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Home My WebLink About2008-091 Purchasing- Clancy & Theys Construction Manager at Risk Services Animal Services Facility~ ~ _ Please return this copy to - Clerk to the Board's office for PAF ORANGE COUNTY AGREEMENT FOR CONSTRUCTION NORTH CAROLINA MANAGER AT RISK SERVICES This AGREEMENT is made and effective on this date: February 19'h, 2008 BETWEEN The Owner: ORANGE COUNTY, NORTH CAROLINA (hereinafter referred to as "Owner" or "the Owner") And the Construction Manager At Risk (hereinafter referred to as "CMAR" or "the CMAR"): CLANCY & TREYS CONSTRUCTION COMPANY, INC. For services in connection with the Project known as: ~~4~ a/r9~aod~ ~-~ The ORANGE COUNTY ANIMAL SERVICES FACILITY SITE CONSTRUCTION, Chapel Hill, North Carolina, as further described in Article 2 For which the Designer is: DIXON WIENSTEIN ARCHITECTS, P.A., ATTN: ELLEN WIENSTEIN, 25 THE COURTYARD, CHAPEL HILL, NC 27516 The Owner and CMAR, in consideration of their mutual covenants herein, agree as set forth below: TABLE OF CONTENTS ARTICLE 1 -RELATIONSHIP OF THE PARTIES ......................................................................................... 4 1.1 Owner and Construction Manager At Risk 1.2 Owner and Designer 1.3 CMAR and Contractors 1.4 Relationship of the CMAR to the Designer ARTICLE 2 -PROJECT DEFINITION .................................. ARTICLE 3- CONSTRUCTION MANAGER AT RISK'S SERVICES ............... 3.1 CMAR Services 3.2 CMAR Personnel 3.3 Construction Management Plan 3.4 Consultant Selection 3.5 Time Management 3.6 Cost Management 3.7 Management Information System (MIS) 3.8 Design Phase Services 3.9 Procurement Phase 3.10 Construction Phase 3.11 Post Construction Phase ........................ 4 ............. 4 3.12 Additional Services ARTICLE 4 -TIME FOR PERFORMANCE............ 4.1 Duration 4.2 Master Schedule 4.3 Non-waiver 4.4 Schedule Adjustment 4.5 Earlv Start 4.6 Recovery 4.7 Schedule Monitoring 4.8 Schedule Revisions 4.9 Withholding Payment from CMAR 4.10 Work by Owner 4.11 Force Majeure 4.12 Notice 4.13 Weather Delays 4.14 Damages for Delay 4.15 Liquidated Damages .................................................. 16 ARTICLE 5 -CHANGES IN THE CONSTRUCTION MANAGER AT RISK'S SERVICES AND ADDITIONAL COMPENSATION 5.1 Owner Chanaes ARTICLE 6 -OWNER'S RESPONSIBILITIES.... 6.1 Proaram 6.2 Decisions 6.31nsurance 6.4 Notice of Nonconformities 6.5 Approvals 6.6 Designer 6.7 Budget 6.8 Separate Contracts 6.9 Copies of Drawings and SDecifications 6.10 Permits and ADprovals 6.11 Funding Requirements 6.12 Communication with Contractors 6.13 Copies of Notices and Communication 6.14 Owner's Representative 6.15 Payments to CMAR 19 .................................................................................... 20 ARTICLE 7 -GUARANTEED MAXIMUM PRICE AND PAYMENT..... 7.1 Guaranteed Maximum Price 7.2 Cost of the Work 7.3 Adjustments to the Guaranteed Maximum Price 7.4 Fixed Fee and General Conditions Costs 21 2 ARTICLE 8 -INSURANCE AND INDEMNITY ............................................................................................... 25 8.1 CMAR's Liability Insurance 8.2 Builder's Risk Insurance 8.3 Indemnity ARTICLE 9 -TERMINATION AND SUSPENSION ......................................................................................... 28 9.1 Termination for Convenience 9.2 Termination for Default 9.3 Additional Termination Provisions 9.4 Suspension ARTICLE 10 -DISPUTE RESOLUTION ....................................................................................................... 30 ARTICLE 11 -ADDITIONAL PROVISIONS .................................................................................................. 30 11.1 Confidentiality 11.2 Sipns 11.3 Limitation and Assignment 11.4 Minority Business Enterprise Program 11.5 Extent of Agreement 11.6 Severabilitv 11.7 Meaning of Terms 11.8 Notices 11.9 Bonds 11.10 Ownership of Documents ARTICLE 12 -SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS .............:........................................... 31 12.1 Guaranteed Maximum Price Appendix A -Dispute Resolution Appendix B -List of Cost Elements Appendix C -Orange County Minority Business Enterprise Policy Appendix D -Divisions of the Work for Guaranteed Maximum Price Appendix E -Project and Construction Budget. Appendix F -- Master Schedule 3 ARTICLE 1 RELATIONSHIP OF THE PARTIES 1.1 Owner and Construction Manaaer at Risk The CMAR and the Owner shall perform as stated in this Agreement and each accepts the relationship between them that is established by this Agreement. The CMAR covenants with the Owner to furnish professional construction management services during the Project. In broad terms, under this Agreement, the CMAR will perform construction services, including efficient value engineering reviews and project management, business administration and field supervision, and shall use its best efforts to see to it that the Work of the Project is done in the best and most expeditious, economical manner consistent with the interests of the Owner, and in strict conformity with the Contract Documents, including all reasonable implications therein, and to furnish its skill and judgment with due care in accordance with applicable federal, state, and local laws and regulations that are in effect on the date of this Agreement first written above. 1.2 Owner and Desianer The Owner shall contract separately with the Designer to provide architectural and engineering design for the Project. The Project is defined in Article 2 of this Agreement. In this Agreement the term "Drawings and Specifications" shall refer to the drawings and specifications prepared by the Designer in accordance with its agreement with the Owner. 1.3 CMAR and Contractors The CMAR shall enter into contracts for labor, materials and services in accordance with N.C. Gen. Stat. § 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. In this Agreement the term "Contractor" or "Contractors" shall refer to all persons with such contracts with the CMAR. 1.4 Relationship of the CMAR to the Desianer In providing construction management services described in this Agreement, the CMAR shall maintain a working relationship with the Designer. The Designer is solely responsible for the Project design and shall perform in accordance with the Designer agreement with the Owner and nothing in this Agreement shall be construed to mean that the CMAR is responsible for the design of the Project or that the CMAR assumes any of the contractual or customary duties of the Designer or any other persons or parties not specified by this Agreement. The CMAR and the Designer shall each be provided with a copy of the other's contract with the Owner. ARTICLE 2 PROJECT DEFINITION The term "Project" when used in the Agreement shall mean the total construction of which the Work may be a whole or part of the Project. The term "Work" required for the "Project" used in this Agreement shall mean the various parts of total construction to be pertormed under this Agreement. The Project name and location is the Orange County Animal Services Facility Site Construction in Chapel Hill, North Carolina. The Project is intended for use as the site construction component for the full service Animal Service Facility, as more fully described in this Agreement and all site plan and related documents submitted to The Town of Chapel Hill as part of the Site Plan approval of the Project and as those documents are or will be modified to conform to Project approvals obtained by the Owner. The Project shall be fully described in the Contract Documents, which are hereby defined to include: This Agreement, the Orange County, North Carolina General Conditions of the Contract for Construction -Construction Manager at Risk, June 2007 Edition, plus the Drawings and Specifications prepared by the Designer, plus allowable Modifications to the Contract Documents. ARTICLE 3 CONSTRUCTION MANAGER AT RISK'S SERVICES 3.1 CMAR Services 4 The CMAR shall perform the Services described herein. The sequence in which they are provided shall be as set forth in the approved Construction Management Plan. 3.2 CMAR Personnel The services to be provided by the CMAR under this Agreement shall be performed by personnel identified by the CMAR, and approved by the Owner, before commencing services. The furnishing of services by such personnel throughout the duration of the Project, and any individuals approved by the Owner to replace them, is of the essence to this Agreement. 3.2.1 Additions. Removals, Replacements From time to time, personnel may be added as necessary and appropriate to the stage of planning, programming, designing and constructing the Project. The CMAR shall anticipate the need for such additional personnel by submitting to the Owner, no later than seven (7) days prior to the need for the additional personnel, a list of the proposed additional personnel, attaching the resumes of proposed additional personnel, and stating the reasons for such additions. The Owner shall promptly review the proposed additions and either approve or disapprove the additional personnel in writing. The CMAR shall not employ any individual to perform the functions of any approved personnel without the advance approval of the Owner, which approval may be granted or withheld in its sole discretion. The CMAR shall not, for so long as any approved person is employed by the CMAR, remove, substitute or reduce the time devoted to the Project by such person without the Owner's prior written approval, which may be granted or withheld in its sole discretion. If the Owner is for any reason dissatisfied with the services rendered by any approved person, the CMAR shall promptly remove such person and recommend a replacement. If any approved person ceases employment with the CMAR, or if the Owner requests the removal of any such person, then the CMAR shall promptly notify the Owner of a proposed substitute of at least equal qualifications to perform the same functions, and provide a resume for the substitute. Each substitute person must be approved by the Owner prior to commencing performance of any services for the Project, which approval may be granted or withheld in the Owner's sole discretion. The CMAR shall bear, at its own expense and without reimbursement by the Owner, all costs associated with replacing, for any reason, any approved personnel. The CMAR shall remain solely responsible to the Owner, notwithstanding the Owner's approval of any approved personnel, for the quality and performance of all services provided by such personnel 3.2.2 CMAR's Project Representative The CMAR shall designate a Project Representative who has the authority to act on behalf of the CMAR in respect to all matters that are the subject of this Agreement, including, without limitation, the power and authority to enter into agreements or modifications that contractually bind the CMAR. The Project Representative shall be available at all times during all phases of performance of services under this Agreement to consult with the Owner on matters pertinent to design and construction of the Project. 3.2.3 CMAR's Employees None of the persons employed by the CMAR shall be considered employees of the Owner. The CMAR shall be solely responsible for any workers' compensation obligations, withholding taxes, unemployment insurance, compliance with immigration and licensing laws, and any other employer obligations with respect to all of their respective employees. 3.3 Construction Management Plan Within 30 days after execution of this Agreement, the CMAR shall present to the Owner a Construction Management Plan for the Project, including dates by which deliverables required by the Construction Management Plan will be completed. The CMAR shall make recommendations for revisions to the Construction Management Plan throughout the duration of the Project, as may be appropriate. In preparing the Construction Management Plan, the CMAR shall consider the Owner's schedule, budget, and design requirements for the Project. The CMAR shall then develop various alternatives for the sequencing and management of the Project and shall make recommendations to the Owner. The Construction Management Plan shall also include a description of the various bid packages recommended for the Project. The Construction Management Plan shall be presented to the Owner for acceptance. Revisions approved by the Owner shall be incorporated into the Construction Management Plan. 3.4 Consultant Selection If requested by the Owner, the CMAR shall assist the Owner in the selection of designers and other consultants necessary for the Project (generally referred to in this Agreement as "Consultants") by developing lists of potential firms, developing criteria for selection, preparing and transmitting the requests for 5 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 CMAR shall assist the Owner in the preparation and review of Agreements between the Owner and the Consultants engaged by the Owner. 3.4.2 Consultant Orientation If requested by the Owner, the CMAR shall conduct or assist the Owner in conducting orientation sessions during which the Consultants shall receive information regarding the Project scope, schedule, budget, and administrative requirements. 3.5 Time Manaoement The CMAR shall be responsible for Project scheduling and efficient and timely prosecution and completion of the Work, as follows: 3.5.1 Master Schedule In accordance with the Construction Management Plan, the CMAR shall prepare a Master Schedule for the Project. The Master Schedule shall specify milestone dates and the proposed start and finish dates for each major project activity including all design and construction activities. The CMAR shall submit the Master Schedule to the Owner for acceptance. 3.5.2 Updates and Revisions to Master Schedule As necessary throughout the Project, the CMAR may make revisions to the Master Schedule so long as such revisions do not alter agreed milestone dates. All adjustments to the Master Schedule shall be made for the benefit of the Project. The Owner shall issue change orders to the appropriate parties as required by this Agreement to implement justified revisions to the agreed milestone dates in the Master Schedule. During the Construction Phase, the CMAR shall update the Master Schedule and distribute copies to the Owner and Designer monthly. 3.5.3 Design Phase Milestone Schedule In accordance with the Construction Management Plan, after the Owner accepts the Master Schedule the CMAR shall prepare a Milestone Schedule for the Design Phase. The Design Phase Milestone Schedule may be incorporated into the contract for the Designer and shall be a method for judging progress during the Design Phase. The Design Phase Milestone Schedule activities shall include schematic design documents, design development documents, construction documents, permitting, creation of separate specifications and bid packages, and selection and approval of long-lead-time components of the Project. The CMAR shall monitor compliance with the Design Phase Milestone Schedule, and promptly notify the Owner and Designer of any delay or change in the Design Phase Milestone Schedule. 3.5.4 Pre-Bid Construction Schedules Prior to transmitting Contract Documents to bidders, the CMAR shall prepare aPre-Bid Construction Schedule for each part of the Project and make the schedule available to the bidders during the Procurement Phase. The CMAR shall inform the bidders of their responsibilities regarding the Pre-Bid Construction Schedule specified in the Instructions to Bidders or Contract Documents. 3.5.5 Contractor's Construction Schedule The CMAR shall provide a copy of the Master Schedule to the bidders. As part of the notice of award of each contract, the CMAR shall inform each Contractor of the requirements for the preparation of a construction schedule. The Contractor shall prepare its own construction schedule in accordance with the requirements of the Contract Documents. The Contractor's construction schedule shall establish completion dates that comply with the requirements of the Master Schedule. 3.6 Cost Management The CMAR shall be responsible for implementing a system of cost control, for the completion of the Project within the Guaranteed Maximum Price agreed to by the CMAR and the Owner as set forth herein. 3.6.1 Construction Market Survey In accordance with the Construction Management Plan, the CMAR shall, at the written request of the Owner, conduct a Construction Market Survey to provide current information regarding the general availability of local construction services, labor, materials and equipment cost and other economic factors related to the Project. A report of the Construction Market Survey shall be provided to the Owner and the Designer. 3.6.2 Project and Construction Budoet 6 Based on the Construction Management Plan and the Construction Market Survey, the CMAR shall prepare a Project and Construction Budget based on separate divisions of the Work required for the Project and shall identify contingencies for design and construction. The CMAR shall submit the Project and Construction Budget to the Owner for acceptance. If the CMAR believes that additional surveys, geotechnical investigations, environmental assessments or other testing or investigation is necessary and reasonable to fashion a reliable Project and Construction Budget, the CMAR shall make recommendations to the Owner for such services, with an explanation of why the CMAR believes that the services are reasonable and necessary. The decision to procure such services shall be solely in the discretion of the Owner, and shall be at the Owner's expense. The Project and Construction Budget shall be revised as directed by the Owner. 3.6.3 Preliminary Estimate and Budget Analysis The CMAR shall analyze and report to the Owner the cost of various design and construction alternatives, including the assumptions by the CMAR in preparing its analysis, a variance analysis between budget and preliminary estimate, and recommendations for any adjustments to the budget. As a part of the cost analysis, the CMAR shall consider costs relating to efficiency, usable life, maintenance, energy, and operation. 3.6.4 Cost Control Following the completion of each design phase milestone, the CMAR shall prepare an estimate of the construction cost for the Design Drawings and Specifications furnished by the Designer. Each estimate shall be accompanied by a report to the Owner and Designer identifying variances from the Project and Construction Budget as well as the assumptions made by the CMAR in preparing the estimate. The CMAR shall reconcile its estimates with the Project Budget and the Construction Budget, and with any independent estimates obtained by the Owner. The CMAR shall coordinate the activities of the Owner and Designer and provide cost estimating and value engineering studies when changes to the design are required to remain within the Project and Construction Budget. 3.6.5 Project and Construction Budget Revision The CMAR shall make recommendations to the Owner concerning design changes that may result in revisions to the Project and Construction Budget and divisions of the Work required for the Project. 3.6.6 Value Engineering Studies The CMAR shall provide value engineering recommendations to the Owner and Designer for major construction components, including cost evaluations of alternative materials and systems. 3.6.7 Estimates for Addenda Prior to bidding, the CMAR shall notify the Owner and the Designer if any addendum issued by the Designer could impact the Cost of the Work of the Project, and will, at the written request of the Owner, prepare an estimate of costs for all such addenda and shall submit the estimates to the Owner for approval. After approval by the Owner, addenda shall be transmitted to bidders by the CMAR. Once bids are received and contracts are awarded to each Contractor, any addenda issued by the Designer which affects a Contractor shall be processed through the change order provisions in the Agreement. 3.6.8 Analyzing Bids: Upon receipt of bids, the CMAR shall evaluate the bids; including alternate prices and unit prices, and before award of any construction contract shall provide the Owner and the Designer with a report summarizing the bids. 3.6.9 Schedule of Values (Each Contract) The CMAR shall, in participation with the Contractors, determine a Schedule of Values for each of the construction contracts. The Schedule of Values shall be the basis for the allocation of the Construction Contract price to the activities shown on the Contractor's Construction Schedule. 3.6.10 Allocation of Costs to Contractor's Construction Schedule [Not used.] 3.6.11 Change Order Control The CMAR shall establish and implement a change order control system. 3.6.11.1 All proposed Owner-initiated change orders shall first be described in detail in writing by the Owner, or-the Designer if so requested by the Owner, and forwarded to the CMAR. The CMAR shall then forward a request for proposal to the appropriate Contractor (or Contractors), accompanied by technical Drawings and Specifications prepared by the Designer. In response to the request for a proposal, the Contractor shall submit to the CMAR for evaluation detailed information concerning the costs and time adjustments, if any, 7 necessary to perform .the proposed change order work. The CMAR shall review the Contractor's proposal, shall discuss the proposed change order with the Contractor and determine the Contractor's basis for the cost and time to perform the Work and, as applicable, the effect, if any, on the Guaranteed Maximum Price. The CMAR shall present its findings to the Owner and Designer: Following Owner acceptance, the Designer shall prepare the change order documents for signature by the CMAR and Owner. Upon execution of the change order documents between the CMAR and Owner, the CMAR shall prepare change order documents for signature by the affected Contractor(s). The CMAR shall verify that any adjustment of time required by approved change orders has been incorporated into the Contractor's Construction Schedule. 3.6.11.2 The CMAR shall review the contents of all Contractor- requested changes to the contract time or price, determine whether an adjustment to the Guaranteed Maximum Price or .the Master Schedule is • warranted under the Contract, .and determine the amount or length, if any, of the allowable adjustment to the Guaranteed Maximum Price and the Master Schedule. If the CMAR believes that an adjustment to this Contract might be warranted by a Contractor change request, the CMAR shall provide the Designer with a copy of the change request, and the CMAR shall, in its evaluations of the Contractor's request, consider the Designer's comments regarding the proposed changes.. The CMAR shall present its findings to the Owner and Designer regarding the proposed changes. If, after review by the Owner and Designer, the Owner determines that an adjustment to the Guaranteed Maximum Price or Master Schedule is warranted, the Designer shall prepare the change order documents for signature by the CMAR, the Owner and the Designer. Upon execution of the change order documents between the CMAR and Owner, the CMAR shall prepare change order documents for signature by the affected Contractor. 3.6.11.3 In instances where a lump sum or unit price is not authorized by the Owner in a change order prior to performing Work described in a request for proposal as provided in Paragraph 3.5.11, the CMAR shall request from the Contractor records of the cost of payroll, materials and equipment and the amount of payments to subcontractors incurred by the Contractor in performing the Work. 3.6.12 Trade-Off Studies fNot used.l 3.6.13 Prooress Payments In consultation with the Designer, the CMAR shall inspect the work to determine compliance with the Contract Documents, review the monthly payment applications .submitted by i=.ach Contractor and determine whether the amount requested reflects the progress of the Contractor's Work. The CMAR shall make appropriate adjustments to each payment application and shall prepare and forward to the Designer and Owner a progress payment report. The report shall state the total contract price, .payments to date, current payment requested, retainage and actual amounts owed for the current period. Included in this report shall be a certificate of payment that shall be signed by the CMAR and delivered to the Owner. The CMAR shall make payments that are due to all contractors, suppliers, and material men within seven (7) days following payment for the work, supplies and materials by the Owner to the CMAR as provided in Paragraph 7.4.4. In addition, the CMAR shall keep the Project and the site on which Work is performed free and clear of all liens and claims from Contractors, subcontractors, or suppliers. Each payment application from each Contractor and the CMAR shall contain sales tax information on forms provided by the Owner. 3.7 Manaoement Information System (MIS) The CMAR shall develop a MIS to establish communication between the Owner, CMAR, Designer, and other parties on the Project. In developing the MIS, the CMAR shall interview the Owner's and the Designer's key personnel and others to determine the type of information for reporting, the reporting format, and the desired frequency for distribution of the various reports. At a minimum, the MIS shall include the elements described in this section. 3.7.1 Pre-construction Procedures As part of the MIS, the CMAR shall establish procedures for reporting, communication, and administration during the Design Phase and regulatory permitting. 3.7.2 Schedule Maintenance Reports The CMAR shall prepare and distribute schedule maintenance reports on a monthly basis that shall contrast actual progress against scheduled progress for each Phase and the overall Project and shall make recommendations to the Owner for corrective action to maintain the Master Schedule and all design and construction schedules. During the Construction Phase the reports shall compare the actual. construction dates 8 to scheduled construction dates of each separate construction contract and to the Master Schedule for the Project. 3.7.3 Project Cost Reports The CMAR shall prepare and distribute project cost reports on a monthly basis that shall indicate estimated costs compared to the Project Guaranteed Maximum Price and shall make recommendations to the Owner for corrective action to maintain all budgets and the Guaranteed Maximum Price. During the Procurement Phase, the reports shall specify the actual award prices and construction costs for the Project, compared to the Project Guaranteed Maximum Price. During the Construction Phase the reports shall specify actual Project and construction costs compared to the Project Guaranteed Maximum Price. 3.7.4 Cash Flow Resort The CMAR shall periodically prepare and distribute a cash flow report. The reports shall be based on actual award fees and prices and on actual design and construction costs for the Project. .The reports shall specify the actual cash flow compared to the projected cash flow. 3.7.5 Change Order Report The CMAR shall prepare and distribute Design Phase reports on a monthly basis that shall list all Owner-approved addenda, substitutions and change orders as of the date of the report and shall state the effect of the changes on the Project and Construction Budget and the Master Schedule. The CMAR shall continue to prepare and distribute monthly change order reports during the Construction Phase. The report shall include logs of all requests for information, requests for interpretation of the design documents, requests for proposals, notices of events that might justify an adjustment in the Guaranteed Maximum Price or Master Schedule, and status of critical decisions to be made by the Owner or the Designer. The report shall list all Owner-approved change orders by number, a brief description of the change order work, the cost established in the change order and percent of completion of the change order work. The report shall also include similar information for potential change orders or impact on the Guaranteed Maximum Price of which the CMAR may be aware. 3.7.6 Project and Construction Budget Revisions The CMAR shall make recommendations to the. Owner concerning construction changes that may result in revisions to the Project Guaranteed Maximum Price.- 3.7.7 Progress Payment Reports (Each. Contract) The CMAR shall prepare and distribute the progress payment reports. The reports shall state the total construction contract price, payment to date, current payment requested, retainage, sales and use tax paid, and actual amounts owed this period. A portion of this report shall be a certificate of payment that shall be signed by the CMAR and delivered to the Designer and the Owner. 3.7.8 Contractor's Safety Program On a monthly basis, the CMAR shall review the safety programs of each Contractor and confirm that each Contractor has established and implemented safety programs as required by the Contract Documents.. 3.7:9 Final Inspections and Commissioning The CMAR shall schedule final inspections and, if required by the Contract Documents, commissioning of systems in the Project, and shall compile and organize all inspection reports for the Project records. 3.7.10 Closeout Resorts At the conclusion of the Project, the CMAR shall prepare final project accounting and closeout reports. 3.7.11 MIS Reports for Move-in and Occupancy In consultation with the Owner, the Designer and appropriate regulatory agencies, the CMAR shall prepare and distribute reports associated with the Occupancy Plan. 3.8 Design Phase Services All drawings and specifications shall be prepared by the Designer and submitted to the Owner for review and authorization to proceed with procurement and construction. The CMAR shall provide the following services related to design of the Project. 3.8.1 Proiect Conference In accordance with the approved Construction Management Plan and Master Schedule, the CMAR shall conduct a project conference attended by the Designer, the Owner and others as necessary. During the Project Conference, the CMAR shall review the Construction Management Plan, the Master 9 Schedule, the Design Phase Milestone Schedule, the Project Guaranteed Maximum Price, and the MIS. The CMAR shall conduct and prepare minutes of this meeting. 3.8.2 Design Phase Information The CMAR shall monitor the Designer's compliance with the Construction Management Plan and the MIS and the CMAR shall coordinate and expedite the flow of information between the Owner, Designer; the CMAR and others as necessary. 3.8.3 Progress Meetings The CMAR shall participate in regularly scheduled progress meetings attended by the Owner, CMAR and others as necessary. Such meetings shall serve as a forum fior the exchange of information concerning the Project and the review of design progress. The Designer shall prepare and distribute minutes of these meetings to the Owner, CMAR and others. 3.8.4 Review of Design Documents The CMAR 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 CMAR is not responsible for providing, nor does the CMAR control, the Project design and contents of the design documents. By performing the reviews described herein, the CMAR is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design and design documents. The CMAR's actions in reviewing the Project design and design documents and in making recommendations as provided herein are only advisory to the Owner. 3.8.5 Design Recommendations The CMAR shall make recommendations to the -Owner and Designer with respect to constructibility, construction cost, sequence of construction, construction duration, possible means and methods of construction, time for construction, and separation of the Project contracts for various categories of Work. In addition, the CMAR shall give to the Designer all data of which it is aware concerning patents or copyrights for inclusion in Contract Documents. 3.8.6 Owner Design Reviews The CMAR shall expedite the Owner's design reviews by compiling and conveying the Owner's comments to the Designer. 3.8.7 Approvals by Regulatorv Agencies The CMAR shall assist the Designer with transmittal of documents to regulatory agencies for review and shall advise of potential problems in completing such reviews of which CMAR is actually aware. 3.8.8 Construction Contracts and General Conditions The CMAR shall recommend for approval by the Owner the appropriate Contractor bid packages. The CMAR shall take into account the needs of the Project, the Master Schedule, risk management, and the available resources, and divide the Work for the best benefit of the Project. The CMAR and the Designer shall collaborate on the preparation of bid documents consistent with the bid packages identified by the CMAR and approved by the Owner. Consistent with State law, one or more bid packages shall be prepared for each of the general construction, electrical, mechanical, fire protection, and plumbing divisions of the Work of the Project. The CMAR shall prepare any other contract packages for other divisions or subdivisions of the Work as agreed with the Owner. The form of agreement and general conditions for use in the contracts between the CMAR and the Contractors for construction for the Project shall be based on a form of Agreement selected by the CMAR-that is consistent with and the General Conditions of the Orange County Contract For Construction - Construction Manager at Risk. The requirements of this Agreement shall be included in each construction contract to the extent applicable to the construction contract. Supplementary General Conditions for Contractors shall be prepared by the CMAR and submitted to the Owner and the Designer with adequate time for review and comment before inclusion in bid packages. The Designer and the CMAR will collaborate on the preparation of the general Division One requirements of the Specifications. Separate General Conditions for materials and equipment procurement shall be prepared by the CMAR to meet the specific requirements- of the Project using forms approved by the Owner. The CMAR shall be afforded a reasonable opportunity to review and comment on all special warranties and other obligations imposed on the Contractors by the Specifications. 3.8.9 Public Relations 10 The CMAR shall assist the Owner in public relations activities and shall prepare information for and attend public meetings regarding the Project as reasonably required by the Owner. 3.8.10 Project Funding The CMAR shall assist the Owner in preparing documents concerning the Project for use in obtaining or reporting on project funding. The documents shall be prepared in a form approved by the Owner. 3.9 Procurement Phase All construction contracts, labor. materials and services shall be procured in accordance with N.C. Gen. Stat. § 143-128.1 and other sections of Chapter 143 Article 8 of the North Carolina General Statutes relating to construction management at risk contracts. 3.9.1 Preaualifving Bidders The CMAR shall develop lists of possible bidders and shall prequalify bidders. This service shall include the following: preparation and transmission of questionnaires; receiving and analyzing completed questionnaires; interviewing possible bidders, bonding agents, and financial institutions; and preparing summary reports regarding this activity to the Owner. The CMAR shall also prepare and transmit to the Owner a bidders list for each bid package. The Owner shall notify the CMAR promptly of any reasonable objections to a proposed bidder. and the CMAR shall remove that bidder from the bidders list. 3.9.2 Bidder's Interest Campaign The CMAR shall conduct a telephonic and correspondence campaign to attempt to create interest among qualified bidders, both to foster competition for the Work of the Project, and to satisfy the requirements of the Owner's Minority Business Enterprise Policy, attached to this Agreement as Appendix C. 3.9.3 Notices and Advertisements The CMAR shall prepare and place notices and advertisements to solicit competitive bids for the Project. 3.9.4 Delivery of Bid Documents The CMAR shall expedite the delivery of bid documents to the bidders. The CMAR shall obtain a full set of documents from the Designer and arrange for printing, binding, wrapping and delivery to the bidders. The CMAR shall maintain a record of bidders receiving documents. 3.9.5 Pre-Bid Conference In conjunction with the Designer, the CMAR shall conduct a Pre-Bid Conference. These conferences shall be forums for the CMAR and Designer to explain to the bidders the Project requirements, including information concerning schedule requirements, time and cost control requirements, access requirements, contractor interfaces, minority and women's business enterprise goals, the project administrative requirements and technical information. 3.9.6 Information to Bidders The CMAR shall develop and coordinate procedures to provide answers to bidders' questions 3.9.7 Addenda The CMAR shall receive from the Designer a copy of all addenda. The CMAR shall review addenda for clarity, consistency and coordination. By performing the reviews described herein, the CMAR is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design or the content of the design documents. The CMAR shall also distribute a copy of all addenda to each bidder receiving documents. 3.9.8 Bid Opening The CMAR shall conduct bid openings in accordance with statute and shall evaluate the bids to determine the lowest responsive and responsible bidder. The CMAR shall not award or enter in#o any contract for Work on the Project until the CMAR has provided the Owner with written notice of the intent to award the contract with reasons for awarding the contract to the successful bidder. This written notice shall also describe compliance by the bidder with the Owner's Minority Business Enterprise Policy, attached to this Agreement as Appendix C The Owner shall be given reasonable opportunity to consider the qualifications of the successful bidder, and the impact of award of the contract on the Project and Construction Budget. 3.9.9 Construction Contracts At the direction of the Owner, the CMAR shall prepare, execute, and deliver the Contract Documents between the CMAR and the Contractors. The CMAR shall also issue the notices to proceed. 3.9.10 Permits Insurance and Labor Affidavits 11 The CMAR shall verify that all required building permits, bonds, insurance, labor affidavits, and waivers required for the Project have been obtained. 3.10 Construction Phase The CMAR shall be responsible for construction administration and management, overall field supervision, Project safety program, quality assurance, and other services needed to construct the .Project in the most expeditious, economical manner consistent with the interests of the Owner and the requirements of the Contract Documents. 3.10.1 Pre-Construction Conference In connection with the Designer, the CMAR shall conduct a Pre-Construction Conference during which the CMAR shall review the reporting procedures, site operations and other contractual requirements for the Project. 3.10.2 Onsite Management and Construction Phase Communication Procedures The CMAR shall provide and maintain a management team on the Project site to provide contract administration and the CMAR shall establish and implement coordination and communication procedures among the CMAR, Owner, Designer, and Contractors. 3.10.3 Contract Administration Procedures The CMAR shall establish and implement procedures for expediting and processing requests for information, shop drawings, material and equipment sample submittals, Contractor schedule adjustments, change orders, substitutes, payment requests and the maintenance of logs. The CMAR shall maintain daily job reports. The CMAR shall be the party to whom requests for information, submittals, Contractor schedule adjustments, substitutes, change order requests and payment requests shall be submitted by the Contractors. 3.10.4 Proiect Site Meetings The CMAR shall conduct weekly coordination meetings at the site. with all Contractors. As set forth in the Master Schedule and the Contract Documents, the CMAR shall conduct pre- installation and preconstruction meetings for key components of the Work. The CMAR shall conduct a monthly meeting with the Owner and the Designer to update them on progress of the Work. The CMAR shall record, transcribe and distribute minutes of all project site meetings to all attendees, the Owner and Designer. 3.10.5 Coordination of Other Independent Consultants Technical inspection and testing required by the Designer, the Owner or others shall be. coordinated by the CMAR. The CMAR. shall be provided with a copy of all inspection and testing reports on the day of the inspection or test or when issued. 3.10.6 Contractor's Construction Schedule The CMAR shall review, to the extent required by the CMAR, each Contractor's Construction Schedule and shall verify that the schedule is prepared in accordance with the requirements of the Contract Documents and that it establishes completion dates that comply with the requirements of the Master Schedule. The CMAR and the Owner shall together approve the Contractors for which a Construction Schedule is required. 3.10.7 Construction Schedule Report The CMAR shall review the progress of construction of each Contractor on a weekly basis, shall evaluate the percentage complete of each construction activity as indicated in the Contractor's Construction Schedule and shall review such percentages with the Contractor. This evaluation shall serve as data for input to a monthly Construction Schedule report that shall be prepared and distributed to the Contractor, the Owner and Designer. The report shall indicate the actual progress compared to scheduled progress and shall serve as the basis for the progress payment to the Contractor. The CMAR shall determine and implement alternative courses of action that may be necessary to achieve contract compliance by the Contractor. 3.10.8 Recovery Schedules In the event the Project is falling behind schedule, the CMAR shall require each Contractor to prepare and submit a recovery schedule as specified in the Contract Documents. The CMAR shall review and ascertain that the Contractor is providing sufficient resources to regain lost time. 3.10.9 Reouests for Changes to the Contract Time and Guaranteed Maximum Price The CMAR shall review the contents of a request for changes to the construction contract time or price submitted by a Contractor, assemble information concerning the request and endeavor to determine the cause of the request. In instances where the CMAR's analysis reveals that the request is valid, the CMAR shall prepare a detailed report to the Designer and the Owner for review, consideration and approval. The CMAR 12 shall, prior to the issuance of a change order, determine the effect on the Master Schedule of time extensions requested by the Contractor. The Designer shall prepare the necessary change order documents for signing by the CMAR, Designer and Owner. The CMAR shall then prepare the necessary documents to effect a change to the contract with the Contractor. In its sole discretion the Owner may approve a change in the Guaranteed Maximum Price that corresponds with any approved construction contract change order. 3.10.10 Quality Review and Warranty The CMAR unconditionally warrants and guarantees all materials and workmanship against patent defects arising from faulty materials, faulty workmanship or negligence for a period of twelve (12) months following the date of substantial completion of the Work and shall replace such defective materials or workmanship without cost to the Owner. 3.10.10.1 In addition to the foregoing general warranty, the Contract Documents may require extended warranties for specified building components, including without limitation mechanical and electrical equipment, elevators and escalators, security equipment, roof, curtain wall, doors and waterproofing. Extended warranties shall be specified in the Contract Documents. All such extended warranties shall either be provided by the CMAR or by a Contractor or manufacturer as provided in the Contract Documents. Such warranties shall provide, at a minimum, for the repair or replacement of defective or non-conforming components within the warranty period. 3.10.10.2 The CMAR shall establish and implement a program to monitor the quality of construction. The purpose of the program shall be to guard the Owner against defects and deficiency in the work of the Contractors. The CMAR shall transmit to the Designer and the Contractor a notice of nonconforming work and may require that the Contractor correct Work at no expense to the Owner when it is the opinion of the CMAR that the Work does not conform to the requirements of the Contract Documents. Except for minor variations as stated herein, the CMAR is not authorized as part of this service to change, evoke, enlarge, relax, alter, or to release any requirement of the Contract Documents or to approve or accept any portion of the Work not performed in accordance with the Contract Documents. 3.10.11 Testing by the CMAR The CMAR shall recommend to the Owner additional tests and inspections that the CMAR believes should be conducted to monitor the quality of construction and compliance with the Contract Documents. Notice of all such tests and inspections shall be provided to the Owner and the Designer, and copies of the results and reports of all such tests and inspections shall be provided to the Owner and the Designer. 3.10.12 Operation and Maintenance Materials The CMAR shall obtain from the Contractors, review and assemble operation and maintenance manuals, warranties and guarantees for materials and equipment installed in the Project, in accordance with the Contract Documents and the Master Schedule. It is expected that all operation and maintenance manuals will be compiled and delivered to the Owner before the Project is substantially complete, and generally when the Work is eighty percent complete. 3.10.13 Substantial Completion Substantial completion is the point in time when the Work, as determined by the Designer, is sufficiently complete in accordance with the Contract Documents that it can be utilized by the Owner for its intended use, and all necessary permits and permissions for beneficial occupancy and utilization having been obtained by the CMAR. All operations and maintenance manuals, Owner training, and as-built drawings must be submitted prior to Final Completion being achieved. The CMAR shall, prior to requesting a Certificate of Substantial Completion, prepare and submit to the Contractors lists identifying Work that does not conform to the Contract Documents. The CMAR shall not request a Certificate of Substantial Completion from the Designer until the CMAR believes that the Project is substantially complete and certifies to the Designer that all of the Work is substantially complete. The Designer shall then determine whether the Project is substantially complete. Upon Substantial Completion, the Designer shall prepare and submit to the CMAR a deficiency list identifying all portions of the Work which are known by the Designer at that time to be incomplete or defective. Within forty-five (45) days of receipt of this deficiency list, the CMAR shall complete and correct all items on that list along with all other Work required to achieve Final Completion of the Work. At any time prior to completion of the period of warranty, the Designer may submit to the CMAR a supplemental deficiency list, in which case the CMAR shall complete or correct any and all new items identified on the Supplemental deficiency list. 13 3.10.14 Final Completion In consultation with the Designer, the CMAR shall determine when the Project and the Contractor's Work are finally completed and, following completion of corrections, shall issue a Certificate of Final Completion to the Owner. Upon delivery of the Certificate of Final Completion to the Owner, the CMAR shall make all remaining payments due to Contractors. 3.10.15 Protection of the Work, Property and the Public The CMAR shall be responsible for the entire site and shall provide all the necessary protections required by the Owner and by laws or ordinances governing safety and protection of property. Consistent with the indemnification provisions elsewhere in this Agreement, and subject to the benefits of any Owner-controlled or Owner-provided insurance that covers the interests of the CMAR and its Contractors, the CMAR shall be responsible for protecting the public and those on the site against all bodily injury or harm, and protecting against any damage to the Work, to adjacent property, and to property of others. The CMAR shall have access to the Project at all times. Subject to its ultimate contractual responsibility for protection of work, property and the public under this Agreement, and subject to any non-delegable duties imposed by law, the CMAR may delegate to Contractors these obligations of the CMAR under this Agreement, and may obtain indemnification and insurance from Contractors as the CMAR deems reasonable and prudent. 3.10.15.1 The CMAR shall provide cover and protect all portions of the structure when the Work is not in progress, provide and set all temporary roofs, covers for doorways, sash and windows, barricades, and all other materials necessary to protect all the Work on the building, whether set by it, or any of the Contractors. Any completed Work or Work in .progress damaged through the lack of proper protection or from any other cause shall be repaired or replaced without extra cost to the Owner.3.10.15.2 No fires of any kind will be allowed inside or around the operations during the course of construction. 3.10.15.3 The CMAR shall protect all trees and shrubs designated to remain in the vicinity of the operations by building substantial protection around same. The CMAR shall barricade all walks, roads, etc., as authorized by the Owner to keep the public away from the construction. All trenches, excavations or other hazards in the vicinity of the Work shall be well barricaded and properly lighted at night. 3.10.15.4 The CMAR shall develop and implement a Project Safety Program. The Owner may reject the Project Safety Program and require that it be rewritten if in the Owner's reasonable opinion the Safety Program is inadequate. The CMAR shall report, to the Owner, as part ofi the MIS, any safety violations and actions taken to protect the safety of persons and property engaged in the Project. The CMAR shall require that all Contractors meet or exceed the Project Safety Program requirements including where those requirements meet or exceed State or Federal requirements. 3.10.15.5 In the event the Owner implements an Owner Controlled Insurance Program ("OCIP"), the CMAR agrees to cooperate and coordinate with any safety plan or risk management plan implemented in connection with the OCIP. 3.10.15.6 The CMAR shall implement the Project Safety Program .for the protection of all persons on the job, including the requirements of the A.G.C. Accident Prevention Manual in Construction, as amended, and shall fully comply with all state laws or regulations and North Carolina State Building Code requirements to prevent accident or injury to persons on or about the location of the Work. The CMAR shall clearly mark or post signs warning of hazards existing, and shall barricade excavations, elevator shafts, stairwells, floor and wall openings and similar hazards. The CMAR shall protect against damage or injury resulting from falling materials and shall maintain all protective devices and signs throughout the progress of the Work. 3.10.15.7 The CMAR shall, at a minimum, adhere to the rules, regulations and interpretations of the North Carolina Department of Labor relating to Occupational Safety and Health Standards for the Construction Industry. 3.10.15.8 As part of the Project Safety Program the CMAR agrees to implement a Public Hazard Control Plan conforming to the standards set forth in ANSI A10.34-2005R. The Public Hazard Control Plan shall be submitted to the Owner for review and approval before,construction begins on the Project. 3.10.15.9 The CMAR shall designate a responsible member of its organization as safety inspector, whose duties shall include accident prevention on the Project. The name of the onsite safety inspector shall be made known to the Project Designer and Owner at the time the Work is started. The CMAR will provide the Owner with the name of each Contractor's onsite safety officer. 14 3.10.15.10 In the event of emergency affecting the safety of life, the protection of Work, or the safety of adjoining properties, the CMAR is hereby authorized to act at its own discretion, without further authorization from anyone, to prevent such threatened injury or damage. Any compensation claimed by the CMAR on account of such action shall be determined as provided for under Article 7 herein. 3.10.15.11 If reasonable precautions are inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the site by the CMAR or its Contractors, the CMAR shall, upon recognizing the condition, immediately stop .Work in the affected area and report the condition to the Owner and the Project property owner if different from the Owner and Project Designer in writing. The Owner or Project property owner if different from the Owner shall take responsibility for remediation of the material or substance from the site. If the CMAR claim's its progress in completing the Project is delayed because of the remediation. response to the. site, the CMAR shall file notice and a claim in accordance with this Agreement. 3.10.15.12 Any land-disturbing activity pertormed by the CMAR in connection with the Project shall comply with all erosion control measures set forth in the Contract Documents and any additional measures which may be required in order to ensure that the Project is in full compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title 15, North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as amended (15 N.C.A.C. 4A, 46 and 4C). 3.11 Post Construction Phase The CMAR shall provide the following ongoing services in connection with Final. Completion of the Work by the Contractors: 3.11.1 Record Documents The CMAR shall coordinate and expedite submittals of information from the Contractors for preparation of record Drawings and Specifications, and shall coordinate and expedite the transmittal of such record documents to the Owner. 3.11.2 Organize and Index Operations and Maintenance Materials Prior to final completion of the Project the CMAR shall compile manufacturers' operations and maintenance manuals, warranties and guarantees and bind such documents in an organized manner. This information. shall then be provided to the Owner. , 3.11.3 Occupancy Permit The CMAR shall assist the Owner and Designer in obtaining an occupancy permit by accompanying governmental officials during inspections of the Project, preparing and submitting documentation to governmental agencies and coordinating final testing and other activities. 3.11.4 Occupancy Plan The CMAR, in consultation with the Owner, the Designer and appropriate regulatory agencies, shall prepare an Occupancy Plan for the Project. This plan shall be provided to the Owner at least thirty days prior to Substantial Completion. 3.12 Additional Services The .CMAR agrees to perform all tasks and functions reasonably necessary to complete the services described in the preceding paragraphs in this Article 3, even if not explicitly described therein, unless the tasks or functions are explicitly described as Additional Services in this section 3.12. At the request of the Owner, the CMAR shall perform Additional Services and shall be compensated for same as provided in Article 7 of this Agreement. The CMAR shall perform Additional Services only after the Owner and CMAR have executed a written amendment to this Agreement providing for such services. The following is a list of Services that might reasonably be anticipated, with indication of whether the specified services will be considered to be Additional Services or required Services: 3.12.1 Services related to investigation, appraisal, or evaluation of existing conditions, facilities, or equipment or determination of the accuracy of existing drawings or other information furnished by the Owner are required and are not Additional Services; 3.12.2 Services related to procurement, storage, maintenance and installation of Owner-furnished equipment, materials, supplies and furnishings are Additional Services; provided, 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 15 provided this coordination and scheduling can be accomplished within the general conditions allowance; 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 CMAR's Services shall be the date of execution of this Agreement by the Owner as stated herein or the date on which the Owner issues to the CMAR a written instruction to proceed with Services, whichever is earlier. The duration of the CMAR's Services under this Agreement shall be from the date of this Agreement through the issuance of the certificate of final completion, plus the one- year CMAR warranty phase services. 4.2 Master Schedule The CMAR's Services shall be performed for the periods of time indicated in the approved Master Schedule. Firm dates for substantial completion and final completion of the Project shall also be fixed. At that time the CMAR represents that the Master Schedule has been reviewed in detail, that the Contractors participated in its preparation, that all of the activities which impact, limit, or otherwise affect the time of completion of the Work are shown in the Master Schedule and that all of the activities of others which impact, limit, or otherwise affect the start, duration, or completion of the CMAR's activities are also shown. The CMAR further represents that the CMAR can and will complete each activity within the time shown for that activity. Time is of the essence with respect to each such activity and completion date. 4.3 Non-waiver If the CMAR submits a construction schedule, progress report, or any other document that indicates or otherwise expresses an intention to achieve completion of the Work prior to any established completion date, no liability of the Owner to the CMAR for any failure of the CMAR to so complete the Work shall be created or implied. 4.4 Schedule Adjustment If the CMAR and its Contractors, for reasons beyond their control, are delayed in beginning any activity, the CMAR shall, nevertheless, have the same number of days as is shown in the Master Schedule for the activity, and the affected activity and any succeeding activity that is dependent upon that activity shall be adjusted accordingly; provided that at any time the Owner, by means of a Change Order, may require the CMAR to work overtime, to increase labor forces or to take any necessary or appropriate action to decrease the time required for any activity, and the CMAR shall be entitled to an adjustment in the Contract Price computed in accordance with Article 5 of these General Conditions. 4.5 Early Start [Not used.] 4.6 Recovery Should the CMAR fail to start a critical activity on the start date shown in the Master Schedule or as it may have been adjusted 16 in accordance with this Article, or become delayed, the CMAR and its Contractors shall, without being entitled to any increase in the Guaranteed Maximum Price or other compensation, work overtime, increase labor forces or take such other action as may be necessary or appropriate to complete the activity by the Completion Date shown on the Master Schedule, or as such Completion Date may have been adjusted. 4.7 Schedule Monitoring The Designer and Owner shall monitor progress of the Work and the CMAR shall cooperate with such monitoring and provide any and all information with respect to the progress of the Work and scheduling as the Owner or Designer may reasonably require. 4.8 Schedule Revisions On a monthly basis, the CMAR shall revise the Master Schedule,. showing any adjustments made in accordance with this Article, by any Change Order, the progress of the Work, and any days gained or days lost with respect to any activity, and shall furnish copies thereof to the Owner and Designer. 4.9 Withholding Payment from CMAR Should any monthly revision of any Master Schedule or other reasonable evidence exist (which will be promptly provided to CMAR) to cause the Owner and Designer to reasonably determine that (i) Substantial Completion of the Work will not occur within the time period, including authorized adjustments, allotted under the Contract Documents for Substantial Completion of the Work, and (ii) that the unpaid balance of the Contract Price would not be adequate to cover liquidated damages for the anticipated delay, Owner shall be entitled to withhold from the next Progress Payment due the CMAR an amount reasonably deemed necessary by Owner and Designer to protect the Owner from loss, but not exceeding the amount the Owner would be entitled to in liquidated damages for the anticipated delay. If, subsequently, the Work progress is such that the anticipated delay no longer exists, the Owner shall pay with the Progress Payment next due to the CMAR such amounts as have been withheld in accordance with this paragraph. 4.10 Work by Owner If the CMAR, within a period of five (5) days after notice that it is behind in a critical activity or is otherwise in default under this Agreement, shall not proceed in good faith and with reasonable speed to correct such delay or default in accordance with such notice, the Owner shall have full power and authority to take the prosecution of the Work out of the hands of the CMAR, to appropriate or use any or all materials and equipment at the Project as may be suitable and acceptable, and to enter into other agreements for the completion of the Work or pursue such other methods as in the Owner's sole discretion and opinion shall be necessary or appropriate for the completion of the Work in an acceptable manner. The Owner shall have the right to perform Work, hire and employ labor and craftsmen, rent equipment, subcontract with other parties, or do anything that the Owner deems necessary or appropriate to remedy or cure any delay or default by the CMAR in the progress of the Work. Such action by the Owner shall not, in any way, affect, void or limit any warranty, guaranty or other responsibility of the CMAR under the Contract Documents. Such action may be taken by the Owner only after an additional seven (7) day written notice to the CMAR if the CMAR has failed to proceed in good faith and with reasonable speed to correct any such delay or default in accordance with such additional notice. All costs incurred by the Owner in taking any such action shall be charged to the CMAR and deducted from any amounts due under the Agreement.. 4.11 Force Maieure The CMAR may be entitled to an extension of the time for completion (but no increase in the Guaranteed Maximum Price except as described in this Paragraph 4.11) for delays arising from unforeseen causes beyond the control and without the fault- or negligence of the Owner, the CMAR or the CMAR's Contractors as follows: 4.11.1 Acts of God, tornado, fire, hurricane or earthquake that damage completed Work or stored materials. 4.11.2 Acts of sabotage that damage completed work or stored materials. 4.11.3 Labor disputes at the project site. 4.11.4 Unavoidable casualties that damage completed work or stored materials. 4.11.5 Acts of the public enemy. 4.11.6 Acts of the State, Federal, or local government in their sovereign capacities. 17 4.11.7 Abnormal inclement weather as defined in Paragraph 4.13. If the Force Majeure delay is greater than 120 days, the Owner shall consider and, if reasonable, approve a request for an adjustment to the GMP for the additional costs caused by the force majeure delay beyond the 120 day period. 4.12 Notice The CMAR and the Contractors shall not be entitled to and hereby expressly waive any extension of time resulting from any condition or cause unless a claim for extension of time is made in writing to the Owner within five (5) days. of the first instance of delay for all delays, except excessive inclement weather which shall be made in accordance with paragraph 4.13. All claims not filed in accordance with this Article shall be waived by the CMAR. Circumstances and activities leading to such claim shall be indicated or referenced in a daily field inspection report for the day(s) affected. In every such written claim, the CMAR shall provide the following information: 4.12.1 Nature of the Delay; 4.12.2 Date (or Anticipated Date) Of Commencement of Delay: 4.12.3 Activities on the Progress Schedule affected by the delay, and/or new activities created by the delay and their relationship with existing activities; 4:12.4 Identification of person(s) or organization(s) orevents(s) responsible for the delay; 4.12.5 Anticipated extent of the delay; and 4.12.6 Recommended action to avoid or minimize the delay. 4.13 Weather Delavs On any day that the CMAR considers that the Project is delayed by adverse weather conditions, the CMAR shall identify in writing to the Designer and the Owner the adverse weather conditions affecting each activity, the specific nature of the activity affected, the number of hours lost, and the number of and identity (by responsibility or trade) of workers affected and shall obtain from the Designer written recognition of the delay. The time for performance of this Contract includes an allowance for a number of calendar days which may not be suitable for construction Work by reason of adverse weather. The Contract Time will be extended only if the number of calendar days of adverse weather recognized by the Designer exceeds the number of inclement weather days set forth below, and the CMAR clearly demonstrates how this adverse weather negatively impacts activities on the critical path of the Master Schedule. Month Number of Inclement Weather Days January 7 February 6 March 7 April 6 May 7 June 6 July 8 August 6 September 5 October 5 November 5 December 9 If the CMAR believes that the progress of the Work has been adversely affected by adverse weather recognized by the Designer during a particular month, the CMAR shall submit a written request for extension of time to the Designer. Such a request for time extension of the Contract Time shall be submitted by the tenth (10th) day of the month following that month in which the adverse weather is encountered. The request shall include, but is not limited to, the following information: 4.13.1 Detailed description of weather's effect on scheduled activities and its net effect on the critical path of the Project, and 4.13.2 Weather records from the official weather station nearest the Project site and records of actual observation as contained in daily reports, correspondence, or other contemporaneously prepared documentation. 4.14 Damages for Delay The CMAR shall not be entitled to any adjustment in the Guaranteed Maximum Price or other compensation from the Owner for any delay in the completion of or progress on the Work that is caused by a force majeure condition or is otherwise not caused by the sole and direct act or omission of the Owner and the Owner's employees or agents. 18 4.15 Liouidated Damages The CMAR specifically recognizes that a delay by the CMAR in achieving the Substantial Completion of the Project will necessarily cause damages, losses, and expenses to the Owner, including, but not limited to and by way of illustration only, increased capitalized costs and interests for the Project, increased and extended Project overhead, Designer's and Consultant's fees, increased costs of construction, increased and extended operation costs of other facilities, and inefficiency and loss of productivity, and that such damages, losses, and expenses may not be readily identifiable or ascertainable at the time they are incurred or at any time. Therefore, and in recognition of these factors and the likelihood that actual damages from his delay will .not be readily ascertainable, the CMAR agrees to pay to the Owner, as Liquidated Damages and not as a penalty, the sum of One Thousand Dollars ($1,000) as the Liquidated Damages• per day, for each day by which the failure to meet the Substantial Completion Date shown in the Master Schedule, adjusted in .accordance with this Article, delays the Substantial Completion of the Project. The sum for Liquidated Damages is the amount reasonably estimated in advance to cover the losses to be incurred by the Owner by reason of failure of the CMAR to complete the Project within the time specified, such time being in the essence of this contract and a material consideration thereof. ARTICLE 5 CHANGES IN THE CONSTRUCTION MANAGER'S SERVICES AND ADDITIONAL COMPENSATION 5.1 Owner Changes The Owner, without invalidating this Agreement, may make changes in the CMAR's Services specified in Article 3 of this Agreement. The CMAR shall within five (5) days notify the Owner of any changes or other events which in the opinion of the CMAR entitle the CMAR to an increase or decrease the Guaranteed Maximum Price, the CMAR's compensation, the duration of the CMAR's Services, or both. 5.1.1 Changes in the CMAR's Services Changes in the CMAR's Services may be directed by the Owner in writing, and if so directed to provide different or additional Services the CMAR shall comply with the directions of the Owner. Additional compensation shall be settled by a written amendment to this Agreement executed by the Owner and the CMAR. If possible, the amendment shall be executed by the Owner and CMAR prior to the CMAR performing the services required by the amendment, but failure to agree on compensation for a change in Services shall not be grounds for the CMAR to cease or refuse to provide the Services reasonably requested by the Owner. The CMAR shall proceed to perform .the services required by the amendment only after receiving notice directing the CMAR to proceed. 5.1.2 Additional Compensation and Extended Duration The CMAR shall be entitled to receive additional compensation and additional time when. the scope or planned duration of Services is increased or extended through the fault of the Owner. The CMAR shall notify the Owner within five (5) days after changes to the scope of the Project or a part thereof or after delays caused in whole or in part by the Owner increase or extend the scope or duration of the CMAR's Services. 5..1.2.1 Fixed Fee The CMAR shall not be entitled. to an increase in the Fixed Fee unless and until it is finally determined at the completion of the Project that the approved Gost of the Work exceeds one hundred and five percent (105%) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. If an increase in the Fixed Fee is justified, the CMAR shall be entitled to an increase in the Fixed Fee equal to six percent (6%) of the amount by which the final approved Cost of the Work exceeds one hundred and five percent (105%) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. The Owner may in its discretion approve adjustments to the Fixed Fee prior to the end of the Project. 5.1:2.2 General Conditions The amount of additional General Conditions costs to be paid to the CMAR and the amount of extension of the duration of this Agreement shall be determined on the basis of the CMAR's reasonable additional General Conditions costs after determining the increased services and length of the extensions of the duration of this Agreement. A change in the Drawings and Specifications or other change in the scope of the Work shall not automatically entitle the CMAR to an increase in compensation. Increases in the compensation payable to the CMAR shall only be payable upon proof of an increase in the actual duration or level of services being provided by the CMAR, or both. 5.1.2.3 Cost of the Work 19 Increases in the Cost of the Work shall be determined in accordance with the provisions of Article 7 of this Agreement. 5.1.3 Payment of Additional Compensation The CMAR shall submit invoices for additional compensation with its invoice for Services and payment -shall be made pursuant to the provisions of Article 7 of this Agreement. ARTICLE 6 OWNER'S RESPONSIBILITIES 6.1 Program The Owner shall provide to the CMAR complete information regarding the Owner's requirements for the Project. 6.2 Decisions The Owner shall examine information submitted by the CMAR and shall render decisions thereto promptly. 6.3 Insurance The Owner shall furnish the insurance that the Owner has agreed to furnish as specified in Article 8. 6.4 Notice of Nonconformities If the Owner observes or otherwise becomes aware of any fault or defect in the Project or nonconformity with the Contract Documents, the Owner shall give prompt written notice thereof to the CMAR. 6.5 Approvals The Owner shall furnish required information and approvals and perform its responsibilities and activities in a timely manner to facilitate orderly progress of the Work in cooperation with the CMAR, consistent with this Agreement, and in accordance with the planning and scheduling requirements and budgetary restraints of the Project. 6.6 Designer The Owner shall retain a Designer whose services, duties and responsibilities shall be described in a written agreement between the Owner and Designer. The services, duties, and responsibilities of the Designer set out in the agreement between the Owner and Designer shall be compatible and consistent with this Agreement and the Contract Documents. The Owner shall, in its agreement with the Designer, require that the Designer perform its services in cooperation with the CMAR, consistent with this Agreement and in accordance with the planning, scheduling and budgetary requirements of the Project as determined by the Owner. The terms and conditions of the agreement between the Owner and the Designer shall not be changed or waived without written notice to the CMAR provided of the time of the change or revision. 6.7 Budget The Owner shall establish the Project and Construction Budget and approve subsequent revisions deemed acceptable as provided in this Agreement. 6.8 Separate Contracts The Owner reserves the right to contract separately with other entities to complete portions of the Work of the Project, or to deploy its own employees to complete portions of the Work. If the Owner contracts separately with any other parties, the Owner shall cause all such agreements to be compatible and consistent with this Agreement. Each of the agreements shall include waiver of subrogation as required herein. The CMAR agrees to cooperate with the Owner and .its separate contractors and coordinate the Work of all parties, including the Owner's forces or separate contractors. Provided the CMAR has reasonable advance notice of the identity and duties of separate contractors, the CMAR agrees to include coordination and support of the Owner's separate contractors in the General Conditions costs. Disputes or conflicts between the CMAR, the Owner and any separate contractors shall be subject to dispute resolution in accordance with the dispute resolution provisions in Appendix A. 6.9 Copies of Drawings and Specifications The CMAR shall estimate the reasonable number of copies of interim and final drawings, specifications and Contract Documents required by the CMAR, and shall obtain such copies from the Designer at the CMAR's expense. The estimated cost of such copies shall be included in the Guaranteed Maximum Price. 6.10 Permits and Approvals With the cooperation and assistance of the CMAR and the Contractors asset forth in this Agreement, the Owner shall in a timely manner secure, submit and pay for necessary approvals, easements, assessments, permits and charges required for the construction, use or occupancy of permanent structures, or for permanent changes in existing facilities. 20 6.11 Funding Requirements The Owner shall describe the funding for the Project to the CMAR and the Designer. 6.12 Communication with Contractors The Owner, its representatives and consultants, including Designers, shall communicate with the Contractors only through the CMAR. 6.13 Copies of Notices and Communication The Owner shall send to the CMAR and shall. require the Designer to send the CMAR copies of all notices and communications sent to or received by the Owner or Designer relating to the Project. 6.14 Owner's Representative The Owner shall designate, in writing, an officer, employee or other authorized representative to serve as the Owner's point of contact and to act in the Owner's behalf with respect to the Project. This representative shall be available during working hours and as often as may be required to render decisions and furnish information in a timely manner. The CMAR acknowledges that more than one individual might be designated as the Owner's representative at different times and for different purposes. The CMAR also acknowledges that some changes to this Agreement and to the Project might require authorization by the County Commissioners and execution by the County Manager in addition to the Owner's project representative. 6.15 Payment to CMAR [Not used.] ARTICLE 7 GUARANTEED MAXIMUM PRICE AND PAYMENT 7.1 Guaranteed Maximum Price The CMAR shall be required to give a Guaranteed Maximum Price for the Project. The Guaranteed Maximum Price shall be documented by the CMAR as defined in Article 12 and, once established, the Guaranteed Maximum Price shall be subject to modification only as defined in this Agreement. 7.1.1 Guaranteed Maximum Price Proposal The Guaranteed Maximum Price shall be provided by the CMAR when requested by the Owner, but in no event before the completion of one hundred percent of schematic design documents for the Project by the Designer, and in no event later than sixty (60) days after construction documents for the Project are released by the Designer for permitting, bidding and construction. The Owner shall accept such Guaranteed Maximum Price or negotiate and reach agreement with the CMAR on a different Guaranteed Maximum Price within thirty (30) days of the date of the receipt unless such time is mutually agreed to be extended. If the Owner does not accept a Guaranteed Maximum Price within the time period herein provided, such price shall be presumed to be rejected by the Owner. 7.1.2 Consideration of Proposal In the event the Owner does not accept the CMAR's proposed Guaranteed Maximum Price, the Owner may terminate the Agreement in accordance with Article 9. 7.1.3 Construction Contracts Construction contracts for the Work required for the Project shall be between the CMAR and Contractors. The CMAR shall request and receive bids for each contract and shall advise the Owner with respect to award of a contract to the lowest responsive and responsible bidder. The CMAR shall enter into a contract with that bidder after receipt of approval of award from the Owner. 7.1.4 Work by CMAR All of the labor and materials for the Work of the Project as described in the Drawings and Specifications developed by the Designer shall be performed by Contractors, except as specifically provided in this paragraph. The CMAR may perform a portion of the Work only if (1) bidding produces no responsible, responsive bidder for that portion of the Work, no responsive, responsible bidder will execute acontract-for the bid portion of the Work, or a Contractor defaults and apre- qualified replacement cannot be obtained in a timely manner, and (2) the Owner approves performance of the Work by the CMAR. In the event the CMAR performs a portion of the Work under this paragraph, the CMAR shall be entitled to its actual direct cost to perform the Work, including direct labor costs with reasonable burden, actual material costs, actual equipment costs, and actual subcontract payments, without markup for overhead or profit. Any other direct costs of the. Work performed by the CMAR will only be paid if approved by the Owner in advance of performing the Work. 21 7.1.5 Elements of the Guaranteed Maximum Price The Guaranteed Maximum Price shall include the total Cost of the Work, including the CMAR Fee for Services, the reimbursable costs for General Conditions provided by the CMAR, if any, and the CMAR Contingency, if any, all as defined herein. The Guaranteed Maximum Price includes the cost of all labor, equipment, supplies, materials, services and allowances to complete the Project. The Guaranteed Maximum Price shall be directly correlated to the specific design Drawings and Specifications in existence at the time the Guaranteed Maximum Price is prepared.. The assumptions used in the preparation of the Guaranteed Maximum Price shall be identified by the CMAR in its Guaranteed Maximum Price proposal. 7.1.6 Sales and Use Taxes The Guaranteed Maximum Price shall include those sales and use taxes applicable to the Project that are legally enacted at the time the Guaranteed Maximum Price is established. Sales and use taxes shall be accounted for separately in the Guaranteed Maximum Price and in the payment application submitted by the CMAR. Any increase or decrease in such taxes that affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is submitted shall be incorporated into that price by change order. 7.1.7 Change in 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 The term "Cost of the Work" shall include all amounts paid by the Owner to the CMAR other than General Conditions and Fixed Fee costs for payment to all separate Contractors, suppliers and equipment lessors for all the Work of the Project - as described in the Design Drawings and Specifications developed by the Designer. The Cost of the Work shall be adjusted for all discounts obtained on payments by the CMAR or any Contractor, which shall be for the benefit of the Project and the Owner. Amounts which accrue to the Owner in accordance with this paragraph shall be accounted for and credited to the Owner as a deduction from the Cost of the Work. 7.2.1 Exclusions from Cost of the Work The Cost of the Work shall not include the following: 7.2.1.1 The CMAR's fee for Services and reimbursable costs for General Conditions; 7.2.1.2 All professional fees paid by the Owner to the Designer or other consultants retained directly by the Owner; 7.2.1.3 All costs paid directly by the Owner to contractors or suppliers retained directly by the Owner and outside the scope of the Guaranteed Maximum Price; 7.2.1.4 All Additional Services costs as defined herein. 7.3 Adjustments to the Guaranteed Maximum Price The CMAR understands, confirms and agrees that its responsibility hereunder is to construct the Project in accordance with the Drawings and Specifications. It is recognized that the Guaranteed Maximum Price is based on complete design documents unless the Owner requests that the Guaranteed Maximum Price be fixed at an earlier stage in the design process. The CMAR shall notify the Owner if the CMAR believes that it is being asked to fix the Guaranteed Maximum Price on incomplete, ambiguous or under-developed drawings and specifications. In those instances in which the Drawings and Specifications are not fully developed at the time the Guaranteed Maximum Price is established, the CMAR shall exercise reasonable care and judgment to determine the intent of the design and shall calculate the Guaranteed Maximum Price on the basis of the quality of construction, materials, and finishes that can be reasonably inferred from the design documents or other specified sources. The CMAR shall determine unit prices and the Cost of the Work and shall make those reasonable assumptions regarding the project scope and the quality of-the intended construction as maybe necessary to fully document the Guaranteed Maximum Price. 7.3.1 Changes to the Work The Owner may, at any time and for any reason, by written notice or order, make changes or modifications to the Work or add Work within the general scope of the Project, including without limitation changes to the Drawings and Specifications, the Master Schedule, the sequence, manner or method of pertorming 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: 22 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 CMAR shall keep and present in such form as may be agreeable to the Owner and Designer an itemized accounting together with appropriate supporting data of the actual Cost of the Work. 7.3.2 Directive to Proceed In the event the CMAR and the Owner cannot agree that an adjustment to the Guaranteed Maximum Price or the Master Schedule is warranted, or cannot agree on the compensation for a change in the Work or on an increase in the Guaranteed Maximum Price, the CMAR shall, if so directed by the Owner in writing, nevertheless proceed with the Work, and any adjustment to the Guaranteed Maximum Price shall be negotiated by the parties at a later date, utilizing the dispute resolution procedures under this Agreement if necessary. 7.3.3 Unit Prices If unit prices are utilized in the Guaranteed Maximum Price, the Guaranteed Maximum Price Proposal shall document the estimates on which the unit prices are based. If the CMAR later determines that the quantities on which unit prices are . based will vary from the quantities utilized by the CMAR to fix the unit prices and calculate the Guaranteed Maximum Price, the CMAR shall within five (5) days after determining that the quantities will vary from the estimates notify the Designer and the Owner in writing and forecast the amount of the variance. If the estimated quantities available to and used by the CMAR to establish the unit prices are so changed that application of the agreed unit prices to the quantities or work proposed cause substantial inequity to .the Owner or the CMAR, the applicable unit prices and Guaranteed Maximum Price shall be adjusted. 7.3.4 Unforeseen Conditions Should the CMAR encounter unforeseen conditions at the Project site materially differing from those shown on the Drawings or indicated in the Specifications or differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this Agreement, the CMAR shall immediately, and in no event more than five (5) days later, give notice to the Owner of such conditions before they are disturbed. The Owner and the Designer shall thereupon promptly investigate the conditions and if they find that they materially differ from those shown on the Drawings or indicated in the Specifications, they shall at once make such changes in the Drawings and/or Specifications as they may find necessary. Any increase or-decrease in the Guaranteed Maximum Price resulting from such changes shall be adjusted in the manner provided herein for adjustments as to extra and/or additional Work and changes. However, neither the Owner nor the Designer shall be liable or responsible for additional work, costs, or changes to the Work that could have been reasonably determined from any reports, surveys, and analyses made available for the CMAR's review or that could have been discovered by the CMAR through the performance of its obligations pursuant to the Contract Documents. 7.3.5 Minor Changes The Designer shall have the authority to order minor changes in the Project consistent with the intent of the Drawings and Specifications and not involving an adjustment in the Guaranteed Maximum Price or change of the construction completion date. Such changes may be affected by written order only. 7.4 Fixed Fee and General Conditions Costs The Owner shall compensate the CMAR for the CMAR's Fixed Fee and reimbursable General Conditions Costs in accordance with the terms and conditions of this Agreement as specifically as follows: 7.4.1 Fixed Fees The Fixed Fees payable to the CMAR shall be: Thirty Thousand Dollars ($30,000) for the pre-construction and procurement phases which amount is included in the GMP provided the GMP is accepted by the Owner. If the GMP is not accepted by the Owner the CMAR is entitled to the cost of services rendered not to exceed $30,000; and, for the construction and post-construction phases, a fee equal to five percent (5%) of the Cost of the Work set forth in the original agreed Guaranteed Maximum Price. In the event the original agreed Guaranteed Maximum Price is adjusted between the time it is fixed and the end of the Project, the Fixed Fee shall be adjusted in accordance with Paragraph 5.1.2.1 of this Agreement. 7.4.2 General Conditions 23 General Conditions Costs shall include the categories of costs described as General Conditions Costs in the Listing of Cost Elements contained in Appendix B. Within thirty (30) days after execution of this Agreement, the CMAR shall present a General Conditions cost proposal, including its itemization of estimated General Conditions costs and a cash flow schedule for payments of General Conditions costs over the duration of the Project. At the time the Guaranteed Maximum Price is fixed, General Conditions Costs to be included in the Guaranteed Maximum Price shall be fixed as a lump sum, based on line item estimates in a tabulation with cost elements at least as detailed as the cost elements in Appendix B. The following guidelines shall apply when calculating the lump sum for General Conditions: 7.4.2.1 Unless a schedule of personnel rates are agreed to in writing in an amendment to the Agreement,- field personnel costs may be reimbursed at direct personnel expenses/employee costs (direct salary) plus all customary payroll benefits [including but not limited to FICA, SUTA, FUTA, 401 K, vacation leave, sick leave, holidays, jury duty leave and bereavement leave] with no employee overhead mark up. The on-site field staff is limited to full time staff which includes the project manager, project engineer, field engineer, superintendent(s) actually furnishing services to the Project, and field clerical staff, as amended from time to time by agreement of the parties: Other CMAR positions will be deemed included in the CMAR Fixed Fee; 7.4.2.2 Independent engineers, architects and other consultants employed by the CMAR and deemed necessary by the Owner at the reasonable prevailing hourly rates for such services. Any consultants employed by the CMAR for the Project must be approved in advance by the Owner prior to performing work. 7.4.2.3 Travel Expenses: All travel, by any conveyance, required for the Project, outside of Orange County. 7.4.2.4 Temporary Facilities: Field office(s) with telephone service and high- speed Internet connections and field office computers, as needed, for Project tracking purposes. All software for use on computers (accounting, tracking, scheduling, word processing, AutoCAD, Project management etc.), otherwise shall be included in Geheral Conditions. Field office temporary electric, heating, water, sanitation, and electronic equipment maintenance and field office operation costs, e.g., stationary, postage, etc., shall be incurred judiciously. General Conditions shall include maintenance of an appropriate shipping and receiving system. 7.4.2.5 Plans/Surveys/Permits/Testing: Reproduction of Construction Documents as needed by the CMAR and approved in advance by the Owner. Surveyor's services (site layout, etc.), as required. Apply for and take delivery of all required permits (fee for permits to be paid directly by Owner unless otherwise directed by the Owner). ' 7.4.2.6 Safety/Cleanup: Establish and maintain an on-site safety program throughout the construction phases. (Note: The cost of home office safety personnel is included in the CMAR Fee.) Install and maintain temporary facilities, as required: safety barricades, partitions, ladders, stairs, site fencing, signage, first aid, traffic control devices, etc. Provide daily site clean up, trash collection, and removal. Provide and maintain site security throughout Project construction phases. Provide site snow removal, as may be required throughout Project construction phases. 7.4.2.7 General: Provide temporary weather and dust protection (that which must practically remain outside of contracts) as may be required during construction phases. Provide field personnel pagers, and two-way radio throughout the construction phases, as applicable. Include travel expenses for field personnel -related to off-site equipment/materials survey and inspections. 7.4.2.8 Insurance/Bond: Provide 100% Performance and Payment Bonds. Provide liability insurance and provide builder's risk insurance policy in the amount of the Guaranteed Maximum Price unless directed otherwise by Owner in accordance with an OCIP. 7.4.2.9 Close-OuUDe-Mobilization: Provide final site/facility clean up. Provide final release of liens for all contracts. Provide sets of all Contractor as-built drawings to the Owner and Designer; one set will be used by the Designer to prepare as- builtdrawings. 7.4.3 Construction Manager's Accounting Records Records for the Cost of the Work, the CMAR's personnel expenses, independent engineer's fees, other consultant's fees and direct expenses pertaining to the Project shall be maintained on the basis of generally accepted accounting 24 practices and shall be available for inspection by the Owner and the Designer at mutually convenient times throughout the duration of the Project and for a period of three years after completion of the CMAR's Services. 7.4.4 Payments Payments to the CMAR shall be made monthly. The CMAR shall submit an Application for Payment, acceptable to the Owner and the Designer, no later than the twenty fifth of each month. The Owner shall make payment as required by the accepted application no later than the twentieth of the following month as follows: 7.4.4.1 Seventy five percent (75%) of the Fixed Fee shall be paid monthly in amounts prorated equally over the duration of the CMAR's Services. The duration shall be as set out in Article 4. The remaining twenty five percent (25%) of the Fixed Fee shall be payable in full upon final completion of the Project. 7.4.4.2 Payment of General Conditions costs shall be based on the cash flow schedule of payments prepared by the CMAR and submitted with the General Conditions cost proposal, which shall be converted to a fixed schedule of payments when the Guaranteed Maximum Price is fixed. 7.4.4.3 Payment of the actual verifiable Cost of the Work completed to date and not previously invoiced and paid, less retainage withheld from the Contractors. Except with the Owner's prior approval, payments allocated to the CMAR and the Contractors shall be subject to a retention of five (5%). Whenever any Contractor completes its Work on or before a target date mutually agreed upon by the Owner, Designer and the CMAR, and the Designer and Owner agree the Work is satisfactorily. completed, the Owner may reduce the amount of retainage on that Contractor by fifty percent (50%) for the remainder of the Project. 7.4.4.4 Payments due to the CMAR that remain unpaid for more than thirty (30) days from the date of receipt by the Owner and the Designer of the CMAR's acceptable invoice shall bear interest at the statutory rate. ARTICLE 8 INSURANCE AND INDEMNITY 8.1 CMAR Liability Insurance The CMAR shall purchase and maintain insurance that shall protect the CMAR from the claims set forth below that may arise out of or result from the CMAR's performance of services pursuant to this Agreement: Claims under Workers' Compensation, disability benefits and other similar employee benefits acts that are applicable to the Work performed; Claims for damages because of bodily injury, occupational sickness or disease or death of CMAR's employees under applicable employer's liability law; Claims for damages because of bodily injury or death of any person other than CMAR's employees; Claims for damages insured by usual personal injury liability coverage that are sustained by any person as a result of an offense directly related to the employment of such person by the CMAR or by any other person; Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss or use therefrom; Claims for damages because of bodily injury or death of any person or property damage arising out of ownership, maintenance or use of any motor vehicle; and Claims for professional liability against any design professional engaged by the CMAR or the Contractors as required by the Contract Documents for fabrication or installation of components of the Project. The CMAR shall include similar requirements in all Contracts for Contractors, with limits and coverage terms acceptable to the Owner. 8.1.1 Coverage Limits Worker's Compensation shall be maintained with at least the minimum statutory limits. The CMAR's commercial general and motor vehicle liability insurance shall be written for not less than the following limits of liability: a. Commercial General Liability 25 1. $2,000,000 Bodily Injury and Property Damage for each occurrence 2. $4,000,000 Products/Completed Operations Aggregate 3. $4,000,000 General Aggregate - Coverage shall include, but not be limited to, the following supplementary coverages: 1. Contractual Liability to cover liability assumed under the agreement 2. Product and Completed Operations Liability insurance 3. Broad Form Property Damage Liability insurance 4. Independent Contractors 5. Such policy shall include all of the coverages, which may be included in coverages A, B, and C contained in the Commercial General Liability Policy, without deletion. Such policy must be issued on an "occurrence" basis, as distinguished from a "claims made" basis. 6. Completed Operations extended five years after final payment b. Commercial Motor Vehicle Liabilitv 1. Minimum Combined Single Limit that shall not be less than $1,000,000 per occurrence 2. Commercial Automobile Liability insurance to cover all vehicles owned by, hired by, or used on behalf of the Contractor c. Excess/Umbrella Liabilitv 1. $5 Million per Occurrence 2. $5 Million Aggregate 8.1.2 Policies Commercial general liability insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an excess or umbrella liability policy. The Owner and any lender of the Owner with a loan secured by the property whereon the Project is located shall be named additional insureds on all commercial general liability policies and excess/umbrella liability policies submitted to comply with this Article. Commercial general liability and excess liability policies shall be endorsed with a schedule of underlying liability policies required and obtained from the Contractors. Coverage under the CMAR commercial liability policies shall not be limited by any language- in the contracts with the Contractors making the Contractors liable for losses in excess of the limits of coverage provided by the Contractors. 8.1.3 Professional Liabilitv Policies Subject to section a.7 of Paragraph 8.1.1, policies for professional liability may be provided by the CMAR or by Contractors or design professionals retained by them, provided that the CMAR first provides a proposal for insurance coverage to the Owner and the Designer, and also provides certificates of insurance for all professional liability insurance provided by such design professionals. The limits of coverage required for professional liability shall be included in the CMAR proposal for insurance,. and will be subject to approval by the Owner, taking into account among any other reasonable factors the risks insured against, the cost of the insurance, and the professionals providing the insurance. 8.1.4 Cancellation The foregoing policies shall contain a provision that coverages afforded under the policies shall not be cancelled or expire until at least thirty (30) days written notice has been given to the Owner and shall include either a liability endorsement covering this Agreement or an endorsement making the Owner an additional insured under the policies. Certificates of Insurance showing such. coverages to be in force shall be filed with the Owner contemporaneously with execution of this Agreement or any relevant Contractor contract. 8.2 Builder's Risk Insurance The CMAR shall be responsible for purchasing and maintaining insurance satisfactory to the Owner to protect the Work from perils of physical loss. The Owner shall receive copies of the builder's risk insurance policies that satisfy this Article. The CMAR shall be responsible for any deductibles associated with this coverage. 8.2.1 Coveraoe 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 additional insureds the Owner, the CMAR, the 26 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. Owner acknowledges that flood coverage may be limited to $500,000, and that any earthquake coverage may be limited to 25% of the structure limit. The CM;4R~shall obtain approval from the Owner before increasing any coverage due to increases in construction costs. 8.2.2 Other Prooerty Insurance [Not used.] 8.2.3 Partial Occuoancv: If the Owner occupies or uses a part or parts of the Project prior to substantial completion thereof, such occupancy shall not occur until the Owner obtains property insurance for the structure. 8.2.4 Notices and Recovery If requested by the Owner, the CMAR shall .provide the Owner with copies of all policies thus obtained for the Project. The CMAR shall provide the Owner with thirty (30) days advance notice of cancellation, non-renewal or endorsement reducing or restricting coverage. 8.2.5 Waiver of Subrogation The Owner and the CMAR waive. all rights against each other and against-~ the Contractors, consultants, agents and. employees of the other for damages occurring during construction and covered by builder's risk and any property insurance required for this Project, excluding the Owner's property insurance. The Owner and the CMAR shall each require appropriate similar waivers from their contractors, consultants and agents. This waiver does not apply to design liability. 8.3 Indemnity To the fullest extent permitted by law, the CMAR shall indemnify and hold harmless the Owner, its employees, agents (including the Designer), officers, directors and partners from and against any and all claims, demands, suits, damages, costs and expenses, including reasonable attorneys' fees, resulting from personal injury or property damages, that are asserted against the Owner, its employees, agents (including the Designer), officers, directors and partners and that arise out of or result from negligent acts or omissions by the CMAR, its employees, agents and representatives in performing services under this Agreement. The CMAR shall not be required to indemnify any person against losses resulting from a breach of contract or resulting from negligence, misconduct or violation of laws on the part of any person indemnified hereunder. The CMAR and Owner waive claims against each other for consequential damages arising out of or relating to this Agreement and the Project. This mutual waiver includes: (a) damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and (b) damages incurred by the CMAR for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 9. Nothing contained in this Paragraph shall be deemed to preclude the award of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents. The CMAR shall procure and maintain insurance as required by and set forth in this Agreement. 8.3.1 Indemnification by Designer The Owner shall cause the Designer to indemnify and hold harmless the Owner, its employees, agents and representatives to the same extent and in the same manner that the CMAR has provided indemnification .for the Owner under Paragraph 8.3. 8.3.2 Indemnification by Contractors The CMAR shall cause each Contractor to indemnify and hold harmless the Owner, CMAR and Designer from and against any and all claims, demands, suits, damages, costs and expenses, including reasonable attorneys' fees, resulting from personal injury or property damages, that are asserted against the Owner, CMAR and the Designer and that arise out of or result from negligent acts or omissions by the Contractor, its employees, agents and representatives in performing the Work. 8.4 Bonds The CMAR shall purchase and provide 100% Performance and Payment Bonds, which Bonds shall comply with the 27 requirements of the General Conditions. Further, upon the request of the Owner, which request shall be made in writing and may be made at the time the Bonds are issued and at any time before the Work is completed, the Bonds will include as a dual obligee any lender of the Owner providing the Owner with a loan secured by the property whereon the Project is located. ARTICLE 9 TERMINATION AND SUSPENSION 9.1 Termination for Convenience This Agreement may be terminated in whole or in part by the Owner for convenience after seven (7) days written notice to the CMAR. In the event of termination pursuant to Paragraph 9.1, the CMAR shall either cancel or assign to the Owner all contracts with Contractors and other suppliers at the option of the Owner. The CMAR shall be paid for the Cost of the Work pertormed. to the date of termination, plus reasonable termination expenses payable to Contractors under their respective contracts, which shall each contain a termination for convenience clause that limits the recovery of the Contractors in the event of a termination for convenience to the value of the work actually completed by the Contractor to the date of termination, with no recovery of lost profit or other damages for wrongful termination of contract. In addition, the CMAR shall be paid all of its allowable General Conditions costs to the date of termination, including all termination expenses. Termination expenses are defined as those expenses arising prior, during and subsequent to termination that are directly attributable to the termination. In addition, the CMAR shall be entitled to its full Fixed Fee for any phase of services completed prior to termination, plus a reasonable pro-rata portion of its Fixed Fee for any phase of services not completed at the time of termination, based on the percentage of such incomplete services actually completed prior to the date of termination; provided, however, that if it reasonably appears that the General Conditions costs being incurred by the CMAR would have exceed the not-to-exceed limit on General Conditions costs, then the Owner shall be entitled to reduce the amount of the Fixed Fee payable to the CMAR upon termination by the amount by which the General Conditions would have exceeded the limit on General Conditions costs. After receipt of a notice of termination under Paragraph 9.1, the CMAR shall submit a claim for termination fees and expenses in a form and with certifications as are reasonably required by the Owner. The termination claim shall be submitted promptly, but in any event within sixty days of receipt of a notice of termination unless extended by the Owner. The claim shall be subject to reasonable audit to the same extent as any other request for payment of General Conditions. 9.2 Termination for Default This Agreement may be terminated by either party hereto upon seven (7) days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party or if the Project in whole or substantial part is stopped for a period of one hundred twenty (120) consecutive days under an order of any court or other public authority having jurisdiction or as a result of an act of government. Without in any way limiting the scope of this Paragraph 9.2, the Owner may terminate this Agreement if the CMAR fails to begin or complete the Work within the time specified for completion in this Agreement, or shall perform the Work unsuitably or shall discontinue the prosecution of the Work for five (5) consecutive days, or if the CMAR shall become insolvent, be declared bankrupt, commit any act of bankruptcy or insolvency, allow any final judgment to stand against the CMAR or its affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in an acceptable manner, Termination under this Paragraph 9.2 for 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. Notwithstanding anything in this Section 9.2 to the contrary, Owner may only terminate this Agreement on account of a default or nonperformance by CMAR under the Contract Documents if (i) CMAR shall have failed to proceed in good faith and with reasonable speed to cure such default or nonperformance within five (5) days after receipt of written notice from Owner, and (ii) Owner has provided CMAR an additional seven (7) day written notice during which CMAR has continued to fail to proceed in good faith and with reasonable speed to correct any such nonperformance or default. 9.2.1 Notice and Time for Cure Neither party to this Agreement may terminate this Agreement without first giving the other party five business days notice of the intent to terminate the Agreement, measured from actual receipt of the notice. If the grounds for termination stated in the written notice are removed or cured within five business days 28 after receipt of notice, the Agreement may not be terminated for default. 9.2.2 Payment to the CMAR In the event of termination pursuant to Paragraph 9.2, the CMAR shall be paid a reasonable pro-rata portion of the Guaranteed Maximum Price, based on the percentage of such incomplete services actually completed prior to the date of termination, less any amount by which the total cost paid by the Owner to complete the Work for which the CMAR is responsible, including Fees and General Conditions, exceeds the Guaranteed Maximum Price. In addition, the Owner may deduct from the final payment to the CMAR any liquidated damages or other damages for which the CMAR is liable under this Agreement. No payment shall be due under this Paragraph until the Project is finally complete and all rights and claims by Contractors for work on the Project have been settled and paid. 9.2.3 Assignment of Contracts In the event of termination pursuant to Paragraph 9.2, all construction and supply contracts between the CMAR and all Contractors and other suppliers for the Project shall be immediately assignable to the Owner, at the option of the Owner, on the same terms and conditions applicable to the CMAR under those contracts. The CMAR shall obtain the consent of each Contractor and supplier, in their respective contracts with the CMAR, to this assignment. 9.3 Additional Termination Provisions In the event of termination under either Paragraph 9.1 or 9.2, the CMAR agrees to: deliver to the Owner all Project as-built records, operating manuals, warranties and other Project information generated to date; deliver to the Owner copies of all shop drawings and other submittals received to date; convey to the Owner or its designees title to all materials, supplies, partially or wholly fabricated parts and components, and any other property acquired by the CMAR for the Project; and provide the Owner with copies of all pending claims under the CMAR builder s risk policy. 9.4 Suspension The Owner may order, in writing, the CMAR to suspend all or any part of the CMAR's services for the Project for the convenience of the Owner or for work stoppage beyond the control of the Owner or the CMAR. If the performance of all or any part of the services for the Project is suspended, an equitable adjustment in the Guaranteed Maximum Price shall be made and this Agreement shall be modified in writing accordingly. 9.4.1 General Conditions In the event the CMAR's services on the Project are suspended, the Owner shall reimburse the CMAR for all of the General Conditions allowed for by this Agreement for the first thirty (30) days of such suspension. The CMAR shall reduce the size of staff for the remainder of the suspension period as directed by the Owner and during such period, the Owner shall reimburse the CMAR for all costs of reduced General Conditions. Upon cessation of the suspension, the CMAR shall restore the construction site and home office staff to its former size. 9.4.2 Reassignment of Personnel Persons assigned to another project during such suspension or period and not available to return to this Project upon cessation of the suspension shall be replaced. The Owner shall reimburse the CMAR for reasonable costs incurred in relocating staff persons returning to the Project or new persons assigned to the Project. 9.4.3 Protracted Suspension If the Project is suspended by the Owner for more than one hundred twenty (120) consecutive days, the CMAR shall have the option of requiring that the Guaranteed Maximum Price be renegotiated. Subject to the provisions of this Agreement relating to termination, a delay or suspension of the Project does not void this Agreement. 9.4.4 Additional Compensation to Contractors The CMAR shall include provisions in its contracts with Contractors substantially the same as this Paragraph 9.4, allowing for suspension of the Project by the Owner, and providing that suspension shall not be grounds for termination of the contracts except on the terms set forth in this Agreement. If the Owner suspends the Project for reasons other than default by the CMAR or any of its Contractors, the Guaranteed Maximum Price will be adjusted by an amount sufficient to 29 reimburse the reasonable and provable expenses incurred by the Contractors as a result of the suspension. In no event will the Guaranteed Maximum Price be increased or any expenses be paid to the CMAR or its Contractors for delays caused by the CMAR or any Contractor, even if there is a concurrent delay or suspension by the Owner, it being understood that the CMAR bears the risk of delays caused by its Contractors. ARTICLE 10 DISPUTE RESOLUTION The laws of the State of North Carolina shall apply to the interpretation and enforcement of this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with respect to any provision of, or the performance or nonperformance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Appendix A to this Agreement shall be a part of the Contract Documents. Prior to initiating an action under this Paragraph, any party to this Agreement shall initiate the mediation process as provided in Appendix A to this Agreement. Any person or firm that expressly or impliedly agrees to perform labor or services or to provide material, supplies, equipment, work, performance or payment bonds, insurance or indemnification for the construction of the Project or the Work shall be deemed a party to this Agreement solely for the purpose of this Article 10. The CMAR, by means of its contracts, shall specifically require its Contractors to be bound by this Article. ARTICLE 11 ADDITIONAL PROVISIONS 11.1 Confidentiality The CMAR will keep confidential and not disclose to any third party all information designated and marked by the Owner as "Confidential" unless required to disclose the information by law. Furthermore, the CMAR shall not disclose publicly information concerning the Project, except for communications incident to completion of the Project between the CMAR, Designer, and Contractor, and their independent professional engineers, architects and other consultants and subcontractors, and except for information publicity approved by the Owner and communications in connection with filings with governmental bodies having jurisdiction over the design or construction of the Project. 11.2 Sions The CMAR shall be permitted to erect one sign to identify the CMAR and other Project participants. The identification sign shall be of sound construction, shall be neatly lettered, and shall be subject to approval by the Owner. The Contractor may only erect other identification signs if approved by the Owner. In addition to' the identification sign, directional signs may be erected oh the property to facilitate deliveries and the movement of personnel and materials about the site. Any directional signs shall be subject to approval of the Owner with respect to size, style and location of such directional signs, which approval shall not be unreasonably withheld. Such signs may bear the hame of the CMAR and a directional symbol. All signs must comply with Town of Hillsborough sign, appearance and traffic ordinances. No other signs will be permitted except by permission of the Owner. 11.3 Limitation and Assignment The Owner and the CMAR each bind itself, its successors, assigns, insurers, and legal representatives to the terms of this Agreement. Neither the Owner nor the CMAR shall assign or transfer its rights or interest in this Agreement without the written consent of the other, except that the CMAR may assign accounts receivable to a commercial bank for securing loans without approval of the Owner. However, nothing contained in this paragraph will prevent the CMAR from employing Contractors or such consultants, associates or subcontractors as the CMAR may deem appropriate to assist in performance of the services and of the Work hereunder in accordance with this Agreement. 11.4 Minority Business Enterprise Program The CMAR shall at all times comply with the latest edition of the Orange County Minority Business Enterprise Policy. All documentation substantiatirig compliance with the requirements of this program shall be delivered to the Owner as stipulated in the Contract Documents. A copy of the Orange County Minority Business Enterprise Policy is attached to this Agreement as Appendix C, and shall be included in the bid documents submitted to potential Contractors for bids. 11.5 Extent of Agreement 30 This Agreement represents the entire and integrated agreement between the Owner and the CMAR and supercedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by written directives, change orders and other instruments signed by the Owner and the CMAR as expressly set forth in the Agreement. Nothing contained in this Agreement is intended to benefit any third party. The Contractors and Designer are not intended third party beneficiaries of this Agreement. 11.6 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 CMAR: Clancy & Theys Construction Company Attention: Bill Macdonald; Senior Project Manager 516 West Cabarrus Street Raleigh, North Carolina 27603 11.9 Bonds In accordance with N.C. Gen. Stat. §143-128.1, the CMAR shall provide a performance bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the faithful performance of the Work, in such form as may be required by law and by the Owner. In accordance with N.C. Gen. Stat. §143-128.1, the CMAR shall provide a payment bond with a penal sum equal to 100% of the Guaranteed Maximum Price to guarantee the payment of all labor and material costs or claims in connection with compliance with the Contract, in such form as may be required by law and by the Owner. These bonds shall be dated the same date as the Agreement and must be accompanied by a current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a surety company licensed to do business in the state of North Carolina and reasonably acceptable to the Owner. If required by the Owner, these bonds shall name additional obligees to include any lender providing financing for the Project, the North Carolina Local Government Commission and any other joint obligee reasonably required by the Owner. In its Guaranteed Maximum Price, the CMAR shall include a program and costs for bonds or other security against default by Contractors as the CMAR deems appropriate to protect the CMAR and the Owner against such defaults. 11.10 Ownership of Documents The CMAR shall be entitled to maintain possession of a reasonable number of sets of Contract Documents and record documents during and after the completion of the Project for its records. After completion of the Project, the CMAR shall destroy or return to the Owner all other copies of such documents as requested by the Owner. The CMAR shall not reproduce or distribute such documents to any third person or for any purpose other than bidding, permitting and construction of the Project. The CMAR shall have no copyright or other rights in the documents, or other rights to use the documents. ARTICLE 12 SPECIAL GUARANTEED MAXIMUM PRICE PROVISIONS 12.1 Guaranteed Maximum Price Pursuant to this Agreement and for the Project defined in Article 2, the Owner and the CMAR have set a Guaranteed Maximum Price for the Project of an amount not to exceed $1,308, 733.00. - 31 12.1.1. Documentation The Guaranteed Maximum Price documentation shall be prepared by the CMAR and submitted to the Owner with the Guaranteed Maximum Price Proposal. The documentation shall at a minimum describe the Contract Documents on which the Guaranteed Maximum Price Proposal is based, and set forth the cost elements of the Guaranteed Maximum Price in detail. The documentation may include drawings, sketches, specifications, calculations or other data used to identify the basis of the Guaranteed Maximum Price. Documentation of the Guaranteed Maximum Price was developed by the CMAR from the design Drawings and Specifications and • such other documents as may be described in the Proposal. 12.1.2 Budget Items The documentation of the Guaranteed Maximum Price shall include a detailed cost tabulation with at least the elements described in the Listing of Cost Elements in Appendix B. 12.1.3 CMAR Contingency The Guaranteed Maximum Price shall include a contingency amount (the Contingency) for the use of the CMAR. The Contingency shall be included in the Guaranteed Maximum Price. The Contingency is for the use of the CMAR to defray costs in excess of the Cost of the Work for which the CMAR is not otherwise entitled to an increase in the Guaranteed Maximum Price under the terms of this Agreement. 12.1.4 Construction Contract Price Savings and Overruns The CMAR shall as part of cost control under its Basic Services report the adjusted final actual price of each item or division of the Work the price of which was based on estimated quantities, allowances or other conditional pricing and, when the final price is determined, adjust the Guaranteed Maximum Price as follows: 12.1.4.1 If the final adjusted price of any item or division of the Work is less than the amount reflected in the approved Guaranteed Maximum Price, as determined in accordance with the terms of this Agreement, the amount indicated in the Guaranteed Maximum Price for the cost of such item shall be reduced by an amount equal to the difference between the final adjusted cost and the original amount indicated in the Guaranteed Maximum Price for the cost of such item, and the Contingency shall be increased by the same difference. 12.1.4.2 If the final adjusted price of any item or division of the Work is greater than the amount reflected in the approved Guaranteed Maximum Price, as determined in accordance with the terms of this Agreement, to the extent that the Contingency is sufficient, the amount indicated in the Guaranteed Maximum Price for the cost of such item shall be increased by an amount equal to the difference between the final adjusted cost and the original amount indicated in the Guaranteed Maximum Price for the cost of such item, and the Contingency shall be decreased by the same difference. 12.1.4.3 Regardless of the final adjusted price of any item or division of the Work that differs from the amount reflected in the approved Guaranteed Maximum Price, the Guaranteed Maximum Price shall not be adjusted, except pursuant to an approved change order. 12.1.5 Chanoe of Contractor Ordered by Owner If the Owner directs the CMAR to award a contract to a bidder other than the lowest responsible and responsive pre-qualified bidder for any potion of the Project, the Guaranteed Maximum Price shall be increased by the amount of the difference between the award price and the price submitted by the lowest responsible and responsive bidder. 12.1.6 Costs in Excess of Guaranteed Maximum Price In the event that the sum of the Cost of the Work exceeds the Guaranteed Maximum Price and any adjustments therein as may be due pursuant to the terms hereof, the CMAR shall continue to perform at no additional cost to the Owner until the Project, defined by this Agreement and all Attachments hereto, is complete. The CMAR shall be responsible for paying all costs in accordance with the terms of this Agreement that may be necessary to complete the Project, even if such amounts are in aggregate in excess of the Guaranteed Maximum Price. This Agreement is executed the day and year first written above. CMAR: Clancy & Theys Construction Company 516 West Cabarrus Street R leigh, N 27F03 By: c Joel T. Clancy Executive Vice President 32 Attest: ; Title: ~/V ', } t lY'.S J (Secretary) (Manager) (Witness) OWNER: ORANGE COUNTY P. O. Box 8181 Hillsborough, N.C. 27278 By: acobs Chair Orange C my rd o ommi~ Attest: Donna S. Baker Clerk to the Board This instrument has been pre-audited in the manner required by the local Governm t dget and Fiscal Control Act. 1 Orange Coun inanc cer This instrument is approved as to Form. a ge ty or y F:\Lisa\for \ an a County Agmt for Construction Mgr form rev by GEG 91207 further rev y GEG 31408 RL (kas redline) further rev by GEG 31708 CL.doc 33 APPENDIX A TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DISPUTE RESOLUTION PROCEDURES FOR ORANGE COUNTY Table of Rules Rule 1. Initiating Mediated Settlement Conferences A. Purpose of Mandatory Settlement Conferences B. Initiating the Dispute Resolution Process 2. Selection of Mediator A. Mediator Listing B. Selection of Mediator C. Disqualification of Mediator 3. The Mediated Settlement Conference A. Where Conference is to be Held B. When Conference is to be Held C. Request to Modify Deadline for Completion D. Recesses E. Project Delay 4. Duties of Parties and Other Participants in Formal Dispute Resolution Process A. Attendance B. Finalizing Agreement C. Payment of Mediation Fee D. Failure to Compensate Mediator 5. Authority and Duties of Mediators A. Authority of Mediator B. Duties of Mediator 6 Compensation of the Mediator 7. Rule Making S. Definitions 9. Time Limits Page 1 of 6 RULE 1. INITIATING MEDIATED SETTLEMENT CONFERENCES A. Purpose of Mandatory Settlement Conferences. Pursuant to G.S. §143-128(fl) and 143-135.26(11),these Rules are promulgated to implement a mediated settlement program designed to focus the parties' attention on settlement rather than on claim preparation and to provide an opportunity for orderly settlement negotiations to take place. Nothing herein is intended to limit or prevent the parties from engaging in settlement procedures voluntarily at any time prior to or during commencement of the dispute resolution process. B. Initiating the Dispute Resolution Process 1) Any party to a County public construction contract(referred to herein generally as the"Contract") governed by Article 8. Ch. 143 of the General Statutes and identified in G.S. § 143-128(fl)and who is a party to a dispute arising out of the Contract and the construction process in which the amount in controversy is at least$15,000 may submit a written request to the County for mediation of the dispute. 2) Prior to submission of a written request for mediation to the County,the parties should give notice of any and all claims in accordance with their respective contracts, obtain decisions on the claims as required or allowed by their respective contracts, and attempt to resolve the dispute according to the terms and conditions in their respective contracts. The Mediator may adjourn any mediated settlement conference if the Mediator believes, in his or her sole discretion,that the parties have not satisfied all of the terms and conditions of their respective contracts and that doing so will enhance the prospects for a negotiated settlement. C. Condition Precedent to Litigation. Before any party to a Contract may commence a civil action against the County seeking remedies for breach or non- performance of the Contract by the County, said party must first initiate the dispute resolution process under these rules and attend the mediated settlement conference. RULE 2. SELECTION OF MEDIATOR A. Mediator Listing. A list of Mediators acceptable to the County is attached to and incorporated by reference into these Rules. The parry requesting mediation shall select a Mediator from the designated list. If the County fails to provide a list of acceptable mediators,the list of Mediators shall be deemed to be the list of mediators certified by the North Carolina Dispute Resolution Commission to conduct mediated settlement conferences in the North Carolina Superior Courts. B. Selection of a Mediator. The party requesting mediation shall select a Mediator from the County's list of Mediators and shall file,with the County, a Notice of Selection of Mediator within 21 days of the request for mediation. Such notice shall state the name, address, and phone number of the Mediator selected. If the Mediator selected is not available or declines to participate for any reason,the Page 2 of 6 requesting party shall select another person from the County's list of Mediators. If the parry requesting mediation does not select and designate a mediator within 21 days of the request for mediation,the County shall have the right in its absolute discretion to appoint a mediator from its list of Mediators. C. Disqualification of Mediator. Any party may request replacement of the Mediator for good cause. Nothing in this provision shall preclude Mediators from disqualifying themselves. RULE 3. THE MEDIATED SETTLEMENT CONFERENCE A. Where Conference is to be Held. Unless all parties and the Mediator otherwise agree,the mediated settlement conference shall be held in Orange County. The Mediator shall be responsible for reserving a place,making arrangements for the conference, and giving timely notice of the time and location of the conference to all attorneys, unrepresented parties and other persons or entities required to attend. B. When Conference is to be Held. The mediation shall be completed within 90 days after selection of the Mediator. C. Request to Accelerate or Extend Deadline for Completion. Any party or the Mediator may request the County to accelerate or extend the deadline for completion of the conference. Such request shall state the reasons the extension is sought and shall be served by the moving party upon the other parties and the Mediator. Objections to the request must be promptly communicated to the County and to the Mediator. The County, with the concurrence of the designated Mediator,may grant the request by adjusting the time for completion of the conference. D. Recesses. The Mediator may recess the mediation conference at any time and may set times for reconvening. If the Mediator determines the time and place where the conference is to reconvene before the conference is recessed,no further notice is required to persons present at the conference. E. Project Delay. The mediated settlement conference that results from a construction contract dispute shall not be cause for the delay of the construction project. RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORMAL DISPUTE RESOLUTION PROCESS A. Attendance. 1. All parties to the dispute must designate an official representative to attend the mediation. 2. "Attendance"means physical attendance, not by telephone or other electronic Page 3 of 6 means. Any attendee representing a party must have authority from that party to bind it to any agreement reached as a result of the mediation. 3. Attorneys representing parties may attend the mediation, but are not required to do so. 4. Sureties and insurance company representatives are required to physically attend the mediation unless the Mediator and all of the other parties to the mediation excuse their attendance or consent to their attendance by telephone or other electronic means. 5. The parties who attend a duly scheduled mediation conference shall have the right to recover their share of the Mediator's compensation from any party or parties who fail to attend the conference without good cause. B. Finalizing Agreement. If an agreement is reached in the conference,the terms of the agreement shall be confirmed in writing and signed by all parties. C. Mediation Fees charged by the Mediator shall be paid in accordance with G.S. § 143-128(fl). D. Failure to compensate Mediator. Any party's failure to compensate the Mediators in accordance with G.S. § 143-128(fl) shall subject that party to a withholding of said amount of money from the party's monthly payment by the County. Should the County fail to compensate the Mediator, it shall hereby be subject to a civil cause of action from the Mediator for the 1/3 portion of the Mediator's total fee as required by G.S. § 143-128(fl). RULE 5. AUTHORITY AND DUTIES OF MEDIATORS A. Authority of Mediator. 1. Control of Conference. The Mediator shall at all times be in control 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 communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference. 3. Scheduling the Conference. The Mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and Mediator. In the absence of agreement, the Mediator shall select the date for the conference. Page 4 of 6 4. Determining good cause for a party's failure to appear at a scheduled mediation conference. B. Duties of Mediator. 1. The Mediator shall define and describe the following at the beginning of the conference: a. The process of mediation. b. The difference between mediation and other forms of conflict resolution. c. The costs of the mediated settlement conference. d. That the mediated settlement conference is not a trial,the Mediator is not a judge, and the parties retain their legal rights if they do not reach settlement; however,the Mediator will advise all parties that failure to appear at mediation without good cause may result in imposition of sanctions and may be asserted as a bar to lawsuits by claimants who have failed to exhaust this administrative remedy. e. The circumstances under which the Mediator may meet and communicate privately with any of the parties or with any other person. f. Whether and under what conditions communications with the Mediator will be held in confidence during the conference. g. The inadmissibility of conduct and statements as provided by G.S. §7A-38.1(1). h. The duties and responsibilities of the Mediator and the participants. i. That any agreement reached will be reached by mutual consent. 2. Disclosure: The Mediator has a duty to be impartial and to advise all participants of any possible bias,prejudice or partiality. 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. Page 5 of 6 RULE 6. COMPENSATION 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 selected. RULE 7. RULE MAKING A. These Rules may be amended by the County at any time. Amendments will not affect mediations where claims and/or requests for mediation have been filed at the time the amendment takes effect. RULE 8. DEFINITIONS A. "County"shall mean the County of Orange,North Carolina. B. "Project Designer"is that person or firm stipulated as project designer in the Contract Documents for the project. C. "Claim"is a demand or assertion by a party seeking adjustment or interpretation of Contract terms,payment of money,extension of time or other relief with respect to the terms of the Contract. The term"Claim"also includes other disputes and matters in question between the parties to a Contract involved in the County's building construction renovation and repair projects arising out of or relating to the Contract or the construction process. Claims must be initiated by a written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. D. "Good Cause"generally includes any circumstance beyond the control of a party, which prevents that party from meeting obligations. When good cause is asserted as an excuse for a party's failure to appear at a mediation conference or to otherwise comply with the requirements of these Rules,the Mediator, in his or her sole discretion, will determine whether good cause exists to excuse the parry's failure to appear or otherwise comply with these rules. RULE 9. TIME LIMITS A. Any time limit provided for by these Rules 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. F:1Lisalforms4Appendix A Agmt for Construction Manager At Risk Sere form.doc Page 6 of 6 APPENDIX B TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES LIST OF COST ELEMENTS Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 2 Total Item Description Takeoff Qty Amount BID PACKAGE 2A 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2100 Clearing&Grubbing 10 Clearing&Grub 5.00 acre 39,414 30 Selective Tree Removal 39.00 ea 13,230 Clearing&Grubbing 52,644 684.00 Labor hours 556.00 Equipment hours 2101 Tree Protection 10 Tree Protection Fencing 895.00 if 4,430 Tree Protection 4,430 89.50 Labor hours 2120 Site Demolition 170 Remove Asphalt Paving 2,839.00 sy 8,651 Site Demolition 8,651 189.267 Labor hours 94.633 Equipment hours 2200 Stripping&Respread 20 Strip to Haul Off(Ito 10 Miles) 4,388.00 cy 35,462 Stripping&Respread 35,462 468.053 Labor hours 409.547 Equipment hours 2210 Rough Grading 10 Cut to Fill(1 to 5 Acres) 642.00 cy 5,188 10 Cut to Fill(1 to 5 Acres) 6,136.00 cy 49,582 50 Cut to Haul Off(1 to 10 miles) 11,480.00 cy 139,187 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 3 Total Item Description Takeoff Qty Amount Rough Grading 193,957 1,409.756 Labor hours 1,029.533 Equipment hours 2250 Rock Excavation 30 Rock Excavation-Allowance 1.00 is 10,100 Rock Excavation 10,100 0.20 Labor hours 0.20 Equipment hours 2255 Unsuitable Material Excav 10 Unsuitable Material Excavation- 1.00 is 10,100 Allowance Unsuitable Material Excav 10,100 2270 Erosion Control 10 Construction Entrance 1.00 ea 2,020 20 Silt Fence 895.00 if 5,201 30 Diversion Ditch/Earth Berms 500.00 if 3,368 40 Inlet Protection 20.00 each 3,438 50 Sediment Basin 200.00 cy 4,858 80 Temporary Seeding 4.00 acre 6,060 ---- Rip Rap Aprons 6.00 ea 2,727 ---- Rip Rap 30.00 ton 1,364 Erosion Control 29,036 358.655 Labor hours 53.571 Equipment hours 2552 Storm Drain 10 Storm Drain 50.00 if 4,545 10 Storm Drain 1,177.00 if 106,992 10 Biofiltration Cell&Detention 1.00 is 40,401 Area Storm Drain 151,938 2602 Gravel Paving 10 Gravel Drive&Laydown Area 19,500.00 sf 49,239 Gravel Paving 49,239 2710 Fencing 10 Construction Site Fencing 1,790.00 if 18,079 Fencing 18,079 SITEWORK 568,056 3,199.431 Labor hours 2,143.484 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 4 Total."• Item Description Takeoff Qty Amount BID PACKAGE 2A 571,843 3,199 431 Labor hours 2,143.484 Equipment hours I Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 5 Item Description Takeoff Qty Amount BID PACKAGE 2B 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2551 Water System 10 Water Systems 527.00 if 63,874 10 Water Systems 1,181.00 if 83,499 Water System 147,373 2553 Sanitary Sewer 10 Sanitary Sewer 434.00 If 13,151 Sanitary Sewer 13,151 SITEWORK 164,942 BID PACKAGE 2B 168,730 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 6 Total - Item Description Takeoff Qty Amount BID PACKAGE 2C 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2215 Fine Grading 20 Fine Grade Parking 53,181.00 sf 14,647 40 Fine Grade Curb&Gutter 500.00 If 1,060 40 Fine Grade Curb&Gutter 1,762.00 If 3,736 Fine Grading 19,443 318.399 Labor hours 98.593 Equipment hours 2600 Asphalt Paving 5 Asphalt Paving 3,070.00 sy 62,016 5 Asphalt Paving 2,839.00 sy 57,349 Asphalt Paving 119,365 2602 Gravel Paving 10 Gravel&Paved Trail 3,525.00 sf 17,802 Gravel Paving 17,802 2620 Conc.Curb 10 Curb&Gutter 500.00 if 6,565 10 Curb&Gutter 1,762.00 If 23,136 Conc.Curb 29,701 2622 Paving Markings 10 Paving Markings 1.00 is 4,040 10 Paving Markings 1.00 is 5,050 Paving Markings 9,090 2727 Parkng Specialty 100 Parking Bumpers 47.00 each 4,747 250 Handicap Signs 3.00 each 758 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 7 Total Item Description Takeoff Qty Amount Parkng Specialty 5,505 50.00 Labor hours SITEWORK 205,325 368.399 Labor hours 98.593 Equipment hours 16000 ELECTRICAL 16100 Electrical ---- Traffic Signalization 1.00 is 25,251 Electrical 25,251 ELECTRICAL 25,251 BID PACKAGE 2C 234,363 368.399 Labor hours 98.593 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 8 Total Item Description Takeoff Qty Amount BID PACKAGE 2D 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2215 Fine Grading 50 Fine Grade Sidewalks 2,500.00 sf 1,296 50 Fine Grade Sidewalks 7,557.00 sf 3,916 Fine Grading 5,212 134.093 Labor hours 33.523 Equipment hours 2601 Cone.Paving 10 Concrete Paving 5,479.00 sf 38,738 10 Misc Pads 25.00 sf 505 Cone.Paving 39,243 2630 Cone. Sidewalk 10 Sidewalk 2,500.00 sf 12,625 10 Handicap Ramp 6.00 ea 1,212 10 Sidewalk 7,557.00 sf 38,164 Cone.Sidewalk 52,001 2760 Site Ammenities 10 Bike Rack 1.00 Is 505 Site Ammenities 505 SITEWORK 101,380 134.093 Labor hours 33.523 Equipment hours 5000 METALS 5600 Misc.Metals ---- Bollards 18.00 ea 6,909 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 9 Total Item Description Takeoff Qty Amount Misc.Metals 6,909 METALS 6,909 BID PACKAGE 2D 112,076 134.093 Labor hours 33.523 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 10 Estimate Totals Labor 97,137 3,701.923 hrs Material 3,775 Subcontract 750,348 Equipment 85,147 2,275.601 hrs Other 150.606 1,087,013 1,087,013 Permit 2,691 0.250 % Excess Liability Insurance 3,926 Builders Risk 2,734 0.250 $/ General Conditions 43,855 4.000 % Contractors Fee 57,011 5.000 % 110,217 1,197,230 Contingency 102,407 102,407 1,299,637 C&T Performance Bond 9,096 9,096 1,308,733 Total 1,308,733 54.599/sf APPENDIX C TO AGREEMENT FOR CONSTRUCTION MANAGEMENT SERVICES MINORITY BUSINESS ENTERPRISE POLICY APPENDIX C MBE CONTRACT PROVISION (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 COMMITMENT, identifying the amount of MBE participation; and, prior to award, upon request, show evidence of good faith effort made prior to the bid 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 information be submitted with the bid. Although bids may be read without 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. MINIMUM COMPLIANCE REOUIREMENTS: If the MBE subcontract goals are not achieved, the Bidder shall provide the following documentation to the Owner. 1. 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 award). This documentation shall include an affidavit that certifies that the Bidder has taken at least five (5) of the following ten(10) good faith steps to procure MBEs, and it should also list which steps were taken: l 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. 2. Made the construction plans, specifications, and requirements available for review by prospective minority businesses, or providing these documents to them at least ten (10) 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. 5. Attended any prebid meetings scheduled by the public owner. 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. 8. 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. Provide 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 firm 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 sufficient evidence (listed in#A) that the goals stated in the contract documents have been met, or awards all subcontracts to MBE's, the documentation listed in B will not be required. Upon being named apparent low bidder, the Bidder shall provide a Letter of Intent (Attachment 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 of the bid and award the next lowest responsible and responsive bidder. The Owner reserves the right to waive any irregularities in MBE documentation if they can be resolved prior to award of the contract, and the Owner finds it to be in its best interest to do so and award the contract. PROGRAM COMPLIANCE REOUIREMENTS: 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 with 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. Any 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. ATTACHMENT I OR II MUST BE SUBMITTED WITH BID ATTACHMENT I MBE UTILIZATION COMMITMENT We, , do certify that on the (Bidder) HVAC SYSTEM 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 Firm MBE of Work Dollar Value The undersigned will enter into a formal agreement with Minority 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: (Name of Authorized Officer) Signature: Title: We , do certify that we did undertake the following 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. 2. Made the construction plans, specifications, and requirements available for review by prospective minority businesses, or providing these documents to them at least ten (10) 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. 5. Attended any prebid meetings scheduled by the public owner. 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. 8. 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. Provide quick pay agreements and policies to enable minority contractors 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 perform work in connection with the above project as a Minority 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: You have projected the following commencement date for such work, and the undersigned is projecting completion of such work as follows: Projected Projected Commencement Completion Items 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 Minority Contractor) By: ATTACHMENT I OR III MUST BE SUBMITTED WITH 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 contract. (Name of Project) In making this certification, the Bidder states the following: I. That the Bidder does not customarily subcontract elements of this type project, and normally performs and has the capability to perform and will perform all elements of the work on this project with his/her own current work forces; and 2. That the Bidder agrees to submit the following information after bid and before the award 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 was 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 commitments herein contained. Date: (Name of Authorized Officer) Signature: Title: APPENDIX D TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES DIVISIONS OF THE WORK FOR GUARANTEED MAXIMUM PRICE Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 2/181200810:03 AM Page 2 'Total Item Description Takeoff Qty Amount BID PACKAGE 2A 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2100 Clearing&Grubbing 10 Clearing&Grub 5.00 acre 39,414 30 Selective Tree Removal 39.00 ea 13,230 Clearing&Grubbing 52,644 684.00 Labor hours 556.00 Equipment hours 2101 Tree Protection 10 Tree Protection Fencing 895.00 If 4,430 Tree Protection 4,430 89.50 Labor hours 2120 Site Demolition 170 Remove Asphalt Paving 2,839.00 sy 8,651 Site Demolition 8,651 189.267 Labor hours 94.633 Equipment hours 2200 Stripping&Respread 20 Strip to Haul Off(Ito 10 Miles) 4,388.00 cy 35,462 Stripping&Respread 35,462 468,053 Labor hours 409.547 Equipment hours 2210 Rough Grading 10 Cut to Fill(1 to 5 Acres) 642.00 cy 5,188 10 Cut to Fill(1 to 5 Acres) 6,136.00 cy 49,582 50 Cut to Haul Off(1 to 10 miles) 11,480.00 cy 139,187 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 2/18/200810:03 AM Page 3 Total Item Description Takeoff Qty Amount Rough Grading 193,957 1,409.756 Labor hours 1,029.533 Equipment hours 2250 Rock Excavation 30 Rock Excavation-Allowance 1.00 is 10,100 Rock Excavation 10,100 0.20 Labor hours 0.20 Equipment hours 2255 Unsuitable Material Excav 10 Unsuitable Material Excavation- 1.00 is 10,100 Allowance Unsuitable Material Excav 10,100 2270 Erosion Control 10 Construction Entrance 1.00 ea 2,020 20 Silt Fence 895.00 If 5,201 30 Diversion Ditch/Earth Berms 500.00 If 3,368 40 Inlet Protection 20.00 each 3,438 50 Sediment Basin 200.00 cy 4,858 80 Temporary Seeding 4.00 acre 6,060 ---- Rip Rap Aprons 6.00 ea 2,727 ---- Rip Rap 30.00 ton 1,364 Erosion Control 29,036 358.655 Labor hours 53.571 Equipment hours 2552 Storm Drain 10 Storm Drain 50.00 If 4,545 10 Storm Drain 1,177.00 if 106,992 10 Biofiltration Cell&Detention 1.00 is 40,401 Area Storm Drain 151,938 2602 Gravel Paving 10 Gravel Drive&Laydown Area 19,500.00 sf 49,239 Gravel Paving 49,239 2710 Fencing 10 Construction Site Fencing 1,790.00 if 18,079 Fencing 18,079 SITEWORK 568,056 3,199.431 Labor hours 2,143.484 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 4 Total Item Description Takeoff Qty Amount BID PACKAGE 2A 571,843 3,199.431 Labor hours 2,143.484 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 5 Item Description Takeoff Qty Amount BID PACKAGE 2B 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2551 Water System 10 Water Systems 527.00 if 63,874 10 Water Systems 1,181.00 if 83,499 Water System 147,373 2553 Sanitary Sewer 10 Sanitary Sewer 434.00 if 13,151 Sanitary Sewer 13,151 SITEWORK 164,942 BID PACKAGE 2B 168,730 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 6 Total Item Description Takeoff Qty Amount BID PACKAGE 2C 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 1s 4,419 Field Engineering 4,419 2215 Fine Grading 20 Fine Grade Parking 53,181.00 sf 14,647 40 Fine Grade Curb&Gutter 500.00 if 1,060 40 Fine Grade Curb&Gutter 1,762.00 if 3,736 Fine Grading 19,443 318.399 Labor hours 98.593 Equipment hours 2600 Asphalt Paving 5 Asphalt Paving 3,070.00 sy 62,016 5 Asphalt Paving 2,839.00 sy 57,349 Asphalt Paving 119,365 2602 Gravel Paving 10 Gravel&Paved Trail 3,525.00 sf 17,802 Gravel Paving 17,802 2620 Conc. Curb 10 Curb&Gutter 500.00 if 6,565 10 Curb&Gutter 1,762.00 If 23,136 Conc.Curb 29,701 2622 Paving Markings 10 Paving Markings 1.00 is 4,040 10 Paving Markings 1.00 is 5,050 Paving Markings 9,090 2727 Parkng Specialty 100 Parking Bumpers 47.00 each 4,747 250 Handicap Signs 3.00 each 758 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 7 Total Item Description Takeoff Qty Amount Parkng Specialty 5,505 50.00 Labor hours SITEWORK 205,325 368.399 Labor hours 98.593 Equipment hours 16000 ELECTRICAL 16100 Electrical ---- Traffic Signalization 1.00 is 25,251 Electrical 25,251 ELECTRICAL 25,251 BID PACKAGE 2C 234,363 368.399 Labor hours 98.593 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 21181200810:03 AM Page 8 Total Item Description Takeoff Qty Amount BID PACKAGE 2D 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 Is 4,419 Field Engineering 4,419 2215 Fine Grading 50 Fine Grade Sidewalks 2,500.00 sf 1,296 50 Fine Grade Sidewalks 7,557.00 sf 3,916 Fine Grading 5,212 134.093 Labor hours 33.523 Equipment hours 2601 Conc.Paving 10 Concrete Paving 5,479.00 sf 38,738 10 Misc Pads 25.00 sf 505 Conc.Paving 39,243 2630 Conc. Sidewalk 10 Sidewalk 2,500.00 sf 12,625 10 Handicap Ramp 6.00 ea 1,212 10 Sidewalk 7,557.00 sf 38,164 Conc. Sidewalk 52,001 2760 Site Ammenities 10 Bike Rack 1.00 is 505 Site Ammenities 505 SITEWORK 101,380 134.093 Labor hours 33.523 Equipment hours 5000 METALS 5600 Misc.Metals ---- Bollards 18.00 ea 6,909 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 21181200810:03 AM Page 9 Total Item Description Takeoff Qty Amount Misc.Metals 6,909 METALS 6,909 BID PACKAGE 2D 112,076 134.093 Labor hours 33.523 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 10 Estimate Totals Labor 97,137 3,701.923 hrs Material 3,775 Subcontract 750,348 Equipment 85,147 2,275.601 hrs Other 150.606 1,087,013 1,087,013 Permit 2,691 0.250 % Excess Liability Insurance 3,926 Builders Risk 2,734 0.250 $/ General Conditions 43,855 4.000 % Contractors Fee 57,011 5.000 % 110,217 1,197,230 Contingency 102,407 102,407 1,299,637 C&T Performance Bond 9,096 9,096 1,308,733 Total 1,308,733 54.599/sf APPENDIX E TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES PROJECT AND CONSTRUCTION BUDGET Drawing List Orange County Animal Services Center Chapel Hill, NC February 14, 2008 List of Drawings as provided by Civil Consultants. Sheet Title Revised Date CO Cover Sheet 08/15/07 C1 Existing Conditions 11/12/07 C2 Site & Paving 02/05/08 C3 Traffic and Pedestrian Control Plan 11/15/07 C4 Enlarged Site, Grading, and Storm Drainage 02/05/08 C5 Stormwater Management Plan & Details 02/05/08 C6 Utility Plan 01/22/08 C7 Eubanks Road Waterline Plan and Profile 11/20/07 C8 Erosion Control Plan 12/06/07 C9 Construction Management and Staging Plan 10/25/07 L1 Tree Protection Plan 11/12/07 L2 Landscape Plan 08/15/07 L3 Mulching Landscape Plan 06/11/07 L4 Hardscape Plan 06111/07 R1 Eubanks Road Improvements 02/08/08 D1 Site Details 08/28/07 D2 Storm Drainage Details 10/22/07 D3 Erosion Control Details 08/28/06 D4 Erosion Control Details 08/28/06 D5 Miscellaneous Details 02/08/08 D6 OWASA Details 01/16/08 D7 OWASA Details 08/28/06 D8 Water and Sewer Details 01/23/08 D9 Site Details 02/08/08 Page 1 of 1 Specification List Orange County Animal Services Center Chapel Hill, NC February 14, 2008 List of Specifications as provided by Dixon Weinstein dated 2/8/08. Division Title Pa es Division 00 CONTRACT DOCUMENTS Seal Sheet 1 General Conditions of the Contract for Construction-CM at Risk 42 Geotechnical Report Cover 1 Geotechnical Soils Report 11 Geotechnical Soil Borings Appendix 12 Solid Waste Management Plan 8 Railroad Acknowledgement Form 8 Special Provisions for Protection of Railway Interests 15 NCDOT Approved Driveway Permit 5 Division 01 GENERAL REQUIREMENTS 11000 Summary 4 12200 Unit Prices 2 12300 Alternates 2 12600 Contract Modification Procedures 3 12900 Payment Procedures 4 13100 Project Management and Coordination 7 13200 Construction Progress Documentation 5 13300 Submittal Procedures g 14000 Quality Requirements 7 14200 References g 15000 Temporary Facilities and Controls 8 16000 Product Requirements 5 17300 Execution g 17419 Construction Waste Management and disposal 5 17700 Closeout Procedures 5 18113 Sustainable Design Requirements 4 Division 22 PLUMBING 221113 Facility Water Distribution Piping 9 221313 Facility Sanitary Sewers 4 Division 31 EARTHWORK IMPROVEMENTS 311000 Site Clearing 3 312100 Trenching g 312200 Rough Grading g 312300 Rock Removal by Blasting 3 312400 Soil Erosion and Sediment Control 3 312500 Fine Grading 2 Page 1 of 2 Division Title Pages Division 32 EXTERIOR IMPROVEMENTS 321216 Aggregate Base and Asphalt Paving 6 321313 Chain Link Fences and Gates 5 329200 Temporary Seeding 3 Division 33 UTILITIES 334100 Storm Drainage Systems 5 i Page 2of2 Orari a Count A' al:Servkes Y,- ,,Phase 1 Earl" Site Work Packa `e 02-18,-08 Y Project name 07042 OCAS Estimator Mike Linford Job size 23970 sf Notes EXCLUSIONS: 1. Excludes tap fees. 2. Excludes irrigation system. 3. Excludes landscaping. 4. Excludes site electrical. 5. Excludes monument. 6. Excludes traffic signaliztion. 7. Exludes grass pave. 8. Excludes dumpster screen.and gates. 9. Excludes recycle carts&dumpsters. 10. Excludes cisterns,well and associated piping. 11. Excludes foundation drain. 12. Excludes permanent chain link fences. ALLOWANCES: 1. Unsuitable Soil $10,000 2. Rock Excavation $10,000 ALTERNATES: 1. 2. Report format Sorted by'Location/Group phase/Phase' 'Detail'summary Allocate addons Paginate Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 2 Total Item Description Takeoff Qty Amount BID PACKAGE 2A 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2100 Clearing&Grubbing 10 Clearing&Grub 5.00 acre 39,414 30 Selective Tree Removal 39.00 ea 13,230 Clearing&Grubbing 52,644 684.00 Labor hours 556.00 Equipment hours 2101 Tree Protection 10 Tree Protection Fencing 895.00 if 4,430 Tree Protection 4,430 89.50 Labor hours 2120 Site Demolition 170 Remove Asphalt Paving 2,839.00 sy 8,651 Site Demolition 8,651 189.267 Labor hours 94.633 Equipment hours 2200 Stripping&Respread 20 Strip to Haul Off(Ito 10 Miles) 4,388.00 cy 35,462 Stripping&Respread 35,462 468.053 Labor hours 409.547 Equipment hours 2210 Rough Grading 10 Cut to Fill(1 to 5 Acres) 642.00 cy 5,188 10 Cut to Fill(1 to 5 Acres) 6,136.00 cy 49,582 50 Cut to Haul Off(1 to 10 miles) 11,480.00 cy 139,187 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 3 Item Description Takeoff Qty Amount Rough Grading 193,957 1,409.756 Labor hours 1,029.533 Equipment hours 2250 Rock Excavation 30 Rock Excavation-Allowance 1.00 Is 10,100 Rock Excavation 10,100 0.20 Labor hours 0.20 Equipment hours 2255 Unsuitable Material Excav 10 Unsuitable Material Excavation- 1.00 Is 10,100 Allowance Unsuitable Material Excav 10,100 2270 Erosion Control 10 Construction Entrance 1.00 ea 2,020 20 Silt Fence 895.00 if 5,201 30 Diversion Ditch/Earth Berms 500.00 if 3,368 40 Inlet Protection 20.00 each 3,438 50 Sediment Basin 200.00 cy 4,858 80 Temporary Seeding 4.00 acre 6,060 ---- Rip Rap Aprons 6.00 ea 2,727 ---- Rip Rap 30.00 ton 1,364 Erosion Control 29,036 358.655 Labor hours 53.571 Equipment hours 2552 Storm Drain 10 Storm Drain 50.00 if 4,545 10 Storm Drain 1,177.00 if 106,992 10 Biofiltration Cell&Detention 1.00 Is 40,401 Area Storm Drain 151,938 2602 Gravel Paving 10 Gravel Drive&Laydown Area 19,500.00 sf 49,239 Gravel Paving 49,239 2710 Fencing 10 Construction Site Fencing 1,790.00 if 18,079 Fencing 18,079 SITEWORK 568,056 3,199.431 Labor hours 2,143.484 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 4 , Total Item Description Takeoff Qty Amount BID PACKAGE 2A 571,843 3,199.431 Labor hours 2,143 484 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 5 'Total Item Description Takeoff Qty Amount BID PACKAGE 2B 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDMONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2551 Water System 10 Water Systems 527.00 if 63,874 10 Water Systems 1,181.00 If 83,499 Water System 147,373 2553 Sanitary Sewer 10 Sanitary Sewer 434.00 if 13,151 Sanitary Sewer 13,151 MEWORK 164,942 BID PACKAGE 2B 168,730 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 21181200810:03 AM Page 6 Total , Item Description Takeoff Qty Amount BID PACKAGE 2C 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2215 Fine Grading 20 Fine Grade Parking 53,181.00 sf 14,647 40 Fine Grade Curb&Gutter 500.00 if 1,060 40 Fine Grade Curb&Gutter 1,762.00 if 3,736 Fine Grading 19,443 318.399 Labor hours 98.593 Equipment hours 2600 Asphalt Paving 5 Asphalt Paving 3,070.00 sy 62,016 5 Asphalt Paving 2,839.00 sy 57,349 Asphalt Paving 119,365 2602 Gravel Paving 10 Gravel&Paved Trail 3,525.00 sf 17,802 Gravel Paving 17,802 2620 Conc.Curb 10 Curb&Gutter 500.00 if 6,565 10 Curb&Gutter 1,762.00 if 23,136 Conc.Curb 29,701 2622 Paving Markings 10 Paving Markings 1.00 is 4,040 10 Paving Markings 1.00 is 5,050 Paving Markings 9,090 2727 Parkng Specialty 100 Parking Bumpers 47.00 each 4,747 250 Handicap Signs 3.00 each 758 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 7 Totat`" Item Description Takeoff Qty Amount Parkng Specialty 5,505 50.00 Labor hours SITEWORK 205,325 368.399 Labor hours 98.593 Equipment hours 16000 ELECTRICAL 16100 Electrical ---- Traffic Signalization 1.00 is 25,251 Electrical 25,251 ELECTRICAL 25,251 BID PACKAGE 2C 234,363 368.399 Labor hours 98.593 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 8 Total Item Description Takeoff Qty Amount BID PACKAGE 2D 1000 GENERAL CONDITIONS 1555 Traffic Control ---- Traffic Control 1.00 is 3,788 Traffic Control 3,788 GENERAL CONDITIONS 3,788 2000 SITEWORK 2005 Field Engineering 10 Field Engineering 1.00 is 4,419 Field Engineering 4,419 2215 Fine Grading 50 Fine Grade Sidewalks 2,500.00 sf 1,296 50 Fine Grade Sidewalks 7,557.00 sf 3,916 Fine Grading 5,212 134.093 Labor hours 33.523 Equipment hours 2601 Conc.Paving 10 Concrete Paving 5,479.00 sf 38,738 10 Misc Pads 25.00 sf 505 Conc.Paving 39,243 2630 Conc. Sidewalk 10 Sidewalk 2,500.00 sf 12,625 10 Handicap Ramp 6.00 ea 1,212 10 Sidewalk 7,557.00 sf 38,164 Conc.Sidewalk 52,001 2760 Site Ammenities 10 Bike Rack 1.00 is 505 Site Ammenities 505 SITEWORK 101,380 134.093 Labor hours 33.523 Equipment hours 5000 METALS 5600 Misc.Metals ---- Bollards 18.00 ea 6,909 Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 9 Total . Item Description Takeoff Qty Amount Misc.Metals 6,909 METALS 6,909 BID PACKAGE 2D 112,076 134.093 Labor hours 33.523 Equipment hours Standard Estimate Report Clancy& Theys Const. Co. 07042 OCAS 211812008 10:03 AM Page 10 Estimate Totals Labor 97,137 3,701.923 hrs Material 3,775 Subcontract 750,348 Equipment 85,147 2,275.601 hrs Other 150.606 1,087,013 1,087,013 Permit 2,691 0.250 % Excess Liability Insurance 3,926 Builders Risk 2,734 0.250 $/ General Conditions 43,855 4.000 % Contractors Fee 57.011 5.000 % 110,217 1,197,230 Contingency 102.407 102,407 1,299,637 C&T Performance Bond 9.096 9,096 1,308,733 Total 1,308,733 54.599/sf APPENDIX F TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES MASTER SCHEDULE Act Orig Rem Early Early 2008 2009 Description FEB : MAR APR MAY JUN JUL AUG SEP OCT NOV DEC JAN FEB MAR APR MAY ID Dur Dur Start Finish ' 1 , i , , 1200 OWASA Permit 20d 20d 15FEB08 13MAR08 ' i OWASA Permi , I r, . 1010 Grading Permit 24d 24d 15FEB08 19MAR08 - Grading Permit. , . , • " 1000 Bid&Award Site Pkgs. 35d 35d 18FEB08 04APR08 g' ":-..- Bid&Award Site Pkgs. _ ' I ' . ' 3 I . 1020 Pre Clearing Meeting 1d 1d 07APR08 07APR08 ,1, Pre Clearing Meeting' ' ; ' ' 3 ; ' - ' i . . 3 - t . . . , ! 1150 Field Enginering 5d 5d 07APR08 11APR08 ' , ' Field Enginering , 1 : t ` , 1030 Erosion Control/Tree Prot 10d 10d 08APR08 21APR08 Erosion Control/Tree Prot ' , = 1•- - _ ; • 1080 16"Water Line Jack&'Bore 20d 20d 14APR08 09MAY08 1 16"Water Line Jack&'Bore 1050 Temporary Road 2d 2d 22APR08 23APR08 ; - _ Temporary Road 1 t : 3 s 1 - _ ' ' t I 1-i , ' i 1 . , ; s 1130 Temporary Fencing 3d 3d 22APR08 24APR08 Temporary Fencing ` - ' , Clear,Stri &Grade Site t 1 ; 1040 Clear,Strip&Grade Site 20d 20d 22APR08 19MAY08 E -1-,----=;:--- -7-7,.p 1180 Remove Asphalt Paving 1d 1d 20MAY08 20MAY08 ' I-la Remove sphalt Paving i ' : 1 1 ! t 1 ' I 1110 8"Water Line w/Jack&Bore 5d 5d 20MAY08 26MAY08 s 8"Water Line w/Jack&Bore ;•- . 1 II 1, ' 1 , 1 , , . , . 1060 Retention Pond 10d 10d 20MAY08 02JUN08 ` , 1—nl l Retention Pond - 1 ; , 1 1 I , ; . I1 ; , ' . . , ' 1 1210 Construct Building 186d 186d 20MAY08 06FEB09 -— ``""' "" �' Construct Building' ' ' 1 3 c - : I u T�' ,—— t — ; . t ;• - C ildmg 1. I 1070 Storm Drainage 10d 10d 03JUN08 16JUN08 , 1 ; , - Storm Drainage: . , . ; I 4 I 1090 Site Water Line 10d 10d 17JUN08 30JUN08 s ' ; = F ■ Site Water Line? , ; 1 , ; 4 ' 4 I - ' , . - { s • •1 1 , I , 1120 Fire Line,Hydrants&and BFP 5d 5d 01JUL08 08JUL08 � ' I . Fire Line,Hydrants&and BFP ', ` . I I 3 1 i ` , e . i 1100 Sanitary 10d 10d 01JUL08 15JUL08 ISanitaryi 1140 Sleeves For Parking Lot Lights 1d 1d 16JUL08 16JUL08 ' I ' ' • ' ' G Sleeves For Parking Lot LightJ € • : _ , ; , :G- , 13 , . , ,4 ' , 1 , ' ` ' ` I JCurb,Gutter&Paving, - 1160 Curb,Gutter&Paving 17d 17d 03DEC08 26DEC08 ; _ ; , , 1190 Gravel Walkways 3d 3d 29DEC08 31 DEC08 - . ` ' € t ' : I ' ! ; , y -11.1 Gravel Walkways , - ! , 1170 Site Concrete,Pads&Walks 10d 10d 29DEC08 12JAN09 ' • ' ' , € ' Site Concrete,Pads&Walks 1 ' 1 Start date 15FEB08 O Early bar Finish date 06FEB09 Clancy & Theys Construction Company ® Progress bar Data date 15FEB08 Run date 15FEB08 Orange County Animal Services ti Critical bar Page number 1A February 15, 2008 ....,Summary bar O Start milestone point ©Primavera Systems,Inc. 0 Finish milestone point GATE(MtWDOlYYYY} ACC314L � CERTIFICATE OF LIABILITY INSURANCE DATE PRODUCER (919)790-641S FAX (919)790-6422 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Durfey-Hoover-Bowden ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 3741 Benson Drive HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR Raleigh, NC 27609 ALTER THE COVERAGE AFFORDED BY THE POLI CIES BELOW. INSURERS AFFORDING COVERAGE NAIC# INSURER C ancy & T eys Construction Company INSURERA. Travelers P.O. BOX 27608 INSURER B: Raleigh, NC 27611 INSURERC: INSURER 0, INSURER E, VE AGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES,AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, INSR 1ADD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS GENERAL LIABILITY CO-436P4287 05/01/2007 05/01/2008 EACH OCCURRENCE 5 11000,000 NO }( COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 100,000 CLAIMS MADE Q OCCUR MED FXP(Any one person) S 5,000 A X Contractual Llab PERSONAL&ADV INJURY $ 1,000,00 GENERAL AGGREGATE S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS-COMPIOPAGG 3 Z ONO,OO POLICY[K PE" F-ILOC AUTOMOBILE LIABILITY 810-436P4318 05/01/2007 O5/01/200$ COMBINED SINGLE LIMIT X ANY AUTO (Ea acctdenq § 11000,000 ALL OWNED AUTOS BODILY INJURY $ A SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) 5 PROPERTY DAMAGE 5 (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ H SANY AUTO OTHER THAN EA ACC S AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY CUP-436P4275 05/01/2007 05/01/2008 EACH OCCURRENCE $ 10,000,000 —X]OCCUR F]CLAIMS MADE AGGREGATE $ 10,000,00 A $ DEDUCTIBLE 5 X RETENTION $ 10,000 $ WORKERS COMPENSATION AND UB-6102A7306 05/01/2007 05/01/2008 X V!C STATU EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $ 5NN LINO A ANY PROPRIETOR/PARTNERIFXECUTIVE L____. OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE $ 500 OLIO If describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT $ S60,0 OTHER DESCRIPTION OF OPERATIONS 1 LOCATIONS 1 VEHICLES i EXCLUSIONS ADDED BY ENDORSEMENT 1 SPECIAL PROVISIONS E: Orange County Animal Services Facility. Certificate Holder is Additional Insured. Not withstanding the preprinted cancellation provisions on this form, coverages afforded under the alicies will not be cancelled, reduced in amount nor will any coverages be eliminated until at least thirty (30) days after mailing written notice, by certified mail, return receipt requested, to the nsured and the owner, of such alteration or cancellation. CE RTIFICATE HOLDER CAN!QgLLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, County of Orange ,.d FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY PO BOX 8181 OF ANY D UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. Hillsborough, NC 27278 APTHORt EPRESEN IYE ACORD 23(2001108) GACORD CORPORATION 1881 IMPORTANT If the certificate holder is an ADDITIONAL_INSURED,the policy(ies)must be endorsed.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION 1S WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement.A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s),authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend,extend or alter the coverage afforded by the policies listed thereon. ACORD 25(2001108) A CORD I N S U RAN C E BINDER DATE(MWDOJYYYY) '" 03/07/2008 r THIS BINDER IS A TEMPORARY INSURANCE CONTRACT,SUBJECT TO THE CONDITIONS SHOWN ON THE REVERSE SIDE OF THIS FORM. AGENCY COMPANY BINDER# Durfey-Hoover-Bowden Travelers B08030703508 3741 Benson Drive DATE EFFECTIVE TIME DATFIRATION ME Raleigh, NC 27609-7324 02/19/2008 12:01 X AM 04/19/2008 X 12:01 AM PHONE _�___..._.. .. ..._.. .. F _..._..__._...._....------ PM NOON A/C N Ext 919)790-6415 ,t NQ 919)T90-6422 :PER IS BINDER IS ISSUED TO EXTEND COVERAGE IN THE ABOVE NAMED COMPANY CODE: HESO7_ SUB CODE; — EXPIRING POLICY#- CUEFOYE 00000519 DESCRIPTION OF OPERATIOWVF�IICIESJPR(7PERTY Inclu(1 $Lecatbn) INSURED range County Animal Services F�aciTity Clancy & Theys Construction Company Site Construction - Site Package PO Box 27608 Raleigh, NC 27611 COVERAGES LIMITS TYPE OF INSURANCE COVERAGEFORMS DEDUCTIBLE _COINS°k___ ._.__.,- AMOUNT _ PROPERTY CAUSES OF LOSS Builders Risk - Inland Marine Form 1,000 1,30$,733 BASIC F]BROAD Q SPEC i GENERAL LIABILITY EACH OCCURRENCE $ COMMERCIAL GENERAL LIABILITY DAMAGE TO $ CLAIMS MADE D OCCUR MED EXP CAny one person) $ PERSONAL&ADV INJURY $ GENERAL AGGREGATE RETRO DATE FOR CLAIMS MADE: PRODUCTS-COMP/OP AGG $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO 11.BODILY INJURY Per erson $ i ALL OWNED AUTOS BODILY INJURY Per acadeni S SCHEDULED AUTOS PROPERTY DAMAGE__-_ $ HIRED AUTOS MEDICAL PAYMENTS NON-OWNED AUTOS _PERSONAL INJURY PROT _. UNINSURED MOTORIST t-t AUTO PHYSICAL DAMAGE DEDUCTIBLE ALL VEHICLES SCHEDULED VEHICLES ( ACT CASH VALUE COLLISION: A $ OTHER THAN COL. nTHFR -GARAGE LIABILITY _AUTO ONLY-FAACCIDENT ANY AUTO I-OTHER N AUTO ONLY: EACH ACCIDENT AGGREGATE $ EXCESS UASILITY (H_9& URRENCE UMBRELLA FORM A0.07. ATE OTHER RM' RETRO DATE FOR CLAIMS MADE SELF-INSURED RETENTION O,,STATUTORY LIMIT, WORKER'S COMPENSATION CCIRE AND EMPLOYER'S LIABILITY Pl SPECIAL Named Insured: Clancy & Theys Construction Co and All Sub and FFFS CONDITIONS) Sub-Sub Contractors and Orange County, NC TAXrq COVERAGES NAME&ADDRESS MORTGAGEE ADDITIONAL INSURED SS PAYFF LOAN# AUTHORIZED REPRESENTATIVE Paul Hoover/PATTY �� ACORD 75(2004109) NOTE:IMPORTANT STATE INFORMATION ON REVERSE SIDE C ACORD CORPORATION 1993-2001 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No 105072507 AIA Document A312 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY(Name and Principal Place of Business): Clancy & Theys Construction Company Travelers Casualty and Surety Company of America 516 West Cabarrus Street One Tower Square Raleigh, NC 27603 Hartford, CT 06183 OWNER(Name and Address): Orange County P O. Box 8181 Hillsborough, NC 27278 CONSTRUCTION CONTRACT Date- February 19, 2008 Amount: $1,308,733 00 One Million Three Hundred Eight Thousand Seven Hundred Thirty Three Dollars and 00/100 Description (Name and Location): Orange County Animal Services Facility Site Construction, Chapel Hill, North Carolina BOND Date (Not earlier than Construction Contract Date) February 19, 2008 Amount: $1,308,733 00 One Million Three Hundred Eight Thousand Seven Hundred Thirty Three Dollars and 00/100 Modifications to this Bond. ® None ❑ See Page 3 CONTRACTOR AS PRINCIPAL SURETY Company- (Corporate Seal) Company: (Corporate Seal) Clancy &Theys Construction Company Travelers Casualty and Surety Company of America Signature j'— 4& 'r Signatur _ Name and Title Name an Itara A�Smit Attorney-in-Fact (Any additional signatures appear on page 3) (FOR INFORMATION ONLY-Name,Address and Telephone) OWNER'S REPRESENTATIVE (Architect, Engineerorother AGENT or BROKER: party) BB&T Insurance Services, Inc 4309 Emperor Blvd , Ste. 300 Durham, NC 27703 919-281-4500 AIA DOCUMENT A312.PERFORMANCE BOND AND PAYMENT BOND.DECEMBER 1984 ED .AIA THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON,D C 20006 A312-1984 1 THIRD PRINTING.MARCH 1987 1 The Contractor and the Surety, jointly and severally, which it may be liable to the Owner and, as bind themselves, their heirs, executors, administrators, soon as practicable after the amount is deter- successors and assigns to the Owner for the performance ruined, tender payment therefor to the of the Construction Contract,which is incorporated herein Owner; or by reference. 2 If the Contractor performs the Construction Contract, -2 Deny liability in whole or in part and notify the Owner citing reasons therefor. the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as S If the Surety does not proceed as provided in Paragraph provided in Subparagraph 3.1. 4 with reasonable promptness,the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an 3 If there is no Owner Default, the Surety's obligation additional written notice from the Owner to the Surety under this Bond shall arise after: demanding that the Surety perform its obligations under 3.1 The Owner has notified the Contractor and the this Bond, and the Owner shall be entitled to enforce any Surety at its address described in Paragraph 16 below remedy available to the Owner. If the Surety proceeds as that the Owner is considering declaring a Contractor provided in Subparagraph 4.4,and the Owner refuses the Default and has requested and attempted to arrange a payment tendered or the Surety has denied liability, in whole or in part,without further notice the Owner shall be conference with the Contractor and the Surely to be held not later than fifteen days after receipt of such entitled to enforce any remedy available to the Owner. notice to discuss methods of performing the Construe- 6 After the Owner has terminated the Contractor's right tion Contract. If the Owner, the Contractor and the to complete the Construction Contract, and if the Suretv Surety agree, the Contractor shall be allowed a reason- elects to act under Subparagraph 4,1, 4.2, or 4.3 above, able time to perform the Construction Contract, but then the responsibilities of the Surety to the Owner shall such an agreement shall not waive the Owner's right,if not be greater than those of the Contractor under the any,subsequently to declare a Contractor Default;and Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete Owner under the Construction Contract.To the limit of the amount of this Bond, but subject to commitment by the the contract. Such Contractor Default shall not be d complete dared earlier than twenty days after the Contractor and Owner of the Balance of the Contract Price to mitigation of Sure- the Surety have received notice as costs and damages on the Construction Contract,the Sure- Y provided in Sub- ty is obligated without duplication for: paragraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the 6.1 The responsibilities of the Contractor for correc- Contract Price to the Surety in accordance with the tion of defective work and completion of the Construc- terms of the Construction Contract or to a contractor tion Contract; selected to perform the Construction Contract in accor- 6.2 Additional legal, design professional and delay dance with the terms of the contract with the Owner. costs resulting from the Contractor's Default, and re- 4 When the Owner has satisfied the conditions of Para- sulting from the actions or failure to act of the Surety graph 3, the Surety shall promptly and at the Surety's ex- under Paragraph 4; and pense take one of the following actions: 6.3 Liquidated damages, or if no liquidated damages 4.1 Arrange for the Contractor, with consent of the are specified in the Construction Contract,actual dam- Owner, to perform and complete the Construction ages caused by delayed performance or non-perfor- Contract; or mance of the Contractor. 4.2 Undertake e to perform and complete the Construe- 7 The Surety shall not be liable to the Owner or others for Con- tion Contract to through its agents or through rode- obligations of the Contractor that are unrelated to the Con- pendent contractors; or struction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such 4.3 Obtain bids or negotiated proposals from unrelated obligations. No right of action shall accrue on qualified contractors acceptable to the Owner for a this Bond to any person or entity other than the Owner or contract for performance and completion of the Con- its heirs, executors, administrators or successors. struction Contract, arrange for a contract to be pre- g The Surety hereby waives notice of any change,includ- pared for execution by the Owner and the contractor ing changes of time, to the Construction Contract or to selected with the Owner's concurrence, to be secured related subcontracts, purchase orders and other obli a with performance and payment bonds executed by a g 11ons. qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the 9 Any proceeding, legal or equitable, under this Bond amount of damages as described in Paragraph 6 in ex- maybe instituted in any court of competent jurisdiction in cess o€the Balance of the Contract Price incurred by the the location in which thework or part of thework is located Owner resulting from the Contractor's default; or and shall be instituted within two years after Contractor 4.4 Waive its right to perform and complete,arrange Default or within two years after the Contractor ceased for completion, or obtain a new contractor and with working or within two years after the Surety refuses or fails reasonable promptness under the circumstances: to perform its obligations under this Bond,whichever oc- curs first. If the provisions of this Paragraph are void or .1 After investigation,determine the amount for prohibited by law,the minimum period of limitation avail- AIA DOCUMENT A312-PERFORMANCE BOND AND PAYMENT BOND-DECEMBER 1984 ED -AIA(' THE AMERICAN INSTITUTE OF ARCHITECTS, 1736 NEW YORK AVE.,N W,WASHINGTON.D C 20006 A312-1984 2 THIRD PRINTING-MARCH 1987 able to sureties as a defense in the jurisdiction of the suit tractor of any amounts received or to be received by shall be applicable. the Owner in settlement of insurance or other claims 10 Notice to the Surety,the Owner or the Contractor shall for damages to which the Contractor is entitled, re- be mailed or delivered to the address shown on the sig- duced by all valid and proper payments made to or on nature page. behalf of the Contractor under the Construction Con- tract. 11 When this Bond has been furnished to comply with a 12.2 Construction Contract:The agreement between statutory or other legal requirement in the location where the Owner and the Contractor identified on the si the construction was to be performed,any provision in this g' nature page, including all Contract Documents and Bond conflicting with said statutory or legal requirement changes thereto, shall be deemed deleted herefrom and provisions con- forming to such statutory or other legal requirement shall 12.3 Contractor Default: Failure of the Contractor, be deemed incorporated herein. The intent is that this which has neither been remedied nor waived,toper- Bond shall be construed as a statutory bond and not as a form or otherwise to comply with the terms of the common law bond. Construction Contract. 12 DEFINITIONS 12.4 Owner Default: Failure of the Owner,which has 12.1 Balance of the Contract Price: The total amount neither been remedied nor waived, to pay the Con- payable by the Owner to the Contractor under the tractor as required by the Construction Contract or to Construction Contract after all proper adjustments perform and complete or comply with the other terms have been made, including allowance to the Con- thereof. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: (Space is provided below for additional signatures of added parties, other than those appearing on the cover page) a CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Signature. Name and Title* Name and Title: Address. Address* AIA DOCUMENT A312-PERFORMANCE BOND AND PAYMENT BOND-DECEMBER 1984 ED -AIA THE AMERICAN INSTITUTE OF ARCHITECTS,1735 NEW YORK AVE.,N.W.,WASHINGTON,D C.20006 A312-1984 3 THIRD PRINTING-MARCH 1987 THE AMERICAN INSTITUTE OF ARCHITECTS Bond No 105072507 AlA Document A311 Labor and Material Payment Bond THIS BOND IS ISSUED SIMULTANEOUSLY WITH PERFORMANCE BOND IN FAVOR OF THE OWNER CONDITIONED ON THE FULL AND FAITHFUL PERFORMANCE OF THE CONTRACT KNOW ALL MEN BY THESE PRESENTS: that Clancy & Theys Construction Company (Hero insert M namo and address or legal We of Contractor) 516 West Cabarrus Street Raleigh, NC 27603 as Principal, hereinafter called Principal, and, Travelers Casualty and Surety Company of America (Hero insert fuU name and address or legal We of Surety) One Tower Square, Hartford, CT 06183 as Surety, hereinafter called Surety, are held and firmly bound unto Orange County (Hero assert Na namo and address or legal Lido of Owner) P O Box 8181 Hillsborough, NC 27278 as Obligee, hereinafter called Owner, for the use and benefit of claimants as hereinbelow defined, in the amount of One Million Three Hundred Eight Thousand Seven Hundred Thirty Three Dollars and 00/100 (Here insert a sun equal to at least one-half of the contract price) Dollars($ 1,308,733 00 , for the payment whereof Principal and Surety bind themselves, their heirs, executors, administrators, successors and assigns,jointly and severally, firmly by these presents. WHEREAS, Principal has by written agreement dated February 19, 2008 , entered into a contract with Owner for (Hen insert fsrfl name,address and description of project) Orange County Animal Services Facility Site Construction, Chapel Hill, North Carolina in accordance with Drawings and Specifications prepared by (Hero insert futl name and address or legal We of Architect) which contract is by reference made a part hereof, and is hereinafter referred to as the Contract. ILA DOCUMENT A311 PERFORMANCE BONO AND LABOR AND MATERIAL PAYMENT BONO • AIA FEBRUARY 1970 E0. THE AMERICAN INSTITUTE OFARCHITECTS,1736 N.Y.AVE,N.W.WASHINGTON,D.C.20000 1 LABOR AND MATERIAL PAYMENT BOND NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that if Principal shall promptly make payment to all claimants as hereinafter defined, for all labor and material used or reasonably required for use in the performance of the Contract,then this obligation shall be void, otherwise it shall remain in full force and effect subject, however,to the following conditions: 1. A claimant is defined as one having a direct and the name of the party to whom the materials were contract with the Principal or with a Subcontractor of the furnished, or for whom the work or labor was done or Principal for labor, material, or both, used or reasonably performed. Such notice shall be served by mailing the required for use in the performance of the Contract, labor same by registered mail or certified mail, postage prepaid, and material being construed to include that part of water, in an envelope addressed to the Principal,Owner or Surety, gas, power, light heat oil, gasoline, telephone service or at any place where an office is regularly maintained for the rental of equipment directly applicable to the Contract transaction of business, or served in any manner in which 2. The above named Principal and Surety hereby jointly legal process may be served in the state in which the and severally agree with the Owner that every claimant as aforesaid project is located,save that such service need not herein defined, who has not been paid in full before the be made by a public officer. expiration of a period of ninety (90) days after the date on b) After the expiration of one(1)year following the date on which the last of such claimant's work or labor was done or which principal ceased Work on said Contract, it being performed, or materials were furnished by such claimant, understood, however, that if any limitation embodied in this may sue on this bond for the use of such claimant bond is prohibited by any law controlling the construction prosecute the suit to final judgment for such sum or sums hereof such limitation shall be deemed to be amended so as may be justly due claimant and have execution thereon. as to be equal to the minimum period of limitation permitted The owner shall not be liable for the payment of any costs by such law. or expenses of any such suit c) Other than in state court of competent jurisdiction in 3. No suit or action shall be commenced hereunder by and for the county or other political subdivision of the state any claimant: in which the Project, or any part thereof, is situated, or in a) Unless claimant other than one having a direct the United States District Court for the district in which the contract with the Principal, shall have given written notice to Project,or any part thereof, is situated,and not elsewhere. any two of the following: the Principal, the Owner, or the 4. The amount of this bond shall be reduced by and Surety above named, within ninety (90) days after such to the extent of any payment or payments made in good claimant did or performed the last of the work or labor, or faith hereunder, inclusive of the payment by Surety or furnished the last of the materials for which said claim is mechanics' liens which may be filed of record against said made, stating with substantial accuracy the amount improvement whether or not claim for the amount of such claimed lien be presented under and against this bond. Signed and sealed this 19th day of February, 2008 ATTEST: Clancy & Theys Construction Company {Principap (SeaA B : (Witness) �/1 B �' / s Mud) WITNESS: Travelers Casualty and Surety Company of America / (Surety) (Sea4 B (Witness) 6 : Kitara mith ^7e) Attorney-in-Fact ALA DOCUMENT A311 PERFORMANCE BOND AND LABOR AND MATERIAL PAYMENT BOND AIA FEBRUARY 1870 E0. THE AMERICAN INSTITUTE OF ARCHITECTS,1735 N.Y.AVE,N.W,WASHINGTON,D.C.20006 2 TRAVELERSJ POWER OF ATTORNEY Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In-Fact No 219766 KNOW ALL MEN BY THESE PRESENTS:That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York,that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota,that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa,and that Fidelity and Guaranty Insurance Underwriters,Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies") and that the Companies do hereby make,constitute and appoint Angela B. Britt, Sandra B. Byrum,Richard V.Haar,Jr.,Phoebe Honeycutt,Kenneth J. Peeples, Kitara A. Smith, and Benton Kyner of the City of Durham, State of North Carolina, their true and lawful Attorney(s)-in-Fact,each in their separate capacity if more than one is named above,to sign,execute,seal and acknowledge any and all bonds, recognizances, conditional undertakings, and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons,guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law IN WITNESS WHEREOF, the Companies have caused this instrument to be signed and their corporate seals to be hereto affixed,this 19th day of February,2008. Farmington Casualty Company St.Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St.Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company _ State of North Carolina ByG j^"^`j'� City of Charlotte ss. Steve Santa Ana,Vice President,Bond On this the 19th day of February,2008,before me personally appeared Steve Santa Ana,who acknowledged himself to be the Vice President, Bond of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,and that himself,as such,being authorized so to do,executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer In Witness Whereof,I hereunto set my hand and official seal. My Commission expires the 16th day of November,2008. Shannon M.Wall,Notary Public