or shall perform the Work
unsuitably or shall discontinue the prosecution of the Work for three (3} consecutive days,
or if the Contractor shall become insolvent, be declared bankrupt, commit any act of
bankruptcy or insolvency, allow any final judgment to stand against the Contractor or its
affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment
for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in
an acceptable manner, the CM may give notice in writing to the Contractor and the
Contractor's sureties of such delay, neglect, or default, specifying the same, and if the
Contractor within a period of three (3} days after such notice shall not proceed in good faith
and with reasonable speed to correct such delay, neglect, or default in accordance with
such notice, the CM shall have full power and authority, to the extent permitted by law,
without violating the Contract Documents, to take the prosecution of the Work out of the
hands of the Contractor, to appropriate or use any or all materials and equipment at the
Project as may be suitable and acceptable, and may enter into an agreement for the
completion of the Work or pursue such other methods as in the CM's sole discretion and
opinion shall be necessary or appropriate for the completion of the Work in an acceptable
manner. All costs and charges incurred by the CM in proceeding in accordance with the
preceding sentence, including attorney's fees, and all costs incurred by the CM in
completing the Work shall be deducted from any amount due or which becomes due the
Contractor. If such costs and expenses incurred by the CM shall be less than the sum
which would have been payable under Contract Documents if it had been completed by the
Contractor, then the Contractor shall be entitled to receive the difference, but if such costs
and expenses shall exceed the sum which would have been payable under the Contract
Documents, the Contractor and the Contractor's surety or sureties shall be liable to the CM
for and shall pay to the CM the amount of such excess.
33.2 If the CM terminates the Agreement pursuant to this Article 33 and later it is determined
that the Contractor had not substantially failed to perform in accordance with the terms of
this Article, then the termination will be considered a termination for convenience under
Article 34.
ARTICLE 34. TERMINATION OR SUSPENSION BY THE CM FOR CONVENIENCE
GENERAL CONDITIONS FOR CM AT RISK PROJECT 41 of 43 JUNE 2001 EDITION
34.1 The CM may, without cause, order the Contractor to terminate, suspend, delay, or interrupt
the Work in whole or in part for such period of time as the CM may determine.
34.2 If the Cantractor is subsequently ordered by the CM to resume the Wark, any cast or
expenses to which the Contractor may be entitled by reason of the suspension, delay, or
interruption shall be recovered by means of a Change Order in accordance with Articles 13
and 14 of these General Conditions and the Contractor's Construction Schedule and the
Master Schedule shall be adjusted in accordance with Article 13 of these General
Conditions.
34.3 The CM shall terminate the Wark or portion thereof by written notice when the Cantractor is
prevented from proceeding with the Wark as a direct result of an executive order of the
President with respect to the prosecution of war ar in the interest of national defense.
34.4 In the event of termination by the CM under this Article, the Contractor shall be entitled to
receive the reasonable and documented direct casts incurred prior to termination, including
the cast of materials purchased far the Wark which purchases cannot be canceled or which
material cannot reasonably be used by the Cantractor an other work, and the cost of
closing down the Project in a safe and efficient manner, plus ten percent (10°!0) thereof for
overhead and profit, subject to the following conditions:
a) When the Contract is terminated before completion of all items of Work, payment
shall be made for the actual number of units or items of Work completed at the
applicable contract prices, or as mutually agreed for items of Work partially
complete. If a mutual agreement cannot be reached, the CM shall have the
authority to make such equitable adjustment as it deems warranted and the Final
Payment shall be made accordingly.
b) Reimbursement for organization of any Work and moving equipment to and from
the job shall be considered when not otherwise provided for in the Contract
Documents where the volume of completed Work is too small to compensate the
Contractor for those expenses under unit prices. If a mutual agreement cannot be
reached, the CM will have the authority to make such equitable adjustment as it
deems warranted and the Final Payment will be made accordingly.
c) Materials obtained by the Contractor for the Work that have been inspected and
accepted by the Designer and that are not incorporated in the Work shall, at the
request of the Contractor, be purchased from the Contractor at the Contractor's
actual cost as shown by receipted bills and actual costs records at such points of
delivery as may be determined by the CM.
d) No payment shall be made by the CM to the Contractor except as herein above
provided. No claim for loss of anticipated profits shall be considered or allowed.
e) Termination of the Contract shall not relieve the Contractor of its responsibilities for
any completed portion of the Work nor shall it relieve its sureties of their obligation
for and concerning any just claims arising out of the Work performed.
In the event of termination or suspension by the CM for convenience, the Contractor shall
not be entitled to any other compensation, including compensation for lost profit, lost
opportunity, or any other direct or consequential cost, loss, or damage.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 42 of 43 JUNE 2007 EDITION
ARTICLE 35. MINORITY BUSINESS ENTERPRISE PROGRAM
35.1 The Contractor shall at all times comply with the latest edition of the Orange County
Minority Business Enterprise Policy. All documentation substantiating compliance with the
requirements of this program shall be delivered to the CM as stipulated in the Contract
Documents. A copy of the Orange County Minority Business Enterprise Policy is Appendix
C hereof and is included in the Project Manual.
ARTICLE 36. GENERAL
36.1 If any provision of the Agreement shall be declared invalid or unenforceable, the remainder
of the Agreement shall continue in full force and effect.
36.2 The titles to Articles herein are for convenience only, are not substantive parts of the
General Conditions, and are not to be considered in interpreting the Contract Documents.
END OF GENERAL CONDITIONS OF THE
CONTRACT FOR CONSTRUCTION --
CONSTRUCTION MANAGER AT RISK
GENERAL CONDITIONS FOR CM AT RISK PROJECT 43 of 43 JUNE 2007 EDITION
ORANGE
COUNTY AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES
NORTH
CAROLINA
This AGREEMENT is made and effective on this date:
BETWEEN The Owner:
ORANGE COUNTY
And the Construction Manager {hereinafter referred to as the "CM"):
TELESIS CONSTRUCTION MANAGEMENT, LLC
For services in connection with the Project known as:
The Orange County two story Public Library and three story Office Building located an Margaret Lane in
Hillsborough, North Carolina, as further described in Article 2
For which the Designer is:
Brockwell Associates, Inc., in conjunction with Gardner & McDaniel, PA, Engineered Designs, Inc. and
Summit Consulting Engineers, PLLC, as sub-consultant to Brockwell Associates, Inc.; AND Phillip K. Barton,
Library interior space planner.
The Owner and CM, in consideration of their mutual covenants herein, agree asset forth below:
TABLE OF CONTENTS
ARTICLE 1 -RELATIONSHIP OF THE PARTIES ......................................................................................... 4
1.1 Owner and Construction Manaaer
1.2 Owner and Desiqner
1.3 GM and Contractors
1.4 Relationship of the CM to the Desiqner
ARTICLE 2 -PROJECT DEFINITION .......................................................................................................... 4
ARTICLE 3-CONSTRUCTION MANAGER'S SERVICES ................................................................................ 4
3.1 CM Services
3.2 CM Personnel
3.3 Construction Management Plan
3.4 Consultant Selection
3.5 Time Management
3.6 Cost Management
3.7 _Management information 5ystem (MIST
3.8 Design Phase Services
3.9 Procurement Phase
3.10 Construction Phase
3.11 Post Construction Phase
3.12 Additional Services
ARTICLE 4 - TIME FOR PERFORMANCE .................................................................................................... 16
4.1 Duration
4.2 Master Schedule
4.3 Non-waiver
4.4 Schedule Adjustment
4.5 Early Start
4.6 Recovery
4.7 Schedule Monitoring
4.8 Schedule Revisions
4.9 Withholding Payment from CM
4.10 Work by Owner
4.11 Force Maieure
4.12 Notice
4.13 Weather Delays
4.14 Damages for Delay
4.15 liquidated Damages
ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 18
5.1 Owner Changes
ARTICLE 6 -OWNER'S RESPONSIBILITIES ............................................................................................ ... 19
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 Gopies of Drawings and Specifications
6.10 Permits and Approvals
6.11 Funding Requirements
6.12 Communication with Contractors
6.13 Copies of Notices and Communication
6.14 Owner's Representative
6.15 Payments to CM
ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 24
8.1 CM's Liability Insurance
8.2 Builder's Risk Insurance
8.3 Indemnity
2
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 PROVISIONS .................................................................................................. 29
11.1 Confidentiality
11.2 Signs
11.3 Limitation and Assignment
11.4 Minority Business Enterprise Program
11.5 Extent of Agreement
11.6 Severability
11.7 Meaning of Terms
11.8 Notices
11.9 Bonds
11.10 Ownership of Documents
ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS ......................................................... 30
12.1 Guaranteed Maximum Price
Appendix A -Dispute Resolution
Appendix B -List of Cost Elements [not used]
Appendix C -Orange County Minority Business
Enterprise Policy
Appendix D -Divisions of the UVork for Guaranteed Maximum Price [not used]
Appendix E -- Project and Construction Budget
Appendix F -- Master Schedule
1.1 Owner and Construction Manager
The CM and the Owner shall perform as stated in this
Agreement and each accepts the relationship between them
that is established by this Agreement.
The CM covenants with the Owner to furnish professional
construction management services during the Project. In broad
terms, under this Agreement, the CM will perform construction
ARTICLE 1 services, including efficient value engineering reviews and
RELATIONSHIP OF THE PARTIES project management, business administration and field
3
supervision, and shall use its best efforts to see to it that the
Work of the Project is done in the best and most expeditious,
economical manner consistent with the interests of the Owner,
and in strict conformity with the Contract Documents, including
all reasonable implications therein, and to furnish its skill and
judgment with due care in accordance with applicable federal,
state, and local laws and regulations that are in effect on the
date of this Agreement first written above.
1.2 Owner and Designer
The Owner shall contract separately with the Designer to
provide architectural and engineering design for the Project.
The Project is defined in Article 2 of this Agreement. In this
Agreement the term "Drawings and Specifications" shall refer to
the drawings and specifications prepared by the Designer in
accordance with its agreement with the Owner.
1.3 CM and Contractors
The CM shall enter into contracts for labor, materials and
services in accordance with N.C. Gen. Stat. § 143-128.1 and
other sections of Chapter 143 Article 8 of the North Carolina
General Statutes relating to construction management at risk
contracts. In this Agreement the term "contractor" or
"Contractors' shall refer to all persons with such contracts with
the CM.
1.4 Relationship of the CM to the Designer
In providing construction management services described in
this Agreement, the CM 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 CM is
responsible for the design of the Project or that the GM
assumes any of the contractual or customary duties of the
Designer or any other persons or parties not specified by this
Agreement. The CM and the Designer shall each 6e 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 Orange County two story
Public Library and three story Office Building located on
Margaret Lane in Hillsborough, North Carolina. The Project is
intended for use as a public library and a County office building
as described in the Agreement of Intent between the Owner
and the CM, dated November 2, 2006, the Orange County
Office and Library Complex project report last updated June
15, 2046 and all site plan and related documents submitted to
the Town of Hillsborough a part of the Town of Hillsborough
approval of the Project and as those documents are or will be
modified to conform to Project approvals obtained by the Town
of Hillsborough.
The Project shall be fully described in the Contract Documents,
which are hereby defined to include: This Agreement, plus the
Drawings and Specifications prepared by the Designer, plus
allowable Modifcations tothe Contract Documents.
ARTICLE 3
CONSTRUCTION MANAGER'S SERVICES
3.1 CM Services
The CM shall perform the Services described herein. The
sequence in which they are provided shall be as set forth in the
approved Construction Management Plan.
3.2 GM Personnel
The services to be provided by the GM under this Agreement
shall be performed by personnel identified by the CM, 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
4
From time to time, personnel may be added as necessary and
appropriate to the stage of planning, programming, designing
and constructing the Project. The CM shall anticipate the need
for such additional personnel by submitting to the Owner, no
later than seven (7) days prior to the need for the additional
personnel, a list of the proposed additional personnel, attaching
the resumes of proposed additional personnel, and stating the
reasons for such additions. The Owner shall promptly review
the proposed additions and either approve or disapprove the
additional personnel in writing. The GM shall not employ any
individual to pertorm 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 CM shall
not, for so long as any approved person is employed by the
CM, 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 GM shall
promptly remove such person and recommend a replacement.
If any approved person ceases employment with the CM, or if
the Owner requests the removal of any such person, then the
CM shall promptly notify the Owner of a proposed substitute of
at least equal qualifications to perform the same functions, and
provide a resume for the substitute. Each substitute
Responsible 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 CM shall bear, at its own expense and without
reimbursement by the Owner, all costs associated with
replacing, for any reason, any approved personnel. The GM
shall remain solely responsible to the Owner, notwithstanding
the Owner's approval of any approved personnel, for the
quality and performance of all services provided by such
personnel.
3.2.2 CM's Proiect Representative
The CM shall designate a Project Representative who has the
authority to act on behalf of the CM in respect to all matters
that are the subject of this Agreement, including, without
limitation, the power and authority to enter into agreements or
modifications that contractually bind the GM. The Project
Representative shall be available at all times during all phases
of pertormance of services under this Agreement to consult
with the Owner on matters pertinent to design and construction
of the Project.
3.2.3 CM's Employees
None of the persons employed by the CM shall be considered
employees of the Owner. The CM shall be solely responsible
for any workers' compensation obligations, withholding taxes,
unemployment insurance, compliance with immigration and
licensing laws, and any other employer obligations with respect
to all of their respective employees.
3.3 Construction Manaoement Plan
Within ____ days after execution of this Agreement, the
CM shall present to the Owner a Construction Management
Plan for the Project, including dates by which deliverables
required by the Construction Management Plan will be
completed. The CM shall make recommendations for revisions
to the Construction Management Plan throughout the duration
of the Project, as may be appropriate. In preparing the
Construction Management Plan, the CM shall consider the
Owner's schedule, budget, and design requirements for the
Project. The GM shall then develop various alternatives for the
sequencing and management of the Project and shall make
recommendations to the Owner. The Construction
Management Plan shall also include a description of the
various bid packages recommended for the Project. The
Construction Management Plan shall be presented to the
Owner for acceptance. Revisions approved by the Owner shall
be incorporated into the Construction Management Plan.
3.4 Consultant Selection
If requested by the Owner, the GM shall assist the Owner in the
selection of designers and other consultants necessary for the
Project (generally referred to in this Agreement as
"Consultants') by developing lists of potential firms, developing
criteria for selection, preparing and transmitting the requests for
proposal, assisting in reviewing written proposals, assisting in
conducting interviews, evaluating candidates and making
recommendations.
3.4.1 Consultant Contract Preparation
If requested by the Owner, the GM shall assist the Owner in the
preparation and review of Agreements between the Owner and
the Consultants engaged by the Owner.
3.4.2 Consultant Orientation
If requested by the Owner, the CM shall conduct or assist the
Owner in conducting orientation sessions during which the
5
Consultants shall receive information regarding the Project
scope, schedule, budget, and administrative requirements.
3.5 Time Management
The CM shall be responsible for Project scheduling and
efficient and timely prosecution and completion of the Work, as
follows:
3.5.1 Master Schedule
In accordance with the Construction Management Plan, the CM
shall prepare a 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 CM 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 GM may make
revisions to the Master Schedule so Tong 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 CM 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 CM shall prepare
a Milestone Schedule for the Design Phase. The Design
Phase Milestone Schedule may be incorporated into the
contract for the Designer and shall be a method for judging
progress during the Design Phase. The Design Phase
Milestone Schedule activities shall include schematic design
documents, design development documents, construction
documents, permitting, creation of separate specifications and
bid packages, and selection and approval of long-lead-time
components of the Project. The OM shall monitor compliance
with the Design Phase Milestone Schedule, and promptly notify
the Owner and Designer of any delay or change in the Design
Phase Milestone Schedule.
3.5.4 Pre-Bid Construction Schedules
Prior to transmitting Contract Documents to bidders, the CM
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 GM 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 CM shall provide a copy of the Master Schedule to the
bidders. As part of the notice of award of each contract, the
CM shall inform each Contractor of the requirements for the
preparation of a construction schedule. The Contractor shall
prepare its own construction schedule in accordance with the
requirements of the Contract Documents. The Contractor's
construction schedule shall establish completion dates that
comply with the requirements of the Master Schedule.
3.6 Cost Management
The CM shall be responsible for implementing a system of cost
control, for the completion of the Project within the Guaranteed
Maximum Price agreed to by the CM and the Owner as set
forth herein.
3.6.1 Construction Market Surrey
In accordance with the Construction Management Plan, the CM
shall, at the written request of the Owner, conduct a
Construction Market Survey to provide current information
regarding the general availability of local construction services,
labor, materials and equipment cost and other economic
factors related to the Project. A report of the Construction
Market Survey shall be provided to the Owner and the
Designer.
3.6.2 Project and Construction Budget
[Not used]
3.6.3 Preliminary Estimate and Budget Analysis
[Not used]
3.6.4 Cost Control
[Not used]
3.6.5 Project and Construction Budget Revision
[Not used]
3.6.6 Value Engineering Studies
6
[Not used]
3.6.7 Estimates for Addenda
Prior to bidding, the GM shall notify the Owner and the
Designer if any addendum issued by the Designer could impact
the Cost of the Work of the Project, and will prepare an
estimate of costs for all such addenda and shall submit the
estimates to the Owner for approval. After approval by the
Owner, addenda shall be transmitted to bidders by the CM.
Once bids are received and contracts are awarded to each
Contractor, any addenda issued by the Designer which affects
a Contractor shall be processed through the change order
provisions in the Agreement.
3.6.8 Analvzing Bids: Upon receipt of bids, the CM shall
evaluate the bids, including alternate prices and unit prices,
and before award of any construction contract shall provide the
Owner and the Designer with a report summarizing the bids.
3.6.9 Schedule of Values (Each Contract)
The CM 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 GM 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 GM. The CM
shall then forward a request for proposal to the appropriate
Contractor (or Contractors), accompanied by technical
Drawings and Specifications prepared by the Designer. In
response to the request for a proposal, the Contractor shall
submit to the CM for evaluation detailed information concerning
the costs and time adjustments, if any, necessary to perform
the proposed change order work. The CM shall review the
Contractor's proposal, shall discuss the proposed change order
with the Contractor and determine the Contractor's basis for the
cost and time to perform the Work and, as applicable, the
effect, if any, on the Guaranteed Maximum Price. The CM
shall present its findings to the Owner and Designer. Following
Owner acceptance, the Designer shall prepare the change
order documents for signature by the GM and Owner. Upon
execution of the change order documents between the GM and
Owner, the CM shall prepare change order documents for
signature by the affected Contractor(s). The CM shall verify
that any adjustment of time required by approved change
orders has been incorporated into the Contractor's
Construction Schedule.
3.6.11.2 The CM shall review the contents of all Contractor-
requested changes to the contract time or price, determine
whether an adjustment to the Guaranteed Maximum Price or
the Master Schedule is warranted under the Contract, and
determine the amount or length, if any, of the allowable
adjustment to the Guaranteed Maximum Price and the Master
Schedule. If the CM believes that an adjustment to this
Contract might be warranted by a Contractor change request,
the CM shall provide the Designer with a copy of the change
request, and the CM shall, in its evaluations of the Contractor's
request, consider the Designer's comments regarding the
proposed changes. The CM shall present its findings to the
Owner and Designer regarding the proposed changes. If, after
review by the Owner and Designer, the Owner determines that
an adjustment to the Guaranteed Maximum Price or Master
Schedule is warranted, the Designer shalt prepare the change
order documents for signature by the CM, the Owner and the
Designer. Upon execution of the change order documents
between the CM and Owner, the CM shall prepare change
order documents for signature bythe affected Contractor.
3.6.11.3 In instances where a lump sum or unit price is not
authorized by the Owner in a change order prior to performing
Work described in a request for proposal as provided in
Paragraph 3.5.11, the CM shall request from the Contractor
records of the cost of payroll, materials and equipment and the
amount of payments to subcontractors incurred by the
Contractor in performing the Work.
3.6.12 Trade-Off Studies
[Not used]
3.6.13 Progress Payments
In consultation with the Designer, the CM shall inspect the work
to determine compliance with the Contract Documents, review
the monthly payment applications submitted by each
7
Contractor and determine whether the amount requested
reflects the progress of the Contractor's Work. The CM shall
make appropriate adjustments to each payment application
and shall prepare and forward to the Designer and Owner a
progress payment report. The report shall state the total
contract price, payments to date, current payment requested,
retainage and actual amounts owed for the current period.
Included in this report shall be a certificate of payment that
shall be signed by the CM and delivered to the Owner. The
CM shall make payments that are due to all contractors,
suppliers, and material men within seven (7) days following the
delivery to the Owner of the certificate of payment. In addition,
the CM 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 CM shall contain
sales tax information on forms provided by the Owner.
3.7 Management Information System (MIS)
The CM shall develop a MIS to establish communication
between the Owner, CM, Designer, and other parties on the
Project. In developing the MIS, the GM shall interview the
Owner's and the Designer's key personnel and others to
determine the type of information for reporting, the reporting
format, and the desired frequency for distribution of the various
reports. At a minimum, the MIS shall include the elements
described in this section.
3.7.'I Pre-construction Procedures
As part of the MIS, the CM shall establish procedures for
reporting, communication, and administration during the Design
Phase and regulatory permitting.
3.7.2 Schedule Maintenance Reports
The CM shall prepare and distribute schedule maintenance
reports on a monthly basis that shall contrast actual progress
against scheduled progress for each Phase and the overall
Project and shall make recommendations to the Owner for
corrective action to maintain the Master Schedule and all
design and construction schedules. During the Construction
Phase the reports shall compare the actual construction dates
to scheduled construction dates of each separate construction
contract and to the Master Schedule for the Project.
3.7.3 Protect Cost Reports
The CM shall prepare and distribute project cost reports on a
monthly basis that shall specify the actual award prices and
construction costs for the Project, compared to the Project
Guaranteed Maximum Price. During the Construction Phase
the reports shall specify actual Project and construction costs
compared to the Project Guaranteed Maximum Price.
3.7.4 Cash Flow Report
The CM shall periodically prepare and distribute a cash flow
report. The reports shall be based on actual award fees and
prices and on actual design and construction costs for the
Project. The reports shall specify the actual cash flow
compared to the projected cash flow.
3.7.5 Change Order Report
The CM shall prepare and distribute Design Phase reports on a
monthly basis that shall list all Owner-approved addenda,
substitutions and change orders as of the date of the report
and shall state the effect of the changes on the Project and
Construction Budget and the Master Schedule. The CM shall
continue to prepare and distribute monthly change order
reports during the Construction Phase. The report shall include
logs of all requests for information, requests for interpretation of
the design documents, requests for proposals, notices of
events that might justify an adjustment in the Guaranteed
Maximum Price or Master Schedule, and status of critical
decisions to be made by the Owner or the Designer. The
report shall list all Owner-approved change orders by number,
a brief description of the change order work, the cost
established in the change order and percent of completion of
the change order work. The report shall also include similar
information for potential change orders or impact on the
Guaranteed Maximum Price of which the CM maybe aware.
3.7.6 Project and Construction Budget Revisions
The CM shall make recommendations to the Owner concerning
construction changes that may result in revisions to the Project
Guaranteed Maximum Price.
3.7.7 Progress Payment Reports (Each Contract)
The CM shall prepare and distribute the progress payment
reports. The reports shall state the total construction contract
price, payment to date, current payment requested, retainage,
sales and use tax paid, and actual amounts owed this period.
A portion of this report shall be a certificate of payment that
shall be signed by the GM and delivered to the Designer and
the Owner.
8
3.7.8 Contractor's Safety Program
On a monthly basis, the CM shall review the safety programs of
each Contractor and confrm that each Contractor has
established and implemented safety programs as required by
the Contract Documents.
3.7.9 Final Inspections and Commissioning
The CM shall schedule final inspections and, if required by the
Contract Documents, commissioning of systems in the Project,
and shall compile and organize all inspection reports for the
Project records.
3.7.10 Closeout Reports
At the conclusion of the Project, the CM 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 CM 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 CM 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 CM shall conduct a project
conference attended by the Designer, the Owner and others as
necessary. During the Project Conference, the CM shall review
the Construction Management Plan, the Master Schedule, the
Design Phase Milestone Schedule, the Project Guaranteed
Maximum Price, and the MIS. The CM shall conduct and
prepare minutes of this meeting.
3.8.2 Design Phase Information
The CM shall monitor the Designer's compliance with the
Construction Management Plan and the MIS and the CM shall
coordinate and expedite the flow of information between the
Owner, Designer, the GM and others as necessary.
3.8.3 Progress Meetings
The CM shall participate in regularly scheduled progress
meetings attended by the Owner, CM and others as necessary.
Such meetings shall serve as a forum for the exchange of
information concerning the Project and the review of design
progress. The Designer shall prepare and distribute minutes of
these meetings to the Owner, CM and others.
3.8.4 Review of Design Documents
The CM shall review all design documents, including drawings,
specifications, addenda, and supplemental design information,
for clarity, consistency, constructibility and coordination among
the Contractors. The results of the review shall be provided in
writing as notations on the documents or in a written report.
The CM is not responsible for providing, nor does the GM
control, the Project design and contents of the design
documents. By performing the reviews described herein, the
CM is not acting in a manner so as to assume responsibility or
liability, in whole or in part, for all or any part of the Project
design and design documents. The CM's actions in reviewing
the Project design and design documents and in making
recommendations as provided herein are only advisory to the
Owner.
3.8.5 Design Recommendations
The CM shall make recommendations to the Owner and
Designer with respect to constructibility, construction cost,
sequence of construction, construction duration, possible
means and methods of construction, time for construction, and
separation of the Project contracts for various categories of
Work. In addition, the GM shall give to the Designer all data of
which it is aware concerning patents or copyrights for inclusion
in Gontract Documents.
3.8.6 Owner Design Reviews
The CM 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 CM shall assist the Designer with transmittal of documents
to regulatory agencies for review and shall advise of potential
problems in completing such reviews.
3.8.8 Construction Contracts and General Conditions
The CM shall recommend for approval by the Owner the
appropriate Contractor bid packages. The CM shall take into
account the needs of the Project, the Master Schedule, risk
9
management, and the available resources, and divide the Work
for the best benefit of the Project. The CM and the Designer
shall collaborate on the preparation of bid documents
consistent with the bid packages identified by the CM and
approved by the Owner. Consistent with State law, one (single
prime bidding) or more (multi prime bidding) bid packages shall
be prepared as appropriate for each of the general
construction, electrical, mechanical, fire protection, and
plumbing divisions of the Work of the Project. The CM shall
prepare any other contract packages for other divisions or
subdivisions of the Work as agreed with the Owner. The form
of agreement and general conditions for inclusion in all bid
packages and use in the contracts between the CM and the
Contractors for construction for the Project shall be based on a
form of Agreement selected by the CM and the General
Conditions of the Orange County Contract For Construction -
Construction Manager at Risk. The form of Agreement selected
by the CM shall be consistent with the Orange County General
Conditions of the Contract For Construction -Construction
Management at Risk. The requirements of this Agreement
shall be included in each construction contract to the extent
applicable to the construction contract. Supplementary
General Conditions for Contractors shall be prepared by the
GM and submitted to the Owner and the Designer with
adequate time for review and comment before inclusion in bid
packages. The Designer and the CM will collaborate on the
preparation of the general Division One requirements of the
Specifications. Separate General Conditions for materials and
equipment procurement shall be prepared by the CM to meet
the specific requirements of the Project using forms approved
6y the Owner. The CM shall be afforded a reasonable
opportunity to review and comment on all special warranties
and other obligations imposed on the Contractors by the
Specifications.
3.8.9 Public Relations
The CM shall assist the Owner in public relations activities and
shall prepare information for and attend public meetings
regarding the Project as reasonably required by the Owner.
3.8.10 Protect Funding
The GM shall assist the Owner in preparing documents
concerning the Project for use in obtaining or reporting on
project funding. The documents shall be prepared in a form
approved by the Owner.
3.9 Procurement Phase
All construction contracts, labor, materials and services shall be
procured in accordance with N.C. Gen. Stat. § 143-128.1 and
other sections of Chapter 143 Article 8 of the North Carolina
General Statutes relating to construction management at risk
contracts.
3.9.1 Pregualifying Bidders
The CM shall develop lists of possible bidders and shall
prequalify bidders. This service shall include the following:
preparation and transmission of questionnaires; receiving and
analyzing completed questionnaires; interviewing possible
bidders, bonding agents, and financial institutions; and
preparing summary reports regarding this activity to the Owner.
The CM shall also prepare and transmit to the Owner a bidders
list for each bid package. The Owner shall notify the CM
promptly of any reasonable objections to a proposed bidder,
and the CM shall remove that bidder from the bidders list.
3.9.2 Bidder's Interest Campaign
[Not used]
3.9.3 Notices and Advertisements
The CM shall prepare and place notices and advertisements to
solicit competitive bids for the Project.
3.9.4 Deliverv of Bid Documents
The CM shalt expedite the delivery of bid documents to the
bidders. The CM shall obtain a full set of documents from the
Designer and arrange for printing, binding, wrapping and
delivery to the bidders. The CM shall maintain a record of
bidders receiving documents.
3.9.5 Pre-Bid Conference
In conjunction with the Designer, the CM shall conduct aPre-
Bid Conference. These conferences shall be forums for the
CM and Designer to explain to the bidders the Project
requirements, including information concerning schedule
requirements, time and cost control requirements, access
requirements, contractor interfaces, minority and women's
business enterprise goals, the project administrative
requirements and technical information.
3.9.6 Information to Bidders
The CM shall develop and coordinate procedures to provide
answers to bidders' questions.
3.9.7 Addenda
10
The CM shall receive from the Designer a copy of all addenda.
The CM shall review addenda for clarity, consistency and
coordination. By performing the reviews described herein, the
CM is not acting in a manner so as to assume responsibility or
liability, in whole or in part, for all or any part of the Project
design or the content of the design documents. The CM shall
also distribute a copy of all addenda to each bidder receiving
documents.
3.9.8 Bid Opening
The CM shall conduct bid openings in accordance with statute
and shall evaluate the bids to determine the lowest responsive
and responsible bidder. The GM shall not award or enter into
any contract for Work on the Project until the CM has provided
the Owner with written notice of the intent to award the contract
with reasons for awarding the contract to the successful bidder.
This written notice shall also describe compliance by the bidder
with the Owner's Minority Business Enterprise Policy, attached
to this Agreement as Appendix G. 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 CM shall prepare, execute,
and deliver the Contract Documents between the CM and the
Contractors. The CM shall also issue the notices to proceed.
3.9.10 Permits, Insurance and labor Affidavits
The CM shall verify that all required building permits, bonds,
insurance, labor affidavits, and waivers required for the Project
have been obtained.
3.10 Construction Phase
The CM shall be responsible for construction administration
and management, overall field supervision, Project safety
program, quality assurance, and other services needed to
construct the Project 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 GM shall conduct aPre-
Construction Conference during which the CM shall review the
reporting procedures, site operations and other contractual
requirements for the Project.
3.10.2 Onsite Management and Construction Phase
Communication Procedures
The CM shalt provide and maintain a management team on the
Project site to provide contract administration and the GM shall
establish and implement coordination and communication
procedures among the CM, Owner, Designer, and Contractors.
3.10.3 Contract Administration Procedures
The CM shall establish and implement procedures for
expediting and processing requests for information, shop
drawings, material and equipment sample submittals,
Contractor schedule adjustments, change orders, substitutes,
payment requests and the maintenance of logs. The CM shall
maintain daily job reports. The CM shall be the party to whom
requests for information, submittals, Contractor schedule
adjustments, substitutes, change order requests and payment
requests shall be submitted by the Contractors.
3.10.4 Proiect Site Meetings
The GM shall conduct weekly coordination meetings at the site
with all Contractors. As set forth in the Master Schedule and
the Contract Documents, the GM shall conduct pre-installation
and preconstruction meetings for key components of the Work.
The CM shall conduct a monthly meeting with the Owner and
the Designer to update them on progress of the Work. The CM
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 provided by the Designer or
others shall be coordinated by the GM. The CM shall be
provided with a copy of all inspection and testing reports on the
day of the inspection or test or when issued.
3.10.6 Contractor's Construction Schedule
The CM shall review each Contractor's Construction Schedule
and shall verify that the schedule is prepared in accordance
with the requirements of the Contract Documents and that it
establishes completion dates that comply with the requirements
of the Master Schedule.
3.10.7 Construction Schedule Report
The CM shall review the progress of construction of each
Contractor on a 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
11
as data for input to a monthly Construction Schedule report that
shall be prepared and distributed to the Contractor, the Owner
and Designer. The report shall indicate the actual progress
compared to scheduled progress and shall serve as the basis
for the progress payment to the Contractor. The CM shall
determine and implement alternative courses of action that
may be necessary to achieve contract compliance by the
Contractor.
3.10.8 Recovery Schedules
In the event the Project is falling behind schedule, the CM shall
require each Contractor to prepare and submit a recovery
schedule as specified in the Contract Documents. The CM
shall review and ascertain that the Contractor is providing
sufficient resources to regain lost time.
3.10.9 Requests for Changes to the Contract Time and
Guaranteed Maximum Price
The GM shall review the contents of a request for changes to
the construction contract time or price submitted by a
Contractor, assemble information concerning the request and
endeavor to determine the cause of the request. In instances
where the GM's analysis reveals that the request is valid, the
GM shall prepare a detailed report to the Designer and the
Owner for review, consideration and approval. The CM shall,
prior to the issuance of a change order, determine the effect on
the Master Schedule of time extensions requested by the
Contractor. The Designer shall prepare the necessary change
order documents for signing by the CM, Designer and Owner.
The CM shall then prepare the necessary documents to effect
a change to the contract with the Contractor. Unless otherwise
provided for in this Agreement, in its sole discretion, the Owner
may approve a change in the Guaranteed Maximum Price that
corresponds with any approved construction contract change
order.
3.10.10 Quality Review and Warranty
The CM unconditionally warrants and guarantees all materials
and workmanship against patent defects arising from faulty
materials, faulty workmanship or negligence for a period of
twelve (12) months following the date of substantial completion
of the Work and shall replace such defective materials or
workmanship without cost to the Owner.
3.10.10.1 In addition to the foregoing general warranty, the
Contract Documents may require extended 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 CM or by a Contractor or manufacturer as
provided in the Contract Documents. Such warranties shall
provide, at a minimum, for the repair or replacement of
defective or non-conforming components within the warranty
period.
3.10.10.2 The GM shall establish and implement a program to
monitor the quality of construction. The purpose of the
program shall be to guard the Owner against defects and
deficiency in the work of the Contractors. The GM shall
transmit to the Designer and the Contractor a notice of
nonconforming work and may require that the Contractors
correct Work at no expense to the Owner when it is the opinion
of the CM that the Work does not conform to the requirements
of the Contract Documents. Except for minor variations as
stated herein, the CM is not authorized as part of this service to
change, evoke, enlarge, relax, alter, or to release any
requirement of the Contract Documents or to approve or accept
any portion of the Work not performed in accordance with the
Contract Documents.
3.10.11 Testing by the CM
The CM shall conduct additional tests and inspections that the
CM believes should be conducted to monitor the quality of
construction and compliance with the Contract Documents.
Notice of all such tests and inspections shall be provided to the
Owner and the Designer, and copies of the results and reports
of all such tests and inspections shall be provided to the Owner
and the Designer.
3.10.12 Operation and Maintenance Materials
The CM shall obtain from the Contractors, review and
assemble operation and maintenance manuals, warranties and
guarantees for materials and equipment installed in the Project,
in accordance with the Contract Documents and the Master
Schedule. It is expected that all operation and maintenance
manuals will be compiled and delivered to the Owner before
the Project is substantially complete, and generally when the
Work is eighty percent complete.
3.10.13 Substantial Completion
Substantial completion is the point in time when the Work, as
determined by the Designer, is sufficiently complete in
12
accordance with the Contract Documents that it can be utilized
by the Owner for its intended use, and all necessary permits
and permissions for beneficial occupancy and utilization having
been obtained by the GM. All operations and maintenance
manuals, Owner training, and as-built drawings must be
submitted prior to Substantial Completion being achieved.
The CM 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 CM shall not request a Certificate of
Substantial Completion from the Designer until the CM believes
that the Project is substantially complete and certifies to the
Designer that all of the Work is substantially complete. The
Designer shall then determine whether the Project is
substantially complete. Upon Substantial Completion, the
Designer shall prepare and submit to the CM a deficiency list
identifying all portions of the Work which are known by the
Designer at that time to be incomplete or defective. Within thirty
(30) days of receipt of this deficiency list, the CM shall
complete and correct all items on that list along with all other
Work required to achieve Final Completion of the Work. At any
time prior to completion of the period of warranty, the Designer
may submit to the CM a supplemental deficiency list, in which
case the GM shall complete or correct any and all new items
identified on the Supplemental deficiency list.
3.10.14 Final Completion
In consultation with the Designer, the CM shall determine when
the Project and the Contractor's Work are finally completed
and, following completion of corrections, shall issue a
Certificate of Final Completion to the Owner. Upon delivery of
the Certificate of Final Completion to the Owner, the CM shall
make all remaining payments due to Gontractors.
3.10.15 Protection of the Work, Property and the Public
The CM shall be responsible for the entire site and shall
provide all the necessary protections required by the Owner
and by laws or ordinances governing safety and protection of
property. Consistent with the indemnification provisions
elsewhere in this Agreement, and subject to the benefits of any
Owner-controlled or Owner-provided insurance that covers the
interests of the CM and its Contractors, the CM shall be
responsible for protecting the public and those on the site
against all bodily injury or harm, and protecting against any
damage to the Work, to adjacent property, and to property of
others. The CM shall have access to the Project at all times.
Subject to its ultimate contractual responsibility for protection of
work, property and the public under this Agreement, and
subject to any non-delegable duties imposed by law, the CM
may delegate to Contractors these obligations of the CM under
this Agreement, and may obtain indemnification and insurance
from Gontractors as the GM deems reasonable and prudent.
3.10.15.1 The CM shall provide cover and protect all portions
of the structure when the Work is not in progress, provide and
set all temporary roofs, covers for doorways, sash and
windows, barricades, and all other materials necessary to
protect all the Work on the building, whether set by it, or any of
the Contractors. Any completed Work or Work in progress
damaged through the lack of proper protection or from any
other cause shall be repaired or replaced without extra cost to
the Owner.
3.10.15.2 No fires of any kind will be allowed inside or around
the operations during the course of construction.
3.10.15.3 The CM shall protect all trees and shrubs designated
to remain in the vicinity of the operations by building substantial
protection around same. The CM shall barricade all walks,
roads, etc., as authorized by the Owner to keep the public
away from the construction. All trenches, excavations or other
hazards in the vicinity of the Work shall be well barricaded and
properly lighted at night.
3.10.15.4 The GM 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 CM
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 CM shall require that
all Contractors meet or exceed the Project Safety Program
requirements including where those requirements meet or
exceed State or Federal requirements.
3.10.15.5 In the event the Owner implements an Owner
Controlled Insurance Program ("OGIP"), the CM agrees to
cooperate and coordinate with any safety plan or risk
management plan implemented in connection with the OCIP.
3.10.15.6 The CM shall implement the Project Safety Program
for the protection of all persons on the job, including the
requirements of the A.G.G. Accident Prevention Manual in
Construction, as amended, and shall fully comply with all state
13
laws or regulations and North Carolina State Building Code
requirements to prevent accident or injury to persons on or
about the location of the Work. The CM shall clearly mark or
post signs warning of hazards existing, and shall barricade
excavations, elevator shafts, stairwells, floor and wall openings
and similar hazards. The CM shall protect against damage or
injury resulting from falling materials and shall maintain all
protective devices and signs throughout the progress of the
Work.
3.10.15.7 The CM shall, at a minimum, adhere to the rules,
regulations and interpretations of the North Carolina
Department of Labor relating to Occupational Safety and
Health Standards for the Construction Industry.
3.10.15.8 As part of the Project Safety Program the CM agrees
to implement a Public Hazard Control 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 CM 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 CM will provide
the Owner with the name of each Contractor's onsite safety
officer.
3.10.15.10 In the event of emergency affecting the safety of
life, the protection of Work, or the safety of adjoining properties,
the CM is hereby authorized to act at its own discretion, without
further authorization from anyone, to prevent such threatened
injury or damage. Any compensation claimed by the GM on
account of such action shall be determined as provided for
under Article 7 herein.
3.10.15.11 If reasonable precautions are inadequate to prevent
foreseeable bodily injury or death to persons resulting from a
material or substance encountered but not created on the site
by the CM or its Contractors, the CM shall, upon recognizing
the condition, immediately stop Work in the affected area and
report the condition to the Owner and to the Project Designer in
writing. The Owner or the Project property owner if different
from the Owner shall take responsibility for remediation of the
material or substance from the site. If the CM claim's its
progress in completing the Project is delayed because of the
remediation response to the site, the CM shall file notice and a
claim in accordance with this Agreement.
3.10.15.12 Any land-disturbing activity performed by the CM in
connection with the Project shall comply with all erosion control
measures set forth in the Contract Documents and any
additional measures which may be required in order to ensure
that the Project is in full compliance with the Sedimentation
Pollution Control Act of 1973, as implemented by Title 15,
North Carolina Administrative Code, Chapter 4, Sedimentation
Control, Subchapters 4A, 4B and 4C, as amended (15
N.C.A.C. 4A, 4B and 4C).
3.11 Post Construction Phase
The CM shall provide the following ongoing services in
connection with Final Completion of the Work by the
Contractors:
3.11.1 Record Documents
The CM shall coordinate and expedite submittals of information
from the Contractors for preparation of record Drawings and
Specifications, and shall coordinate and expedite the
transmittal of such record documents to the Owner.
3.11.2 Organize and Index Operations and Maintenance
Materials
Prior to final completion of the Project the CM shall compile
manufacturers' operations and maintenance manuals,
warranties and guarantees and bind such documents in an
organized manner. This information shall then 6e provided to
the Owner.
3.11.3 Occupancy Permit
The CM shall assist the Owner and Designer in obtaining an
occupancy permit by accompanying governmental officials
during inspections of the Project, preparing and submitting
documentation to governmental agencies and coordinating final
testing and other activities.
3.11.4 Occupancy Plan
The CM, 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
14
The CM 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 CM shall pertorm Additional Services and shall be
compensated for same as provided in Article 7 of this
Agreement. The CM shall perform Additional Services only
after the Owner and CM have executed a written amendment
to this Agreement providing for such services. The following is
a list of Services that might reasonably be anticipated, with
indication of whether the specified services will be considered
to be Additional Services or required Services:
3.12.1 Services related to investigation, appraisal, or evaluation
of existing conditions, facilities, or equipment or determination
of the accuracy of existing drawings or other information
furnished by the Owner are required and are not Additional
Services;
3.12.2 Services related to procurement, storage, maintenance
and installation of Owner-furnished equipment, materials,
supplies and furnishings are Additional Services; provided,
however, that coordination and scheduling of the procurement,
storage, maintenance and installation of Owner-furnished
equipment, materials, supplies and furnishings with the Work of
the Contractors is required and is not an Additional Service;
3.12.3 Services related to determination of space needs,
programming, internal traffic studies or other utilization of the
Project are Additional Services;
3.12.4 Warranty inspections during the warranty period of the
Project are required and are not Additional Services;
3.12.5 Services made necessary by the failure to perform by or
bankruptcy of a Contractor is a required Service and is not an
Additional Service;
3.12.6 Preparation for and serving as a witness in connection
with any public or private hearing or arbitration mediation or
legal proceeding relating to the Project is a required Service
and is not an Additional Service;
3.12.7 Assisting the Owner in public relations activities and
preparing information for and attending public meetings is a
required Service, not an Additional Service; and
3.12.8 Services related to move-in including preparing and
soliciting responses to requests for proposals, preparing and
coordinating the execution of contracts, conducting pre-moving
conferences, administering the contract for moving activities in
conjunction with the move-in for the Project and providing on-
site personnel to oversee the relocation of furniture and
equipment by the movers while actual move-in is in progress
are Additional Services; provided, however, that coordination of
the Work of the Contractors with move-in by the Owner in
accordance with the Master Schedule is required and is not an
Additional Service.
ARTICLE 4
TIME FOR PERFORMANCE
4.1 Duration
The commencement date for the CM's Services shall be the
date of execution of this Agreement by the Owner as stated
herein or the date on which the Owner issues to the CM a
written instruction to proceed with Services, whichever is
earlier. The duration of the CM's Services under this
Agreement shall be from the date of this Agreement through
the issuance of the certificate of final completion, plus the one-
year CM warranty phase services.
4.2 Master Schedule
The CM's Services shall 6e 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 CM represents that the Master
Schedule has been reviewed in detail, that the Contractors
participated in its preparation, that all of the activities which
impact, limit, or otherwise affect the time of completion of the
Work are shown in the Master Schedule and that all of the
activities of others which impact, limit, or otherwise affect the
start, duration, or completion of the GM's activities are also
shown. The CM further represents that the CM can and will
complete each activity within the time shown for that activity.
Time is of the essence with respect to each such activity and
completion date.
4.3 Non-waiver
If the CM submits a construction schedule, progress report, or
any other document that indicates or otherwise expresses an
15
intention to achieve completion of the Work prior to any
established completion date, no liability of the Owner to the CM
for any failure of the CM to so complete the Work shall be
created or implied.
4.4 Schedule Adjustment
If the GM and its Contractors, for reasons beyond their control,
are delayed in beginning any activity, the GM 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 CM to
work overtime, to increase labor forces or to take any
necessary or appropriate action to decrease the time required
for any activity, and the CM 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 CM 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 CM 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 6y the
Completion Date shown on the Master Schedule, or as such
Completion Date may have been adjusted.
4.7 Schedule Monitoring
The Designer and Owner shall monitor progress of the Work
and the CM shall cooperate with such monitoring and provide
any and all information with respect to the progress of the Work
and scheduling as the Owner or Designer may reasonably
require.
4.8 Schedule Revisions
On a monthly basis, the GM shall revise the Master Schedule,
showing any adjustments made in accordance with this Article,
by any Change Order, the progress of the Work, and any days
gained or days lost with respect to any activity, and shall
furnish copies thereof to the Owner and Designer.
4.9 Withholding Payment from CM
[Not used]
4.10 Work by Owner
If the CM, within a period of three (3) 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 CM, 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 CM in the progress of the
Work. Such action by the Owner shall not, in any way, affect,
void or limit any warranty, guaranty or other responsibility of the
CM under the Contract Documents. Such action may be taken
by the Owner only after three (3) days written notice to the CM.
All costs incurred by the Owner in taking any such action shall
be charged to the CM and deducted from any amounts due
under the Agreement.
4.11 Force Maieure
The CM may be entitled to an extension of the time for
completion (but no increase in the Guaranteed Maximum Price)
for delays arising from unforeseen causes beyond the control
and without the fault or negligence of the Owner, the GM or the
CM's Contractors as follows:
4.11.1 Acts of God, tornado, fire, hurricane or earthquake that
damage completed Work or stored materials.
4.11.2 Acts of the public enemy; acts of the State, Federal, or
local government in their sovereign capacities.
4.11.3 Abnormal inclement weather as defined in Paragraph
4.13.
4.12 Notice
The CM and the Contractors shall not be entitled to and hereby
expressly waive any extension of time resulting from any
16
condition or cause unless a claim for extension of time is made
in writing to the Owner within three (3) 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 CM. 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 CM
shall provide the following information:
4.12.1 Nature of the Delay;
4.12.2 Date (or Anticipated Date) Of Commencement of Delay:
4.12.3 Activities on the Progress Schedule affected by the
delay, andlor new activities created by the delay and their
relationship with existing activities;
4.12.4 Identification of person(s) or organization(s) or events(s)
responsible for the delay;
4.12.5 Anticipated extent of the delay; and
4.12.6 Recommended action to avoid or minimize the delay
4.13 Weather Delavs
On any day that the CM considers that the Project is delayed
by adverse weather conditions, the CM shall identify in writing
to the Designer and the Owner the adverse weather conditions
affecting each activity, the specific nature of the activity
affected, the number of hours lost, and the number of and
identity (by responsibility or trade) of workers affected and shall
obtain from the Designer written recognition of the delay. The
time for performance of this Contract includes an allowance for
a number of calendar days which may not be suitable for
construction Work by reason of adverse weather. The Contract
Time will be extended only if the number of calendar days of
adverse weather recognized by the Designer exceeds the
number of inclement weather days set forth below, and the CM
clearly demonstrates how this adverse weather negatively
impacts activities on the critical path of the Master Schedule.
Month Number of Inclement Weather Days
January 7
February 6
March 7
April 6
May 7
June 6
July 8
August 6
September 5
October 5
November 5
December 9
If the CM believes that the progress of the Work has been
adversely affected by adverse weather recognized by the
Designer during a particular month, the CM shall submit a
written request for extension of time to the Designer. Such a
request for time extension of the Contract Time shall be
submitted by the tenth (10th) day of the month following that
month in which the adverse weather is encountered. The
request shall include, but is not limited to, the following
information:
4.13.1 Detailed description of weather's effect on scheduled
activities and its net effect on the critical path of the Project,
and
4.13.2 Weather records from the official weather station
nearest the Project site and records of actual observation as
contained in daily reports, correspondence, or other
contemporaneously prepared documentation.
4.14 Damages for Delay
The CM shall not be entitled to any adjustment in the
Guaranteed Maximum Price or other compensation from the
Owner for any delay in the completion of or progress on the
Work 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 CM specifically recognizes that a delay by the CM in
achieving the Substantial Completion of the Project will
necessarily cause damages, losses, and expenses to the
Owner, including, but not limited to and by way of illustration
only, increased capitalized costs and interests for the Project,
increased and extended Project overhead, Designer's and
Consultant's fees, increased costs of construction, increased
and extended operation costs of other facilities, and inefficiency
and loss of productivity, and that such damages, losses, and
expenses may not be readily identifiable or ascertainable at the
17
time they are incurred or at any time. Therefore, and in
recognition of these factors and the likelihood that actual
damages from his delay will not be readily ascertainable, the
CM agrees to pay to the Owner, as Liquidated Damages and
not as a penalty, the sum of Three Thousand Dollars ($3,000)
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 CM to complete the Project within the
time specified, such time being in the essence of this contract
and a material consideration thereof.
ARTICLE 5
CHANGES IN THE CONSTRUCTION MANAGER'S
SERVICES AND ADDITIONAL COMPENSATION
5.1 Owner Changes
The Owner, without invalidating this Agreement, may make
changes in the CM's Services specified in Article 3 of this
Agreement. The CM shall within three (3) days notify the
Owner of any changes or other events which in the opinion of
the CM entitle the CM to an increase or decrease in the
Guaranteed Maximum Price, the duration of the CM's Services,
or both.
5.1.1 Changes in the CM's Services
Changes in the CM's Services maybe directed by the Owner in
writing, and if so directed to provide different or additional
Services the CM shall comply with the directions of the Owner.
Additional compensation shall be settled by a written
amendment to this Agreement executed by the Owner and the
CM. If possible, the amendment shall be executed by the
Owner and CM prior to the CM pertorming the services
required by the amendment, but failure to agree on
compensation for a change in Services shall not be grounds for
the CM to cease or refuse to provide the Services reasonably
requested by the Owner. The CM shall proceed to perform the
services required by the amendment only after receiving notice
directing the CM to proceed.
5.1.2 Additional Compensation and Extended Duration
The GM 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 CM shall notify the Owner within three (3) days
after changes to the scope of the Project or a part thereof or
after delays caused in whole or in part by the Owner increase
or extend the scope or duration of the CM's Services.
5.1.2.1 Fixed Fee
[Not used]
5.1.2.2 General Conditions
[Not used]
5.1.2.3 Gost of the Work
[Not used)
5.1.3 Pavment of Additional Compensation
The CM shall submit invoices for additional compensation with
its invoice for Services and payment shall be made pursuant to
the provisions of Article 7 of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 Program
The Owner shall provide to the CM complete information
regarding the Owner's requirements for the Project.
6.2 Decisions
The Owner shall examine information submitted by the GM and
shall render decisions thereto promptly.
6.3 Insurance
The Owner shall furnish the insurance that the Owner has
agreed tofurnish as specifed in Article 8.
6.4 Notice of Non conformities
If the Owner observes or otherwise becomes aware of any fault
or defect in the Project or nonconformity with the Contract
Documents, the Owner shall give prompt written notice thereof
to the CM.
6.5 Approvals
The Owner shall furnish required information and approvals
and perform its responsibilities and activities in a timely manner
to facilitate orderly progress of the Work in cooperation with the
CM, consistent with this Agreement, and in accordance with the
18
Construction contracts for the Work required for the Project
shall be between the CM and Contractors. The CM shall
request and receive bids for each contract and shall advise the
Owner with respect to award of a contract to the lowest
responsive and responsible bidder. The CM shall enter into a
contract with that bidder after receipt of approval of award from
the Owner.
7.1.4 Work by CM
All of the labor and materials for the Work of the Project as
described in the Drawings and Specifications developed by the
Designer shall be performed by Contractors, except as
specifically provided in this paragraph. The GM may pertorm a
portion of the Work only if (1) bidding produces no responsible,
responsive bidder for that portion of the Work, no responsive,
responsible bidder will execute a contract for the bid portion of
the Work, or a Contractor defaults and a pre-qualified
replacement cannot be obtained in a timely manner, and (2)
the Owner approves pertormance of the Work by the CM. In
the event the GM performs a portion of the Work under this
paragraph, the CM shall be entitled to its actual direct cost to
pertorm the Work, including direct labor costs with reasonable
burden, actual material costs, actual equipment costs, and
actual subcontract payments, without markup for overhead or
profit. Any other direct costs of the Work pertormed by the CM
will only be paid if approved by the Owner in advance of
pertorming 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 CM Fee for Services, the reimbursable
costs for General Conditions provided by the CM, if any, and
the CM Contingency, if any, all as defined herein. The
Guaranteed Maximum Price includes the cost of all labor.
equipment, supplies, materials, services and allowances to
complete the Project. The Guaranteed Maximum Price shall be
directly correlated to the specific design Drawings and
Specifications in existence at the time the Guaranteed
Maximum Price is prepared. The assumptions used in the
preparation of the Guaranteed Maximum Price shall be
identified by the CM in its Guaranteed Maximum Price
proposal.
7.1.6 Sales and Use Taxes
The Guaranteed Maximum Price shall include those sales and
use taxes applicable to the Project that are legally enacted at
the time the Guaranteed Maximum Price is established. Sales
and use taxes shall be accounted for separately in the
Guaranteed Maximum Price and in the payment application
submitted by the CM. 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 Scope
The Owner may change the scope of the Project or a part
thereof and the Guaranteed Maximum Price shall then be
adjusted as provided in Paragraph 7.3.
7.2 Cost of the Work
[Not used]
7.2.1 Exclusions from Cost of the Work
The Cost of the Work shall not include the following:
7.2.1.1 [Not used]
7.2.1.2 [Not used]
7.2.1.3 [Not used]
7.2.1.4 [Not used]
7.3 Adjustments to the Guaranteed Maximum Price
The CM understands, confirms and agrees that its
responsibility hereunder is to construct the Project in
accordance with the Drawings and Specifications. It is
recognized that the Guaranteed Maximum Price is based on
complete design documents unless the Owner requests that
the Guaranteed Maximum Price be fixed at an earlier stage in
the design process, in which case the Guaranteed Maximum
Price includes allowances. The CM shall notify the Owner if
the CM believes that it is being asked to fix the Guaranteed
Maximum Price on incomplete, ambiguous or under-developed
drawings and specifications. In those instances in which the
Drawings and Specifications are not fully developed at the time
the Guaranteed Maximum Price is established, the CM shall
exercise reasonable care and judgment to determine the intent
of the design and shall calculate the Guaranteed Maximum
Price on the basis of the quality of construction, materials, and
finishes that can be reasonably inferred from the design
documents or other specified sources. The CM shall determine
unit prices and the Cost of the Work and shall make those
20
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 Chances to the Work
The Owner may, at any time and for any reason, by written
notice or order, make changes or modifications to the Work or
add Work within the general scope of the Project, including
without limitation changes to the Drawings and Specifications,
the Master Schedule, the sequence, manner or method of
performing the Work, or the work being provided by the Owner
or its separate contractors. The amount of adjustment to
increase or decrease the Cost of the Work resulting from a
change in the Project shall be determined in one or more of the
following ways:
7.3.1.1 By mutual acceptance of a lump sum, properly itemized
and supported by cost data; or
7.3.1.2 By unit prices defined in a contract with a Contractor; or
7.3.1.3 By the cost of such Work determined on the basis of
the cost records for the changed work. In the event actual
costs are to be reimbursed, the CM shall keep and present in
such form as may be agreeable to the Owner and Designer an
itemized accounting together with appropriate supporting data
of the actual Cost of the Work.
7.3.2 Directive to Proceed
In the event the CM and the Owner cannot agree that an
adjustment to the Guaranteed Maximum Price or the Master
Schedule is warranted, or cannot agree on the compensation
for a change in the Work or on an increase in the Guaranteed
Maximum Price, the CM shall, if so directed by the Owner in
writing, nevertheless proceed with the Work, and any
adjustment to the Guaranteed Maximum Price shall 6e
negotiated by the parties at a later date, utilizing the dispute
resolution procedures under this Agreement if necessary.
7.3.3 Unit Prices
If unit prices are utilized in the Guaranteed Maximum Price, the
Guaranteed Maximum Price Proposal shall document the
estimates on which the unit prices are based. If the GM later
determines that the quantities on which unit prices are based
will vary from the quantities utilized by the CM to fix the unit
prices and calculate the Guaranteed Maximum Price, the CM
shall within three days after determining that the quantities will
vary from the estimates notify the Designer and the Owner in
writing and forecast the amount of the variance. If the
estimated quantities available to and used by the CM to
establish the unit prices are so changed that application of the
agreed unit prices to the quantities or work proposed cause
substantial inequity to the Owner or the CM, the applicable unit
prices and Guaranteed Maximum Price shall be adjusted.
7.3.4 Unforeseen Conditions
Should the CM encounter unforeseen conditions at the Project
site materially differing from those shown on the Drawings or
indicated in the Specifications or differing materially from those
ordinarily encountered and generally recognized as inherent in
work of the character provided for in this Agreement, the GM
shall immediately, and in no event more than three (3) days
later, give notice to the Owner of such conditions before they
are disturbed. The Owner and the Designer shall thereupon
promptly investigate the conditions and if they find that they
materially differ from those shown on the Drawings or indicated
in the Specifications, they shall at once make such changes in
the Drawings and/or Specifications as they may find necessary.
Any increase or decrease in the Guaranteed Maximum Price
resulting from such changes shall be adjusted in the manner
provided herein for adjustments as to extra and/or additional
Work and changes. However, neither the Owner nor the
Designer shall be liable or responsible for additional work,
costs, or changes to the Work that could have been reasonably
determined from any reports, surveys, and analyses made
available for the CM's review or that could have been
discovered by the CM through the pertormance of its
obligations pursuant to the Contract Documents.
7.3.5 Minor Chances
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
[Not used]
7.4.1 Fixed Fees
[Not used]
7.4.2 General Conditions
21
[Not used]
7.4.2.1 [Not used]
7.4.2.2 [Not used]
7.4.2.3 [Not used]
7.4.2.4 [Not used]
7.4.2.5 [Not used]
7.4.2.6 [Not used]
7.4.2.7 [Not used]
7.4.2.8 [Not used]
7.4.2.9 [Not used]
7.4.3 Construction Manager's Accounting Records
[Not used]
7.4.4 Payments
[Not used]
7.4.4.1 [Not used]
7.4.4.2 [Not used]
7.4.4.3 [Not used]
7.4.4.4 [Not used]
ARTICLE 8
INSURANCE AND INDEMNITY
8.1 CM Liabilitv Insurance
The CM shall purchase and maintain insurance that shall
protect the GM from the claims set forth below that may arise
out of or result from the CM's performance of services pursuant
to this Agreement:
Claims under Workers' Compensation, disability benefits and
other similar employee benefits acts that are applicable to the
Work performed;
Claims for damages because of bodily injury, occupational
sickness or disease or death of CM's employees under
applicable employer's liability law;
Claims for damages because of bodily injury or death of any
person other than CM's employees;
Claims for damages insured by usual personal injury liability
coverage that are sustained by any person as a result of an
offense directly related to the employment of such person by
the CM or by any other person;
Claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property, including Toss or
use therefrom;
Claims for damages because of bodily injury or death of any
person or property damage arising out of ownership,
maintenance or use of any motor vehicle; and
Claims for professional liability against any design professional
engaged by the CM or the Contractors as required by the
Contract Documents for fabrication or installation of
components of the Project.
The CM shall include similar requirements in all Contracts for
Contractors, with limits and coverage terms acceptable to the
Owner.
8.1.1 Coverage Limits
Worker's Compensation shall be maintained with at least the
minimum statutory limits. The CM's commercial general and
motor vehicle liability insurance shall be written for not less
than the following limits of liability:
a. Commercial General Liabilitv
1. $2,000,000 Bodily Injury and Property Damage for each
occurrence
2. $4,000,000 Products/Completed Operations Aggregate
3. $4,000,000 General Aggregate
22
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 Oompleted Operations Liability insurance
3. Broad Form Property Damage Liability insurance
4. Independent Contractors
5. Such policy shall include all of the coverages, which maybe
included in coverages A, B, and G contained in the Commercial
General Liability Policy, without deletion. Such policy must be
issued on an "occurrence" basis, as distinguished from a
"claims made' basis.
6. Completed Operations extended five years after final
payment
7. For contractors with design responsibility, endorsement
CG22 80 and DIC for contractors' professional is requested
b. Commercial Motor Vehicle 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. ExcesslUmbrella Liability
1. $5 Million per Occurrence
2. $5 Million Aggregate
8.1.2 Policies
Commercial general liability insurance may be arranged under
a single policy for the full limits required or by a combination of
underlying policies with the balance provided by an excess or
umbrella liability policy. The Owner shall be a named insured
on all commercial general liability policies submitted to comply
with this Article. Commercial general liability and excess
liability policies shall be endorsed with a schedule of underlying
liability policies required and obtained from the Contractors.
Coverage under the CM commercial liability policies shall not
be limited by any language in the contracts with the
Contractors making the Contractors liable for losses in excess
of the limits of coverage provided by the Contractors.
8.1.3 Professional Liability Policies
Subject to section a.7 of Paragraph 8.1.1, policies for
professional liability may be provided by the CM or by
Contractors or design professionals retained by them, provided
that the CM 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 CM proposal for
insurance, and will be subject to approval by the Owner, taking
into account among any other reasonable factors the risks
insured against, the cost of the insurance, and the
professionals providing the insurance.
8.1.4 Cancellation
The foregoing policies shall contain a provision that coverages
afforded under the policies shall not be cancelled or expire until
at least thirty (30) days written notice has been given to the
Owner and shall include either a liability endorsement covering
this Agreement or an endorsement making the Owner an
additional insured under the policies. Certificates of Insurance
showing such coverages to be in force shall be filed with the
Owner contemporaneously with execution of this Agreement or
any relevant Contractor contract.
8.2 Builder's Risk Insurance
The CM shall be responsible for purchasing and maintaining
insurance satisfactory to the Owner to protect the Project from
perils of physical loss. The Owner shall receive copies of the
builder's risk insurance policies that satisfy this Article. The
CM shall be responsible for any deductibles associated with
this coverage.
8.2.1 Coverage Terms
The insurance shall provide for the cost of replacement for the
Work at the time of any loss. The insurance shall include as
named insureds the Owner, the CM, the Contractors and their
subcontractors and shall insure against the loss from the perils
of fire and all risk coverage for physical loss or damage due to
theft, vandalism, collapse, malicious mischief, transit, flood,
earthquake, testing, or damages resulting from defective
design, negligent workmanship or defective material. The CM
shall obtain approval from the Owner before increasing any
coverage due to increases in construction costs.
23
8.2.2 Other Prooerty 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 Recoverv
If requested by the Owner, the CM shall provide the Owner with
copies of all policies thus obtained for the Project. The GM
shall provide the Owner with thirty (30) days advance notice of
cancellation, non-renewal or endorsement reducing or
restricting coverage.
8.2.5 Waiver of Subrogation
The Owner and the CM waive all rights against each other and
against the Contractors, consultants, agents and employees of
the other for damages occurring during construction and
covered by builder's risk and any property insurance required
for this Project, excluding the Owner's property insurance. The
Owner and the GM shall each require appropriate similar
waivers from their contractors, consultants and agents. This
waiver does not apply to design liability.
8.3 Indemnity
To the fullest extent permitted by law, the GM shall indemnify
and hold harmless the Owner, its employees, agents (including
the Designer), officers, directors and partners from and against
any and all damages and reasonable attorneys' fees incurred
by the Owner caused or arising out of the negligent acts, errors
or omissions of the CM, or any other party for whom the CM is
legally liable, in performance of services under this Agreement.
The CM shall not be required to indemnify any person against
losses resulting from a breach of contract or resulting from
negligence, misconduct or violation of laws on the part of any
person indemnified hereunder.
The CM shall procure and maintain insurance as required by
and set forth in this Agreement.
8.3.1 Indemnification by Designer
The Owner shall cause the Designer to indemnify and hold
harmless the Owner, its employees, agents and
representatives to the same extent and in the same manner
that the CM has provided indemnification for the Owner under
Paragraph 8.3.
8.3.2 Indemnification by Contractors
The GM shall cause each Contractor to indemnify and hold
harmless the Owner, CM and Designer from and against any
and all claims, demands, suits, damages, including
consequential damages and damages resulting from personal
injury or property damage, costs, and expenses and fees that
are asserted against the Owner, CM and the Designer and that
arise out of or result from negligent acts or omissions or the
breach of the Construction Contract by the Contractor, its
employees, agents and representatives in pertorming the
Work.
8.4 Bonds
The CM shall purchase and provide 100% Pertormance and
Payment Bonds, which Bonds shall comply with the
requirements of the North Carolina General Conditions.
ARTICLE 9
TERMINATION AND SUSPENSION
9.1 Termination for Convenience
[Not used]
9.2 Termination for Default
This Agreement may be terminated by either party hereto upon
seven (7) days written notice should the other party fail
substantially to pertorm in accordance with the terms hereof
through no fault of the terminating party or if the Project in
whole or substantial part is stopped for a period of one hundred
twenty (120) consecutive days under an order of any court or
other public authority having jurisdiction or as a result of an act
of government. Without in any way limiting the scope of this
Paragraph 9.2, the Owner may terminate this Agreement if the
CM fails to begin or complete the Work within the time specified
for completion in this Agreement, or shall perform the Work
unsuitably or shall discontinue the prosecution of the Work for
three (3) consecutive days, or if the CM shall become insolvent,
be declared bankrupt, commit any act of bankruptcy or
insolvency, allow any final judgment to stand against the CM or
its affiliated companies unsatisfied for a period of forty-eight
(48) hours, make an assignment for the benefit of creditors, or
for any other cause whatsoever shall not carry on the Work in
24
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 three 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 three business days
after receipt of notice, the Agreement may not be terminated
for default.
9.2.2 Pavment to the CM
In the event of termination pursuant to Paragraph 9.2, the GM
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 CM is responsible, including
Fees and General Conditions, exceeds the Guaranteed
Maximum Price. In addition, the Owner may deduct from the
final payment to the CM any liquidated damages or other
damages for which the CM is liable under this Agreement. No
payment shall be due under this Paragraph until the Project is
finally complete and all rights and claims by Contractors for
work on the Project have been settled and paid.
9.2.3 Assignment of Contracts
In the event of termination pursuant to Paragraph 9.2, all
construction and supply contracts between the CM and all
Contractors and other suppliers for the Project shall be
immediately assignable to the Owner, at the option of the
Owner, on the same terms and conditions applicable to the CM
under those contracts. The CM shall obtain the consent of
each Contractor and supplier, in their respective contracts with
the CM, to this assignment.
9.3 Additional Termination Provisions
In the event of termination under either Paragraph 9.1 or 9.2,
the CM agrees to:
deliver to the Owner all Project as-built records, operating
manuals, warranties and other Project information generated to
date;
deliver to the Owner copies of all shop drawings and other
submittals received to date;
convey to the Owner or its designees title to all materials,
supplies, partially or wholly fabricated parts and components,
and any other property acquired by the CM for the Project; and
provide the Owner with copies of all pending claims under the
CM builder's risk policy.
9.4 Suspension
The Owner may order, in writing, the CM to suspend all or any
part of the CM's services for the Project for the convenience of
the Owner or for work stoppage beyond the control of the
Owner or the CM. If the performance of all or any part of the
services for the Project is suspended, an equitable adjustment
in the Guaranteed Maximum Price shall be made and this
Agreement shall be modified in writing accordingly.
9.4.1 General Conditions
[Not used]
9.4.2 Reassignment of Personnel
Persons assigned to another project during such suspension or
period and not available to return to this Project upon cessation
of the suspension shall be replaced. The Owner shall
reimburse the CM for reasonable costs incurred in relocating
staff persons returning to the Project or new persons assigned
to the Project.
9.4.3 Protracted Suspension
If the Project is suspended by the Owner for more than one
hundred twenty (120) consecutive days, the CM shall have the
option of requiring that the Guaranteed Maximum Price be
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 CM shall include provisions in its contracts with
Contractors substantially the same as this Paragraph 9.4,
allowing for suspension of the Project by the Owner, and
providing that suspension shall not be grounds for termination
of the contracts except on the terms set forth in this Agreement.
If the Owner suspends the Project for reasons other than
default by the CM or any of its Contractors, the Guaranteed
25
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 CM or its Contractors for delays caused by the
CM or any Contractor, even if there is a concurrent delay or
suspension by the Owner, it being understood that the GM
bears the risk of delays caused by its Contractors.
ARTICLE 10
DISPUTE RESOLUTION
The laws of the State of North Carolina shall apply to the
interpretation and enforcement of this Agreement. Any and all
suits or actions to enforce, interpret, or seek damages with
respect to any provision of, or the pertormance or
nonperformance of, this Agreement shall be brought in the
General Court of Justice of North Carolina sitting in Orange
County, North Carolina, and it is agreed by the parties that no
other court shall have jurisdiction or venue with respect to such
suits or actions. Appendix A to this Agreement shall be a part
of the Contract Documents. Prior to initiating an action under
this Paragraph, any party to this Agreement shall initiate the
mediation process as provided in Appendix A to this
Agreement. Any person or firm that expressly or impliedly
agrees to perform labor or services or to provide material,
supplies, equipment, work, performance or payment bonds,
insurance or indemnification for the construction of the Project
or the Work shall be deemed a party to this Agreement solely
for the purpose of this Article 10. The GM, by means of its
contracts, shall specifically require its Contractors to be bound
by this Article.
ARTICLE 11
ADDITIONAL PROVISIONS
11.1 Confidentiality
The CM will keep confidential and not disclose to any third
party all information designated and marked by the Owner as
"confidential" unless required to disclose the information by
law. Furthermore, the GM shall not disclose publicly
information concerning the Project, except for communications
incident to completion of the Project between the CM,
Designer, and Contractor, and their independent professional
engineers, architects and other consultants and
subcontractors, and except for information publicity approved
by the Owner and communications in connection with filings
with governmental bodies having jurisdiction over the design or
construction of the Project.
11.2 Sians
The CM shall be permitted to erect one sign to identify the CM
and other Project participants. The identification sign shall be
of sound construction, shall be neatly lettered, and shall be
subject to approval by the Owner. The Contractor may only
erect other identification signs if approved by the Owner. In
addition to the identification sign, directional signs may be
erected on the property to facilitate deliveries and the
movement of personnel and materials about the site. Any
directional signs shall be subject to approval of the Owner with
respect to size, style and location of such directional signs,
which approval shall not 6e unreasonably withheld. Such signs
may bear the name of the CM and a directional symbol. All
signs must comply with Town of Hillsborough sign, appearance
and traffic ordinances. No other signs will be permitted except
by permission of the Owner.
11.3 Limitation and Assianment
The Owner and the CM each bind itself, its successors,
assigns, insurers, and legal representatives to the terms of this
Agreement. Neither the Owner nor the CM shall assign or
transfer its rights or interest in this Agreement without the
written consent of the other, except that the CM may assign
accounts receivable to a commercial bank for securing loans
without approval of the Owner. However, nothing contained in
this paragraph will prevent the CM from employing Contractors
or such consultants, associates or subcontractors as the CM
may deem appropriate to assist in pertormance of the services
and of the Work hereunder in accordance with this Agreement.
11.4 Minority Business Enterprise Program
The CM shall at all times comply with the latest edition of the
Orange County Minority Business Enterprise Policy. All
documentation substantiating compliance with the
requirements of this program shall be delivered to the Owner
as stipulated in the Contract Documents. A copy of the Orange
County Minority Business Enterprise Policy is attached to this
Agreement as Appendix C, and shall be included in the bid
documents submitted to potential Contractors for bids.
11.5 Extent ofAareement
26
This Agreement represents the entire and integrated
agreement between the Owner and the CM and supercedes all
prior negotiations, representations or agreements, either
written or oral. This Agreement may be modified or amended
only by written directives, change orders and other instruments
signed by the Owner and the CM as expressly set forth in the
Agreement. Nothing contained in this Agreement is intended to
benefit any third party. The Contractors and Designer are not
intended third party beneficiaries of this Agreement.
11.6 Severability
If any provision of this Agreement is held as a matter of law to
be unenforceable, the remainder of this Agreement shall be
enforceable without such provision.
11.7 Meaning of Terms
References made in the singular shall include the plural and
the masculine shall include the feminine or neuter. To the
greatest extent possible, the meaning of terms used herein
shall be consistent with the definitions expressed in the
Contract Documents, Designer agreement, and the Contractor
contracts.
11.8 Notices
Whenever any provision of the Contract Documents requires
the giving of written notice, it shall be deemed to have been
validly given if delivered in person to the individual or to a
member of the firm or to an officer of the corporation for whom
it is intended or if delivered or sent by registered or certified
mail, postage prepaid, addressed as follows:
To the Owner:
Orange County, North Carolina
Attn: Pam Jones, Director of Purchasing and Central Services
Post Office Box 8181
Hillsborough, North Carolina 27278
To the CM:
Telesis Construction Management, LLC
Attn: George A. Horton, III, MemberJManager
1000 Corporate Drive, Suite 109
Hillsborough, North Carolina 27278
11.9 Bonds
In accordance with N.C. Gen. Stat. §143-128.1, the CM shall
provide a performance bond with a penal sum equal to 100% of
the Guaranteed Maximum Price to guarantee the faithful
performance of the Work, in such form as may be required by
law and approved by the Owner.
In accordance with N.C. Gen. Stat. §143-128.1, the CM shall
provide a payment bond with a penal sum equal to 100°l0 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
bylaw and approved by the Owner.
These bonds shall be dated the same date as the Agreement
and must be accompanied by a current copy of the power of
attorney for the attorney-in-fact executing such bond on behalf
of a surety company licensed to do business in the state of
North Carolina and reasonably acceptable to the Owner.
In its Guaranteed Maximum Price, the CM shall include a
program and costs for bonds or other security against default
by Gontractors as the GM deems appropriate to protect the GM
and the Owner against such defaults.
11.10 Ownership of Documents
The CM shall be entitled to maintain possession of a
reasonable number of sets of Contract Documents and record
documents during and after the completion of the Project for its
records. After completion of the Project, the CM shall destroy
or return to the Owner all other copies of such documents as
requested by the Owner. The GM 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 GM shall have no copyright or other rights in the
documents, or other rights to use the documents.
ARTICLE 12
SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS
12.1 Guaranteed Maximum Price
Pursuant to this Agreement and for the Project defined in
Article 2, the Owner and the CM have seta 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 CM and submitted to the Owner with the
Guaranteed Maximum Price Proposal. The documentation
27
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 CM from
the design Drawings and Specifications and such other
documents as maybe described in the Proposal.
12.1.2 Budget Items
The documentation of the Guaranteed Maximum Price shall
include a detailed cost tabulation with at least the elements
described in the Listing of Cost Elements in Appendix B.
12.1.3 CM Contingency
The Guaranteed Maximum Price shall include a contingency
amount (the Contingency) for the use of the GM. The
Contingency shall be included in the Guaranteed Maximum
Price. The Contingency is for the use of the CM to defray costs
in excess of the Cost of the Work for which the CM is not
otherwise entitled to an increase in the Guaranteed Maximum
Price under the terms of this Agreement.
12.1.3.1 [Not used]
12.1.3.2 [Not used]
12.1.3.3 [Not used]
12.1.3.4 [Not used]
12.1.4 Construction Contract Price Savings and Overruns
[Not used]
12.1.4.1 [Not used]
12.1.4.2 [Not used]
12.1.4.3 [Not used]
12.1.5 Change of Contractor Ordered by Owner
If the Owner directs the CM 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 GM shall
continue to perform at no additional cost to the Owner until the
Project, defined by this Agreement and all Attachments hereto,
is complete. The CM shall be responsible for paying all costs
in accordance with the terms of this Agreement that may be
necessary to complete the Project, even if such amounts are in
aggregate in excess of the Guaranteed Maximum Price.
This Agreement is executed the day and year first written
above.
CM: Telesis Construction Management, LLC
1000 Corporate Drive, Suite 109
Hillsborough, NC 27278
By' -----------
George A. Horton, III
Title: __________
MemberlManager
Attest:
By' -----------
Title: ________
(Secretary) (Manager) (Witness)
OWNER: Orange County
P. O. Box 8181
Hillsborough, NC 27278
By' -------------
Moses Carey, Jr., Chair
Orange County Board of Commissioners
Attest: ____________
Donna Baker
Clerk to the Board
This instrument has been pre-audited in the manner required
by the local Government Budget and Fiscal Control Act.
Orange County Finance Officer
This instrument is approved as to Form.
28
Orange County Attorney
29
APPENDIZ A
TO AGREEIIIENT FOR CONSTRUCTION 11-L4NAGEMENT SERVICES
DISPUTE RESOLUTION PROCEEDURES FOR ORANGE COUNTY BUILDING
CONSTRUCTION RENO~~ ATION AND REP:4IR PROJECTS
Table of Rules
Rule
1. Initiating n'Iediated Settlement Conferences
A. Purpose of Mandatory Settlement Conferences
B. Initiating the Dispute Resolution Process
2. Selection of Mediator
A. Mediator Listing
B. Selection of Mediator
C. Disqualification of Mediator
3. The Mediated Settlement Conference
A. Where Conference is to be Held
B. When Conference is to be Held
C. Request to IVlodify Deadline for Completion
D. Recesses
E. Project Delay
4. Duties of Panties and Other Participants in Formal Dispute Resolution Process
A. Attendance
B. Finalizing Agreement
C. Payment of Mediation Fee
D. Failure to Compensate Mediator
5. Authorit3~ and Duties of Mediators
A. Authority of 1~Iediator
B. Duties of ~Ie~diator
6 C"ompensation of the l~~Iediator
7. Rule Making
8. Definitions
9. Time Limits
Page 1 of 6
RULE 1. INITIATING MEDIATED SETTLEII~TENT CONFERENCES
A. Purpose of l~~Iandatory Settlement Conferences. Pursuant to G.S. X143-128(8)
and 143-135.26(11), these Rules are promulgated to implement a mediated
settlement program designed to focus the parties' attention on settlement rather
than on claim preparation and to provide an opportunity for orderly settlement
negotiations to take place. Nothing herein is intended to limit or prevent the
parties from engaging in settlement procedures voluntarily at any time prior to or
during commencement of the dispute resolution process.
B. Initiating the Dispute Resolution Process
1) Any party to a County public construction contract (referred to herein
generally as the "Contract") governed by Article 8. Ch. 143 of the General
Statutes and identified in G.S. ~ 143-128(8) and who is a party to a dispute
arising out of the Contract and the construction process in which the arnount in
controversy is at least $15,000 may submit a written request to the County for
mediation of the dispute.
2) Prior to submission of a written request for mediation to the County, the
parties should give notice of any and all claims in accordance with their
respective contracts, obtain decisions on the claims as required or allowed by
their respective contracts, and attempt to resolve the dispute according to the
terms and conditions in their respective contracts. The Mediator may adjourn any
mediated settlement conference if the Mediator believes, in his or her sole
discretion, that the parties have not satisfied all of the terms and conditions of
their respective contracts and that doing so will enhance the prospects for a
negotiated settlement.
C. C.."ondition Precedent to Litigation. Before any party to a Contract may
continence a civil action against the County seeking remedies for breach or non-
performance of the Contract by the County, said party must first initiate the
dispute resolution process under these rules and attend the mediated settlement
conference.
RULE 2. SELECTION OF MEDI TOR
A. Mediator Listing. A list of Mediators acceptable to the County is attached to
and incorporated by reference into these Rules. The party requesting mediation
shall select a Mediator from the designated list. If the County fails to provide a
list of acceptable mediators, the list of Mediators shall be deemed to be the list of
mediators certified by the North Carolina Dispute Resolution Commission to
conduct mediated settlement conferences in the North Carolina Superior Courts.
B. Selection of a 11'Iediator. The party requesting mediation shall select a
Mediator from the County's list of Mediators and shall file, with the County, a
Notice of Selection of Mediator within 21 days of the request for mediation. Such
notice shall state the name, address, and phone number of the Mediator selected.
If the l~lediator selected is not available or declines to participate for any reason,
Page 2 of 6
the requesting party shall select another person fiom the County's list of
Mediators. If the party requesting mediation does not select and designate a
mediator 1~~ithin 21 days of the request for mediation, the County shall have the
right in its absolute discretion to appoint a mediator from its list of Mediators.
C. Disqualification of A~Iediatoi•. Any party may request replacement of the
Mediator for good cause. Nothing in this provision shall preclude IVlediators from
disqualifying themselves.
RULE 3. THE 11~IEDIATED SETTLEII~IENT CONFERENCE
A. V~~here Conference is to be Held. Unless all parties and the IViediator otherwise
agree, the mediated settlement conference shall be held in the County. The
l~lediator shall be responsible for reserving a place, making arrangements for the
conference, and giving timely notice of the time and location of the conference to
all attorneys, unrepresented parties and other persons or entities required to
attend.
B. V~~hen C"onference is to be Held. The mediation shall be completed within 90
days after selection of the Mediator.
C. Request to Accelerate or Extend Deadline far Completion. Any party or the
Mediator may request the County to accelerate or emend the deadline for
completion of the conference. Such request shall state the reasons the extension
is sought and shall be served by the moving party upon the other parties and the
Mediator. objections to the request must be promptly conununicated to the
County and to the Mediator.
The County, with the concurrence of the designated Mediator, may grant the
request by adjusting the time for completion of the conference.
D. Recesses. The Mediator may recess the mediation conference at any time and
may set times for reconvening. If the Mediator deterrnines the time and place
where the conference is to reconvene before the conference is recessed, no further
notice is required to persons present at the conference.
E. Project Delay. The mediated settlement conference that results from a
construction contract dispute shall not be cause for the delay of the construction
project.
RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORn~IAL
DISPUTE RESOLUTION PROCESS
A. :attendance.
1. All parties to the dispute must designate an official representative to attend the
mediation. .
2. "Attendance" means physical attendance, not by telephone or other electronic
Page 3 of 6
means. Any attendee representing a party must have authority from that party
to bind it to any agreement reached as a result of the mediation.
3. Attorneys representing parties may attend the mediation, but are not required
to do so.
4. Sureties and insurance company representatives are required to physically
attend the mediation unless the Mediator and all of the other par-ties to the
mediation excuse their attendance or consent to their attendance by telephone
or other electronic means.
5. The parties ~~-~ho attend a duly scheduled mediation conference shall have the
right to recover their share of the Mediator's compensation from any party or
parties who fail to attend the conference without good cause.
B. Finalizvig Agreement. If an agreement is reached in the conference, the terms of
the agreement shall be confirmed in r~-citing and signed by all parties.
C. Mediation Fees charged by the Mediator shall be paid in accordance with G.S. ~
143-128(fl).
D. Failure to compensate A~Iediator. Any party's failure to compensate the
Mediators in accordance with G.S. ~ 143-128(fl) shall subject that party to a
witl>liolding of said amount of money from the party's monthly payment by the
County.
Should the County fail to compensate the Mediator, it shall hereby be subject to a
civil cause of action fi•om the Mediator for the 1/3 portion of the Mediator's total
fee as required by G.S. § 143-128(fl ).
RULE 5. AUTHORITI' AND DUTIES OF 11~TEDIATORS
A. Authority of 1~~Iediator.
1. Control of Conference. Tl1e Mediator shall at all times be in control of the
conference and the procedures to be followed.
2. Private Consultation. The Mediator may communicate privately with any
participant or counsel prior to and during the conference. The fact that private
conununications have occurred with a participant shall be disclosed to all
other participants at the beginning of the conference.
3. Scheduling the Conference. The Mediator shall make a good faith effort to
schedule the conference at a time that is convenient with the participants,
attorneys and IVlediator. In the absence of agreement, the Mediator shall
select the date for the conference.
4. Determining good cause for a party's failure to appear at a scheduled
Page 4 of 6
mediation conference.
B. Duties of Mediator.
1. The IVlediator shall define and describe the following at the beginning ofthe
conference:
a. The process of mediation.
b. The difference between mediation and other forms of conflict
resolution.
c. The costs of the mediated settlement conference.
d. That the mediated settlement conference is not a trial, the Mediator is
not a judge, and the parties retain their legal rights if they do not reach
settlement; however, the Mediator will advise all parties that failure to
appear at mediation without good cause may result in imposition of
sanctions and may be asserted as a bar to lawsuits by claimants who
have failed to exhaust this administrative remedy.
e. The circumstances under «~~hich the Mediator may meet and
conununicate privately with any of the parties or with any other
person.
f. Whether and under t~~•hat conditions communications «~ith the
Mediator will be held in confidence during the conference.
g. The inadmissibility of conduct and statements as provided by G.S.
§7A-38.1(1).
h. The duties and responsibilities of the Mediator and the participants.
i. That any agreement reached will be reached by mutual consent.
2. Disclosure: The Mediator has a duty to be impartial and to advise all
participants of any possible bias, prejudice or partiality.
3. Declaring Impasse: The Mediator may determine at any time during the
mediation conference that an impasse exists and that the conference should
end.
4. Reporting Results of Conference. The Mediator shall submit a written report
to the County and the other parties within 10 days of the conference stating
whether or not the parties reached an agreement. The Mediator's report shall
indicate the absence of any party from the mediated settlement conference
without permission or good cause.
5. Scheduling and Holding the Conference. It is the duty of the Mediator to
schedule the conference and conduct it prior to the deadline of completion set
by the rules. The Mediator shall strictly observe deadlines for completion of
the conference unless said time limit is changed by agreement of the parties.
RULE 6. C011~IPENSATION OF THE MEDIATOR
A. The parties shall compensate the Mediator for mediation services at the rate
proposed by the Mediator and agreed to by the parties at the time the Mediator is
Page S of 6
selected. .
RULE 7. RULE Nk4KING
A. These Rules may be amended by the County at any time. Amendments «~ill not
affect mediations where claims and/or requests for mediation have been filed at
the time the amendment takes effect
RULE 8. DEFINITIONS
A. "County" shall mean Orange County, North Carolina
B. "Project Designer" is that person or firm stipulated as project designer in the
Contract Docl~ments for the project.
C. "Claim" is a demand or assertion by a party seeking adjustment or interpretation of
Contract terms, payment of money, extension of time or other relief with respect to
the terms ofthe Contract. The term "Claim" also includes other disputes and matters
in question between the parties to a Contract invoh~ed in the County's building
construction renovation and repair projects arising out of or relating to the Contract
or the construction process. Claims must be initiated by a written notice. The
responsibility to substantiate Claims shall rest with the party making the Claim.
D. "Good Cause" generally includes any circumstance beyond the control of a party,
which prevents that party from meeting obligations. When good cause is asserted
as an excuse for a party's failure to appear at a mediation conference or to
otherwise comply with the requirements of these Rules, the Mediator, in his or
her sole discretion, will determine whether good cause exists to excuse the party's
failure to appear or otherwise comply with these rules.
RULE 9. TINTE LIMITS
A. Any time limit provided for by these Rules may be waived or extended at the sole
discretion of the County, if no Mediator has been selected, and at the discretion of
the County with concurrence of the Mediator if a Mediator has been selected.
Page 6 of 6
APPENDIX C
TO AGREEMENT FOR CONSTRUCTION 1~IANAGENIENT SERVICES
MINORITY BUSINESS ENTERPRISE POLICY
APPENDIN C
N1BE CONTRACT PROV"ISION (CONSTRUCTION}
APPLICATION:
The requirements of the Guidelines For Recruitment And Selection Of Minority Business
are hereby made a part of these contract documents. These requirements shall apply to all
contractors regardless of ownership.
MBE SUBCONTRACT GOALS:
The goals for participation by Minority firms as subcontractors on this project have been
set at ten (10%).
The Bidder will provide documented proof in the form of Attachment I, MBE
UTILIZATION COMMITMENT, that these goals have been met or exceeded;
OR
Provide Attachment I, MBE UTILIZATION CONIl~IITNIENT, identifying the amount of
1VIBE participation; and, prior to award, upon request, show evidence of good faith effort
made prior to the I~id opening to meet these goals;
OR
Provide Attachment III, CERTIFICATION REGARDING SUBCONTRACTING
PRACTICES, and upon request, information sufficient for the Owner to determine that
the Bidder does not customarily subcontract work on this type project.
It is desired that the above infoY7nation be submitted with the bid. Although bids may be
read ~~~~ithout the form attached, no consideration will be given to any bid relative to
award of contract until the required forms and supporting data are in the hands of the
Owner.
NIININIUM COMPLIANCE REQUIREMENTS:
If the I~-IBE subcontract goals are not achieved, the Bidder shall provide the following
documentation to the O«-ner.
MBE Utilization Commitment (Attachment I).
2. Documentation of the Bidder's good faith efforts to meet the goals set
forth in these provisions (upon request prior to ati~~ard).
This documentation shall include an affidavit that cel-tifies that the Bidder
has taken at least five (5} ofthe following ten (10} good faith steps to
procure MBEs, and it should also list which steps were taken:
Contacted minority businesses that reasonably could have
been expected to submit a quote and that were known to the contractor or
available on these State or local government maintained lists at least ten
(10) day s before the bid or proposal date and notifying them of the nature
and scope of the work to be performed.
2. 1~Iade the construction plans, specifications, and
requirements available for review by prospective minority businesses, or
providing these documents to them at least ten (1Q} days before the bid
proposals are due.
3. Broke down or combined elements of work into
economically feasible units to facilitate minority participation.
4. Worked with minority trade, community, or contractor
organizations identified by the Office of Historical underutilized
Businesses and included in the bid documents that provided assistance in
recruitment of minority businesses.
~. Attended any prebid meetings scheduled by the public
Ow11er.
6. Provided assistance in getting required bonding or
insurance or providing alternatives to bonding or insurance for
subcontractors.
7. Negotiated in good faith with interested minority
businesses and did not reject them as unqualified without sound reasons
based on their capabilities. Any rejection of a minority business based on
lack of qualifications should have the reasons documented in writing.
R. Provided assistance to an otherwise qualified minority
business in need of equipment, loan capital, lines of credit, or joint pay
agreements to secure loans, supplies, or letters of credit, including waiving
credit that is ordinarily required. Assisted minority businesses in obtaining
the same unit pricing with the bidder's supplier in order to help the
minority businesses in establishing credit.
9. Negotiated joint venture and partnership arrangements with
minority businesses in order to increase opportunities for minority
business participation on a public construction or repair project. when
possible.
10. Pro~•zide quick pay agreements and policies to enable
minority contractors and suppliers to meet cash flow demands.
This documentation shall include the following evidence:
A. Copies of solicitations for quotes to at least three (3) MBE firms
from the source list provided by the State for each subcontract to
be let under this contract (if 3 or more firms are shown on the
source list). Each solicitation shall contain a specific description of
the work to be subcontracted, location where bid documents can be
reviewed, representative of the Prime Bidder to contact, and
location, date and time when quotes must be received.
B. Copies of quotes or responses received from each firm responding
to the solicitation.
C. A telephone log of follow°-up calls to each fiitn sent a solicitation.
D. For subcontracts where an MBE firm is not considered to be the
lowest responsible sub bidder, copies of quotes received from all
firms submitting quotes for that particular subcontract.
E. Documentation of any contracts, correspondence or conversation
with MBE firms made in an attempt to meet the goals.
NOTE: If the Bidder provides sufi"icient evidence (listed in #A) that the goals
stated in
to
the contract documents have been met, or a«-~ards all subcontracts
MBE's, the documentation listed in B will not be required.
Upon being named apparent lo~v bidder, the Bidder shall provide a Letter of Intent
(Attaclmient II}, complete with a description of the scope of services and dollar value
from each MBE firm proposed for use in this contract. Failure to provide the
documentation as listed in these provisions may result in rejection ofthe bid and award
the next lowest responsible and responsive bidder. The Owner rese7ves the right to waive
any irregularities in MBE documentation if they can be resolved prior to award of the
contract, and the O~~-ner finds it to be in its best interest to do so and award the contract.
PROGRAM COMPLIANCE REQUIREMENTS:
All written statements, certifications or intentions made by the Bidder shall become a part
of the agreement between the Contractor and the County of Orange for performance of
this contract. Failure to comply with any of these statements, certifications or intentions,
or t~~ith the MBE Guidelines shall constitute a breach of the contract. A finding by the
Owner that any information submitted either prior to award of the contract or during the
performance of the contract is inaccurate, false or incomplete, shall also constitute a
breach of the contract. luny such breach may result in termination of the contract in
accordance with the termination provisions contained in the contract. It shall be solely at
the option of the Owner whether to terminate the contract for breach.
ATTACHI\IENT I OR II MUST BE SUBMITTED WITH BID
ATT_4CHMENT I
MBE UTILIZATION COMMITMENT
We, , do certify that
on the
(Bidder)
H~~'AC SY""STEM REPLACEMENT
RICHARD E. WHITTED HUMAN SERVICES CENTER
AND CENTRAL RECREATION BUILDING
(Dollar Amount of Bid)
Wil expend a minimum of % of the total dollar amount of the contract with minority
business enterprises. This percentage must be at least ten percent {10%~, or the bidder
must complete the back side of this form as well. MBE's will be employed as
construction subcontractors, vendors, suppliers or providers of professional services.
Such work will be subcontracted to the following firms listed below. If the bidder intends
to subcontract, this form must be completed regardless of the amount or lack of
participation attained.
Name and Phone Indicate Description
Number of Firrn GIBE of ~A'ork Dollar ~~Talue
The undersigned will enter into a formal agreement with l~linority Firms for work listed
in this schedule, conditional upon execution of a contract with the County of Orange.
Failure to fulfill this commitment may constitute a breach of the contract.
The undersigned hereby certifies that he or she has read the terms of this commitment
and is authorized to bind the bidder to the commitment herein set forth.
Date
Officer)
(Name of Authorized
Signature:
Title:
We, , do certify that we did
undertake the follo~~~ing steps in good faith to procure minority enterprise. The bidder
must cite that at least five steps were taken.
1. Contacted minority businesses that reasonably could have been
expected
to submit a quote and that were known to the contractor or
available on these State or local government-maintained lists at
least ten (10) days before the bid or proposal date and notifying
them of the nature and scope
of the work to be performed.
available for
documents
2. Made the construction plans, specifications, and requirements
review by prospective minority businesses, or providing these
to them at least ten (10) days before the bid proposals are due.
Broke down or combined elements of work into economically
feasible
organizations
units to facilitate minority participation.
4. Worked with minority trade, community, or contractor
identified by the Office of Historical Underutilized Businesses and
included in the bid documents that provided assistance in
recruitment of
minority businesses.
Attended any prebid meetings scheduled by the public o«~ner.
pro~•~iding
6. Provided assistance in getting required bonding or insurance or
alternatives to bonding or insurance for subcontractors.
did not
need of
secure
sarne
rinority
possible.
contractors
7. Negotiated in good faith with interested minority businesses and
reject them as unqualified without sound reasons based on their
capabilities. Any rejection of a minority business based on lack of
qualifications should have the reasons documented in writing.
R. Provided assistance to an otherwise qualified minority business in
equipment, loan capital, lines of credit, or joint pay agreements to
loans, supplies, or letters of credit, including waiving credit that is
ordinarily required. Assisted minority businesses in obtaining the
unit pricing with the bidder's supplier in order to help the minority
businesses in establishing credit.
9. Negotiated joint j=enture and partnership arY-angements with
businesses in order to increase opportunities for minority business
participation on a public construction or repair project when
lo. Provide quick pay agreements and policies to enable minority
and suppliers to meet cash flow demands.
ATTACHMENT II
LETTER OF INTENT TO PERFORM AS A SUBCONTRACTOR
OR
PROVIDE MATERIALS OR SERVICES
SUBJECT:
{Project Name)
TO:
(Name of Prime Bidder)
The undersigned intends to perfornl work in comlection with the above project as a
IVlinority Business Enterprise.
The MBE status of the undersigned is certified by the State of North Carolina.
The undersigned is prepared to perform the following described work or provide
materials or services in connection with the above project (specify in detail particular
work items, materials or services to be performed or provided):
at the following price:
~'ou have projected the following commencement date for such work, and the
undersigned is projecting completion of such work as follows:
Projected
Projected
Completion
Items
Commencement.
Date Date
Subcontracting at any tier must be reported and is subject to all MBE compliance
requirements. This form shall be used for MBE subcontracting at any level.
Date:
(Name of 11~Iinority
Contractor)
By:
ATTACHMENT I OR III I~'IUST BE SUBMITTED ~~'ITH BID
ATTACHMENT III
CERTIFICATION REGARDING SUBCONTRACTING PRACTICES
We, ,hereby certify that it is
{Name of Bidder)
our intent to perform 100% of the work required for the
(Name of Project)
contract.
In making this certification, the Bidder states the folio«~ing:
I. That the Bidder does not customarily subcontract elements of this type project,
and normally performs and has the capability to perform and will perfoi-~n all
elements of the «~~ork on this project «Tith his!her own current «~ork forces; and
2. That the Bidder agrees to submit the following information after bid and before
the a~~~ard of the contract:
* List the scope of services involved in this project.
* List previous projects of this type that Bidder has performed with his/her
forces.
* Payrolls from the above-mentioned jobs which illustrate Bidder's
employees' job classifications needed to perform the elements of the work on the
Project or a breakdown of Bidder's entire work force which illustrates the
number of employees in each job classification.
* Name and phone number of the Field Supervisors for these jobs.
List of equipment Bidder's firm owns that has been used on previous
projects.
Copies of lease agreement for equipment that «-~as leased.
The Bidder agrees to provide any additional information requested for the statement
contained in paragraph number 1 above.
The undersigned hereby certifies that he or she has read this certification and is
authorized to bind the Bidder to the conmiitments herein contained.
Date:
(Name of Authorized Officer}
Signature:
Title:
APPENDIX E
TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES
PROJECT AND CONSTRUCTION BUDGET
APPENDIX F
TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES
MASTER SCHEDULE
TO BE PROVIDED BY TELESIS CONSTRUCTION
MANAGEMENT, LLC
DRAFT #3: 10/16%2006
Clean
NORTH CAROLINA
ORANGE COUNTY
AGREEIVIENT OF INTENT
This Agreement of Intent for Construction Management at Risk Services and for
Purchase and Sale as to the Project (as hereinafter defined) and for Lease and Option to
Purchase as to the Auxiliary Project (as hereinafter defined) is made and entered into as
of this day of , 2006, by and bete-~een Telesis Construction
1Vlanagement, LLC, 1000 Corporate Drive, Suite 109, Hillsborough, NC 2727$, a North
Carolina Limited Liability Company ("TCM"} and Orange County, North Carolina, P.O.
Box 8181, Hillsborough, NC 27278, a body politic and corporate ("County").
RECITALS
A. "TC1~1" is a contractor, licensed to do business in the State of North
Carolina and qualified to perform the construction manager at risk services described in
this Agreement in full compliance with North Carolina law.
B. TCM owns or will own certain Property described herein by Orange
County PIN upon «~•hich TCM will, as described herein, assist ~i~ith the design and
manage the construction of certain improvements (together with the Property, the
"Project"}.
C. County desires to contract ~i~ith TCM and other professionals identified
herein for the design, construction management and construction of the Project that is
described herein.
D. County desires to purchase as specified herein from TCI~-1, and TCA•I
desires to sell and convey to County, the Project in the manner described herein.
E. County also has an interest in leasing the second and third tloors of the
adjoining Gateway Center Building (a condominium) and in obtaining an option to
purchase the same for a sum certain (the "Auxiliary Project").
NO~A~, THEREFORE, in consideration of the premises, the mutual promises and
agreements hereafter set forth, the parties hereto agree that the following are the material
terms upon which County and TCM will contract for the design, construction
management and construction of the Project and upon which County and TCM will
purchase and sell the Project, including the buildings and associated property rights.
1. Project. (including public and private elements):
Phase I -Two story public library (23,454 std to be purchased by County to be
located on the land identified as Orange County PIN 9874051759.
Phase II - Tlu-ee story office building (46,716 sf) to be purchased by County to be
located on the land identified as Orange County PIN 9874051759.
Phase III -Parking facility with 134 spaces licensed exclusively to County and a
minimum of 201 to be retained by TCM to be located on the land identified as
Orange County PINS 9874051759, 9874052643 and 9874053603.
2. Design Professionals.
Architect: (1) Brockti~~ell associates, Inc. (Durham, NC).
(2) To be determined by County and TC1~1 for design of library
interior.
Structural Engineers: Gardner & McDaniel, Pa (Durham, NC).
Mechanical/Plumbing/Electrical Engineers: Engineered Designs, Inc. (Raleigh,
NC).
Civil Engineers (including planning/surveying): Summit Consulting Engineers,
PLLC (Hillsborough, NC).
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Project Construction Method.
Construction management at risk contract. (G.S. X143-128(al)(4)).
4. Construction Manager at Risk.
TCM to contract «~ith the County as provided in G.S. ~ 143-64.31.
TCI~I:
(1) will provide construction management services for the Project throughout
the preconstruction and construction phases, and
(2) will guarantee the cost of the Project will not exceed the budgeted Project
Cost of $17,939,079.1
This guaranteed Project Cost will be adjusted in the event (1) the County
introduces any changes to the scope of the work envisioned by TCM and the
design professionals` or (2) TC1VI is delayed in the commencement of
construction by reason of the public bid process or by reason of matters
reasonably beyond TCM's control.
TCM remuneration: retention of private elements and the amount by which the
budgeted Project Cost exceeds actual Project Cost incurred.
TCM Construction Method.
TCM will publically advertise, prequalify and accept bids on a single prime basis
from licensed general contractors.
TCM and the County will develop mutually agreeable prequalification criteria
including, but not limited to:
iThis sum to Ue reduced by those portions of the contract balances remaining to
be paid to design professionals whose contracts must be assigned to the County pursuant
to G.S. X143-64.31.
ZThe Project budget contemplates that TCIUI will deliver a shell and the upfitted
space, the latter as specified by the County. The Project budget includes an upfit
allot--°ance of $3~Ift2 for the office building interior and an upfit allowance of $55/ft2 for
the library interior. The Project Cost will be adjusted to the extent the otTice building and
library interiors upfit costs exceed the budgeted office building and library interior
allowances contained in the guaranteed Project Cost. The interior upfit costs shall be
identified in the bid documents and the cost to upfit the interiors shall be identified in the
construction bid(s).
-3-
• construction quality history.
• experience and performance history.
• ability to complete each element of the Project within its respective
Contract Time.
• ability to complete the entirety of the Project within the budgeted Project
Cost.
• cost of construction oversight.
• financial stability.
• stability of principal subcontractors {electrical, mechanical, plumbing,
framing, masonry, site«•ork).
• bonding capacity and rating of surety.
• value engineering experience.
• minority business participation plan in compliance ~~~ith U.S. 143-128.2.
• amenability to contracting pursuant to modified AIA Contract Documents
to be prepared by TC11~I.
TCM will require the single prime general contractor to furnish 100%
performance and payment bonds which name TCM's construction lender, TCM
and the County as joint obligees.
TCNI will reserve the right to withdraw from the Project without penalty or
liability in the event TCNi determines, in its discretion, that the lowest
responsible, responsive bidder is nonetheless unacceptable to TCM.
6. Project Completion Schedule.
Office building/ library/parking
facility) substantial completion 0,'2008
Closing of purchase of office
building and library 0512008
Licensure of parking spaces
to County 0/2008
-4-
7
Takedo«~n Schedule and Requirements.
05i'08 office building/
library and associated
parcels of land $17,939,079
05108 Parking facility $1.00/year
plus
prorated
annual
maintenance
cost pass-
through.3
8.
Auxiliary Project.
a. Profile.
Gateway Center Building (a condominium) to be located on the land
identified as Orange County PINS 9874054586, 9874054682, 9874053673
and 9874053450.
Floor 1 (11,423 st) to be purchased by tA~eaver Street Market.
Floors 2 (11,423 st) and 3 (11,423 sf) and 41 additional Project Parking
facility parking spaces -- available for lease by County for 366 days with
an option to purchase at the end of the lease period.
b. Auxiliary Project Completion Schedule
Gateway Building substantial
completion 1 L~2007
41 additional licensed Project
Parking facility parking spaces 5/2008
c. Takedown Schedule and Requirements.
Lease:
3In 2006 dollars, estimated to be $65.00 per space.
-5-
1112007 Lease of Floors
2 and 3 24.75/ft $47,120/
month
5/2008 41 additional $1.00 for
Project Parking facility parking balance of
spaces Lease term
plus prorated
annual
maintenance
cost of
pass through.
If option to purchase exercised:
11/08, Floors 2
and 3 of condominium
11108 41 additional
Project Parking facility
parking spaces
22,846 sf. $ 5,490,449
9. Contin eg ncies.
$1.00/year
plus prorated
annual
maintenance
cost pass
through.
Successful assignment to County of Design Professional Contracts between TCM
and the Design Professionals.
TCI~1's completion of all contemplated transactions «~ith «~'eajzer Street Market.
Land use approvals by To~~~n of Hillsborough.
Satisfaction of construction loan underwriting criteria of TCM lender.
LGC and undei•~vriting approval of debt structuring of Orange County debt so that
it complies with Orange County's policies of 15% of General Fund Budget debt
service payments and 7% annual growth of General Fund Budget.
Execution and delivery of Contract Documents mutually agreeable to TCM, the
single prime general contractor, the contractor's surety, TCM's construction
lender, the County and the County's lender, if necessary.
-6-
No violation of law (including environmental) with respect to the Project, the
Auxiliary Project or any portion of either shall exist as of the date of lease and as
of the date of sale closing of either or any portion of either.
The obligations of the parties to this Agreement as described in this Agreement
are expressly subject to, and contingent upon the execution of all necessary further
Agreements, in form and substance acceptable to the parties, in the sole and absolute
discretion of each. The parties agree to promptly and in good faith negotiate the terms
and conditions of all necessary further agreements.
By:
ATTEST:
Donna S. Baker, Clerk to the
Board of Commissioners
By:
ATTEST:
ORANGE COUNTY, NORTH C AROLINA
Barry Jacobs, Chair, Orange County Board
of Commissioners
Telesis Construction Management, LLC
George A. Horton, III, Member/Manager
F:1Lisalorange county\County Campus Agreement of Intent 101606 clean rev by geg.doc
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