HomeMy WebLinkAboutAgenda -11-06-2008 - 4pORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: November 6, 2008
Action Agenda
Item No. + — ,2
Manager at Risk Services for Hillsborough 1
SUBJECT: Contract Approval: Construction
Commons
DEPARTMENT: Purchasing PUBLIC HEARING: (Y /N) No
ATTACHMENT(S):
Contract
(Under Separate Cover)
INFORMATION CONTACT:
Pam Jones, 919 - 245 -2652
Nancy Coston, 919 - 245 -2800
PURPOSE: To consider approval of a contract with Resolute Building Company, Inc. (RBC) to
provide Construction Manager at Risk ( "CMAR ") services for the renovation and adaptive re -use
of space leased at the Hillsborough Commons Facility for use as office space by the
Department of Social Services.
BACKGROUND: On September 2, 2008, the Board approved a lease for approximately 57,000
square feet in the Hillsborough Commons Shopping Center on Mayo Street, Hillsborough for
use as offices for the Department of Social Services (DSS). The County has an option to
purchase the entire shopping center by February 2012.
On March 6, 2008, the Board authorized staff to retain the services of an architect to design the
project. Corley Redfoot Zack (CRZ) of Chapel Hill was selected following interviews with three
local architects. (Dixon Weinstein Architects, MHA Works and CRZ). The design process has
begun with the DSS supervisors. A design charrette is planned in the near future to ensure
input is received from the entire DSS staff, DSS Board members and County Commissioners.
In early October 2008, solicitations for CMAR services were received. A total of five firms
submitted proposals and three were interviewed. (LeChase Construction, Professional Builders
and Resolute Building Company). While all interviewees are imminently qualified contractors,
Resolute Building Company (RBC) of Chapel Hill is recommended based on its specific
qualifications and experience for this project. The designer, CMAR and County staff have
devised a schedule that allows the project construction to commence in early January 2009 with
delivery for DSS use projected for the late- second quarter of 2009.
FINANCIAL IMPACT: The contract for the pre- construction services is $6,500. At such time
design information is prepared in sufficient detail so the CMAR can price the work, a
Guaranteed Maximum Price ( "GMP ") will be prepared and presented to the Board for approval.
Should the Board accept the GMP, the pre- construction services fees included within this
contract will be waived. The DSS Space Capital Project Ordinance, approved by the Board on
May 1, 2008, provides initial funding for this project, including the $6,500 for these pre -
construction services.
In
RECOMMENDATION(S): The Manager recommends the Board approve a contract with
Resolute Building Company, Inc. (RBC) to provide Construction Manager at Risk ( "CMAR ")
services for the renovation and adaptive re -use of space leased at the Hillsborough Commons
Facility for use as office space by the Department of Social Services; and authorize the Chair to
sign on behalf of the Board.
ORANGE COUNTY = AGREEMENT FOR CONSTRUCTION
NORTH CAROLINA . _ MANAGER AT RISK SERVICES =
This AGREEMENT.is"inade and effective an this date:.
BETWEEN The Owner-;_
ORANGE COUNTY, NORTH CAROLINA (hereinafter referred to as "Owner or "the Owned')
And the Construction Manager At.Risk (hereinafter referred to as "CMAR` or `the CMAR"):
RESOLUTE BUILDING COMPANY, -INC.
For services In. connection with the Project known as:
The HILLSBOROUGH COMMMONS as further described in Article 2
For,which the Designer is:
CORLEY, REDFOOT, ZACK ARCHITECTS & ENGINEERS, ATTN: KEN REDFOOT, -222 CLOISTER -
COURT, CHAPEL HILL, NC 27514
,The Owner and CMAR- in consideration of their mutual covenants herein, agree as set forth `below:. .
TABLE OF CONTENTS =
ARTICLE 1 - RELATIONSHIP OF THE PARTIES . ............................... ............ 4 . .
...... ...........
1.1 : Omer. and Construction Manager At Risk
12— ner .
1.3 CMAR and Contractors
1.4 Relationship of the CMAR to the Deslaner
3.12
ARTICLE 4 - TIME FOR PERFORMANCE ...............................................:..................... ....................:..........
-16
4.1 pat on_
4.2 Master Scheduie ..
4.4 Schedule Adlusimerrt
4.5 Early Start
4.6 Rec overt
4.7 Schedule AAonMdna
4.8 Schedule Radslons
4.9 Withholding Payment from CMAR
4.10 Work by Owner
4.11 Force Maleure
4.12 Noflos
4.13 Wea ber Delays
4.14 Qamages for Delay
4.15 Liquidated Damaggti
ARTICLES - CHANGES IN THE CONSTRUCTION MANAGER AT RISK'S SERVICES AND ADDITIONAL
19
COMPENSATION .
5.1 Owner Chanoes
ARTICLE 6 - OWNER'S RESPONSIBOTIES .................................:............:...:............. ...............................
20
6.1- Program
6.2 De dsi6m ;
6.3 Insurance .
6.4 Notice of Nonoonformities
6.5 &qmda .
6.6 Dgifter
6.7 Budget
6.8 Sevamte Contracts'
6.9 Copies of Drawinas and Specifications
6.10 Permits and Awroyais
6.11 Fundlno Reouirernwts ;
6.12 Communication wlth Contrac3ors
6.13 Copies of Notes and Communication
6.14 Owner's Represantative
6.15 Pawnentl to CMAR . . .
ARTICLE 7 - GUARANTEED MAXIMUM PRICE AND PAYMENT ....................................: ......:........................
21
7.1 Guaranteed Ma)dmum Price
7.2 Cost of the Work
7.3 Adiustments to the Guaranteed Maximum Price
7A Flxed Fee and General Condittons Costs
2.
ARTICLE 8 - INSURANCE AND INDEMNITY ................................................................ ...:...........................
25
8.1 CMAR's Liabi ft Insurance
8.2 Builder's Rl, k Insurance
8.3 indemnity
ARTICLE 9 - TERMINATION AND SUSPENSION ......................... ..................................... ..... ........................
27
. 9.1 Termination for Convenience
9.2 Termination for Default
9.3 Additional Termination Provisions
9.4 Suspension
ARTICLE 10 - DISPUTE RESOLUTION ......................................................................... ...............................
29
ARTICLE 11- ADDITIONAL PROVISIONS ............................... ...:............ ....................................................
30
11.1 Confidentiality
11,2 Signs . .
11.3 Limitation and ssignme
11.4 Minority Bgslness Enterprise Program
11.5 Extent of Aarepment
11.6 Severability
11.7 Meanina of Terms -
11.8 Notices
11.9 Bonds
11.10 Ownership of Documents -
ARTICLE 12 - SPECIAL GUARANTEED MAXIMUM PRICE PROVISI ONS ........................... ...............................
31
12.1 Guaranteed MaAmum 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 Chimer and Construction Man@= 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 tD'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 we 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 Destaner
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.
1.4 Relationship of the CMAR to the Designer
In pro viding construction management services described in
this Agreement,' the . CMAR. shalt 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 shalt mean the
total construction of which the Worts may be a whole or part of
the Project The term 'Wont required for the "Project used in
this Agreement shall mean the various parts of total
construction to be performed under this Agreement
Tti8 Project name and location is the Hillsborough Commons,
Hillsborough, North Carolina. The Project is intended for use as
a-
as more fully described In this Agreement and all site plan and
related documents submitted to The Town of Hillsborough as
part of the Site Plan approval of the Project and as those
documents . are or will ba . modified to conform to Project
approvals obtained by the Owner.
The Project shall be fully described In the Contract Documents,
whfoh 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.
The CMAR shall enter Into contracts for labor, materials and
services in accordance with N.C. Gen. Stat. § 143 -128.1 and ARTICLE 8 .
other sections of Chapter 143 Article 8 of the North Carolina CONSTRUCTION MANAGER AT RISK'S SERVICES
General. Statutes relating to construction management 'at risk
contracts. In this Agreement the term `Contractor* or 3.1 CMAR $tA
`Contractors' shall refer to all persons with such contracts with. The CMAR shall perform the Services described herein. The
the CMAR.. sequence in which they are provided shall be as set forth in the
approyed'Construction Management Plana . .
4 ;
3.2 CMAR Personnel
The services to be provided by. the CMAR under this
Agreement shag 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 it €ts.
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
3.2.2 CMAR's Pmiect Representative
The. CMAR shalt designate a Project Representative who has
the authority to act on behalf of the CMAR to respect to all
matters that are . the subject of this Agreement, IncludQng,
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
ProjecE. The CMAR shall then develop various alternatives for
the sequencing and 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.
approval may be granted or withheld In the Owner's sole 3.4 Consultant Selection
discretion. The CMAR shall bear, at its own expense and If requested by the Owner, the CMAR shall assist the Owner In
without reimbursement by the Owner, all costs associated with the selection of designers and other consultants necessary for
replacing, for any reason, any approved personnel. The CMAR_ -the .Project. (generally referred to In this Agreement as
shall remain solely responsible to the Owner, notwithstanding . • . ."Consultants ") by developing lists of potential firms, developing
the .Owner's approval of any approved personnel, for the criteria for selection, preparing and transmitting the requests for
quality and performance of all services provided by such proposal; assisting In reviewing written proposals, assisting In
personnel. -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 shalt receive information regarding the ,Project
scope, schedule, budget, and administrative requirements.
3.5 Time Management
The CMAR shall be responsible for Project scheduling and
efficient and timely prosecution and completion of the Work, as
follows:
3.5.1 Master Sgbgdule
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 partles 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 th e 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 actiMbes shall Include schematic design'
documents, design development . documents,' constriction
documents, permitting, creation of separate specifications and
6
bid packages,• and selection and approval of longtead 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 a Pre-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 Ma)dmum Price agreed to by the CMAR and the
Owner as set forth herein.
3.6.1 Construction Market Ssnvev
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 . Protect and Construction Budget
Based on the Construction. Management _ Plan and the
Construction Market'Survey, the CHAR 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, • geotectrnicat
Investigations, environmental assessments or other testing or
investigation is necessary and reasonable to fashion a reliable
Project and Construction Budges, - the OMAR 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 Own_ er, 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 tjmate and Budget Analyses
The CMAR shall analyze and report to the Owner the cost of. .
various design and construction altematives, -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 valances from the: Project and
Construction Budget as well as the assumptions made by the
OMAR 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
16.5 PrOIW and Construction Budget Revision
The CMAR shall make recommendations .:to the Owner
conceming 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 Engineerina 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.
7
3.6.7 Estimates for Addenda
Prior to bidding, the CMAR shall notify the Owner and the
Designer If any addendum Issued by the Designer could impact
the Cost of the Work of the Project, and will prepare an
estimate, of costs for all such addenda and shall submit the
estimates to the Owner for approval. After approval by the .
Owner, addenda shall be transmitted to bidders by the CMAR.
Once bids are received and contracts are awarded to 'each
Contractor, any addenda issued by the Designer which affects
a Contractor shall be processed through the change order
provisions In the Agreement
3.6.8 Analyzing Bids: Upon receipt of bids, the CMAR shall
evaluate the bids, including altemate prices and unit pikes,
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
$ceduie
(Not used.]
3.6.11 Change Order Control
The CMAR shall establish and Implement 6-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 Specificabons prepared by the
Designer. In response to the request for a proposal, the
Contractor shall submit to the CMAR for evaluation detailed
information concerning the costs and time adjustments, if any,
necessary to perform the proposed change order work. The
CMAR shall review the Contractor's proposal, shah 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 43uaranteed
Maximum Pdce. The WAR shall present Its findings to the
Owner. and Designer. Following Owner acceptance, the
Designer shall prepare the _drange 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 Contractors 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
Contractors request,, consider the .Designers 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 Coritractor.
3.6.11.3.ln 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 b1tudles
The CMAR shall provide trade-off studies for various minor
construction. components. The results of the trade -off studies
shall be in report form and distributed to the. Owner and
Designer.
3.6.13 Prooress Pa meets
8
in consultation with the Designer, the CMAR shall Inspect the
work to determine compliance with the Contract Documents,
review the monthly payment applications submitted by each
Contractor ' and determine whether the amount requested
reflects the progress of the Contractor's Work. The CMAR
shall make appropriate adjustments to each payment
app cation 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 ca tificate.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 dear of all - liens and claims from
Contractors, subcontractors, or suppliers.. Each . payment
application from each Contractor and the. CMAR shall contain
sales tax information on forms provided by the Owner.
3.7 Management Information System (MIS)_
The CMAR shall develop a MIS to establish communication
between the Owner, CMAR, Designer, and other parties on the
Project In developing the MIS, the CMAR shall' interview the
Owners and the Designers 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 ail
design and construction schedules. During the Construction
Phase the reports shall compare the actual construction dates
to scheduled construction dates of each. separate construction
contract and to the Master Schedule for the Pro] ect. -
3.7.3 Protect Cost Reoc.M
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 Reoort
The CMAR shall periodicraity 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 Chance drier Re6o ..
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 Ownervapproved change orders by number,
a brief descxiptlon 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 Proied and Construction Budget evlsions
The -CMAR shall make' recommendations to the Owner
concerning construction" changes that may result in revisions to
the Project Guaranteed Maximum Price..
9
3.7.7 Progress Payment Reports (Each Contradl
The CMAR.shall prepare and distribute the progress payment
reports. The reports shall state the total construction contrail
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 sha compile and organise all Inspection reports
for the Project records.-
3.7.10 Closeout Reports
At the conclusion of the Project, the CMAR shall prepare final
project accounting and closeout reports.
3.7.11 MIS Reports for Move4n and Ocaipancy
In consultation with the Owner, the Designer and appropriate
regulatory agendes; the CMAR shall prepare and distribute
reports associated with the Occupancy Plan.
3.8 Arlan Phase Services
All drawings and specifications shall be prepared by the
Designer and submitted to the Owner for 'review' and
authortmUon to proceed with procurement and construction.
The-'CMAR 'shall provide the following services related to
design of the Project:
32.1 Proied 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
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 Da Wan Phase Information .
-The CMAR -shall monitor the Designers 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 Meeting
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 for the
exchange of Information concerning the Project and the review
of design progress. The Designer shall prepare and distribute
minutes of these meetings to the Owner. CMAR and others.
3.8A Review of Design Documents
The CMAR shall review all design documents, including
drawings, specifications, addenda, and supplemental design
Information, for clarity, consistency, constructibiilty 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 parr, 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 Deslon 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 besion Reviews
The CMAR shall expedite the Owner's design reviews by
compiling and conveying the • Owners comments to the
Designer.
3.8.7 Aooromb by Regulatory Agencies -
The CMAR shall assist the Designer with transmittal of
-documents to regulatory agencies for review and shall advise
of potential problems in completing such reviews.
3.8.8 Construction Contracts and General Conditions
The CMAR shall recommend for approval by the Owner the
appropriate Contractor bid packages. The CMAR shall take
Into account the needs of the Project, the Master Schedule, risk
management, and the available resources, and divide the Work
fnr 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, , etectticai, '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 constriction for the
Project shall be based on's farm of Agreement selected by the
CMAR that Is consistentwith 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 incluslon-in bid packages. The
Designer and the CMAR will. collaborate on the preparation of
the general Divislon -One requirements of the Specifications.
Separate General Conditions -for,materiais . and equipment
procurement shall be prepared by the CMAR to meet the
specific requirements bf the Project using. forms approved by
the Owner. -The CMAR. shall .be afforded .a reasonable
opportunity to review[ and comment an all special warranties
and other obligations imposed on the .Contractors by the
Specifications.
3.8.9 RUbllic Relations
The CMAR shall assist the Owner In public relations activities
and shall prepare information for' and -attend public meetings
regarding the Project as reasonably required by the Owner.
3.8.10 Project Fundina
The CMAR shall assist the Owner in preparing documents
conceming the Project for -use ki obtaining or.reporting on
project funding. The documents shall be prepared in a form
approved by the Owner.
3.9 Procurement PhasQ
All construction contrasts. labor. materials and serviges shalt be
procured in accordance with N.C. Gen: Stat 4 143 -128.1 and
other sections of Chapter 143 Article 8 of the North Carolina
General Statutes relating to construction management at risk
contrails.
3.9.1 Preaualif ins Bidders
The CMAR shall develop lists of possible bidders and shall
prequalify bidders. This service shall Include the following:
preparation and transmission of questionnadres; receiving and
analyzing completed . questionnalres; 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 Owners Minority Business
Enterprise Policy, attached to this Agreement as Appendix C.
3.9.3 Nodes and Advertisements
The CMAR shall prepare and place notices and advertisements
to solicit competitive bids for the Project.
3.9.4 lie ven 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 Prf4ld 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
11
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 'tire 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 Ooenina
-The CMAR.shall conduct bid openings 1n accordance with
statute. and shall evaluate the bids to determine the lowest
responsive and responsible bidder. The CMAR shall not award
or enter into any contract for Work on the Project until the
CMAR has provided the Owner with written notice of the intent
to award the contract with reasons for awarding the contract to
the 'successful bidder. - This written notice shall also describe
compliance by the bidder with the Owner's Minority Business
Enterprise Policy, attached to this Agreement as Appendix
C - . The Owner shall be given reasonable opportunity to
consider the qualifications of the successful bidder, and the
Impact of award of the contract on. the Project and Construction
Budget
3.9.9 Construction Contracts
At the direction.-of the Owner, the CMAR shall . prepare,
execute, and deliver the Contract Documents between the
CMAR and the Contractors. The CMAR shall also issue the
notices to proceed.
3.9.10 Permits. Insurance and Labor Affidavits
The CMAR shall verify that all required building permits, bonds,
Insurance, labor aifldav€ts, 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- Construcfion Conference
In connection with the Designer, the CMAR shall conduct a
Pre- Constructlon 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 Con Gtion 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 shat{ establish and implement proce dures 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 dally job reports. The CMAR all be the party
to whom requests for Information, submittals. Contractor
schedule adjustments, substitutes, change order requests and .
payment requests shall be submitted by the Contractors.
3.10.4 Project Site Meetings
The CMAR shall conduct weekly coordination meetings at the
site with all Contractors. As set forth In the Master Schedule
and the Contract Documents, the CMAR shall conduct pre-
Installation
and preconstruction meetings for key components
of the Work. The CMAR shall conduct a monthly meeting with
the Owner and the Designer to update them on progress of the
Work. The CMAR shall record, transcribe .and distribute
minutes of all project site meetings to all attendees, the Owner
and Designer.
3.10.6 Contractors Construction Schedule
The CMAR shall review, to the extent required by the CMAR,
each Contractors 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 Contractiors 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
Contractors 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 €ndicate the actual progress
corn pared 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.
3.10.6 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'theContract Documents. The CMAR
shall review and .ascertain that the Contractor is providing
sufficient resources to regain lost time.
3.10.8 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
- Contactor, assemble information concerning the request and
to endeavor to determine the cause of the request. in instances
where the CMWa analysis reveals that the request Is valid,
the CMAR shalt prepare a detailed report to the Designer and
the Owner for review, consideration and approval. The CMAR
3.10.5 Coordination of Other Independent Consultant shall, prior to the issuance of a change order, determine the
Technical Inspection and testing required by the Designer, the, effect on the Master-Schedule of time extensions requested by
Owner or others shall be coordinated by the CMAR. The the Contractor." The Designer shall prepare the necessary
CMAR shall be provided with a copy of all Inspection-and change order documents for signing by the CMAR, Designer
testing reports'on the day of the inspection or test or when and Owner. The CMAR shalt then prepare the.necessary
Issued. documents to _.effect a change to the contrail with the
Contractor. in, its sole discretion the Owner may approve a
12 _
change in the Guaranteed Maximum Price that corresponds
with any approved construction contract change order.
3.10.10 Quality Review and W rranw
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 Contactor or manufacturer as
provided In the Contract Documents. Such warranties shall
provide, at a minimum, for the repair or replacement bf
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 oonstruction. The purpose of the
program shall be to guard the Owner. against .defects and
deficiency in the work of the Contractors. The CMAR shah
transmit to the Designer and the Contractor a notice of
nonconforming work and may require that ' the Contractors
correct Work at no expense to the Owner when it Is the opinion
of the 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 Tesfina 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
shag 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: '
13
3.10.42 motion and Maintenance Materials .
The CMAR shall . obtain frwn 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
forW -ffve (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 arty time prior to completion of the period of warranty, the
Designer may submit to the CMAR a supplemental deficiency
list, in which case the CMAR shall complete or correct any and
all new -items identified on the Supplemental deficiency list.
3.10.14 Final Completion
In consultation with the Designer, the CMAR shall determine
when the Project and the ` Contractor's Work are finally
completed and, following completion of corrections, shall issue
a Certificate of Final Completion to the Owner. Upon delivery
of the Certificate of Final Completion to the fawner, the CMAR
shalt 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 bodliy 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 Ames. .
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 s -as the CMAR deems reasonable.
and prudent
3.10.15.1 The CMAR gran provide cover and protect all
portions of the structure when the Wont .is not. In progress,
provide and set all temporary roofs, covers for doorways, sash
and windows,. barricades, and all other materials necessary to
protect all the Work on the building, whether set by It or any of
the Contractors. Any completed Work or Work in progress
damaged through the lack of proper .protection _or. from any
other cause shall be repaired or replaced without. extra cost to
the Owner.3.10.15.2 No fires of any kind will be allowed inside
or around the operations during the course of construction.
3.10.15.3 The CMAR shall protect all. trees and shrubs
designated to remain in the vicinity of the operations by
building substantial protection around same. The CMAR shall..
barricade all walks, roads, etc., as authorized by the Owner to
keep the public away from the construction. All trenches, . .
excavations or other hazards in. the vicinity of the Work shall be
well barricaded and properly lighted at night
3.10.15.4 The CMAR shall develop and Implement a;Project_
Safety Program. The Owner may reject the Project Safety .
Program . and .require that it be rewritten if in the Owner's
reasonable. opinion the Safety. Program is. inadequate. The
CMAR shall report, to the Owner, as part of the MIS, any safety
violations and aclions' taken to protect the safety of persons
and property engaged In the Project The CMAR.shall"require'.
14
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 failing 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 onstte,
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 onstte
safety officer.
3.10.15.10 In the event of emergency affecting the safety of
life, the protection of Work, or the safety of adjoining properties,
the CHAR is hereby authorized to act at .its own discretion,
without further authorization from anyone, lo 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 precaWons 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
remedlation of the material. or substance from the site. If the
CMAR dalm's its progress in completing the Project is delayed
because of the remedlation response to the site, the CMAR
shall file notice and a claim In accordance with this Agreement
3.i0.15.12 Any land-disturbing activity performed by the CMAR
In connection with the Project shall comply with all erosion
control measures set forth in the Contract Documents and any
additional measures which may be required In order to ensure
that the Project Is In full compliance with. the Sedimentation
Pollution Control Act of 1973, as.. implemented by Title 15,
North Carolina Administrative Code, Chapter 4, Sedimentation
Control, - Subchapters 4A, 48 and 4C, as amended (15
N.C.A.C. 4A, 4B 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 Q=nlze and Index Operations and Maintenance
terfa!
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 Oocuoancv 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! CMA ;4 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 'rf not explicitly
described therein, unless the tasks or functions are explicitly
described as Additional Services In thls 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- fumished
equipment, materials, supplies and fumishings with the Work of
the Contractors is required and is not an Additional Service;
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 m9ve4n 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. lhe Project and providing on-
site personnel to oversee -the- relocation 'of furniture and
equipment by the movers while actual move4n is in progress
are Additional Services; provided, however, that coordination of
the Work of the Contractors with move mitt 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 Masser Schedule
The CMAR's Services .shall be. performed for the periods of
time Indicated In the approved Master Schedule. Firm date_ s for
substantial :completion and final completion of the Project shall
16
also be fixed. At that Ume .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. th e CMAR can and•wlll 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- waivter
If the CMAR submits a construction schedure, 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 AdjuWM
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
ArUde 5 of these General Conditions.
4.5 Early Start
[Not used.]
4.6 RecoyeltC
Should the CMAR fail to start a critical activity on the start date
shown In the Master Schedule or as it may have been adjusted
In accordance with this Article, or become delayed, the CMAR
and Its Contractors shall, Without being entitled to any Increase
In the Guaranteed Mardmum 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
Compledon.Date may have been adjusted. "
41 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 respell 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 fumish copies thereof to the Owner and Designer.
4.8 Withholding Payment from CMAR
Should any monthly revision of any Master Schedule show that
the CMAR is behind on any critical activity, the late completion
of which could delay Substantial Completion of the Work, the
Owner shall be entitled to withhold from the next Progress
Payment due the CMAR an amount not exceeding the amount
the Owner would be entitled to in Liquidated Damages, should
Substantial Completion be delayed by the same number of
days that the CMAR is currently behind schedule. lf,
subsequently, the Project progress, as shown by any
succeeding monthly revision to the Master Schedule, Is such
that the anticipated delay no longer exists, the Owner shall pay
with the Progress Payment next due to the CMAR such
amounts as have been withheld In accordance with this
paragraph.
4.10 Work by Owner
If the CMAR, within a period of five (5) days after notice that it
Is behind In a critical activity or is otherwise in default under this
Agreement, shall not proceed In good faith and with reasonable
speed to correct such delay or default in accordance with such
notice, the Owner shall have full power and authority to take
the prosecution of the Work out of the hands of the CMAR, to
appropriate or use any br 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,
17
tent equipment, subcontract with other parties, or do anything
that the Owner deems necessary or appropriate to remedy or
cure any delay or default by the CMAR In the progress of the
Work. Such action by the Owner shall not in any way, affect,
void or limit any warranty, guaranty or other responsibility of the
CMAR under the Contract Documents. Such action may be
taken by the Owner only after five (5) days written notice to the
CMAR.. All costs incurred by the Owner.in taking any such
action shall be charged to the CMAR and deducted from any
amounts due under the Agreement.
4.11 Force Majoure
The CMAR may be entitled to an extension of the time for
completion -(but no increase in the Guaranteed Ma)dmum 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 OMAR or the CMAR's
Contractors as follows-.
4.11.1 Ads of God, tomado, fire, hurricane or earthquake that .
damage completed Work or stored materials.
4.11.2 Acts of sabotage that damage completed work or stored
materials.
4.11.3 Labor disputes at the project site.
4.11.4 Unavoidable casualties that damage completed work or
stored materials.
4.11.5 Acts of the public enemy.
4.11.6 Acts of the State, Federal, or local government in their
sovereign capacities. "
4.11.7 -Abnormal Inclement weather as defined In
Paragraph 4.13.
If the Faroe 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.
The CMAR and the Contractors shall not be entitled to and
hereby expressly walve and 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 aft delays, except excessive Inclement
weather which shall be made in accordance with paragraph
4.13. A11 claims not filed in accordance with this Article shall be
valved by the CMAR. Circumstances and activities leading to
such claim shall be indicated or referenced in a daily field
Inspection report for the day(s) affected. In every such written
claim, the CMAR shall provide the following Information: .
4.12.1 Nature of the Delay,
4.12.2 Date (or Anticipated Date) Of Commencement of Delay:
4.12.3 Activities on the Progress Schedule affected by the
delay, and/or new activities created by the delay and their
relationship with existing activities:
4.12.4 Identification of person(s) or organization(s) or events(s)
responsible for the delay,
4.12.5 Anticipated extent of the delay; and
4.12.6 Recommended action to avoid or minimize the delay
4.13 Weather Delays
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
18
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 shaft 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 Dama es 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 majeurs . condition or Is
otherwise not caused by the -sots and direct act or omission of
the Owner and the Owner's employees or agents.
4.15 Liquidated Damages
The CMAR specifically recognizes that a delay by the CMAR in
achieving the Substantial Completion of the Project will
necessarily cause damages, losses, and expenses to the
Owner, Including, but not limited to and by way of illustration
only, Increased capitalized costs and interests for the Project,
Increased and extended Project overhead, Designer's and
Consultant's fees, incr eased. 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 ikelihood 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 Five Hundred Dollars ($500)
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 speed, 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 OMAR'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 shag 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 shag 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
11-11
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 Cost of the Work exceeds one
hundred and five percent (105 %) of the Cost of the Work set
forth in the original agreed Guaranteed Maximum Price. If an
Increase in the Fixed Fee is justified, the CMAR shall be
entitled to an increase in the Fixed Fee equal to seven percent
(7 %) 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 to its discretion approve
adjustments to the Fixed Fee prior to the end of the Project
5.12.2 General Conditions
The amount of additional General Conditions costs to be paid
to the CMAR and the amount of extension of the duration of
this Agreement shall be determined on the basis of the
CMAR's reasonable additional General Conditions costs after
determining the increased services and length of the
extensions of the duration of this Agreement A change in the
Drawings and Specifications or other change In the scope of
the Work shall not automatically entitle the CMAR to an
Increase in compensation. Increases in the compensation
payable to the CMAR shall only be payable upon proof of an
Increase in the actual duration or level of services being
provided by the CMAR, or both.
5.1.2.3 Cost of the Work
increases in the Cost of the Work shall be determined in
accordance with the provisions of Article 7 of this Agreement
5.1.3 Payment of Additional Compensation
The CMAR shall submit Invoices for additional compensation
with Its Invoice for Services and payment shall be made
pursuant to the provisions .of Article 7 of this Agreement
. ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 PCB
The Owner shall provide to the CMAR complete information
regarding the Owner's requirements for the Project.
6.2 Decisions
The Owner shall examine information submitted by the CMAR
and shall render decisions thereto promptly.
6.3 Insurance
The Owner shall fumish the Insurance that the Owner has
agreed to furnish as specified in Article S.
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
responsibliMes shall be described in a written agreement
between the Owner and Designer. The services, "duties, and
responsibilities of the Designer set out in the agreement
between the Owner and Designer shall be compatible and
consistent with this Agreement and the Contract Documents.
The Owner shall, in its agreement with the Designer, require
that the Designer perform its services In cooperation with the
CMAR, consistent with this Agreement and in accordance with .
the planning, scheduling and budgetary requirements of the
Project as determined by the Owner. The terms and conditions'
of the agreement between the Owner and the Designer shall
not be changed or waived without written notice to the CMAR
provided at the time of the change or revisiop.
6.7 Budae
20
The Owner shall establish the Project and Constriction Budget
and approve subsequent revisions deemed acceptable as
provided to 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 pardons 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 shad be subject to dispute
resolution in accordance with the dispute resolution provisions
In Appendix A.
6.9 Copies of Drawinas and Specification§
The CMAR shall estimate the reasonable number of copies of
Interim and final drawings, specifications and Contract
Documents required by the CMAR, and shall obtain such
copies from the Designer at the CMAR's expense. The
estimated cost of such copies shall be included in the
Guaranteed Maximum Price.
6.10 Permits and Approvals
With the cooperation and assistance of the CMAR and the
Contractors as set forth In this Agreement, the Owner shall In a
timely manner secure, submit and pay for necessary approvals,
easements, assessments, permits and charges required for the
conduction, use or occupancy of permanent structures, or for
permanent changes in existing facilities.
6.11 Fundno Reauirements -
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 i 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 respell 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 Pries 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. na 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 -
21
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
Al 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 Wori6 no
responsive, responsible bidder will execute a contract for the
bid portion of the Work, or a Contractor defaults and a pre -
qualified replacement cannot be obtained In a timely manner,
and_ (2) the Owner approves performance of the Work by the
CMAF;L 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. -
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 speclfic
design Drawings and Specifications in existence at the lime 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 safes and
use taxes applicable to the Project that are legally enact ad 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 Scooe
The Owner may change the scope of the Project or a part
thereof and the Guaranteed Maximum Price shall then be
adjusted as provided in Paragraph 7.3.
7.2 Cost of the Work
The term "Cost of the Work` shall Include all amounts paid by
the Owner to the CMAR other than General Conditions and
Fixed Fee costs for payment to all separate Contractors,
suppliers and equipment lessors for all the Work of the Project
as described in the Design Drawings and Specifications
developed by the Designer. The Cost of the Work shall be
adjusted for all discounts obtained on payments by the CMAR
or any Contractor, which shall be for the benefit of the Project
and the Owner. Trade discounts, rebates, refunds, and
amounts received from sales of surplus or salvaged materials
and equipment shall accrue to the Owner, and the CMAR shall
make provisions so they can be secured and will reduce the
Guaranteed Maximum Price accordingly. Amounts which
accrue to the Owner In accordance with this paragraph shall be
accounted for and credited to the Owner as a deduction from
the Cost of the Work.
7.2.1 Exclusions from Cost of the Work
The Cost of the Work shall not Include the following:
7.2.1.1 The CMAR's fee for Services and reimbursable costs
for General Conditions;
7.2.1.2 Ali 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.dlrectly by the Owner and outside the scope
of the Guaranteed Maximum Price;
721.4 All Additional Services costs as defined herein.
7.3 Adjustments aximu ce
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 pries and the Cost of the Work and shall make
those reasonable assumptions regarding the project scope and
the quality of the intended construction as may be necessary to
fully document the Guaranteed Maximum Price.
7.3.1 Chances to the Work
The Owner may, at any time and for any reason, by written
notice or order, make changes or modifications to the Work or
add Work within the general scope of the Project, Including
without limitation changes to the Drawings and Specifications,
the Master Schedule, the sequence, manner or method of
performing the Work, or the work being provided by the Owner
or its separate contractors. The amount of adjustment to
increase or decrease the Cost of the Work resulting from a
change In the Project shall be determined in one or more of the
following ways: -
7.3.1.2 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. fran 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
23
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 deixease 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 Wait 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.avallabie 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 Chanaes
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 Fbmd 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:
Six Thousand Five Hundred Dollars ($5,500) for the pre -
construction reimbursables 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 rot to exceed
$18,000; and, for the construction and post- construction
phases, a fee equal to seven percent (7%) 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 Conditlons _
Genera[ - 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 shag 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 Mardmum 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 €n a tabulation with cost elements
at least as detailed as the cost elements in Appendix B. The
following guidelines shag 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 CHAR positions will be
deemed included in the CMAR Fixed Fee;
7.42.2 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 traddng purposes. All
software for use on computers (accounting, tracidng,
scheduling, word processing, AutoCAD, Project management
etc.), otherwise shall be Included In General Conditions. Field
office temporary electric, heating, water, sanitation, and
electronic equipment maintenance and field office operation
costs, e.g., stationary, 'postage, etc., shall be incurred
24
judiciously. General Conditions shall Include maintenance of an
appropriate shipping and wing system.
7.42.5 Plans/Surveys/Pemt€tslTesting: 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 deliivery of all
required permits (fee for permits to be paid direcdly "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
contrails) as may be required during construction phases.
Provide field personnel pagers, and twa -way radio throughout
the construction phases, as applicable. Include travel expenses
for field personnel related to off -site equipment/materials
survey and inspections.
7.4.2.8 Insurance/Bond. Provide 100% Performance and
Payment Bonds. Provide liability Insurance and provide
builder's risk Insurance policy In the amount of the Guaranteed
Maximum Price unless directed otherwise by Owner. In
accordance with an OCIP.
7.4.2.9 Close- Out/De- Mobilization: Provide final . sitelfac€iity
dean up. Provide final release of Bens for all contracts. Provide
sets of all Contractor as -bu€it drawings to the Owner and
Designer, one set will be used by the Designer to prepare as-
built drawings.
7.4.3 Construction Manager's Account €rig Records
Records for the Cost of the Work, the CMAR`s personnel
expenses, independent engineer's fees, other consultent s fees
and direct expenses pertaining to the Project shall 'be
maintained on the basis of generally accepted .accounting
practices and shall be-avallabie for.lnspection 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 far 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 (76%) 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 fuil upon final completion of the Project.
.7.4.4.2 Payment of General Conditions casts 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 approvat, payments allocated to the CMAR and
the Contractors shall be subject to a retention of ten (10%).
Whenever any Contractor completes its Work on or before a
target date mutually agreed upon by the Owner, Designer and
the CMAR, and the Designer and Owner agree the Work Is
satisfactorily completed, the Owner may reduce the amount of
retainage. on that Contractor by fifty percent (50 %) for the
remainder of the Project.
7.4.4.4 Payments.due to the CMAR that remain unpaid for
more than thirty (30) days from the date of receipt by the
Owner and the Designer of the CMAR's acceptable invoice
shall bear interest at the statutory rate.
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 benefds 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 Coverace Limits
Workers 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:
1. $2,000,000 Bodily Injury and Property Damage for each
occurrence
2. $4,000,000 Products/Completed Operations Aggregate
3. $4,000,000 General Aggregate
Coverage shall include, but not be limited to, the following
supplementary coverages:
1. Contractual Liability to cover liability assumed under the
agreement
2. Product and Completed Operations Liability Insurance
3. Broad Form Property Damage Liability Insurance . '
4. Independent Contractors
5. Such policy shall Include all of the coverages, which may be
Included In coverages A, B, and C contained in the Commercial
General Liability Policy, without deletion. Such policy must be
issued on an 'occurrence' basis, as distinguished from a
"claims made' basis.
6. Completed Operations extended five years after final
payment
7. For contractors with design responsibility, endorsement
CG22 80 and D]C for contractors' professional is requested
1. Minimum Combined Single Limit that shall not be less than
$1,000,000 per occurrence
2. Commercial Automobile Liability Insurance to cover all
vehicles owned by, hired by, or used on behalf of the
Contractor
c, Excess/Umbrella Liability
1. $5 Million per Occurrence
2. $5 Million Aggregate
8.1.2 Policies
Commercial genera] 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
26
umbrella liability policy. The Owner -and any lender of the
Owner with a loan secured by the property whereon the Project
is located shall be a named Insured on all commercial general
liability policies and excess/umbrella liability policies submitted
to comply with ttds Article. Commercial general liability and
excess liability policies shall be endorsed with a schedule of
underlying liabliity' policies required and obtained from the
Contractors. Coverage.under the CHAR commercial liability
policies shall not be limited by any language in the contracts
with the Contractors making the Contractors liable for losses in
excess of the limits of coverage provided by the Contractors.
8.1.3 Professional Liability Policies
Subject -.to section a.7 of Paragraph 8.1.1, policies for
professional liability may be provided by the CHAR 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 . •cosf of the insurance, and the
professionals providing the insurance.
8.1.4 Cance Ratio n
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 Project from
perils of physical loss.. The Owner shall receive copies of the
builder's risk insurance policies that satisfy this Article. The
CMAR shall be responsible for any deductibles associated with
this coverage.
8.2.1 Coverage Terms
The insurance shall provide for the cost of replacement for the
Work at the time of any loss. The insurance shall include as
named insureds the Owner, the CMAR, the Contractors and
their subcontractors and shall Insure against the loss from_ the
perils of fire and all risk coverage for physical loss or damage
due to theft vandalism. collapse, malicious mischief, transit,
flood, earthquake, testing, or damages resulting from defective
design, negligent workmanship or defective material. The
CMAR shall obtain approval from the Owner before increasing
any coverage due to Increases In construction costs.
8.2.2 Other Property Insurance
[Not used.]
8.2.3 Pairtiai Occupancy: If the Owner occupies or uses a part
or parts of the Project prior to substantial completion thereof,
such occupancy shall not occur until the Owner obtains
property insurance for the structure.
8.2.4 Notices and Recovery
if requested by the Owner, the CMAR.shall provide the Owner
with copies of all policies thus obtained for the Project. • The
CMAR shall provide the Owner with thirty. (30) days advance
notice of cancellation, non - renewal or endorsement reducing or .
restricting coverage.
8.2.5 Walver of Subrogatlon
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 requited for this Project, excluding the Owner's
property Insurance. The Owner and the CHAR shall each
require appropriate similar waivers from their contractors,
consultants and agents. This waterer does not apply to design
liability.
8.3 Indemn
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 damages and reasonable attorneys'
fees incurred by the Owner caused or arising oejt of the
negligent acts, errors or omissions of the CMAR, or any other
party for whom the CMAR Is legally liable, in performance of
services under this Agreement The CMAR shall not be
required to indemnify any person against losses resulting from .
27.
a breach of contractor resulting from negligence, misconduct
or .violation :of laws. -on the part of any person indemnified
hereunder.-
The CMAR shall procure and maintain insurance as required
by and set forth In this Agreement
8.3.1 Indemnification by Designer
The Owner shall cause the Designer to indemnify and hold
harmless . the Owner, its employees, agents and
representatives to the same extent and in the same manner
that the CHAR has provided Indemnification for the Owner
under Paragraph 8.3.
8.3.2 indemnification by Contractors
The CMAR sha11 cause each Contractor to indemnify and hold
harmless the Owner, CMAR and Designer from and against
any and all claims, demands, suits, damages, including
consequential damages and damages resulting from personal
Injury or property damage, costs, and expenses and fees that
are asserted against the Owner, CMAR and the Designer and
that arise. out of or result from negligent acts or omissions or
the breach of the Construction Contract by the Contractor, its
employees, agents and representatives in performing the
Work.
8.4 nd5
The CMAR shall purchase and provide 100% Performance and
Payment Bonds, which Bonds shall comply with the
requirements of the General Conditions.
. ARTICLE 9
TERMINATION AND SUSPENSION
9.1 Termination for QQovel)lence
This Agreement may be terminated In whole or in part by the
Owner for convenience after seven (7) days written notice to
the CHAR. 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
performed to the date of termination, plus reasonable
termination expenses payable to Contractors. under their
respective contracts, which shall each contain a termination for .
convenience dause 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 oontrad. 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 servioas not conpleted 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
reasonable audit to the same extent as any other request for
payment of General Conditions.
carry on the Work in an acceptable manner. Termination under
this Paragraph 9.2 for failure substantially to perform In
accordance with the terms of this Agreement shall be without
prejudice to any other right or remedy that the terminating party
has under the Agreement or at law.
9.2.1 Notice and Time for Cure
Neither party to this Agreement may terminate this Agreement
without first giving the other party five business days notice of
the intent to terminate the Agreement, measured from actual
receipt of the notice. If the grounds for termination stated in the
written notice are removed or cured within five business days
after receipt of notice, the Agreement may not be terminated
for default
9.2.2 Pawrnent 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 iron 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 .
9.2 Termination for Default claims by Contractors for wont on the Project have been settled
This Agreement may be terminated by either party hereto upon and paid.
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 shag discontinue the. prosecution of the
Work for five (5) consecutive days, or • If .th a CMAR shall
become insolvent, be declared bankrupt,' oommit: any act of
bankruptcy or Insolvency, allow any final judgment to stand
against the CMAR or Its affiliated companies unsatisfied for a
9.2.3 Aggignment Qt tracts
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
contract's 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 properly 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 shag 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.reknburse 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
29
the option of requiring that the Guaranteed Maximum Price be
renegotiated. • Subject to the provisions of this Agreement
Mating to termination, a delay or suspension of the Project
does not void this Agreement.
9.4.4 Additional Comoensation 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 terns set forth In this Agreement
If the Owner suspends the Project for reasons other than
default by the CMAR or any of its Contractors, the Guaranteed
Maximum Price will be adjusted by an amount sufficient to
reimburse the reasonable and provable expenses incurred by
the Contractors as a result of the suspension. In no event will
the Guaranteed Maximum Price be increased or any expenses
be paid to the CMAR or its Contractors for delays. caused by
the CMAR or any Contractor, even if there Is a concurrent
delay or suspension by the Owner, it being understood that the
CMAR bears the risk of delays caused by Its Contractors.
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 Impliediy
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 shag 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 disdose 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 Signs
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 neafly lettered, and
shall be subject 6 approval by the Owner. The Contractor may
only erect other identification signs If approved by the Owner.
In addition to the Identification sign, directional signs may be
erected on the property to facilitate deliveries and the
movement of personnel and. materials about the site.. Any
directional signs shall be subject to approval of the Owner with
respect to size, style and location of such directional signs,
which approval shall not be unreasonably withheld. Such signs
may bear the name of the CMAR and a directional symbol. All
signs must comply with Town of Hillsborough sign, appearance
and traffic ordinances. No other signs will be permitted except
by permission of the Owner.
11.3 Limitation and Assignment
The Owner and the CMAR each bind itself, its successors,
assigns, insurers, and legal representatives to the terms of this
Agrearnent. Neither the Owner nor the CMAR shall assign or
transfer Its rights or intarest 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
30
of the services and of the Work hereunder in accordance with
this Agreement.
11.4 Minority Business Enterprise Program
The OMAR shall at all times comply with the latest edition of
the Orange County Minority Business. Enterprise Policy. All
documentation substantiating compliance with ' the
requirements of this program shall be delivered to the Owner
as stipulated in the Contract Documents. A copy of the Orange
County Minority Business Enterprise Policy Is attached to this
Agreement as Appendix C, and shall be included in the bid
documents submitted to potential Contractors for bids.
11.5 Extent of Agreement
This Agreement represents the entire and Integrated
agreement between the Owner and -the CMAR and supersedes
Ali 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 benefidarles of this
Agreement
11.6 Severability
If any provision of th is 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 ,gf 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:
RESOLUTE BUILDING COMPANY
Attn: I(im Vrana, President
P.O. Box 3656
Chapel Hill, North Carolina 27515
11.9 Bonds•
In .accordance with N.C. Gen. StaL §143 - 128.1, the OMAR
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 attomey4n -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 indude 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 shalt not
reproduce or distribute such documents to any third person or
for any purpose other then bidding, permitting and construction
of the ProjecL 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 Gugranteed 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
T.B.D.
12.1.1. D_ocumtenkgon
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 indude drawings, sketches,
specifications, calculatigns 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 "Con.sjWcdon Contract Price Savings and Overruns
The CMAR shall as part of cost control under its Basic Services
report the adjusted final actual price of each item or division of -
31
the Work the price of which was based on estimated quantities,
allowances or other conditional pricing and, when the final price
Is determined, adjust the Guaranteed Maximum Price as
follows:
12.1.4.1 If the final adjusted price of any item or division of the
Work Is less than the amount reflected in the approved
Guaranteed 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 Chance 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
32
costs in accordance with the terns of this Agreement that may
be necessary to complete the Project even If such amounts
are in aggregate in excess of the Guaranteed Maximum Price.
This Agreement Is executed .the day and year first written
above.
CMAR: RESOLUTE BUILDING COMPANY, INC.
P.O. BOX 3656
Chapel Hill, NC 27515
By:
Title:
(President) (Manager)
Attest:
By:
Title:
(Secretary) (Manager) (Witness)
OWNER: ORANGE COUNTY
P. O. Box 8181
Hillsborough, N.C. 27278
By:
Barry Jacobs
Chair
Orange County Board of Commissioners
Attest:
Clerk to the Board
This Instrument has been preaudited In the manner required
'by the local Government Budget and Fiscal Control Act.
Orange County Finance Officer
This instrument Is approved as to Form.
Orange County Attorney
F•H.isaVom®Uhange County, Agent for Conatnrfon Mgr form rev by GEG
91207.doo
APPENDIX A
TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
DISPUTE RESOLUTION PROCEEDURES 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
8. Definitions
9. Time Limits
Pagel of 6
RULE 1. WITIATING 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 seelang 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 party requesting mediation shall
select a Mediator from the designated list. If the County fails to provide a list of
acceptable mediators, the list of Mediators shall be deemed to be the list of
mediators certified by the North Carolina Dispute Resolution Commission to
conduct mediated settlement conferences in the North Carolina Superior Courts.
B. Selection of a Mediator. .The party requesting mediation shall select a Mediator
from the County's list of The
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 party 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.
I 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 S. 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 4 party,
which prevents that party from meeting obligations. When good cause is asserted
as an excuse for a party's failure to appear at a mediation conference or to
otherwise comply with the requirements of these Rules, the Mediator, in his or her
sole discretion, will determine whether good cause exists to excuse the party's
failure to appear or otherwise comply with these rules.
RULE 9. 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:%L,isaVorms\Appendix A Agmt for Constriction Manager At Risk Sery form.doc
Page 6 of 6
APPENDIX B
TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
LIST OF COST ELEMENTS
TO BE PROVIDED BY
�....,...� w.r.pro� .�:.... vinvaua�IWW4 rwNana y-k;e 1PRbrUYrGrr 1. r V #-%rrTGrwM v f�81g6 T
HIllsborough Commons 10/1/ %2006 4:47 PM
Phase,
• .Description
Takeoff Quantity
Labor Price •
Labor
Amouirt
Material
Price
Material
Amount
Other Price
Other
Amount
Total
Amount
GENERAL CONDITIONS
1001
Oaneral Conditions
S rirdendent
26.000 wk
1,450,00
37,700
-
-
37 700
Profectmenagement
26.00 wk
900.00
23400
-
23`400
Pro eCE AeeislaM
26.00 wks
300.00
78M
7 800
ExeaRtva Pro eLct Mana er
6.00 mo,
1 000.00
0,000
-
8 000
S 'erkderbentVehide
6.00 mo
-
-
985.00
5.790
-
-
5,790
Pro eot Msna men! Vehicle
6.00 mo
550.00
3 300
-
3,300
_
Temp, Power Use OfAce Trail
6 -00 mo
-
150.00
900
-
900
Safety ..:.
6.00 mo
50.00
300
100.00
_
800
250.00
1,600
2.400
Job Office -
8.00. mo
50,00
300
300.00
1800
1000.00
1,000
3.100
Telephone (4 Lines`
26.00 wks
-
85.00
200.00
867
3.077
FAX Middne
1.00 *a
-
100.00
_____2,210
100
-
100
J06M SI n
1.00 ea
100.00
100
425.00
425
525
wAter ice
6.00 mo
20.00
120
-
120
Temik ToOete Jab Office Oft
6.00 mo
65.D0
390
300
g2TE�Mrconnsptft
6.00 mo
-
120.00
720
70.00
420
1.140
^„r
Dumpster Rerdel (Job Office Od
1.00 mo
90.00
90
_
90
D Haui9 Job mce Only)
1.00 ea
85.D0
Durnp Fees Orange Co.S CH ,
1.00 his
-
40.00
286
-
�- _ '285
Printlng Costs 3 Precori Reimbrusabbe
1.00 Is
-
6'S00 -DO
6500
-
-
6500
Temporary Pole Job OfOce Orly)
. 1.00 ea
1
800.00
600
600
APPENDIX C
TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
ORANGE COUNTY MINORITY BUSINESS ENTERPRISE POLICY
APPENDIX G
TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
ORANGE-COUNTY MINORITY BUSINESS ENTERPRISE POLICY
APPLIC0M
The requirements of the Guidelines For Rec(uHmenf 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 CONTRACTOR GOALS:
The goals for participation by Minority firms as contractors on this project have been set of ten percent (1 ° %� .
The Bidder will provide documented proof In the form of Appendix C1, MBE UTILIZATION COMMITMENT, that • ,
these goals have been met or exceeded;
OR ...
Provide Appendix C1, MBE UTILIZATION COMMITMENT, Went fyInil the amount of'MBE paacficipaiwi�F and, prior
to award, upon request, who evidence of good faith effort made prior to the bid opening to meet these goals;
OR
Provide Appendix C3, CERTIFICATION REGARDING CONTRACTING PRACTICES,:and upon request, .
information sufficient for the Ownerto determine thatthe Bidder does not customarily contract worl0nf its type
project.
-it is desired that the above information be submitted with the bid. Although bids may be read M —thout 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 REQUIREME�VT�: ..
If the MBE subcontract goals are not achieved, the Bidder shall provide the following documentation'to the
Owner_.
MBE Utilization Commitment (Appendix C1).
2. Documentation of the Bidder's good faith efforts to meet the goats sit Initsese 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 stops to procure MBEs,,and It should also gst which steps
were taken:
1. Contacted minority businesses that reasonably could have.been expected to submit a
quote and that were known to the CMAR or available on these State or local govern ment
maintained lists at least ten (10) days before the bid or proposal date and notifying them of,the
nature and scope of the workto be performed.. '
2 Made the construclidn plans, specifications, and requirements available for review by
prospective minority businesses, or providing these, documents to them. at least ten (1 fl) days .
before the bide proposals are due.
3; Broke down or combined elements of wont into economically feasible units to.facr'Ei#ate
minority participMon,
4. Worked with minority trade, community, -or contradw organizations idenfifed by the -
Office of Historical Underutilized Businesses and included in the bid documents that provided
assistance In reariitment of tninorfiy businesses.
5. Attended any prebid meetings scheduled by the public owner.
6. Provided assistance in getting required bonding or insurance or providing altematives'to
bonding or insurance -for contractors.
7. Negotiated in good faith with interested minority businesses and did not reject them as
u nqualified 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•ari:dthehMse 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 supprier In order to help -the minority businesses in establishing
credit
9. Negotiated joint vertture and partnership arwgernents with minority businesses in order
to4nemese- opportwMesfor tnktor4-basf 7i t311�"bc ns on or repair
project when possible.
f 0. 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 to of follow -up cabs to "each firrh 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, eorrespondenoe or conversation with MBE firms made
in an attempt to meet the goals.
NOTE: If the Bidder provides sufficient evidence Misted In #A) that the goals stated in the contract
documents have been met, or awards all subcontracts to MBEs, the documentation listedin B vAl
not be required.
Upon being name-d.apparent low bidder, the Bidder shall provide a LETTER OF 114TENT (Appendix C2). 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% waive any irregularities in MBE
- . documentation ff they sari 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. -
We,
APPENDIX C1 OR C3 MUST BE SUBMITTED WITH BID
APPENDIX C1
MBE UTILIZATION COMMITMENT
(Bidder Name)
HILLSBOROUGH COMMONS
LOCATED AT
HILLSBOROUGH, NC
(Dollar Amount of Bid)
do certify that on the
will expend a minimum of % of the total dollar amount of the contract with minority business enterprises.
This ercenta emus# be at least ten percent 10% or the bidder must corn lets the back side of this form as well.
MBEs will be employed as contractors, 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
Number of Firm MBE
Description
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 CMAR 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 bide
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.
8. Provided assistance in getting required bonding or insurance or providing alternatives to bonding
or insurance for contractors.
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 participants 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.
SUBJECT:
TO:
APPENDIX C2
LETTER OF INTENT TO PERFORM AS A CONTRACTOR
OR
PROVIDE MATERIALS OR SERVICES
(Project Name)
(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
Contracting at any tier must be reported and is subject to MBE compliance requirements. This form shall be used
for MBE contracting at any level.
Date:
(Name of Minority Contractor)
By:
TO AGREEMENT FOR CONSTRAPPENDIX D
UCTION MANAGER AT RISK SERVICES
DIVISIONS OF THE WORK FOR GUARANTEED MAXIMUM PRICE
TO BE PROVIDED BY ADDENDUM
TO AGREEMENT FOR CONSTRAPPENDIX E
UCTION MANAGER AT RISK SERVICES
PROJECT AND CONSTRUCTION BUDGET
TO BE PROVIDED BY ADDENDUM
APPENDIX F
TO AGREEMENT FOR CONSTRUCTION MANAGER AT RISK SERVICES
MASTER SCHEDULE
TO BE PROVIDED BY ADDENDUM
Table of Contents
Page
Article 1.
Definitions ... ...... ............................... .................................................. ...............................
Article 2. .:
Correlation, Interpretation and Intent of Contract Documents...... ...................:: .:.....:.::..:................. 6
Article 3.
Familiarity with Work, Conditions and Laws .................. .....: :..:................ , :.:...:: ............
... ......
7
Article 4:
Bonds ...............................................................:...... ...........:. :.... :..:..:..::.. .:.... ............. 8
Article 5.
Insurance and Indemnity ............................... .............................:. ............. � ......... 8
Article 6.
Other Record Documents and Submittals .................:........ ...........
16
Article7.
Contractor ................................... ............................................... .... .................. ..............17
Article8.
Owner ......................................................... .......................... ...... .. ....:... .:. :... .............
Article 9.
Construction Manager ...................... ....... .................:....... .. ........... ..........
24
..Article 10.
Designer .............................................................. ....... .............. .... ........ ......... ......
25
Article 11.
Testing and Surveying ...................................................... ............................... ..............: ....
25
Article 12.
Separate Contracts ....................................................... ............. .... ........
25
Article 13.
Contract Time ...................................... ............................... ............ ..... :.. ::. .....:.
26
Article 14.
Changes in the Work ............................................. ............................... ' ... ...............................
29
'Article 15.
Change of the Contract Price ..................................................... .......................:.:.:........................
30
Article 16.
Unforeseen Conditions ............................................................: :........... .................... ....................
32
Article 17.
Correction of Work before Final Payment ....................:...........:..... . ::. ............................ ............
32 .
Article 18.
Correction of Work after Substantial Completion; Warranties and Guaranties ........:.................. ...
33
Article 19.
CMAR's Right to Da Work ................................... :......................... :................................................ 34
Article 20.
Partial Payments ......................: ...................... _ ..........: ............................... ........................... 34
Article21.
Final Payment. ....................................................... ...................... ...... :.:........ :. .. ...... .. ........ 36
Article 22..',
Coritractor,.Subcontractor.and Supplier Affidavit ......................... . ................................... .. ... ..... 37
Article 23.
Asst nments and Subcontracts ........ _ ......:.................. ........ .........:.
38
GENERAL CONDITIONS FOR CM AT RISK PROJECT -. 1 of 42 ; .: ;' JUNE 2007 EDITION
Article 24.
Measurements ........................................................... ... .......::............:....... ....................................
38
Article 25.
Contractor and Subcontractor Relationships ..............:.......................:............ ..................:............
38
Article26..
Use of Premises .............................................................................................. ...............................
39
Article 27...
Cutting, Patching and Fitting ............:....................................:............::...........................................
39
Article 28.
Dispute Resolution.. .................................................................................... ............................... .
39
Article.29.
Taxes ...........................................................:....................................:........:.... ...............................
39
Article 30.
Operation of Owner's Facilities ... ..................::................................................ .:.............................
40
Artide 31.
Third Party Beneficiary Clause .................... ...
40
'Article 32.
Measurement of Quantities ......................................................:...................... ............................... 40
Article 33.
Termination by the CMAR for Cause .............................................................. ............................... 40
Article 34.
Termination or Suspension by the CMAR for Convenience ........................... ...............................
41
Article 35.
Minority Business Enterprise Program ........................:.................................. ...............................
42
Article 36
General ............ ............................... ....... ......:........................
42
ARTICLE 1.
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
DEFINITIONS
Agreement - The Construction . Agreement, these General Conditions, and any
Supplementary Conditions. -
AIA - The American Institute of Architects.
ASTM - The American Society for Testing and Materials
Beneficial Occupancy — The point at which the Project can be occupied by the Owner for its
intended purpose, upon ' achievement of Substantial Completion, as defined In paragraph
1.39 of these General Conditions.
Change Order - A written order to the Contractor signed- by the CMAR, the Owner and the
Designer authorizing an addition, deletion, or revision In the Work and/or an adjustment in
the Contract Price and/or the Contract Time issued after execution of the Construction
Agreement. See paragraph 14.1 of these General Conditions.
Completion Dates - Those dates identified as the Contractor's Completion Dates in the
Contractor's Construction. Schedule, the Master Schedule, or elsewhere in the Contract
Documents.
Construction Agreement The document executed by the Contractor and the CMAR to
formally memorialize their consent to the terms of the Agreement.
Construction Change Directive— A written order to the Contractor signed by the CMAR, the
Owner and the Designer directing an addition, deletion, - or revision in the Work after
execution of the Construction Agreement, in circumstances when the parties have been
unable to agree on-an adjustment to. the Contract Price or the' Contract Time, but the
CMAR directs that the Contractor proceed with'said Work subject to adjustment of the
Contract Price and/or Contract Time under the procedures described herein.
Construction Manager At Risk (CMAR) — The person orfirm designated as the CMAR in
the Contract Documents, or its authorized representatives -. -The agreement between the
CMAR and the Owner Is referred to herein as the CMAR Contract.
Contractor's Construction' Schedule,-. That schedule described in Article 13 hereof and
identified as the Contractor's Construction Schedule...
Contract Documents - All of the documents that make up the Agreement, plus the Drawings
and Specifications that describe the scope of the Work, plus allowable Modifications to the
Contract Documents.
Contract Price - The total monies payable to the Contractor under the Contract Documents
pursuant to paragraph 15.1 of the Agreement.
1.1.3 Contract Time - The number of calendar days stated in, or computed from, the Contract
Documents for the completion of the Work, or any portion thereof. See, particularly, Article
13 hereof. Time of completion as specified therein is of the essence. The time used and
referred to on the Project will be that time which Is observed in Hillsborough, North
Carolina, being Eastern Daylight Savings Time. (EDT), :Eastern Standard Time (EST), or
other as designated by the Designer.
1.14. Contractor - The Contractor shall be that party Identified as such in the Agreement.
.1.15- Days.- Unless otherwise indicated, the term "days" shall mean consecutive calendar days.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 3 of 42.. , : .. JUNE 2007 EDITION
1.16 Daylight Hours 'The hours or portions of hours between sunrise and sunset local time.
1.17 Designer(s) — The person or firm designated as the Designer in the Contract Documents; or
their authorized representatives. The Designer, as referred to herein, shall mean architect,
landscape architect; and/or engineer..,. They will be referred to hereinafter as if each were of =
the singular number, masculine gender.
1.18 Drawings - The Drawings are-the' graphic and-pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location, and dimensions of
the Work, and generally including plans, elevations, sections, details, schedules and .
diagrams. A list of the Drawings is.contained in the Supplemental General Conditions. .
1.19 Field Order A written order issued by the Designer which clarifies or interprets the
Contract Documents or orders minor changes in the Work in accordance with the Contract
Documents. See paragraph 14.3 of-these General Conditions.
1.20 Final Completion - The point at which.the Contractor has, as determined by the Designer,
completed the Work, with the exception of guaranty and warranty obligations, and becomes-.
entitled, upon the recommendation of the CMAR and the Designer and determination by
the Owner, to final payment.
1.21 The words "furnish," "furnish and install," "Iristall," and "provide" or words with similar
meanings shall be interpreted, unless otherwise stated, to mean. furnish and install
complete, in place and ready for service.
1.22 Master Schedule. -"The' CMAR shall prepare and maintain a Master Schedule for the
Project. The Master Schedule shall specify the proposed start and finish dates for each
major project activity including all design and construction activities. The Master Schedule
shall be included in the bid documents presented to bidders. The Master Schedule shall be
revised and updated to include key activities from the approved Contractor's Construction
Schedule, as described in-the Contract Documents, including proposed start and finish
dates.
1.23 Modification - (A) a written amendment to the Contract Documents signed by the CMAR
and the Contractor and identified therein as such (B) a Change Order, (C) Construction-
Change Directive, or (D) a Feld O_ rder. A Modificatlon may only be issued after execution
of the Agreement.
1.24 Notice - The .term "notice" or "written notice" as used herein shall mean and include all
written notices, demands, instructions, and claims approvals and disapprovals furnished by
the CMAR, the Owner or the Designer to obtain compliance with the requirements of the
Contract Documents, : as well as all written notices, -demands, instructions and claims
furnished by the. Contractor as required by the Contract Documents, ' Where notice is
required under the terms of the Contract Documents, written notice shall always be
required, and oral or . "constructive" notice shall be insufficient and. ineffective as notice. .
Email or other electronic delivery shall be insufficient and ineffective as notice unless
specifically allowed by the Supplementary Conditions or a Modification to the Agreement.
Written notice shall be deemed to have been duly served on the date that it is delivered In
person to the individual or to a member of the firm, to an officer of the corporation for whom
it is intended, to an authorized representative of such individual, firm, or corporation, or on
the date that it is mailed by registered or certified mail, return receipt requested, addressed -
to the last business 'address of such individual, firm, or corporation known to the person -
giving the notice. Written notice may -also be given by facsimile transmission, provided that
proof of delivery is obtained. In the case of delivery in person, such delivery shall not be
effective unless and until a written and signed receipt showing the date and time of delivery
Is obtained. . .
GENERAL CONDITIONS FOR CM AT RISK PROJECT - 4 of 42 . JUNE 2007 EDITION -
1.25 Notice of Award - The written notice by the CMAR to the Contractor that the Contractor is
the successful Bidder and that upon compliance with the conditions precedent to be fulfilled
by the Contractor within the time specified, the CMAR will execute and deliver the
Agreement to the Contractor.
1.28 Notice to Proceed - See paragraph 13.3 of these General Conditions.
1.27 Owner - The Owner is the person designated as such in the Agreement.
1.28 Owner`s Authorized Representative - A person, or persons, employed by the Owner and
designated from time to time by written notice to the Contractor to administer the Contract
Documents, and to observe and .monitor the Work on behalf of the Owner with authority
and responsibility as herein specified.
1.29 Project - The total construction -of . which the Work _ performed under the Contract
Documents may be the whole or a part.
1.30 Project Manager - That person- designated by the Contractor in accordance with paragraph .
7.2 who shall be in general charge of the Work and its performance and who.shall have the
authority set forth in the last sentence of paragraph 7.2.
1.31 Request For Information (RFI) - A written communication from the Contractor to the CMAR
to be forwarded to the Designer for any interpretation of, or information needed, required,
or desired under the ;Contract Documents. The CMAR reserves the right to determine the
reasonable format and contents - .required fora RFI. In any RFI, the Contractor shall state a
reasonable date by which a response Is necessary in order to avoid delay in progress of '
the Work and shall make such request sufficiently in advance of such date as to avoid any
such delay. The.CMAR shall obtain a response in writing to the RFI by the date stated by
the Contractor unless 'the .CMAR cannot reasonably do so, in which case the CMAR shall -
prior to.that date notify the Contractor of -the date by which the CMAR can reasonably
-respond. The Contractor shall not'be entitled to any additional time for.the completion of
the Worts or any portion thereof. by reason of the failure to timely respond to an RFI if the
Contractor has not submitted.the RFI sufficiently in advance to allow the CMAR_ and the
Designer a reasonable time within which to respond.
1.32 Request for Payment The form, in *the form of AIA Document G702 (latest edition.) or
other published document approved by the CMAR, which is to be used by the Contractor in
requesting pro_ gress payments and which is to include a Schedule of Values as required by
the Contract Documents and `an affidavit of the Contractor that progress payments
theretofore received from the CMAR on account of the Work have been applied by the
Contractor to discharge in full 'atl the Contractor's obligations incurred in connection with
Work covered by all prior applications:for payment. See paragraph 20.2 of these General
'Conditions..
1.33 Resident Superintendent - That person designated by the Contractor in accordance with
paragraph 7.2 who has -day- today responsibility for the prosecution of the Work and the
obtaining of proper materials and equipment, and adequate tabor and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.34 Schedule of Values - Any breakdown of the Contract Price which may be required by the
Contract Documents, and designated as such. See paragraph 20.1 of, these General
Conditions..
1.35 Specifications - That portion of the Contract Documents consisting generally of the written
requirements for materials,- equipment, construction systems, standards, and workmanship
-for the Work and performance of related services.
GENERAL CONDITIONS FOR CM AT RISK PROJECT - 5 of 42 JUNE 2007 EDITION
1.36 Subcontractor - A person, firm, or-corporation who has entered Into'a direct contract with
the Contractor to perform any of the Work at the Project.
1.37 Submittal -- Shop drawings, product data, samples, and other documents required by the
Contract Documents to be submitted by the Contractor to the CMAR and the Designer.
1.38 Submittal Register.- See paragraph 13.2 of these General Conditions.
1.39 Substantial Completion - The point at which the Work, and Work by other Contractors on or
In connection with the Project, as determined by the Designer, Is sufficiently complete in
accordance with the Contract Documents that it can be beneficially occupied by the Owner,
and the Work can be utilized by the Owner for its intended use, and all necessary permits
-and permissions for Beneficial Occupancy and utilization having been obtained by. the
Contractor.- Ail. operations and maintenance manuals, Owner training, and as -built
drawings must be submitted prior to Substantial Completion being achieved.
1.40
Sub- subcontractor - A person or entity that has a direct or indirect contract with a
Subcontractor to perform any of the Work at the Project
1.41
Work - The construction and services required by the Contract Documents, including all
labor, materials, equipment, and services provided or to be provided -by the Contractor to
fulfill the Contractor's obligations.
1.42
All references in the Contract Documents to the masculine shall be interpreted as including
the feminine or, neuter and all references in the Contract Documents to the singular or the .
plural shall be interpreted as including the other, as may be appropriate in the reasonable
interpretation of the Contract Documents.
ARTICLE 2.
CORRELATION, INTERPRETATION AND INTENT OF CONTRACT DOCUMENTS
2.1
It is the intent of the Specifications and Drawings and other Contract Documents to
describe.a complete Project in accordance with the Contract Documents.
2.2
The Contract Documents are complementary, what is called for by one Is as binding.as if ,
called for by ail. If the Contractor finds a conflict, error or discrepancy in the Contract
Documents, the Contractor shall notify the CMAR in writing before proceeding with the
Work affected thereby. In resolving such conflicts, errors and discrepancies, the Contract
Documents shall be given preference in the following order: Construction Agreement,.
Modifications, Addenda, Supplemental Conditions, General Conditions, Specifications, and
Drawings.. Figure dimensions on Drawings shall govern over scale dimensions, and
detailed Drawings shall govern over general Drawings. Any Work that may reasonably be
inferred from the Contract Documents as being required to produce the intended result .
shall be supplied whether or not it is specifically called for. Work, materials or equipment
described in words which, so applied, have a well known technical trade meaning shall be
deemed to refer to such meaning and to incorporate any recognized standards which are a
part of such meaning. .
2.3
Miscellaneous items, accessories and work which are not specifically mentioned, but which
are essential to produce a complete and properly operating .installation, or useable
structure or plant providing the indicated function shall be furnished and installed without
change in the Contract Price.- Such miscellaneous items and accessories shall be of the
same quality standards, including material, style, finish, strength, class, weight and other _
applicable characteristics, as specked for the major component of which the miscellaneous - _
item or accessory is an essential part, and shall be approved by the Designer before
installation. This requirement is not intended to include major components not covered by' -
or inferable from the Contract Documents.
GENERAL CONDITIONS FOR GM AT RISK PROJECT 6 of 42 JUNE 2007 EDITION
2.4 The Work of all trades under the Contract Documents shall . be coordinated . by the .
Contractor In such a manner as to obtain the best workmanship. possible for the Work and
all components of the Work shall be installed or erected in accordance with the best -
practices of the particular trade.
2.5 The Contractor shall fully complete the Work and shall be responsible for all of -the Work =
under the Contract Documents to which the Construction Agreement applies. If the
Contractor. is prevented from doing so by any limitation of the Contract Documents, .the
Contractor shall immediately give notice thereof to the CMAR in writing before proceeding
with the construction in the area where the problem or limitation exists.
2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest
revision .or printing. -unless otherwise stated and is intended to establish the minimum-
requirements acceptable.
2.7 For those materials specified without the use of brand- names, the Contractor shall submit
to the CMAR within thirty (30) days after its receiving the Construction Agreement for
signatures, any product that meets the express requirements of the Specifications, unless a
longer, time is agreed to in the Master Schedule.
Such. Submittal shall include manufacturer's data, test reports, performance data and
certifications, samples, erection details, and other applicable, information as required to
permit determination by the Designer whether such proposed products are suitable. The
Designer shall be the sole judge as to the suitability of any proposed product. The burden
of proof of quality rests with the Contractor.
2.8 The Contractor is required to examine and read the complete set of Drawings and
Specifications for the Project for information concerning the Work, because some of the
Work for which the Contractor will be responsible may be indicated on or in documentation
applying primarily to the Work of one or more other separate prime contractors. No
allowance will. be made for the Contractor's failure to become familiar with the complete set
of Project Drawings and Specifications.
2.9 Contractor's requests for clarification or information shall clearly define the cause(s) of the
Contractor's request and, as appropriate, shall include the Contractor`s interpretation and
the Contractor's proposed solution.
ARTICLE 3. - -FAMILIARITY WITH WORK, CONDITIONS AND LAWS
3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting
-the- Work, including but not restricted to those bearing upon transportation, disposal,
handling and storage of materials, availability of labor, water, electrical power, roads and
uncertainties of weather, or similar physical conditions at the Project site, and the character
of equipment and facilities needed prior to and during prosecution of the Work. The
Contractor. is satisfied as to the character, quality and quantity of surface.and subsurface
materials or obstacles to be encountered insofar as this "information is reasonably
ascertainable from inspection of the Project site, including all exploratory work done by the
Owner, as well as from information presented by the Contract Documents, or any other
information' made available to the Contractor prior. to receipt of bids. Any failure by the
'- Contractor- to become acquainted with the available information shall not relieve the
Contractor from the responsibility for estimating properly the difficulty or cost of successfully
performing the Work.
3.2 The Contractor shall be entitled to rely upon all information furnished to the Contractor -in
- writing by the CMAR with respect to the Project site and to make all inferences from it that
GENERAL CONDITIONS FOR CM AT RISK PROJECT 7 of 42 -JUNE 2007 EDITION "
would reasonably be made by a contractor having knowledge and experience with similar
work; however, the Contractor shall not be entitled to infer from .CMAR- supplied information
any fact or, condition which would not be Inferred by a contractor having knowledge and
experience -.with similar work and, if the CMAR - supplied information is inadequate or
insufficient in any respect, the Contractor shall be required to obtain independently such
other information as a knowledgeable and experienced contractor would prudently obtain in
order to evaluate any such condition.
3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws,
ordinances, rules, and regulations which may in any manner affect those engaged or
employed in the Work, or the materials or equipment in or about the Work, or in any way
affect the conduct of the Work and agrees that the Contractor and the -Contractor's
employees, Subcontractors, and suppliers will, at all times, comply with same. If the
Contractor shall discover any provisions in the Contract Documents which are contrary to
or inconsistent with any such law, ordinance, rule, or regulation, the Contractor shall
immediately give notice thereof to the CMAR in writing, identifying any items of .Work
affected, and the Contractor shall not proceed until the Contractor has received written
direction from the CMAR with respect to these Items. If the Contractor performs contrary to
or inconsistently with any such law, ordinance, rule, or regulation without giving such -
notice, the Contractor shall bear all costs which are -a consequence of such performance.
3.4 At times selected by the CMAR after execution by the' Contractor of the Construction
Agreement, a pre - construction conference shall be scheduled and conducted. for. the
benefit of the Project.
ARTICLE 4. BONDS
4.1 A performance bond in the full amount of the Contract Price, and subject to changes in the
Contract Price, may be required of the Contractor to guarantee.the faithful performance of
the Work in compliance with the Contract Documents, in such form as may be required by
law and by the Owner. If required, the bond shall be dated : the. same date as ' the
Construction Agreement and must be accompanied by a current copy. of the power of
attorney for the attorney -in -fact executing such bond on behalf of a surety company
licensed to do business in the state of North Carolina.
4.2 A payment bond in the full amount of the Contract Price, and subject to changes in .the
Contract Price, may be required of the Contractor to guarantee the payment of all labor and
material costs or claims in connection with compliance with the Contract: If required, the
payment bond shall be in such form as may be required by. law and by the Owner. Said
bond shall be dated and executed in ,the same manner as the_ performance bond in
paragraph 4.1.
ARTICLE 5. INSURANCE AND INDEMNITY
5.1 CONTRACTOR PROVIDED INSURANCE
The Contractor shall, without limiting Its obligations or liabilities, procure, - pay for and
maintain. such Insurance as is required by law and as is required by the Agreement to
protect the Contractor, the CMAR, the Owner, the Designer and any lender. of the Owner
when the loan to the Owner is secured by the property on which the Project is located from
claims for damages for bodily Injury, including death,'and from claims for property damage
which may arlse from the Contractor's or its representatives'; consultants', Subcontractors',
agents', or employees' operations under this Agreement: Such insurance shall be. of. the
kinds and have limits of liability and coverages not less than the minimum limits hereinafter
specified or required by law, whichever is greater. The CMAR makes no representation as
to the adequacy or sufficiency of such coverages.. The following requirements-shall 1n ' no
GENERAL CONDITIONS FOR CM AT RISK PROJECT 8 of 42 JUNE 2007 EDITION
-way be construed to limit or eliminate the liability -of the Contractor, which arises from
performance of Work under the Agreement. The Con_ tractor is strictly responsible for any
losses, claims, and costs of any kind which exceed the Contractor's limits of liability, or
which may be outside the coverage scope of the policies..
The insurance specified shall be provided by an insurer approved by the CMAR, authorized -
to do such business in the State of North Carolina, and on.terms approved by the CMAR.
Insurance companies utilized shall have a minimum rating of A- and Class VII as evaluated
by the most current A.M. Best Rating Guide. If the insurer has a Best Racing less than A-
and Class VII, the Contractor must receive specific written approval from the CMAR prior to
proceeding with any Work under the Agreement. All agents and brokers shall hold valid
licenses from the State of North Carolina. The Contractor shall furnish to the CMAR a
certificate or certificates of insurance in a form satisfactory. to the - CMAR
contemporaneously with the executed Construction Agreement. * Upon request of the
CMAR, the Contractor shall provide the CMAR with certified copies. of the Insurance
policies required by this Article, including without limitation declaration pages, conditions,
exclusions and endorsements, and confirmation that each policy premium has been paid
for the required term of this Agreement. Certificates of insurance shall. be signed by a
person authorized by that insurer to bind coverage on its behalf. All insurance policies
shall provide, as evidenced by Certificates of insurance, that the insurance shall not be
canceled, reduced, restricted, or changed In. any way without at least thirty (30) days prior
written notice to the CMAR and the*.Owner. With _regard to expiration, cancellation,
reduction, restriction, or any other change, . certificates shall state: -"Should any of the
following described policies be canceled before expiration date or be due to expire within
thirty (30) days, the insurer shall -mall th€rty (30) days prior written notice to named
certificate holder. In the event of any such - cancellation, non - renewal, reduction,
restriction, or change in any insurance; the Contractor is obligated to replace such
insurance within seven (7) days without a gap in coverage and file accordingly such notice
with the CMAR and the Owner, and other interested parties. Failing Immediate receipt of
evidence of such replacement of insurance, the CMAR reserves the right to procure such
insurance as the CMAR considers desirable and the Contractor shall.pay or reimburse the
cost of the premium in respect thereof. It is expressly provided, However, that any action or
inaction on the part of the CMAR in this respect shall in no way change or reduce the
Contractor's responsibilities and liabilities under this Agreement. Self- funded, policy
fronting, or other non -risk transfer insurance mechanisms are not acceptable without prior
written approval of the CMAR. Full disclosure of such a program must be made prior to
commencing mobilization to the Project site. Failure to make a full disclosure constitutes a
material breach of the Agreement, justifying termination for default.
The Contractor shall name the CMAR, the Owner, the Designer and their. respective
consultants as additional insureds under all its insurance contracts (except workers'
compensation) with respect to and including without -.- limitation liability arising out of
activities performed by or on behalf of the Contractor; products and completed operations
of the Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor.
The coverage shall contain no special limitations on the scope of protection afforded to
additional insureds.
For any calms related to this Project, the Contractor's insurance or self - insurance shall be
primary and noncontributory with respect to the CMAR, Owner or Designer insurance. Any
insurance or self - insurance maintained by the CMAR, the Owner or the Designer shall be
excess and noncontributory with respect to the Contractors insurance.
All policies of insurance except as noted in paragraph 5.2 shall contain a clause waiving
rights of subrogation against the CMAR, the Owner and the. Designer, unless the CMAR
approves otherwise in writing:
GENERAL CONDITIONS FOR CM AT RiSK PROJECT -9 of 42 JUNE 2007 EDITION
Limits of coverage are not to be amended by deductible clauses of any nature without the
express written consent of the CMAR. The Contractor shall be solely responsible for any
deductible assumptions that may exist in any insurance policies required under this
Agreement. In addition, the Contractor shall be responsible and shall not be reimbursed for
any losses arising from any risk or exposure not insured as required herein, or not covered
as -a result of a normal. policy exclusion or that falls within the self insured retention, if
Contractor is self insured. =
The Contractor's insurance shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability.
The claim provisions in the Contractor's insurance . policies must specifically state the
insurance company: or Contractor's third party administrator, if self insured, has both the
right and duty to adjust a clalm.and provide defense.
The policies shall not contain any provision or definition which would serve to exclude or
eliminate from coverage third party claims, including exclusions of claims for bodily or other
injury to shareholders, partners, officers;- directors, or employees of the insured, the
premises owner, real estate manager, or the insured's Subcontractor, or any family relative
of such persons.
If the policies contain any warranty stating that coverage is null and void (or words to that
effect) if the Contractor does not comply with the -most stringent regulations governing the
Work, it shall be modified so that coverage shall. be. afforded in all cases except for the
Contractor's willful or intentional noncompliance-with applicable government regulations.
Any failure by any person to comply with. reporting or other provisions of the policy
including breach of warranties, .shall not affect coverage provided to the CMAR and the
Owner and their respective representatives, officials, and employees.
The Insolvency or bankruptcy of the Insured or of the Insured's estate shall not relieve the
insurance companies of their obligations under these policies. Any clauses to the contrary
are unacceptable and must be stricken. -
Failure to comply with these requirements shall be a material breach of this Agreement
justifying termination for default.
5.1.9 Worker's Compensation and Emolovers' Liability Insurance.
The Contractor and its Subcontractors shall procure and maintain Workers' Compensation
Insurance in the amount and type required by the State.of North Carolina and federal law
for all employees employed under the Agreement who may come within the protection of
Workers' Compensation Laws and covering all operations under the Agreement whether
performed by the Contractor or by its Subcontractors. -In - jurisdictions not providing
: complete Workers' Compensation protection, the Contractor and its Subcontractors shall
maintain employers' liability insurance In an amount, form, company, and agency
satisfactory to the State of North Carolina and the CMAR for the benefit of all employees
not protected by Workers' Compensation Laws and covering all operations under the
Agreement whether performed . by the Contractor or by its Subcontractors.
The Contractor shall pay -such assessments as will protect the Contractor and the CMAR
from claims under the Workers' Compensation Laws, workers' or workmen's compensation
disability -benefits, and other similar employee. benefit: acts.; .7 The . current Experience
Modification Factor shall be indicated on the Certificate of Insurance.
GENERAL CONDITIONS FOR MAT RISK PROJECT. 10 of 42 JUNE 2007 EDITION
Coverage under this section shall be as required by. federal and state Workers'
Compensation and Occupational Disease Statutes, and shall have minimum limits as
follows:
Coverage A: Statutory, State of North Carolina
Employers' Liability:- Each Accident $1,000,000
Disease - Policy Limit $1,000,000
Disease- Each Employee $1,000,000
Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation
In favor of the CMAR as well as other'endorsements that may be required by applicable
Jurisdictions, i.e." United States Longshoremen and Harbor Workers Act and maritime
coverage (Jones Act).
5.1.2 - Automobile Liability Insurance
The Contractor shall procure and maintain automobile insurance against liability for bodily
injury and property damage as described below, that may arise with respect to the Work
being performed .under the Agreement, and as will provide protection from claims which
may arise out of or result from the Contractor's performance of the Work and the
Contractor's other obligations under the Agreerr►ent, whether such performance of the Work -
is by the Contractor, by any representative or Subcontractor, by anyone, both officially and
personally, directly or indirectly employed by any of them, or by anyone for whose acts any
of them may be liable.
This policy of insurance shall cant' the following minimum Limit of Liability:
Combined Single Limit
$1,000,000
The policy of insurance shall contain or be endorsed to include the following:
a) owned, hired, and non -owned automobile liability.
b) If the policy contains a warranty stating that coverage is null and void (or words to
that effect) if the transporter does not comply with the most stringent regulations
governing the Work, it shall be modified so that coverage shall be afforded in all
cases except for the transporter's willful or intentional noncompliance with applicable
govemment regulations.
Any failure by any party to comply with reporting or other provisions of the policy including
breach of warranties, shall not affect coverage provided to the CMAR, the Owner, and their
respective representatives, officials, and employees.
No subcontracting of waste hauling shall be permitted without prior, written approval of the
CMAR.
5.1.3 General Liability
This policy must be written on an Occurrence basis, with the following minimum Limits of
Liability: . : . .
General Aggregate per project
Products/Completed Operations Aggregate
Bodily Injury and Property Damage csl/each occurrence
Personal Injury and Advertising Injury"' .
GENERAL CONDITIONS FOR CM AT RISK PROJECT 11 of 42.---
$2,000,000.00
$2,000,000.00
$1,000,000.00'
$2,000,000.00
JUNE 2007 EDITION
The policy of insurance shall contain or be endorsed to include the following:
a) Blanket Contractual Liability .covering Contractor's indemnification obligations
under this Agreement, in accordance with ISO policy form CG 00 01. Modifications
to the standard proylsion will not be acceptable if they serve to reduce coverage.
b) Premises/Operations Liability. -
c) Explosion, collapse, and underground fault.
d) _ Independent Contractors and independent Subcontractors coverage.
e) Broad Form Property Damage
f) Personal Injury.
g) Cross Liability/Severability of Interest clause..
h) Employer's Stop -Gap Liability endorsement, if applicable.
i) Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily
Injury or property damage caused by heat, smoke, or fumes from. a hostile fire.
j) Designated General Aggregate Limit Endorsement if required by the
- Supplementary Conditions.'
k) For contractors with design. responsibility, endorsement CG22 80 and DIG for
contractors' professional- is requested.
Coverage shall remain continuously in effect and without Interruption for at least six .(6)
years from the date of the Notice of Award and shall include coverage for exposures arising
from operations that have been completed. • The Contractor shalt furnish the CMAR and
each other additional insured listed in the Agreement to whom the Certificates have been
issued, evidence. satisfactory #o the CMAR of continuation of such Insurance at the date of
Substantial Completion and eacli'year thereafter.
5.1.4 Pollution Legal Liability (PLL)
Pollution Legal Llabiiity- coverage- will be provided if required by the Supplementary
Conditions.
5.1.5 Professional Liabilit
Policies for professional' liability must be' provided by the Contractor or its independent
design professional if the Contractor is required to provide any professional design services
under the Contract Documents.. Alternatively, compliance with paragraph 5.1.3 (k) is
acceptable. The limits of coverage required for professional liability shall be included in the
Contract Documents, -and will be subject to approval by the CMAR, taking into account
among any other reasonable factors - the risks- insured against, the cost of the insurance,
and the professionals providing the insurance.
5.1.6.-. Claims
The Contractor shall notify the CMAR within twenty-four (24) hours of any claims or alleged
claims received .by the Contractor covered by any of the policies of insurance required of
GENERAL CONDITIONS FOR -CM AT RISK PROJECT-- 12 of 42 .TUNE 2007 EDITION .
Contractor in this Agreement. The Contractor shall provide a written copy of the claim or
alleged claim to the CMAR within- three (3) days of the Contractor's receipt of the claim or
alleged claim. If-a claim is settled to the satisfaction of the claimant, the Contractor shall
submit a copy of the claimant's release to the CMAR.
If a claim or - alleged claim is rejected by the Contractor and/or its insurance company, the
Contractor shall immediately report this fact to the CMAR
Should thirty, (30) days - elapse after the claim or alleged claim has been received by the
Contractor, and the Contractor is not able to report a settlement or rejection of the claim, it
shall report to the CMAR the steps being taken with respect to the claim.
Without limiting the foregoing, the Contractor shall notify the CMAR in writing of any -paid or
incurred claims which may Impair annual aggregate or general liability.
5.1.7 Deductibles and Self- insured Retentions
Any deductibles or self - insured retentions must be declared to and approved by the CMAR.
At the option of the CMAR, either: the insurer shall reduce to a maximum. of $250,000 or
eliminate such deductibles or self - insured retentions with respect to the CMAR, or the
Contractor shall provide evidence of collateral provided to insurers or procure a bond
guaranteeing . payment of . losses and related investigations, claim administration, . and
defense expenses within the deductible or self - insured retention amount. Any self- insured
retention or deductible amount on the policy shall not reduce the amount of collectible limits
or liability.
5.1.8 Subcontractors
The Contractor shall Include all Subcontractors as Insureds under its policies, or shall
furnish separate certificates, policies, and endorsements for each Subcontractor -the -
Contractor Intends to use. If a Subcontractor does not take out insurance in its own name
and ft Contractor wishes to provide insurance protection for such Subcontractor and such
Subcontractor's employees, the Contractor shall either (a) procure appropriate. policies in
the name of the Subcontractor, or (b) cause a rider or riders to be attached to the .
Contractor's policies which shall identify the Subcontractor thereby covered; -provided,: .
however, in the case of the latter option, such a rider need not be attached to the
.Contractor's workers' compensation policy if such policy by its terms is sufficiently broad to
cover the employees of all Subcontractors performing Work under the Contract Documents:
Except as otherwise -approved by the CMAR in writing, Limits of Liability and coverage
scope must be at a minimum as stringent as required of the Contractor by the Contract
Documents. All Work performed for the Contractor by any Subcontractor shall be pursuant
to an appropriate agreement between the Contractor and the Subcontractor which shall
contain provisions that waive all rights the contracting parties may have against one'
another for damages caused by fire or other perils covered by insurance as provided
herein. Insurance monies received from any loss shall be divided as the respective interest
of the parties affected shall appear.
5.2 PROPERTY INSURANCE
The CMAR shall be responsible for purchasing and maintaining insurance to protect the
Project from' perils of physical loss. The insurance shall provide for the cost of replacement
for the Work at the time of any loss. The insurance shall include as named Insureds the .
Owner, the CMAR, the Contractors and their. Subcontractors and shall insure against the
loss from the perils of fire and all risk coverage for physical loss or damage due to theft,
vandalism,- collapse, malicious mischief, transit, ,flood, earthquake, . testing, damages
.resulting from defective design, negligent workmanship or defective material. The CMAR -
GENERAL CONDITIONS FOR CM AT RISK PROJECT 13 of 42 JUNE 2007 EDITION
shall increase the coverage limits as necessary to reflect changes in *the . estimated
replacement cost of the Project.
The CMAR shall provide the Contractor, if requested, with copies of all:'policies thus
obtained for the Project. The CMAR shall provide the Contractor.with thirty (30) days
notice of cancellation, non - renewal or endorsement reducing or restricting coverage.
The Contractor and the CMAR waive all rights against each other and against the other'-
separate contractors, the Owner, and their respective consultants, agents and employees . .
for damages occurring during construction and covered by builder's risk and any property.
insurance required for this Project excluding Owners' Property insurance. The Contractor .
and the .CMAR shall each require appropriate similar waivers from the Owner, the other
separate contractors, their Subcontractors, and their consultants and agents. This waiver
does not apply to design liability.
The Contractor is responsible for all physical damage to owned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor and/or
Subcontractor(s) in the performance of the Work. The insurance coverage evidencing such
shall Include a waiver of subrogation In favor of the CMAR, the Owner and the Designer
and their respective consultants and agents.
The Contractor shall provide valuable papers and records insurance with coverage in an
amount commensurate with project scope as set forth -in the Supplementary General
Conditions.
if the Project includes as addition to or Is adjacent to an existing structure, the CMAR, the
separate Contractors;and the Subcontractors shall be named as additional Insureds for the
Owner's property insurance covering such structure and its contents. .
If the Owner occupies or uses a part or parts of the Project prior to Substantial Completion
thereof, such occupancy shall not occur until the Owner obtains property insurance for the
structure and until all insurance companies providing insurance for the Project_ consent to
such. occupancy by endorsement to the insurance policies. .
5.3 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE
In the event the Owner elects to purchase project-specific Insurance affording coverage to
the Contractor and Subcontractors, the terms and conditions of such coverage shall be set
forth in the Supplementary Conditions.
5.4 CONTRACTOR AS JOINT VENTURE
If the. Contractor is completing this Project on a joint venture .basis, both joint, venture
partners retain all liabilities assumed by this Agreement, individually and collectively. This
.may include; but is not limited to, all premiums due, deductibles /self - Insured retentions,
coinsurance provisions, claim provisions, Insurance policy conditions, -and indemnification
provisions hereunder. .
Evidence of a Blanket- Joint Venture Endorsement must be obtained from the General
Liability 'and Contractor's Pollution Legal Liability carriers of each joint venture partner
substantially as follows:
IMith respect to "your work ", and the "products - completed operations hazard , you are an
insured for your Jiability arising out of the conduct of any partnership or joint .venture of
which you were a paitner or member, even though this partnership or joint venture Is not
shown as a Named Insured in the Declarations... This coverage Is excess. over any
GENERAL CONDITIONS FOR CPA AT RISK PROJECT 14 of 42 :JUNE 2007 EDITION
available liability purchased specfically to insure the partnership or joint venture_ This
coverage will not inure to the benefit of any other party except you.,
5.5 INDEMNIFICATION.
The Contractor,. to the fullest extent not expressly prohibited - by law, shall defend,
indemnify, and save harmless the CMAR, the Owner, the Designer, and their respective
officials, officers, employees, and agents from and against any and all. liabilities
(foreseeable or unforeseeable), penalties, fines, forfeitures, demands, .claims,- causes of
actions, suits, judgments, and costs and expenses incidental thereto, (including,, - without
limitation, amounts paid pursuant to investigations, defense or settlements, and reasonable
attorneys' fees), which any or all of them may hereafter suffer, incur, be responsible for, or
pay out as a result of but not limited to:
a) bodily injury (including sickness, disease, or death) to any person including, but not
limited to, the Contractor's employees or its representatives while on the site of the
Project; or
b) actual or alleged damage (including loss of use) to any property (public or private,
Including the Project or other property on the Project site); or:
c) contamination of or adverse effects on the environment arising directly or Indirectly out
-of or in connection with the performance of the Work, including but not limited to any
hazardous or toxic waste, substance, or constituent. of _any substance subject. to .
regulation under CERCLA, RCRA, TSCA, and other Federal :and state authorities that
is spilled, released, threatening to release,' or disposed - of- or - destroyed . by the.
Contractor or its Subcontractors on or off the site of the Projector while In transport to
or from the site; or
d) any violation or alleged violation of laws and regulations, arising out of or in any way
connected with the Work,
caused in whole or in part by the Contractor, . any Subcontractor or. supplier or . any
representatives of the Contractor. The Contractor shall not be required to indemnify any
person against losses resulting from a breach of contractor resulting from negligence,:
misconduct or violation of laws on the part of any person indemnified hereunder. .
The Contractor further agrees to obtain, maintain, and pay for such !lability insurance
coverages and endorsements as will insure the provisions of '.this - paragraph 5.4.
Furthermore, .the Contractor agrees to be liable for and to indemnify and reimburse the
CMAR and the Owner for all legal fees and disbursements paid or.incurred to- enforce the
provisions of this paragraph 5.4. The indemnification obligations under this paragraph 5.4
shall not be limited in any way by the amount or type of damages,' compensation or
benefits payable under worker's compensation "acts,. disability. - benefit acts, other
employment benefit acts, or the amount of insurance carried or recovered. ' -
The CMAR acknowledges that hazardous or toxic waste, material,-chemicals, compounds
or substances, or other environmental hazards, contamination or pollution, (referred to
hereinafter as "environmental hazards ") may be present at the Project site that were not
created, generated, or released at the Project site by the Contractor or its Subcontractors,
agents or employees, acting alone or in concert with others. .Unless the. remediation,
abatement or handling of such environmental hazards. is part of the_scope of the Work
under this Agreement,- then upon the discovery of such -environmental hazards,' the
Contractor shall immediately, and in no event more than-'three days after such discovery,
give notice to the CMAR of the. environmental hazards before. they are disturbed. . The
CMAR,. the Owner and - -the Designer shall thereupon -promptly investigate the
GENERAL CONDITIONS FOR CM AT RISK PROJECT - .15 of 42 JUNE 2007 EDITION
environmental hazards, and make such changes, in the Drawings and/or Specifications as
they may find necessary to abate, iemediate, isolate or handle the environmental hazards.
Any increase or decrease in the Contract Price or the .Contract Time resulting from such
changes shall be adjusted in the manner provided herein for adjustments as to extra and/or
additional Work and changes. It is agreed that the Contractor shall. have no liability under
this Agreement for any environmental hazards existing at on or in the Project site. prior to
the date that Work commences under this Agreement- unless the Contractor or its
Subcontractors, agents or employees, acting alone or in concert with others,` by their awn
negligence or misconduct, release or expose the Owner or third parties to the
environmental hazards.
The provisions of this paragraph 5.4 :shall survive the termination or cancellation or
completion of this Agreement,
ARTICLE 6. OTHER RECORD DOCUMENTS AND SUBMITTALS
6.1 The CMAR shall furnish to the Contractor the number of copies of Drawings and
Specifications stated in the Supplementary Conditions. Additional copies of Drawings and
Specifications may be obtained at the cost of reproduction and handling.
6.2 The Contractor shall submit to the CMAR for forwarding to the Designer all Submittals
required by the Contract Documents. -The Contractor shall submit four (4) reproducible
prints of all shop drawings plus the number of copies sufficient for its requirements. The
Contractor shall submit samples in .quantities required by the Contract Documents. The
'Contractor shall submit product data in five (5) copies, plus the number of copies sufficient
for the Contractor's requirements. All shop drawings shall be reviewed by the Contractor
and shall bear the Contractor's stamp of approval before. being forwarded to the CMAR and
the Designer. Submittals shall be submitted in such time as to cause no delay to the Work
or any part thereof and in accordance with the Contractor's Construction Schedule and
Submittal Register. The -CMAR shall review and process the submittal with reasonable
promptness, noting desired corrections, if any. The CMAR shall retain three (3) copies of
the submittal and shall return the balance of the reviewed submittal to the Contractor for
action. The Contractor shall furnish any corrected submittal to the CMAR for forwarding to
the Designer. The CMAR shall retain three (3) copies of the corrected submittal for the
records of the CMAR and the Designer, and will, return the balance of the reviewed
submittal to the Contractor.
6.3
Subject to paragraph 6.3 herein, no substitutions will be accepted after the bids have been
received. All substitutions prior to the receipt'of bids shall be in accordance with the
Contract Documents.
The Contractor acknowledges that the processing of shop drawings and other submittals is
directly impacted by the clarity, completeness, and accuracy of said documents and that It
is the Contractor's responsibility to (1) review and coordinate each submittal with all other
related or affected Work and (ii) approve each submittal before submitting same to the
CMAR for approval.
No substitutions and no deviations from any requirement of the Contract Documents shall
be deemed allowed unless the Contractor has specifically informed the CMAR in writing of
such deviations at the time of submittal and the Designer and the Owner have given written
and specific approval to the substitutions or . deviations.. In. proposing a deviation or
substitution, the Contractor warrants to the CMAR, notwithstanding any review, allowance
or. approval by the Designer or the Owner, that the deviation or substitution is at least equal .
to or better in quality and for the purpose intended, and that'the Contractor shall not by
reason of any such review, allowance or approval be- relieved from any obligation or
responsibility contained in the Contract Documents.-.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 16 of 42 JUNE 2007 EDITION
6.4 Review of submittals by the CMAR and the Designer shall not be construed as relieving the
Contractor from responsibility for compliance with terms or designs of the Contract
Documents nor from responsibility for errors of any sort in the submittal.
6.5 The Contractor shall: keep one record copy marked "As -Bulk" of all Specifications,
Drawings, Addenda, Modifications, and Submittals at the Project in good order and
annotated at least monthly to show all changes made - during the construction process.
Such monthly annotations and their approval by the CMAR shall be a condition precedent
to approval by the CMAR of each monthly Request for Payment. Said record copy shall be
stored at the Project and fully protected from damage by fire or other hazard. This record
copy shall be available to the CMAR, the Designer and the Owner for inspection. at all
times. The complete record copy shall be delivered to the CMAR for review and transmittal
to the Designer for the Owner's purposes prior to the Designer's certifying Substantial
Completion of the Work.
6.6 At completion of the Project and before Final'Payment, the Contractor shall assemble and
deliver to the CMAR one complete set of all as -built drawings and one complete set of all
approved submittals, product data, and samples .which were reviewed by the Designer.
These drawings and submittals shall be on paper, or in electronic or other media If required
by the Supplementary Conditions. These drawings -and'submittals shall be categorized
and packaged as directed by the Designer.
ARTICLE 7. CONTRACTOR
7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as may be set forth specifically in the Contract Documents, the
Contractor shall be solely responsible for the means,-- methods, techniques, sequences, and
procedures of construction, and for safety precautions and programs in connection with the
Work, The Contractor shall be responsible to -see that the finished Work complies
accurately with the Contract Documents.
7.2 The Contractor shall appoint a competent Project - Manager with .general authority to
manage the Project for the Contractor. The Contractor also shall keep on the Project at all
times during the Work of the Contractor 'a. competent Resident' Superintendent and
necessary assistants who shall not be replaced without prior written approval by the CMAR
except under extraordinary circumstances, in which event immediate written notice shall be
given to the CMAR. If approved by the CMAR; taking - into account the scope and
complexity of the Work of the Contractor, the Project Manager and the Resident
Superintendent may be the same person. ; At any time, the CMAR, in -its sole and absolute
discretion, may require the Contractor - to replace the Project .Manager or Resident
Superintendent with an experienced and competent person or persons upon seven (7)
days written notice from the CMAR to the Contractor.. Such replacement shall be at the
Contractor's expense and at no cost to the CMAR.
Both the Project Manager and the Resident Superintendent shall have authority to act on .
behalf of the Contractor, and instructions,. directions or notices given to either of them shall
be as binding as if given to the Contractor.
7.3 The Contractor shall provide sufficient competent and suitably qualified personnel,
equipment, and supplies to lay out the Work 'and perform construction as required by the
Contract Documents. The Contractor will at all times maintain good discipline and order at
the site, and will comply with all applicable OSHA standards. -
Any person employed by the Contractor,. by `,any °.Subcontractor, or by any sub- .
subcontractor who, in the _opinion of the CMAR, -the Designer, or the Owner, does not
perform its Work in a proper and skillful manner or Is intemperate or disorderly shall, at the
.GENERAL CONDITIONS FOR CM AT RISK PROJECT 17 of 42 . JUNE 200TEDiTiON
written request of the CMAR, be removed forthwith by the_ Contractor, Subcontractor, or
sdb- subcontractor employing such person without cost to the CMAR, and shall not be
employed again in any portion of the Work without the prior written approval of the CMAR.
Should the Contractor fail to remove such person or persons or fall to furnish suitable and
sufficient personnel for the proper prosecution of the Work within three (3) days after
written order, the CMAR may withhold further payment by. written notice until compliance
with such order. .
7.4 If, in the opinion of the CMAR, the Designer or the Owner, any Subcontractor on the
Project is incompetent or otherMse unsatisfactory, such Subcontractor shall be replaced by
the Contractor with no increase in the Contract Price If and when directed by the CMAR in
writing.
7.5 The Contractor shall furnish all materials, equipment, labor, transportation, construction
equipment and machinery, tools appliances, fuel, light, heat, and all other facilities and
incidentals necessary for the execution,. maintenance, initial operation, and completion of
the Work, other than those specifically excluded by the Contract Documents and to be
furnished by the CMAR or others. When use or storage of hazardous materials or
equipment or methods of more than ordinary risk are necessary in accomplishing the Work,
the Contractor shall give the CMAR reasonable advance notice.
If any materials are to be furnished or installed by the CMAR or others under the terms of
the Contract Documents, said materials shall be made available to the Contractor at the
location(s) specified in the Contract Documents. All costs of handling, transportation from
the specified location to the Project, storage, and installing of materials furnished by others
shall be included In the .Contract Price. The Contractor shall be responsible for any
demurrage, damage, loss; or other deficiencies which may occur during the Contractor's
handling, storage, or use of material furnished by others. The CMAR shall deduct from any
monies due or to become due the Contractor any cost incurred by the CMAR in making
good any such damage, loss, or deficiency.
All equipment which is proposed to be used in the Work shall be of sufficient size and in
such mechanical condition_ as to meet the requirements of the Work and produce a
satisfactory quality of work. Equipment used on any portion of the Work shall be such that
no injury to previously completed Work, adjacent property, or existing facilities shall result
from its use.
When the methods and equipment to be used by the Contractor accomplishing the Work
are not prescribed in the Contract Documents, the Contractor shall be free to use any
methods or equipment that will accomplish the Work in conformity with the requirements of
the Contract Documents. - :
When the Contract Documents specify the use of certain methods and equipment, such
methods and equipment shall be used unless others are authorized in writing by the
CMAR. If the Contractor desires to use a method or type of equipment other than that
specified In the Contract Documents, the Contractor may request authority from the CMAR
to do so. The request shall be in writing and shall include a full description of the methods
and equipment proposed and of the reasons for desiring to make the change. If approval Is
given, it shall be on the condition that the Contractor shall be fully responsible for producing
Work in conformity with the requirements of the Contract Documents. If, after trial use of
the substituted methods or equipment, the CMAR or the Designer determines that the Work
produced does not meet the requirements of the Contract Documents, the Contractor shall
discontinue the use of the substitute 'method - or equipment and shall complete the
remaining Work with the specified methods and equipment at no additional cost to the
Owner. The Contractor shall remove any deficient Work and replace it with Work of
GENERAL CONDITIONS FOR CM AT RISK PROJECT -.18 of 42 JUNE 2007 EDITION
specified quality, -or take such other corrective action as the CMAR may direct. No change
in the Contract Price or In Contract Time shall be made as a result of authorizing a change
in. methods or equipment under this paragraph.
7.6 All materials and equipment shall be new, except as otherwise provided in the Contract
Documents. When special makes or grades of material which are normally packaged by
the supplier or manufacturer are specified or approved, such materials shall be delivered to
the Project site in their original packages or containers with seals unbroken and labels
intact:
Materials shall be so stored as to assure the preservation of their quantity, quality and
fitness for the Work. Stored materials, even though approved before storage, may again be
inspected by the CMAR, the resigner or the Owner prior to their use in the Work and shall
be required to meet the requirements of the Contract Documents at the time they are
incorporated into the Work. Stored materials shall be located so as to facilitate their prompt
inspection. The Contractor shall coordinate the storage of all materials with the CMAR.
Materials to be stored at the Project or on the Owner's property shall not create an
obstruction to the Owner's or. other contractor's reasonable activities. Private property shall
not be used for storage purposes without written approvals consistent with the provisions of
paragraph 20.3 of these General Conditions. The Contractor shall make all arrangements
and bear all expenses for the storage of materials on private property. Upon request, the
Contractor shall furnish the CMAR a copy of the property owner's permission. All storage
sites on private or the Owner's property shall be restored to their original condition by the
Contractor at its entire expense, except as otherwise agreed to (in writing) by the owner or
lessee of the property.
7.7 All materials and .equipment shall be applied, installed, connected, erected, used, cleaned
and conditioned In accordance with •the - instructions of the applicable manufacturer,
fabricator, or processor, except as otherwise provided in the Contract Documents.
7.8 The Contractor will be fully - responsible for all acts and omissions of its Subcontractors and
of persons directly or indirectly employed by them and of persons for whose acts any of
them may be liable to the same extent that the Contractor is responsible for the acts and
omissions of the Contractor's own • employees.. Nothing in the Contract Documents shall
create any contractual relationship between any Subcontractor or supplier and the CMAR,
the Owner or the Designer, -or any obligation on the part of the CMAR, the Owner or the
Designer to pay or see to the payment of -any. money due any such Subcontractor or
material furnisher except as may otherwise be required by law. The CMAR may furnish to
any Subcontractor or supplier, to the extent practicable, evidence of amounts paid to the
Contractor on account of speo[fic.Work done.
7.9 The divisions and sections of the - Specfications and the identifications of any Drawings
shall not control the Contractor -in dividing the Work among Subcontractors.
7.10 The Contractor agrees to bind speclf[cal[y every Subcontractor to the terms and conditions
of the Contract Documents for the benefit of the CMAR and to furnish written evidence
thereof to the CMAR within seven (7) days after written request by the CMAR.
7.11 The Contractor shall attend job • progress conferences and all other meetings or.
conferences as directed by the CMAR. The Contractor shall be represented at these job
progress conferences by a .representative having the authority of the Project Manager and
by such other representatives as -the CMAR may direct. Job progress conferences shall be
open to Subcontractors, suppliers and any others who may contribute beneficially toward
maintaining required job -progress, . and such personnel shall be .encouraged by the
Contractor to attend. it shall be the principal purpose of job progress conferences to effect
coordination, cooperation and assistance , in every practical way toward the -end of
GENERAL CONDITIONS FOR CM AT -RISK PROJECT - '19 of 42 JUNE 2007 EDITION
maintaining - progress of the Project on schedule and to complete the Work and the Project
by the specified Completion Dates. The Contractor shall be prepared to assess progress of
the Work as required in the Contract Documents and to recommend remedial measures for
correction of progress as may be appropriate. The CMAR shall preside as chairman and
arrange for minutes to be taken and circulated.
In the event that the prosecution of the Work is discontinued for any reason, the Contractor
shall notify the CMAR at least forty-eight (48) hours in advance of resuming operations.
Should the terms of the Contract Documents require completion -of one or more portions of
the Work for the Beneficial Occupancy of the Owner prior to completion of the entire Work,
the Contractor shall complete -such portion(s) of the Work on or before the date specked.
Such completion shall include the obtaining of all government or other permits, permission,
and/or approvals necessary to occupancy. The Contractor shall Independently estimate the
difficulties involved In arranging the Work to permit such Beneficial Occupancy and shall .
not claim any additional compensation or time extension by reason of any delay or
increased cost due to completing such portion(s) of the Work. The Owner's possession and
use of such portion(s) of the Work shall not be deemed an acceptance of any Work not
completed in accordance with the Contract Documents. The Owner shall be responsible for.
the security, maintenance, utilities, and insurance of all portions of the Work completed and
beneficially occupied by the Owner.
7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the
use of any invention, design process, or device which is the subject of patent rights or
copyrights held by others, except for inventions, design processes, or devices specified by
the Designer in the Contract Documents. The Contractor shall indemnify and hold harmless .
the CMAR, the Owner, the Designer, and anyone directly employed by any of them,.from
-and against all claims, damages, losses and expenses, including attorney's fees and costs
of defense, arising out of any infringement or alleged infringement of such rights during or
after completion of the Work, and shall defend all such claims in connection with any actual.
or alleged infringement of such rights.
7.13 The Contractor shall secure and pay for all permits, including without limitation construction
permits -and licenses, and will pay all governmental charges and inspection fees necessary
for the prosecution of the Work.
7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and
regulations applicable to the Work and shall protect and indemnify the CMAR, the Owner,
the Designer, and their respective officials, officers, agents, employees or servants against
any claim or liability arising from or based on the violation of any such law, ordinance,
regulation, order, or decree, whether by the Contractor or by the Contractor's employees,
Subcontractors, sub - subcontractors, or their employees.
7.15 The Contractor shall be responsible for the reasonable and necessary protection and
security of its Work and its property and the property of others at the site, as required by
laws or ordinances governing such conditions, or by custom or sound construction
practices, and shall share such responsibilities for protection of property at the site as may
be directed by the Contract Documents and the CMAR. The Contractor shall be .
responsible for any damage to the Owner's property, or that of others, by the Contractor or
the Contractor's employees, Subcontractors, - sub - subcontractors, or their employees -or
agents, and shall make good such damages. The Contractor shall be responsible for and.
pay for any such claims made against the CMAR or the Owner.
7.16 The Contractor shall .comply with the Project Safety Program and Public Hazard Control
Plan. implemented 'by the CMAR. The- Contractor. shall protect :existing improvements
GENERAL CONDITIONS FOR CM AT RISK PROJECT 20 of 42 JUNE 2007 EDITION
designated to remain in the vicinity of the operations and barricade all walks, roads, and
areas as necessary to keep the public away from the construction-. '
7.17 The Contractor shall provide cover and /or protect all portions of the Work and provide all
materials necessary to protect the Work whether performed by the Contractor -or any of the
Subcontractors or sub - subcontractors. Any. Work damaged through the lack of proper
protection, or from any other cause, shall be repaired or replaced without extra cost to the
CMAR or extension to the Contract Time.
The Contractor shall maintain the Work during construction and until the Work is accepted.
This maintenance shall constitute continuous and effective effort prosecuted day by day,
with adequate. equipment and forces so that the Work is maintained in satisfactory
condition at all times. All costs of maintenance shall be included in the Contract Price and
the Contractor will not be paid an additional amount for such effort. Should the CMAR
observe that the Contractor at any time has failed to maintain the Work as provided herein,
the CMAR may immediately notify the Contractor of such non-compliance. Such notification
shall specify a reasonable time within which the Contractor shall be required to remedy
such unsatisfactory maintenance condition. Should the Contractor fail to properly respond
to the CMAR's notification, 'the CMAR may, at the Contractor's expense, take such action
as it may deem appropriate to remedy the defective maintenance, including suspension of
the Contractor's Work or any part thereof. Any such expense incurred by the CMAR shall
be deducted from monies due or to become due the Contractor.
Parking lots, streets, and walks connecting to the Project area shall at all times be
protected by the.Contractor from deposits of mud, sand, stone, litter, or debris in anyform.
Pedestrian traffic areas around the construction limits must be maintained in a clean and
safe condition at all times with required barricades and covered walkways. When
excavation or other operations outside the Project limits is required, the C_ ontractor shall,
immediately following that work, return the area to its original condition.:.
All catch basins and storm drain lines in the vicinity of the Project site shall be protected at
all times from entry of dirt, rubble and other debris. The residue from the cleaning of trucks,
wheelbarrows, concrete buggies, etc. must be prevented from entering - the drainage
system, and if cleaning is done, the residue must be contained and removed from the
Project site'with other refuse.
7.18 No burning. of refuse or debris shall be allowed inside or around the Project during the
course of construction.
7,19 The Contractor .shall -provide for and maintain necessary safety measures and safety
programs for the protection of its employees and other persons at the Project site, and shall
comply at all times with the requirements of the most current edition of the CAGC Safety
and Health. Manual for the AGC Accident Prevention Manual in Construction], or the
equivalent requirements of the Contractor's safety program, and shall fully comply with all
Federal, State, and local laws, rules, regulations, and building code requirements so as to
prevent accidents or injuries to persons on or about the Project site. The Contractor shall
clearly mark or post signs warning of existing hazards, and shall barricade excavations,
elevator shafts, stairways, floor and wall openings and similar hazards. The Contractor
shall protect against damage or injury resulting from falling materials, and shall maintain all
protective devices and signs throughout the progress of the Work. -
-All trenches, excavations, or other hazards in the vicinity of the Work -shall be well _
barricaded,:and properly lighted at night. When Work requires dosing of an area normally
used by" Owner or the public, the Contractor shall furnish; erect, and maintain temporary
GENERAL CONDITIONS FOR CM AT RISK. PROJECT 21 of 42 JUNE 2007 EDITION
barricades, and properly. light the area. The Contractor shall comply with any directions and
public authorities in this respect.
7.20 The Contractor shall adhere to the rules, regulations, and interpretations of the North
Carolina Department. of Labor's Occupational Safety and - Health Standards 'for the
Construction Industry (29 CFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29 -
CFR Part 1910 General industry Safety and Health Standards applicable to construction)
and N.C: Gen. Stat. §95 -126 through 155 (Occupational Safety and Health) as well as all
revisions and amendments to such standards or statutes as may occur throughout the
performance of the Work.
7.21 Any land- disturbing activity performed by the Contractor in connection with the Project shall
comply with all erosion control measures set forth in the Contract Documents and any
additional measures which may be required in order to ensure that the Project is in full
compliance with the Sedimentation Pollution Control Act of 1973, as implemented by Title
15 North Carolina Administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A,
4B and 4C, as amended (15 NCAC 4A, 4B, and 4C), and as may be revised or amended in
the future. Upon receipt of notice that a land - disturbing activity Is in violation of said Act, the .
Contractor shall be responsible for ensuring that all steps or actions necessary to bring the
Project in compliance with said Act are promptly taken. The Contractor shall be responsible
for all penalties assessed pursuant to N.C. Gen. Stat. 113A -64 with respect to its Work, and
shall, indemnify and hold harmless the CMAR and the Owner from all costs and expenses,
including attorney's fees and costs of defense, arising out of or related to the enforcement
of the Act against any party or person described in this Article..
7.22 The Contractor shall designate a responsible officer or employee.as -safety inspector, -
whose duties shall include accident prevention on the Project as well as implementation of
the Contractor's safety measures and safety programs on the Project., The name of the
safety inspector shall be made known to the CMAR at the pre - construction conference.
7.23 In emergencies affecting the safety of persons, the Work, or property. at the Project site or
adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent
threatened damage, injury, or loss. As soon as practicable, the Contractor shall notify the'
CMAR of such emergency. The Contractor shall give the CMAR prompt written notice of
any significant changes in the Work or deviations from the Contract Documents caused by
such emergency. If the Contractor believes that additional work done in an emergency
entitles the Contractor to an increase in the Contract Price or an extension of the Contract
Time, the Contractor may make a claim therefore as provided in Articles 14 and/or .15 of
these General Conditions.
7.24 The Contractor shall at all times keep the premises free from accumulation of waste
materials or rubbish caused by the Work. At least weekly and at the completion of 'the .
Work, the Contractor shall remove all waste materials and rubbish'. attributable to the
Contractor's Work from and about the Project. At the completion. of the Work, the
Contractor shall remove. all tools, construction . equipment, machinery, and surplus
materials. The Contractor shall leave the Work In condition for occupancy.by the Owner
such that no cleaning or other operations are required. Material cleared from the Project.
and deposited on adjacent property shall not be considered as having been disposed of
satisfactorily. If the Contractor fails to keep the Project clean and free of waste materials or .
rubbish, fails to satisfactorily clean -up weekly or at the completion of the Work, the CMAR
may do so and the costs thereof may be deducted from any amounts due or to become
due the Contractor.
7.25 Mites, temporary facilities, and signs shall be provided as described in the, dontract
Documents... Absent a contrary direction in the Supplementary Conditions, the.Contractor
GENERAL CONDITIONS FOR CM AT RISK PROJECT 22 of 42 'JUNE 2007 EDITION
shall pay all bills for its consumption of water, electricity; or other public utility service to the
Project site.
7.26 The Contractor shall indemnify and hold the CMAR, the Owner,' the' Designer, -the
Designer's consultants, and their respective officers, agents, and .employees harmless
against all costs, damages, and expenses, including attorney's fees and costs of defense,
arising out of claims by any separate contractor or by any Subcontractor, sub-
subcontractor, or supplier engaged by or employed by the Contractor or employed by any
of the Subcontractors claiming through him, including without limitation damages, losses,
and expenses arising out of or relating to any inconvenience, delay, interference, or other
action or non - action of the Contractor or the Contractor's Subcontractors on the Project.
The Contractor acknowledges that should the Contractor or any of the Contractor's
Subcontractors be damaged by any breach of contract by any other separate contractor on
the Project, the Contractor may invoke applicable dispute resolution procedures with said
other separate contractor.
7.27 Prior to completion of the Work and Final Payment of the Contract Price, excepting only
those portions of the Work deemed accepted in accordance with the Contract Documents,
the Contractor shall have charge and care of the Work, and shall take every precaution
against injury or damage to any party due to the action of the elements or from any other
cause, whether arising from the execution or from the non - execution of the Work. The
Contractor shall, as required by the CMAR, replace, rebuild, repair, restore, and make good
all injury or damage to any portion of the Work occasioned by any of the above causes
before Final Completion and shall bear the expenses thereof.
7.28 In the event that the Work, or any portion thereof, is suspended at any time pursuant to an
order of the Owner, the Contractor shall obey all instructions of the CMAR regarding
storage of materials, drainage, protection of the Work, and erection of temporary structures
during the suspension period.
7.29 The CMAR shall be responsible for the coordination of the Work of the separate
contractors, both as to space and time. The CMAR shall incorporate the Contractor's
Construction Schedule into the Master Schedule and coordinate the implementation of the
Contractor's Construction Schedule. The CMAR shall also coordinate close -out of the
Project, Including but not limited to all testing, inspection, certifications, and approvals
required by public agencies.
The Contractor shall notify the CMAR promptly of any event or condition which could affect
the conduct or progress of the Work and shall cooperate fully with the CMAR and all other
separate contractors on the Project site.
7.30 The Owner has delegated to the CMAR all of its duties to coordinate and to expedite the
Work not expressly reserved to the Owner by other provisions of the Contract Documents.
7.31 All Work performed pursuant to the Contract Documents shall conform in all respects to the
North Carolina State Building Code and all other state, local, and national codes in effect at
the time of and applicable to this Work.
7.32 The CMAR shall coordinate and supervise the installation of all sleeves, inserts, chases or
other. components of the Work needed for mechanical, plumbing, electrical or other work by
...the various contractors. The responsibility for exact location of such items shall be that of
the mechanical, plumbing, electrical or other prime contractor that requires the item for
passage or support of its work. Generally, the mechanical, plumbing, electrical or other
contractor that requires such items for support or passage of its work shall set its sleeves,
' inserts, chases or other devices. If necessary to maintain the progress of and complete Its
GENERAL CONDITIONS FOR CM AT RISK PROJECT 23 of 42 • JUNE 2007 EDITION
Work, however, the Contractor may be required to build or set sleeves, inserts, chases or
other components of the Work needed for mechanical, plumbing, electrical or other work by
other contractors.
7.33 The Contractor shall be responsible for permanently fixed service facilities and systems in
use during progress of the Work and shall strictly adhere to the following procedures:
a) Prior to acceptance of the Work by the Owner, the Contractor shall remove and
replace any part of the permanent building systems damaged through use during
construction.
b) Temporary filters shall be installed in each of the heating and ail' conditioning units,
return air grilles, and other locations to prevent intrusion of dust- dirt, and debris
during construction. Temporary filters shall be removed -and replaced with new
filters immediately prior to Substantial Completion.
C) Extra effort shall be maintained 'to keep. the building dean and under no
circumstances shall air systems be operated if finishing operations are creating
dust in excess of what would be considered normal if the building were occupied.
d) When the permanent lighting system is'used during construction, lamps shall be
replaced and shall be new on the date of, Substantial Completion..
ARTICLE 8. OWNER
8.1 The Owner shall issue communications and notices to the Contractor through the CMAR to
the extent contemplated by the Contract Documents.
8.2 In case of termination of the employment of the Designer, the Owner shall appoint as
Designer a qualified person who shall have and. assume all rights and duties held by the
original Designer. =
8.3 The Owner shall have the right to take possession of and use any portion ,of the Work
notwithstanding the fact that the time for.completion of such portion of the Work may not
have expired, but such taking possession and use shall not be deemed an acceptance of
any Work not completed in accordance with the Contract Documents.
8.4 A waiver on the part of the Owner of any breach of any part of the Agreement by the
Contractor shall not be held to be a waiver of any other or subsequent breach.
8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter
deposits for permanent utilities.
ARTICLE 9. CONSTRUCTION MANAGER
9.1 The Owner has engaged the CMAR for the purpose of (I) assisting the Owner and
Designer in developing and administering budgets and cost controls, (!!)..in evaluating
constructability and value engineering proposals, (iii) in establishing and maintaining a
critical path method (CPM) schedule, (]v) in coordinating and/or expediting all Work on the
Project, (v) In coordinating all Work on the Project with other projects being constructed by
the Owner or others adjacent to or near the Work, and (vi) for such other purposes as the
Owner may deem appropriate.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 24 of 42 JUNE 2007 EDITION
ARTICLE 10. DESIGNER
10.1 The Designer Is charged with responsibility for .preparation and "Interpretation of the
Contract Documents. The Designer's decisions relating to aesthetic matters shall be final.
10.2 All Work completed under the Contract Documents shall be subject to review by the
Designer. No Work is to be covered without the Designer's review or prior authorization.
Any Work so covered without the Designer's review or prior authorization shall be
uncovered at the Contractor's expense. The Contractor shall notify the CMAR in writing at
least twenty-four (24) hours in advance of covering any.Work.
10.3 The Designer shall not be responsible for the construction means, methods, techniques,
sequences, procedures, or the safety precautions and programs incident thereto, and shall
not be responsible for the Contractor's failure to perform the Work in accordance with the
Contract Documents, but shall be entitled to enforce any requirements in the Contract
Documents specifying particular means, methods, techniques, sequences, or procedures.
10.4 The Designer shall be an Owner's agent "during the construction period. The duties,
responsibilities and authority of the Designer ' as the Owner's representative during
construction are as set forth in the Contract Documents.
ARTICLE 11. TESTING AND SURVEYING
11.1 Laboratory and field tests to determine compliance of construction with the Contract
Documents shall be made by the Owner or testing consultants employed by the Owner
except those required elsewhere in the Contract Documents to be paid for by the
Contractor. The costs and expenses of providing samples for and assistance in any testing
shall be borne by the Contractor and are included in the Contract Price. Any Work in which
untested materials are used without approval or written permission of the CMAR and the
Designer shall be removed and replaced at the Contractor's expense. Work found to be
unacceptable or unauthorized will 'not be paid for and, if directed by the CMAR, shall be
removed and replaced at the Contractor's expense. Unless otherwise designated, tests in
accordance with the cited standard methods of ASTM or other generally recognized or
specifically authorized methods which are current on the date of advertisement for bids
shall be made at the expense of the Owner; provided, however, in the event that after such
testing any Work Is found to be defective or does not meet the requirements of the Contract
Documents, the costs of retesting such Work and the costs of inspection services shall be
paid by the Contractor. Samples shall be taken by a testing laboratory employed by the
Owner. All materials being used are subject to inspection, tests, or rejection at any time
prior to or during incorporation into the Work. Copies 'of all Owner test reports will be
furnished to the Contractor at its written request. Copies of Contractor test reports shall be
furnished to the CMAR upon written request.
11.2 'The CMAR shall have the right to deduct the costs of additional testing as described in
paragraph 11.1 from any money due or to become due the Contractor; or if no money is
due the Contractor, the CMAR shall have the right to recover these costs from the
Contractor, from its sureties, or from both.
11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly
licensed in the State of North Carolina.
ARTICLE 12. SEPARATE CONTRACTS
12.1 it is expressly understood that the CMAR and the Owner may deploy their own employees
or engage other separate contractors to perform Work as a part of the Project whose work
will be performed simultaneously and sequentially with the performance of the Work by the
GENERAL CONDITIONS FOR CM AT RISK PROJECT -25 of 42 JUNE 2007 EDITION
Contractor. It shall be necessary for the Contractor to coordinate construction activities with
such other contractors, particularly with respect to access to work areas, storage of
materials, and use of elevators and other common facilities. The Contractor shall diligently
and in good faith cooperate with the CMAR, the Owner, the Designer, and all other
contractors with respect to such matters and shall regularly and faithfully attend any and all
meetings called by the CMAR with respect to such matters. Any disputes between the
Contractor and any other separate prime contractor with respect to such matters shall be
resolved in accordance with the claim and dispute resolution procedures in the Agreement.
ARTICLE 13. CONTRACT TIME
13.1 Within fourteen (14) days after Initial receipt of the Construction Agreement by the
Contractor for signatures, the Contractor shall prepare and submit to the CMAR for review
and approval a preliminary Contractor's Construction Schedule for the Work pursuant to the
requirements stated in the Contract Documents.
13.2 Within fourteen (14) days -after initial receipt of the Construction Agreement by the
Contractor for signatures, 'the. Contractor shall submit to the CMAR a Submittal Register
listing all Submittals the Contractor is required to make or proposes to make under the
Contract Documents, the dates on which the Contractor proposes to make such Submittals
and the dates by which the Contractor reasonably requires a response from the CMAR and
the Designer with respect to each Submittal. The dates submitted shall be incorporated into
the Contractor's Construction Schedule as Completion Dates when they have been
approved or modified by the Owner.. The CMAR and the Designer shall not be required to
review any Submittal from the Contractor until a Submittal Register acceptable to and
approved by the CMAR has been submitted by the Contractor.
13.3 Not later than thirty (30).-days - following execution and delivery of the Construction
Agreement by the CMAR to the Contractor, the CMAR shall deliver to the Contractor a
Notice to Proceed. The Notice to Proceed shall state a.commencement date on which it is
expected that the Contractor will begin the Work to be performed under the Agreement.
The Contract Time shall be measured ' from said. specified commencement date.. The
commencement date stated in the Notice to Proceed shall not be earlier than three (3) days
after the Notice to Proceed is served on the Contractor.
If, other than by mutual agreement, said specified: commencement date is more than thirty
(30) days after the date of execution and delivery of the Agreement from the CMAR to the
Contractor and the Contractor believes said delay justifies an increase in Contract Price
and /or an extension of Contract Time, the Contractor may make a claim .therefore as
provided in Article 14 and/or Article 15 of these General Conditions.
No Work shall be done prior to the date specified in the Notice to Proceed
The Contractor shall submit a final Contractor's Construction Schedule for approval by the
CMAR no later than fourteen (14) days after issuance of the Notice to Proceed. No
payments shall be due the Contractor until this schedule Is approved by the CMAR.
13.4 The Master Schedule is a Contract Document. The Contractor represents that the Master
Schedule has been reviewed in -detail and taken into account in preparing its bid. The
Contractor's Construction Schedule shalt be incorporated Into the CMAR's Project Master
Schedule. The Contractor's Construction Schedule shall include all of its activities which
Impact limit, or- otherwise affect -the time of completion of the Project as shown in the
Master Schedule, and all of the activities of others which impact, limit, or otherwise affect .
the start, duration, 'or completion ' of the Contractor's activities. The Contractor. further
represents that the Contractor can and will complete each activity within the time shown for .
GENERAL CONDITIONS FOR CM AT RISK PROJECT 264 42 . JUNE 2007 EDITION
that activity on the Contractor's Construction Schedule. Time is of the essence with respect
to each such activity and Completion Date.
13.5 If the Contractor submits a construction schedule, progress report, or any other document
that indicates or otherwise expresses -an intention to achieve completion of the Work prior
to any Completion Date required by the .Contract Documents or prior to expiration of the
Contract Time, no liability of the CMAR to the Contractor for any failure of the Contractor to
so complete the Work shall be created or implied.
13.6 If the Contractor, for reasons - beyond the Contractor's control, is delayed in beginning any
activity, the Contractor shall, nevertheless, have the same number of days as is shown in
the Master Schedule for the activity, and the affected activity and any succeeding activity
that is dependent upon that activity shall be adjusted accordingly, provided that at any time
the CMAR, by means-of a Change Order, may require the Contractor to work overtime, to
increase labor forces or to take any necessary or appropriate action to decrease the time
required for any activity, and the Contractor shall be entitled to an adjustment in the
Contract Price computed in accordance with Article 15 of these General Conditions.
13.7 At any time, the CMAR may order the Contractor, on seven (7) days written notice, to begin
any activity earlier than the starting date shown on the Master Schedule.
13.8 Should the Contractor fail to start any activity on the start date shown in the Master
Schedule or as it may have been adjusted in accordance with paragraphs 13.6 or 13.7
above, or become delayed, the Contractor shall, without being entitled to any increase in
.the Contract Price or other compensation, work overtime, increase labor forces or take
such other action as may be necessary or appropriate to complete the activity by the
Completion Date shown on the Master Schedule, or as such Completion Date may_ have
-been adjusted.
13.9 The CMAR shall monitor progress of the Work at all times and the Contractor shall.
cooperate with such monitoring and provide any and all information with respect to the
progress of the Work and scheduling as the CMAR may reasonably require.
13.10 On a monthly basis, in consultation with the Contractor, the CMAR shall revise the Master
Schedule, showing any adjustments made in accordance with paragraphs 13.6 or 13.7,
above, by any Change Order, the progress of the Work, and any days gained or days lost
with respect to any activity, and shall furnish copies thereof to the Contractor.
13.11 Should any monthly revision of the Master Schedule show that the Contractor is behind on
any activity, the late completion of which could delay Substantial Completion of the Work,
the CMAR shall be entitled to withhold from the next Progress Payment due the Contractor
an amount sufficient to reimburse the CMAR for any and all delay damages, should
Substantial Completion, be delayed by the same number of days that the Contractor is
currently behind schedule. If, subsequently, the Contractor's progress, as shown by any
succeeding monthfy revision to the Master Schedule, is such that the anticipated delay no
longer exists, the CMAR shall pay with the Progress Payment next due to the Contractor
such amounts as have been withheld in accordance with this paragraph.
13.12 The CMAR shall have the right to perform Work, hire and employ labor and craftsmen, rent
equipment, subcontract with other parties, or do anything that the CMAR deems necessary
or appropriate to remedy or cure any delay by the Contractor In the progress of the Work.
Such action by the CMAR shall not in any way, affect, void or limit any warranty, guaranty
or other responsibility of the Contractor under the Contract Documents. Such action may ,
be taken by the CMAR only after. three (3) days written notice to the Contractor. All costs'
incurred by the CMAR in taking any such action shall be charged. to.the Contractor and
deducted from any amounts remaining due under the Agreement.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 27 of 42 JUNE 2007 EDITION
13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in the
Contract Price) for delays arising from unforeseen causes beyond the control and without
the fault or negligence of the Owner, the Designer, the CMAR, the Contractor or the
Contractor's Subcontractors as follows:
a) Labor disputes -and strikes that directly impact the critical path activities of the
Master Schedule;
b) Acts of God,: tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that
damage completed Work or stored materials.
c) Acts of the public enemy; acts of the State, Federal, or local government in their
sovereign capacities.
d) Abnormal inclement weather as defined in Article 13.14.
13.14 On any day that the Contractor considers that the Project is delayed by adverse weather
conditions, the Contractor shall identify in writing to the CMAR the adverse weather
conditions affecting each activity, the specific nature of the activity affected, the number of
hours lost, and the number of and identity (by responsibility or trade) of workers affected
and shall obtain from the CMAR written recognition of the delay. The time for performance
of this Contract includes anh 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 CMAR
exceeds the number of. inclement weather days set forth below, and. the Contractor
demonstrates how this adverse weather impacts activities on the critical path of the Master
Schedule.
Month Number of Inclement Weather Days
January 7
February 6
March 7 .
April. 8
May 7 .
June . .6
July . 8
August 6
September 5
October 5
November 5 .
December g
13.15 If the Contractor believes that the progress of the Work has been adversely affected by
adverse weather recognized by the CMAR during a particular month, the Contractor shall
submit a written request for extension of time to the CMAR. Such a request for time
extension of the Contract Time shall be submitted by the tenth (10th) day of the month
following that month in which the adverse weather is encountered. The request shall
Include, but is not limited to, the following information:
a) Detailed description of weather's effect on scheduled activities and its net effect on
the critical path of the Project and
b) Weather records from the official weather station nearest the - Project site and
records of actual observation as contained in daily reports, correspondence, or
-other documentation.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 28 of 42 JUNE 2007 EDITION
13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any
Completion Date can have the effect of delaying the Substantial Completion of the Project,
or could- force the CMAR to accelerate the Contractor's Work or the work -of other
contractors.- Such delay in achieving a Completion Date will necessarily cause damages,.
losses, and expenses to the CMAR, Including, but -not limited to and by way of illustration
only, liquidated damages payable to the Owner, damages payable to other contractors,
Increased _and extended Project overhead, increased fees, increased costs of construction,
increased -and extended operation costs of other facilities, 'and Inefficiency and loss of
productivity:. Such damages, losses, and expenses may be recovered from the Contractor
and, if the Contractor is bonded, its surety.
13.17 The sum for liquidated damages payable to the Owner is the amount stipulated in the
CMAR Contract and reasonably estimated in advance to cover the losses to be incurred by
the Owner by reason of failure of said CMAR and the Contractor(s) to complete the Project
within the time specified in the Construction Management Contract, such time being in the
essence of this Agreement and a material consideration thereof.
ARTICLE 14. CHANGES IN THE WORK
14.1 Without invalidating the Contract Documents, the CMAR may, at anytime, or from time to
time order additions, deletions, or revisions in the Work. Said - additions, - deletions, or
revisions shall be authorized only by written Change Orders, Construction Change .
Directives or Field Orders. Upon receipt of a Change Order, Construction Change Directive.'..
.or Field Order, the Contractor shall proceed with the Work involved. All such Work shall be
executed under the applicable conditions of the Contract Documents. If any change causes .
an increase or decrease in the Contract Price and /or an extension or shortening of the .
Contract Time, adjustments shall be made as provided in Article 14 and/or Article 15 of
these General Conditions.
14.2 If possible, Work shall not begin on any change or alteration to the Work until a written
Change Order is executed settling any change in the Contract Price or Contract Time. In
the event the Contractor and the CMAR cannot agree that an adjustment to the Contract
Price or the Contract Time is warranted, or cannot agree on the appropriate adjustment to
the Contract Price or the Contract Time, in order to expedite the Work and avoid or
minimize delay in the Work that might affect the Contract Price or Contract Time, the
Contractor shall, if so directed by the CMAR in writing, nevertheless proceed with the Work,
and any adjustment to the Contract Price or Contract Time shall be negotiated by the
parties at a later date, utilizing the dispute resolution procedures under this Agreement if
necessary. Any claim for an adjustment in Contract Price or Contract Time, if not defined in
the Construction Change Directive, shall be promptly made in writing in accordance with
the procedures defined in Article 15.2 of these General Conditions.
14.3 The Designer, through the CMAR, may authorize minor changes or alterations in the Work
not involving change in the Contract Price or in the Contract Time and not inconsistent with
the overall intent of the Contract Documents. These may be accomplished by a 7leld
Order. Such alterations shall not invalidate the Contract Documents nor release the surety.
If the Contractor believes that any minor change or alteration authorized by the Designer
entitles the Contractor to an increase in the Contract Price and/or an extension of Contract
Time, the Contractor may make a claim therefore as provided in Article 14 and/or Article 15
of these General Conditions.
14.4 Except in an emergency endangering life or property, no change shall be made by the
Contractor except upon prior written Change Order, Construction Change Directive- or Field .
Order authorizing such change.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 29 of 42 :' JUNE 2007 EDITION
-14.5 Increases in the Contract Price and/or extensions of the Contract Time for additional Work
performed by the Contractor shall only be in accordance with a written Change Order or
Construction Change Directive signed by the CMAR. The Contractor shall not be entitled
-to additional time or to additional compensation for' any Work performed or material
supplied which is claimed to have been authorized or settled by an "oral" change,'or by a .
"constructive" or "implied" change, or by a course of conduct, or by any action or non - action
by the' CMAR, or any other persons, or by any means whatsoever other than by a written
Change Order or Construction Change Directive for such Work or material signed by the
CMAR.
14.6 Changes in the Work resulting from emergency shall not invalidate the Contract Documents
nor release the surety if the Contractor is bonded.
14.7 The CMAR shall not be responsible for verbal instructions which have not been confirmed
in writing, and in no case shall such instructions be interpreted as permitting a departure
from the Contract Documents unless such instruction is confirmed in writing and supported
by a proper Change Order, Construction Change Directive or Field Order, whether or not
the cost is affected.
14.8 If the Contractor is bonded, the CMAR, in its sole discretion, may require that the
. Contractor notify the Contractor's sureties of any changes affecting the general scope of
:the Work or change in the Contract Price, and that the amount of applicable bonds shall be
adjusted accordingly. If this requirement is exercised, the Contractor shall fumish proof of
such adjustment to the CMAR.
If this requirement is exercised, the Change Orders and Construction Change Directives
shall require written consent of the Contractor's surety. At the time of signing a Change
Order, the Contractor shall be required to certify as follows: .
"I certify that all sureties have been notified that my contract has been altered by
the amount of this Change Order or Construction Change Directive and that a copy
of the approved Change Order or Construction Change Directive will be mailed to
all sureties upon its receipt by me."
If this requirement is exercised, no payment to the Contractor on account of any Change
Order or Construction Change Directive shall become due or payable until written evidence
of the surety's consent to the Change Order or'Construction Change Directive has been
fumished to the CMAR, and the furnishing of such written consent is a condition precedent
to such payment.
14.9 The Contractor shall support all requests for Change Orders with a detailed cost
breakdown showing cost of materials, labor, equipment,. transportation, other items,
Contractor's overhead and profit, and total cost, In accordance with methods defined in this
Article, and, if the request seeks an extension of the Contract Time, with a time - related
diagram which demonstrates specifically why an increase in construction time is needed.
14.10 'When a request for a Change Order involves a Subcontractor, the Contractor shall provide
quotation from same on Subcontractor's letterhead- The The Subcontractor's quote shall list
materials, equipment, and labor separately, and show overhead and profit in the manner
provided in paragraph 14.9.
ARTICLE 15. CHANGE OF THE CONTRACT PRICE
15.1 The 'Contract Price constitutes the total compensation payable to -the Contractor for
performing .all Work under the Contract Documents.. All duties,.. responsibilities, and
GENERAL CONDITIONS FOR CM AT RISK PROJECT 30 of 42 JUNE 2007 EDITION
obligations assigned to or undertaken by the Contractor shall be at its expense without
change in the Contract Price. The Contract Price may only be changed. by a Change Order.
15.2 Any claim for an adjustment in the Contract Price shall be in writing. Written notice of any
event, action, or non - action which may become the basis of a claim shall be delivered to
the-CMAR within three (3) days of the occurrence, or the beginning of the occurrence, of
.any such event, action or non - action giving rise to the claim. Such written notice is a
condition precedent to the making of a claim, and such notice shall describe the basis of
the potential claim with reasonable detail and clarity.'
A claim shall be made in writing and shall be delivered to the CMAR no later than fourteen
(14) days after such notice. The claim shall describe in detail the basis for the claim, with
specific reference to any provisions of the Contract Documents, by paragraph, drawing
number, or other specific identification, and shall state the amount claimed and how it is
calculated. If the Contractor, at the time the claim is made, is unable to state the amount
claimed with accuracy, the Contractor shall so state and provide the estimated amount and
the basis on which the amount Is to be calculated. At the earliest date practicable, but.in no
event more than thirty (30) days after Contractor's notice of claim, the Contractor shall
supplement the claim with an accurate statement of the amount cla i med and how it has
been calculated. The Contractor shall provide, in writing, in support of the claim all such
explanations, arguments, data, receipts, expert opinions, or other documents or information
as the Contractor deems appropriate to be considered in support of the claim. A claim may
properly be rejected by the CMAR by reason of the Contractor's failure to submit adequate
or accurate documentation or information, except that within seven (7) .days after being
given notice that the claim has been rejected on this basis,' the Contractor may submit
additional documentation or information. No claim for a change of the Contract Price shall
be considered or granted (except solely at the discretion of the CMAR) unless a claim is so
made, nor shall the Contractor be entitled to any. increase in the Contract Price unless the
Contractor has given notice and made such a written claim .within the times required. The
CMAR shall decide, after obtaining the advice of the Owner and the Des €gner, ,whether an
Increase in Contract Price is warranted, and - the amount of. such increase shall be
determined as provided in paragraphs 15.3 through. 15.4, below. Any change in the
Contract Price resulting from any such claim shall be incorporated in a Change Order.
The CMAR shall advise the Contractor of its decision with respect to the claim within thirty
(30) -days of its receipt, or of the receipt of additional documentation -or information if the
absence of such has previously been the basis of rejection of the claim. Any claim on which
the CMAR has not provided its decision to the Contractor within the applicable time period
shall be deemed denied.
If the Contractor is not satisfied with the decision of the CMAR, the Contractor may within
seven (7) days of receipt of the CMAR's decision initiate the mediation . process as
described in Appendix A to these General Conditions.,
15.3 In determining the amount of a Contract Price adjustment, the parties shall apply the
following methods, as appropriate:
(a) Change in Work: The CMAR and the Contractor shall negotiate in good faith and
attempt to agree upon the value of any change (extra or decrease) in Work prior to the
issuance of a Change Order covering said Work. Such Change Order shall set forth
the corresponding adjustment to the Contract Price. In the event the CMAR and the
Contractor are unable to agree, the CMAR shall grant an equitable adjustment in the
Contract Price.
(b) Emergency Work: In the event of emergency - endangering life::or property, the
Contractor may be directed by the CMAR to proceed on a time and material basis,
GENERAL CONDITIONS FOR CM AT RISK PROJECT'.' 31 of 42 = : = JUNE 2007 EDITION
whereupon the Contractor shall so proceed and keep accurately, in such form as may
be required by the CMAR, a correct account of costs together with all proper invoices,
payrolls, and supporting data therefore.
15.4 Where the Contract Price is to be adjusted, the following limitations shall apply In
determining the amount of adjustment:
(a) In the case of extra or emergency work, the Contract Price shall not be increased by
more than the reasonable, actual, and documented net cost of the extra or emergency
work plus ten percent (10 %) of such net cost on Work performed by the Contractor and
five percent (5 %) thereof on any subcontracted Work for overhead and profit combined.
(b) In the case of a decrease in Work, the Contract Price shall not be decreased by less
than the net cost of the deleted Work plus five. percent (5 %) of such direct net cost for
profit and overhead.
The term 'net cost' as used herein shall include, as applicable, and shall be limited to, all
direct labor, direct material, direct equipment, labor burden, sales taxes, shipping and
handling charges, permits and fees, and insurance and bond premium adjustments, if any,
attributable to the change. All- other items of cost shall be considered as overhead and
covered by the percentages allowed in sections (a) and (b) of this paragraph.
The Contractor shall provide worksheets or tabulations describing the method by which the
direct net cost was calculated, and shall provide all data needed to support the calculation
of the direct net cost, all in a form acceptable to the CMAR.
ARTICLE 16. UNFORESEEN CONDITIONS
16.1 Should the Contractor encounter unforeseen conditions at the Project site materially
differing from those shown -on the Drawings or indicated in the Specifications or differing
materially from those ordinarily encountered and generally recognized as inherent in work
of the character provided for in this Agreement, the Contractor shall immediately, and in no
event more than three (3) days later, give notice to the CMAR of such conditions before
they are disturbed. The CMAR shall thereupon promptly notify the Designer and Owner
and investigate the conditions. The CMAR shall as soon as practicable request that the
Designer make such changes in the Drawings and/or Specifications as the CMAR and the
Contractor believe are necessary to continue the Work. Any increase or decrease in the
Contract Price resulting from such changes shall be adjusted in the manner provided
herein for adjustments as to extra and /or additional Work and changes. The CMAR shall
not be liable or responsible for additional work, costs, or changes to the Work that could
have been reasonably determined from any reports, surveys, and analyses made available
for the Contractor's review or that could have been discovered by the Contractor through
the performance of its obligations pursuant to the Contract Documents.
ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT
17.1 The Owner and the CMAR have the authority to stop or suspend Work and to order Work
removed or to order corrections of defective Work or Work not In compliance with the
Contract Documents where such action may be necessary to ensure successful completion
of the Work.
Any work, materials, fabricated items, or other parts of the Work which have been found by
the CMAR, the Owner : or the Designer to be - defective or not in accordance -with the
Contract Documents shall -be condemned and shall be removed from the Project by the
Contractor, and immediately replaced by -new Work in .accordance with the Contract
GENERAL CONDITIONS FOR CM AT RISK PROJECT 32 of 42' JUNE 2007 EDITION
Documents at no additional cost to the CMAR. Work or property of the Owner or others
damaged or destroyed by virtue of such condemned Work shall be made good at the
expense of the Contractor.
Correction of condemned Work described above shall be commenced by the Contractor
within twenty -four (24) hours after notice from the CMAR and shall be pursued to
completion. Should the.Contractor fail to proceed reasonably with the above- mentioned
corrections, the CMAR may, three (3) days after the notice specified in the preceding
sentence, proceed with correction, paying the cost, including costs of uncovering such
condemned Work, of such corrections from amounts due or to become due to the
Contractor.'
Condemned Work removed shall be the property of the Contractor and shall be removed
from the Project by the Contractor within ten (10) days after notice to remove it, and if not
then removed, thereafter may be disposed of by the CMAR without compensation to the
Contractor and the cost of such disposal shall be deducted from amounts due or to become
due to the Contractor.
Should the cost of correction of the Work and, if applicable, disposal of the condemned
Work by the. CMAR exceed the amount due or to 'become due the Contractor, the
Contractor and the Contractor's sureties shall be liable for and. shall pay to the CMAR the
amount of such excess.
ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION; WARRANTIES AND
GUARANTIES
18.1 No certificate of completion by any party, Final Payment, occupation of the premises by the
Owner, any provision of the Contract Documents, or any other act or instrument of the
CMAR, the Owner or the Designer shall relieve the Contractor from responsibility for
negligence, defective material or workmanship, or failure to comply fully with the Contract
Documents.
18.2 The Contractor shall, at the Contractor's sole cost and expense, make all necessary
repairs, replacements, -and corrections of any nature or description, interior or exterior,
structural or non - structural, that shall become necessary by reason of defective
workmanship or materials which appear within a period of one (1) year from the date of
Substantial Completion and acceptance of the Project by the Owner; provided, however
that notwithstanding the preceding, if any longer guarantee period is specified for any
particular materials or workmanship under the Contract Documents, or under any
subcontract, or in connection with any manufactured unit which is installed in the Project, or
under the laws of the State of North Carolina, the longer guarantee period shall govern.
18.3 If, within any guarantee period, repairs or changes are required in connection with the
Work, which are rendered necessary as the result of the use of materials, equipment, or
workmanship which are inferior; defective, or not in accordance with the terms of the
Contract Documents, the Contractor shall, promptly upon receipt of notice from the CMAR
and without expense to the CMAR:_
a) Completely repair or replace the Work. so that it conforms to the Contract
Documents; _
b) Correct all defects therein;
C) Make good all damage which, 1n the opinion of the CMAR or the Designer, Is the.
result of the use of materials, -equipment, or -. workmanship which are inferior,
defective, or not In accordance with.the terms of the Contract Documents; and.
JUNE 2007 EDITION
GENERAL CONDITIONS FOR CM AT RISK PROJECT 33 c f 42-
d) Make good any Work or material, or any equipment or contents disturbed in
fulfilling any such guarantee. -
If, in fulfilling the requirements_of the Contract Documents, or of any guarantee embraced
therein or. required thereby,- the - Contractor . disturbs any work, - facility, - premises, or
construction belonging to the Owner, the Contractor shall restore such disturbed. work,
facility, premises or construction to: a 'condition satisfactory to the Owner, and shall.
guarantee such restored work to the same extent as if it were Work under the Contract
Documents.
If the Contractor, after. notice, fails to proceed promptly to comply with the terms of the
guarantee, the CMAR may have the defects corrected, and the Contractor and the
Contractor's sureties shall be liable for all expenses incurred. "Promptly" is defined as
within twenty-four (24) hours for systems necessary to normal operation of the building and
Within seventy-two (72) hours for all other items. All special guarantees applicable to
definite parts of the Work that may be shown In or required by Contract Documents shall be
subject to the terms of this paragraph during the first year of the life of such special
guarantee. Manufacturer's standard guarantees or warranties which do not comply with the
time limit specified herein shall be extended by the Contractor automatically without further
action on the part of the CMAR.
18.4 In the eleventh calendar month after Substantial Completion of the entire Project, and at
the request of the CMAR, the Contractor, the CMAR, the Owner and the Designer shall
make an inspection of the Work for the purpose of identifying defective workmanship -
and/or materials. If the Contractor, having been requested to do so by the CMAR, fails -to
participate in such inspection, the Contractor shall be conclusively bound by any decision
or ruling by the Designer as to any defective workmanship or material and as to the
Contractor`s responsibility for its repair or replacement.
ARTICLE 19. CMAR'S RIGHT TO DO WORK
19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to
prosecute the Work properly or to perform any provision of the Contract Documents, the
CMAR, after three (3) days written notice to the Contractor from the CMAR, may perform or
have performed that portion of the Work and may deduct the cost thereof from any amount
due or to become due the Contractor. Notwithstanding any action by the CMAR under this
paragraph, all warranties and bonds given or to be given by the Contractor shall remain in
effect or shall be given by the Contractor.
19.2 Should the cost of such action by the CMAR exceed the amount due or to become due the
Contractor, the Contractor and the Contractor's sureties shall be liable for and shall pay to
the CMAR the amount of such excess.
ARTICLE 20. PARTIAL PAYMENTS
20.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor
for signatures the Contractor shall submit to the CMAR a Schedule of Values. The
Schedule of Values shall indicate the value of the Work, including applicable overhead and
profit, for ' each Division and section of the Project Specifications. The CMAR shall be
provided with the Contractor's- estimate papers, Subcontractor agreements, supplier
quotes, or other documents substantiating these values if so" requested in writing by the
CMAR. The Contractor shall provide the requested documentation within seven (7) days
after receipt of the CMAR's written request. The Schedule of Values shall be subject to
approval by the CMAR.and the Owner, and if the CMAR and the Contractor cannot agree
upon the Schedule of Values, the Designer shall prepare it, and the Schedule of Values as
GENERAL CONDITIONS FOR CM AT RISK PROJECT 34 of 42 _ JUNE 2007 EDITION
prepared by the Designer shall be binding on the CMAR and the Contractor. No Request
for Payment shall be certified by the CMAR until the Schedule of Values has been
- approved by the Owner..
20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the-.
CMAR a Request for Payment for Work done during the previous - calendar month. 'The
Request for Payment shall be in form of AIA Document G702 (latest edition), or other
published document approved by the CMAR, and shall show substantially the value of
Work done (including the value of material delivered to the Project or stored by the
Contractor at' another .site, subject to the conditions hereinafter set forth) during the
previous calendar - month, and shall sum up the financial. status of the Work with the
following Information: .
a) Total Contract . Price, including any adjustment thereto made pursuant to the
Contract Documents.
b) Value of Work completed and materials properly stored to date.
c) Less amount retained.
d) Less previous payments.
e), Current amount due.
.f) . --'.Contract Price balance remaining.
The Contractor, upon request of the CMAR, shall substantiate the Request for Payment
with invoices, vouchers, payrolls, or other evidence.
20.3 When payment is requested or made on account of stored materials, such materials must
be stored on the Owner's property or on such property otherwise designated in writing by
the Owner at such - places and in such a manner as may be designated by. the CMAR.
However, if approved by the CMAR, and with permission in writing from the Designer and
Owner and under such circumstances as may be required by the CMAR and the Owner,
such materials may be stored in a bonded warehouse. Requests for Payment on account
of stored materials shall be accompanied by paid invoices, bills of sale, warehouse
receipts, or. -other documentary evidence establishing Owner's title to such materials,
evidence that the stored materials. are Insured against loss and damage, and. such other
documentation as required by the CMAR. Responsibility for the quantity, quality, and
condition of such stored materials, whether stored on the Owner's property or away from
the Owner's property, shall rema €n with the Contractor regardless of ownership or title. No
payment shall. be made on account of materials stored in a bonded warehouse unless the
Contractor has acquired written permission from the CMAR and the Owner for such storage
of materials'and has complied'with all conditions set forth In such permission regarding
such storage of materials in a bonded warehouse.
20.4 Any Request for Payment received by the CMAR on or before the fifth (5th) day of the
calendar month. shall be . certified for payment or returned for re- submission to the
Contractor on 'or before the fifteenth (15th) day of the calendar month: The - CMAR's
certification shall be for the amount which was requested or that which the CMAR has
decided was justly due, and shall state in writing to the Contractor and Owner the reasons
for withholding payment of .any or all of the amount requested..
20.5 The CMAR may_ refuse to "certify all or part of any payment requested . for any of the
following reasons:
GENERAL CONDITIONS FOR CM AT RISK PROJECT 35 of 42 JUNE 2007 EDITION
a) Refusal by the Designer to certify or the Owner to pay a payment application by the
CMAR for Work by the Contractor.
b) Defective Work not corrected.
c) Suits, actions, or claims of any character filed against the Contractor, or due to the
operations of the Contractor, or Information or notice that a suit, action, or claim will
be filed or has been made.
d) Information or notice that a Subcontractor or 'a supplier has not received payment
from the Contractor.
e) The balance unpaid of the Contract Price is Insufficient to complete the Work in the
judgment of the CMAR.
f) Damage to the CMAR, the Owner or another contractor.
g) Inability of the Contractor to meet a Completion Date, including an anticipated
failure to meet a Completion Date entitling the CMAR to withhold anticipated
damages in accordance with paragraphs 13.11 and - 13.12 of these General.
Conditions.
h) f=ailure to furnish Submittal as required by the Contract Documents on -a timely
basis in accordance with the Submittal Register. .
i) Such other reason as to the CMAR may appear prudent, proper, or equitable.
When grounds for withholding certification have been corrected. or removed, the CMAR
shall make any payment due with respect to such certification as a part of its next payment
after such certification.
20.6. No certificate of payment issued or progress payment made shall constitute'an acceptance
of the Work or any part thereof.
20.7 The amount certified by the CMAR for payment shall be ninety percent (90 %) of the value
of Work completed and materials stored since the CMAR's last certification as shown on
the Request for Payment, less any amounts not certified in accordance with paragraph
20.4, and this amount shall be paid by the CMAR on or before the last business day -of the
month, but payment shall not be past due if paid within fifteen (15) days thereafter.
20.8 If the Contractor's Work has progressed in accordance with the Master Schedule as of a
target date mutually agreed upon by the Owner, the Designer and the CMAR, and the
Contractor has provided to the CMAR the written consent of its sureties to the cessation of
further percentage retention, the amount certified for payment with respect to subsequent
Requests for Payment may, in the discretion of the CMAR, be one hundred percent (100 %)
of the value of Work completed and materials stored since the CMAR's last certification as
shown on the Request for Payment, less any amounts not certified in accordance with
paragraph 20.4; provided, however, that the aggregate of periodic payments shall not
exceed ninety -five percent (95 %) of the Contract Price.
ARTICLE 21. FINAL PAYMENT
21.1 Final Payment shall not be due to the Contractor until Final Completion.
21.2 Upon Substantial Completion, the CMAR in conjunction with the Designer shall prepare
and submit to the Contractor deficiency lists identifying all portions.of the Work which are
GENERAL CONDITIONS FOR CM AT RISK PROJECT. 36 of 42 JUNE 2007 EDITION
shown at that time to be incomplete or defective. Within thirty (30) days of receipt -of any
deficiency list the Contractor shall complete and correct all items on that list along with all
other Work required to achieve Final Completion of the Work. At -any time prior to
completion of the period of warranty, the CMAR may submit to the Contractor supplemental
deficiency lists, in which case the Contractor shall complete or correct any and all new
items identified on the supplemental deficiency lists within the time period stipulated in
paragraph 18.3 of these General Conditions.
21.3 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
CMAR except;
a) Claims arising from unsettled liens or claims against the Contractor.
b) Defective Work or materials appearing after Final Payment.
c) Failure of the Contractor to perform the Work in accordance with ' the Contract
Documents.
d) As conditioned In the Performance Bond.
e) Claims made prior to Final Payment which remain unsettled.
f) Amounts due arising under Articles 18 and 28 of these General Conditions.
g) Claims for recovery of overpayment based upon incorrect measurement, estimate,
or certificate.
21.4 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
Contractor except those claims previously made in writing pursuant to paragraph 15.2 of
these General Conditions and not finally. resolved.
21.5 The CMAR -shall not be required to make Final Payment unless and until (1) the Designer
has certified based on the Designer's observations and information that all of the Work by
the Contractor under the Contract Documents has been completed in accordance with the
Contract Documents, and (ii) the Work by the Contractor has been approved by all federal,
state and local agencies having jurisdiction.
21.6 The. final Request for Payment shall be identified on its face as such and shall be
presented by the Contractor to the CMAR within thirty (30) days of completion of the Work.
Final payment of the retained amount due the Contractor shall be made by the CMAR
within thirty (30) days after the later of (i) full and Final Completion of all Work required of
the Contractor by the Contract Documents, and certification of such Work in accordance
With paragraph 21.5; (ii) submission of the affidavits and other documentation required by
Article 22; (ill) submission by the Contractor of a Request for Payment identified on its face
as final.
ARTICLE 22. CONTRACTOR, SUBCONTRACTOR AND SUPPLIER AFFIDAVIT
22.1 The Final Payment due the Contractor on account of the Contract Documents shall not
become due until the Contractor has furnished to the CMAR: (A) an affidavit by the
Contractor signed, sworn, and notarized to the effect that all payments _for materials,
services, or for any other reason in connection with the . Work or performance of the
Contract Documents have been satisfied and that no claims or - liens exist against the
Contractor In connection with the same; (B) affidavits from each Subcontractor and supplier
signed, sworn, and notarized to the effect that (i) each such Subcontractor or supplier has
been paid in full by the Contractor for all Work performed and/or materials supplied.by it in
GENERAL CONDITIONS FOR CM AT RISK PROJECT 37 of 42 JUNE 2007 EDITION
connection with the Project, and (ii) that all payments for materials, services, and for any
other reason in connection with the subcontract or supply contract have been satisfied and
that no claims or liens exist against the Subcontractor or supplier in connection therewith;
and (C) the written consent of the Contractor's sureties to Final Payment_ In the event that
the Contractor cannot obtain an affidavit, as required above,_ from any Subcontractor or
supplier, the Contractor shall state in the Contractor's affidavit that no claims or liens exist
against such Subcontractor or supplier to the best of the Contractor's knowledge, and that if
any appear afterwards, the Contractor shall indemnify and save the CMAR and the Owner
harmless for all costs and expenses, including attorney's fees, on account thereof.
ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS
23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the CMAR. Except as may be required under
terms of the bonds required by the Contract Documents, no funds or sums of money due or
to become due to the Contractor under the Contract Documents may be assigned.'
ARTICLE 24. MEASUREMENTS
24.1 Before ordering material or doing Work which is dependent for proper'size or installation
upon coordination with building conditions, .the Contractor -shall verify all dimensions and
shall be responsible for the correctness of same. No consideration will - be given for any
claim based on differences between the actual dimensions and those indicated in the
Contract Documents. Any discrepancies between the Contract Documents and the existing
conditions shall be referred to the Designer by the CMAR for-'adjustment before any Work
affected thereby is begun.
ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS
25.1 Within thirty (30) days after initial receipt of the Construction Agreement by the Contractor
for signatures, the Contractor shall'submit to the CMAR for acceptance a current list of the
names of Subcontractors and such other persons and organizations (including those who
are to furnish materials or equipment fabricated to a special design) proposed for any and
all portions of the Work. The Contractor shall provide this list at this . time even if the
Contractor was required to submit a list of proposed Subcontractors with the Contractor's
bid. The CMAR shall promptly reply to the Contractor in writing stating whether or not the
CMAR, after due investigation, has objection to any such proposed person or entdy or if it
needs additional information to evaluate the persons or entities on the list. Failure of the
CMAR to reply within ten (10) days after the Contractor has. furnished all required
information shall constitute notice of no objection.
The Contractor shall not contract with any such proposed person ' or entity to which the
CMAR has made reasonable objection. If the CMAR has-reasonable objection to any such
proposed person or entity, the Contractor'shall submit a substitute to whom the CMAR has
no reasonable objection. The Contractor shall make no substitution for any Subcontractor,
person, or entity previously allowed without first notifying the CMAR. in writing and . no
substitution may be made if the CMAR makes a reasonable objection to such substitution.
25.2 The Contractor agrees that the terms of the Contract Documents, including all portions
thereof, shall apply to all Subcontractors as if they were the Contractor, . and that the
Subcontractors shall, by means of their subcontracts, be bound by all the terms of the
Contract Documents.
25.3 Payments to Subcontractors by the Contractor shall be made in accordance. with the
provisions of N.C. Gen. Stat. §143- 134.1.
GENERAL CONDITIONS FORCM AT RISK PROJECT 38 of 42
Jt1NE 2007 EDITION
ARTICLE 26. USE OF PREMISES
26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers,
and the disposal of material to limits indicated by law, ordinances, permits, and directions of
the CMAR, if any.
.26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that
will endanger its safety, Intended performance, or configuration.
26.3 The Contractor shall enforce all of the CMAR's instructions, Including, but not limited to,
those regarding signs, advertisements, fires, and smoking.
ARTICLE 27. CUTTING, PATCHING AND FITTING
27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to
make its several parts come together properly and fit it to receive or to be received by Work
shown in or which can be reasonably implied from the Contract Documents.
ARTICLE 28. DISPUTE RESOLUTION
28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with
- respect to any provision of, or the performance or nonperformance of, this Agreement shall
be brought in the General Court of Justice of North Carolina sitting in Orange County, North
Carolina, and it is agreed by the parties that no other court shall have jurisdiction or venue
with respect to such suits or actions. Appendix A shall be a part of the Contract Documents.
Prior to initiating an action under. this Article, any party to this Agreement shall initiate the
mediation process as provided In Appendix A to these General Conditions.
28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to
provide material, supplies, equipment, work, performance or payment bonds, insurance or
indemnification for the construction of the Project or the Work shall be deemed a party to
this Agreement solely for the purpose of this Article 28. The Contractor, by means of its
subcontracts, shall specifically require its Subcontractors to be bound by this Article.
ARTICLE 29. TAXES
29.1 The Contractor has Included in the Contract Price, and shall pay, all taxes assessed by any
authority on the Work or on the labor and materials used therein. The Contractor shall
maintain all tax records during the life of the Project and furnish the. CMAR with a complete
listing of all taxes paid by taxing authority, invoice number, date, amount, etc. in a form
acceptable to the CMAR and the Owner. The - Contractor Is required to maintain a file
showing taxes paid on the Project for. three (3) years after Final Payment or turn said
documents over to the Owner for its files. .
29.2 The following is a list of requirements to be followed by the Contractor in maintaining
proper records and reporting the North Carolina Sales and Use Tax and Local Sales and
Use Tax. The Contractor shall comply fully with the requirements outlined below, in order
that the Owner may recover the amount of the tax permitted under the law.
a) It shall be the. Contractor's responsibility to fumish the CMAR* documentary
evidence showing the materials used and sales and use tax paid by the Contractor
and by each of its- Subcontractors. Such evidence shall be transmitted to the
CMAR with each pay request regardless of whether taxes were paid in that period
covered by the pay request.
GENERAL CONDITIONS FOR CM AT RISK PROJECT 39 of 42 JUNE 2007 EDITION
b) The documentary evidence shall consist of a certified statement by the Contractor
and by each of . the - Contractor's Subcontractors individually, showing -total
.purchases of materials from each separate vendor and total sales and use taxes
paid to each vendor. Certified statements must show the invoice number, or
numbers, covered; and Inclusive dates of such invoices.
C) Materials used from Contractor's or-. Subcontractor's warehouse stock shall be
shown in a certified statement at warehouse stock prices.
d) The Contractor shall not be required to certify the Subcontractor's statements.
ARTICLE 30. OPERATION OF OWNER'S FACILITIES
30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried
on In such a manner so as to ensure the regular and continuous operation of the adjoining
or adjacent facilities. The Contractor further agrees that the sequence of operations under
the Contract Documents shall be scheduled and carried out so as . to ensure said regular
and continuous operation. The Contractor -shall not close any areas of construction until so
authorized by the CMAR. The Contractor shall control operations to assure the least
Inconvenience to the public. Under all circumstances, safety shall be. the most important
consideration.
ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE
31.1 It is specifically agreed between the parties executing the Agreement that, with the specific
exception set forth paragraph 7.24 of these General Conditions, and that exception only,
the Contract Documents and the provisions therein are not intended to make the public, or
any member thereof, a third -party beneficiary of the Agreement, or to authorize anyone not
a party to the Contract. Documents to- maintain a suit for personal injuries or property
damage pursuant to the terms of provisions of the Contract Documents.
ARTICLE 32. MEASUREMENT OF QUANTITIES
32.1 All Work completed under the Contract Documents shall be measured by the Contractor
using United States customary units of measurement. The method of measurement and
computations to be used in determination pf quantities of material furnished and of Work
performed under the Contract Documents shall be those methods set forth in the Contract
Documents or, if not specifically set forth therein, the method generally recognized as
conforming to good engineering pract €ce.
ARTICLE 33. TERMINATION BY THE CMAR FOR CAUSE
33.1 If the Contractor falls to begin or complete the Work under the Contract Documents within
the time specified, or fails to perform the Work with• sufficient labor and equipment or with
sufficient materials to insure the prom pt• completion of said Work, or shall perform the Work
unsuitably or shall discontinue the prosecution of the Work for three (3) consecutive days,.
or if the Contractor shall become insolvent, be declared bankrupt, commit any act of
bankruptcy or insolvency, allow any final judgment -to stand against the Contractor or its
affiliated companies unsatisfied for a period of forty-eight (48) hours, make an assignment .
for the benefit of creditors, or for any other cause whatsoever shall not carry on the Work in
an acceptable manner, the CMAR may -*g€ve notice in writing to the Contractor and the
Contractor's sureties of such delay, neglect, or default, specifying the same, and if the
Contractor within a period of three (3) days after such notice shall not proceed in good faith .
and with reasonable speed to correct such delay, neglect, or default in accordance with
such notice, the CMAR shall have full power and authority; to.the extent permitted by law,
without violating the Contract Documents, to take the - prosecution of the Work out of the
GENERAL CONDITIONS FOR CM AT RISK PROJECT •' 40 of 42 .. JUNE 2007 EDITION
hands of the .Contractor, to appropriate -or use.any or all materials and equipment at the
Project as may be suitable and acceptable, and may enter Into an agreement for the
completion of the Work or pursue such other methods as in the CMAR's sole discretion and
opinion shall be necessary or appropriate for the completion of the Work in an acceptable
manner. All costs and charges incurred by the CMAR in proceeding in accordance with the
preceding sentence, including '.attomeys fees, and' .all costs incurred by the CMAR In
completing the Work shall be deducted from any amount due or which becomes due the
Contractor. If such costs and expenses incurred by the CMAR shall be less than the sum
which would have been payable under Contract Documents if it had been completed by the
Contractor, then the Contractor shall be entitled to receive the difference, but if such costs
and expenses shall exceed the sum which would have been payable under the Contract
Documents, the Contractor and the Contractor's surety or sureties shall be liable to the
CMAR for and shall pay to the CMAR the amount of such excess.
33.2 If the CMAR terminates the Agreement pursuant to this Article 33 and later it is determined
that the Contractor had not substantially failed to perform in accordance with the terms of
this Article, then the termination will be considered a termination for convenience under
Article 34.
ARTICLE 34. TERMINATION OR SUSPENSION BY THE CMAR FOR CONVENIENCE
34.1 The CMAR may, without cause, order the Contractor to terminate, suspend, delay,' or
interrupt the Work in whole or in part for such period of time as the CMAR may determine.
34.2 If the Contractor is subsequently ordered by the CMAR to resume the Work, any cost or
expenses to which the Contractor may be entitled by reason of the suspension, delay, or
interruption shall be recovered by means of a Change Order in accordance with Articles 13
and 14 of these General Conditions and the Contractor's Construction Schedule and the
Master Schedule shall be adjusted . €n accordance with Article 13 of these General
Conditions.
34.3 The CMAR shall terminate the Work or portion thereof by written notice when the
Contractor Is prevented from proceeding with the Work as a direct result of an executive
order of the President with respect to the prosecution of war or in the interest of national
defense.
34.4 In the event of termination by the CMAR under this Article, the Contractor shall be entitled
to receive the reasonable and documented direct costs incurred prior to termination,
Including the cost of.•materials purchased_ for the Work which purchases cannot be
canceled or which material cannot reasonably be used by the Contractor on other work,
and the cost of closing down the Project in a safe and efficient manner, plus ten percent
(10 %) thereof for overhead and profit, subject to the following conditions:
a) When the Contract is terminated before completion of all items of Work, payment
shall be made for the actual number of units or items of Work completed -at the
applicable contract prices, or as mutually agreed for items of Work partially
complete. If a mutual agreement cannot be reached, the CMAR shall have the
authority to make such equitable adjustment as it deems warranted and the Final
Payment shall be made accordingly. .
b) Reimbursement for organization of any Work and moving equipment to and from
the ' job shall be considered when - not otherwise provided for in the Contract
Documents where the volume of completed Work is too small to compensate the
Contractor for those expenses under unit prices. If a mutual agreement cannot be
GENERAL CONDITIONS FOR CM AT-RISK PROJECT . 41 of 42
JUNE 200T EDITION
reached, the CMAR will have the authority to make such equitable adjustment. as it
deems warranted and the Final Payment will be made accordingly.
c) Materials obtained by the Contractor for the Work that have been inspected and -
accepted by the Designer and that are not incorporated in the Work shall, ' at the
request of the Contractor, be purchased from the Contractor at the Contractor's
actual cost as shown by reoelpted bills and actual costs records at such points of
delivery as may be determined by the CMAR.
d) No payment shall be made by the CMAR to the Contractor except as herein above
provided. No claim for loss of anticipated profits shall be considered or allowed.
e) Termination of the Contract shall not relieve the Contractor of its responsibilities for
any completed portion of the Work nor shall it relieve its sureties of their obligation
for and concerning any just claims arising out of the Work performed.
In the event of termination or suspension by the CMAR for convenience, the Contractor
shall not be entitled to any other compensation, including compensation for lost profit, lost
opportunity, or any other direct or consequential cost, loss, or damage.
ARTICLE 35.
MINORITY BUSINESS ENTERPRISE PROGRAM
35.1
The Contractor shall at all times comply with the latest edition of the Orange.' County
Minority:Business Enterprise Policy. All documentation substantiating compliance . with the
requirements of this program shall be delivered to the CMAR as stipulated in the Contract
Documents. A copy of the Orange County Minority Business Enterprise Policy is Appendix
C hereof and is included in the Project Manual.
ARTICLE 36.
GENERAL
36.1
If any provision of the Agreement shall be declared invalid or unenforceable, the remainder
of the Agreement shall continue in full force and effect.
36.2
The titles to Articles. herein are for convenience only, are not substantive parts of the
General Conditions, and are not to be considered in interpreting the Contract Documents.
END OF GENERAL CONDITIONS OF THE
CONTRACT FOR CONSTRUCTION —
CONSTRUCTION MANAGER AT RISK
F:UUsaWrangecountylOrange County Library and Office Complex General Conditlons.doc