10-607802-25 RFP Exhibit B - Preconstruction and Construction Agreement.pdf

EXHIBIT B OF THE RFP

607802-25

CLARK COUNTY, NEVADA

CMAR PRECONSTRUCTION

AND CONSTRUCTION SERVICES AGREEMENT

RFP NO. 607802-25

CLARK COUNTY REHABILITATION CENTER

//ENTER COMPANY NAME//

NAME OF FIRM

//Enter Designated Contact Name//

DESIGNATED CONTACT, NAME AND TITLE

(Please type or print)

//Enter Street Address//

//City, State and Zip Code//

ADDRESS OF FIRM

INCLUDING CITY, STATE AND ZIP CODE

(XXX) XXX-XXXX

(AREA CODE) AND TELEPHONE NUMBER

(XXX) XXX-XXXX

(AREA CODE) AND FAX NUMBER

//Enter Email Address//

E-MAIL ADDRESS

607802-25

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THIS CMAR PRECONSTRUCTION AND CONSTRUCTION CONTRACT (the “Contract”) is made and entered into, effective as of (the “Effective Date”), by and between the County of Clark, a political subdivision of the State of Nevada, (the “Owner”), and INSERT COMPANY NAME, a INSERT TYPE OF ENTITY (the “Construction Manager at Risk” or “CMAR”). The Owner and the CMAR are sometimes individually referred to herein as “Party” and collectively as “Parties.”

RECITALS

WHEREAS, the Owner intends to construct CLARK COUNTY REHABILITATION CENTER (the “Project”); and

WHEREAS, the Owner is authorized under NRS 338.1685-338.16995 to contract with a qualified CMAR for an eligible public work following the selection procedures contained therein; and

WHEREAS, the Owner desire to enter into a contract for CMAR Preconstruction Services for the Project; and Construction of the Project; and the CMAR desire to provide these services hereinafter set forth below;

WHEREAS, the Owner desires to retain a properly licensed CMAR pursuant to NRS Chapter 624 within the State of

Nevada, and possesses the special knowledge, skills, and expertise to perform preconstruction and construction services, and the CMAR desires to provide these services hereinafter set forth below;

WHEREAS, the parties have agreed to all portions of this agreement except the Guaranteed Maximum Price. The

Guaranteed Maximum Price will be negotiated in good faith pursuant to NRS 338.1696.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the Parties hereto, intending to be legally bound, agree as follows:

1. PROJECT DESCRIPTION

The Project consists of the preconstructions services set forth more fully in PreConstruction Exhibit A (PreConstruction Scope of Services) and may include Construction Services more fully set forth and described in the Construction Exhibit B (GMP Schedule of Values) and C (Schedule of GMP Allowances, Qualifications and Clarifications).

2. CONSTRUCTION COVENANT

The CMAR hereby covenants and agrees to undertake and complete the Work (defined in the Contract Documents) in a good, substantial and workmanlike manner. The CMAR further agrees to provide the materials, labor, tools, and equipment necessary to properly and expeditiously complete the Work in strict accordance with the requirements of the Contract and other Contract Documents and to accept payment of the Contract Amount, subject to any adjustments under the terms of the Contract, as complete compensation therefor (including all of the expenses, direct or indirect, incurred by the CMAR in connection therewith).

3. CMAR RESPONSIBILITIES

3.1 Designation of CMAR Representative

The CMAR representative is the individual identified in PreConstruction Exhibit E (Key Personnel List for Preconstruction Services) and Construction EXHIBIT E (Key Personnel List for Construction Services), if applicable, (the “CMAR Representative”) to act in that capacity, who shall be responsible for the services required under this Agreement. The preconstruction services specified by this Agreement may be performed by the personnel identified in Preconstruction Exhibit E (Key Personnel List for Preconstruction Services) and the construction services specified by this Agreement may be performed by the personnel identified in Construction EXHIBIT E (Key Personnel List for Construction Services) provided that such associates, employees, and subcontractors perform under the personal supervision of the CMAR Representative.

If any personnel or sub-consultants who are expected to provide the services required under this Agreement are objectionable to the County for any reason, the CMAR shall, without additional compensation, replace such personnel and sub-consultants with personnel and sub-consultants acceptable to the County.

If the CMAR personnel or sub-consultants are unable to complete their responsibilities for any reason under this Agreement, or the CMAR desires for any reason to substitute personnel or sub-consultant assigned to the Project, the CMAR agrees to obtain the approval of the County for any personnel or sub-consultant substitution. The County shall not unreasonably withhold approval unless the County determines the substitution is not in the best interest of the County or the Project.

If the CMAR fails to make an acceptable replacement within thirty (30) days, the County may terminate this Agreement for default as provided in Section 10.4 of this Agreement.

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3.2 Correspondence Review

The CMAR shall promptly furnish the County’s Representative with copies of each correspondence, if any, sent to the County’s designated design consultant involved with the Project, and to any regulatory agencies.

3.3 Cooperation with the County

The CMAR agrees that its officers, associates, employees and sub-consultants will cooperate with the County in providing the services under this Agreement and will be, with advance notice, available for consultation with the County at such reasonable times as to not conflict with the County’s other responsibilities.

3.4 Attendance at Meetings or Public Hearings

The CMAR shall notify the County in writing in advance of any additional costs which may be incurred prior to attending any meetings or public hearings as may be necessary in connection with the services performed by the CMAR under this Agreement.

4. COUNTY RESPONSIBILITIES

4.1 Project Manager

The County shall designate a Project Manager who will function as the County’s Representative with respect to this Agreement. The County’s Representative shall have authority to define the County’s operation-policies with respect to the services of the CMAR. However, the County’s Representative is not authorized to change or waive any of the provisions set forth in this Agreement.

4.2 Access to Records

Upon the CMAR’s request and without cost to the CMAR, the County shall either provide or make copies available to the CMAR of any documents and data which the County has available including, without limitation, reports, maps, plans, specifications, surveys, records, ordinances, codes, regulations, and other documents related to the services required under this Agreement. The County shall assist the CMAR in obtaining data and documents from public agencies and from private citizens and business firms whenever the County determines that such material is necessary for the completion of the services required by this Agreement.

4.3 Cooperation with CMAR

The County agrees that its officers and employees will cooperate with the CMAR in the performance of this Agreement and will be, with advance notice, available for consultation with the CMAR at such reasonable times as to not conflict with the CMAR’s other responsibilities. The County shall provide the CMAR with access to the Project site as may be required to perform the services under this Agreement.

5. DOCUMENT INCORPORATION

The Contract consists of this document and the following documents incorporated herein by this reference as a part hereof:

Preconstruction Exhibits:

• Exhibit A – Scope of Services

• Exhibit B – Preconstruction Services Performance Schedule

• Exhibit C – Preconstruction Services Payment Schedule

• Exhibit D – Hourly Fee Schedule for Additional Preconstruction Services

• Exhibit E – Key Personnel List for Preconstruction Services

• Exhibit F – Required Submittals

• Exhibit G – Listing of Work Estimated by CMAR to Exceed 1% of Cost of Public Work

• Exhibit H – Insurance Requirements

• Exhibit I – Subcontractor Information

If the Gross Maximum Price Construction Addendum is agreed to and signed by both parties, the following documents will be incorporated herein by this reference as a part hereof:

Construction Exhibits:

• Exhibit A – General Conditions

• Exhibit B – GMP Schedule of Values

• Exhibit C – Schedule of GMP Allowances, Qualifications and Clarifications

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• Exhibit C-1 – Owner Contingency

• Exhibit D – Technical Specifications and Drawings for the Project

• Exhibit F – Geotechnical and Environmental Reports

• Exhibit G – List of Work Estimated by CMAR to Exceed 1% of Cost of Public Work

• Exhibit H – Baseline Project Schedule

• Exhibit I – Prevailing Wage Rates

• Exhibit J – Insurance Requirements

• Exhibit K – Subcontractor Information

• Exhibit L – Close-out Documentation Summary Report of Subcontractors

6. PRECONSTRUCTION TERMS

Preconstruction Services shall be set forth in Preconstruction Exhibit A (Scope of Preconstruction Services).

6.1 Compensation: Basic Preconstruction Services

See Preconstruction Exhibit C (Preconstruction Services Payment Schedule) for the agreed upon compensation for CMAR Preconstruction Services.

6.2 Compensation: Additional Preconstruction Services

For any services not set forth in Preconstruction Exhibit A (Scope of Services), the County shall negotiate a contract modification for a firm fixed price based on the hourly rates in the fee schedule set forth in Preconstruction Exhibit D (Hourly Fee Schedule for Additional Preconstruction Services).

6.3 Compensation: Reimbursable Expenses

The CMAR agrees that all direct and indirect expenses are included in the fixed fee for the Basic Services and any modifications executed between the parties thereafter. No reimbursable expenses are authorized.

6.4 Invoice

The CMAR may submit an invoice for payment of the fixed fee as set forth in Preconstruction Exhibit C (Preconstruction Services Payment Schedule). The County’s Representative will notify the CMAR of any problems regarding the invoice within fourteen (14) days from receipt thereof. If no response is received from the County’s Representative within that time, the CMAR may expect payment within thirty (30) days from the date of receipt by the County. If payment has not been received within thirty (30) days, the CMAR agrees to contact the County’s Representative to resolve any problem for the delay. If the resolution of the delay is not satisfactory to the CMAR, the CMAR may submit a claim pursuant to Section 11.20A.

6.5 Right to Off-Set

The County’s Representative may subtract, offset or withhold from any unpaid invoice or amounts due to or to become due to CMAR, any claims which the County may have for failure of the CMAR to comply with the terms, conditions or covenants of this Agreement or any other agreement between County and CMAR, or any damages, costs and expenses caused by, resulting from, or arising out of the negligent act or omission of the CMAR in the performance of the services under this Agreement including, without limitation, any error or deficiency in the report or other documents prepared by the CMAR. The County’s Representative shall provide a written statement to the CMAR of the off-set which has been subtracted from any payment to the CMAR along with appropriate documentation and receipts, including any reasonable estimates, and a description of the failure, error or deficiency attributed to the CMAR. If the CMAR disputes the right or amount of the off-set made by the County, the CMAR may file a claim pursuant to Section 11.20 of this Agreement.

6.6 Final Payment

Upon completion of the services required under this Agreement, and acceptance thereof by the County (which acceptance will not be unreasonably withheld), the CMAR will, within thirty (30) days of the County’s acceptance, be paid the balance of any money due for such services. Unless CMAR provides written notice of any unresolved claims existing as of the time of the application for Final Payment, acceptance of Final Payment by CMAR shall act as a waiver of any and all claims for additional compensation or an extension of time, or both.

6.7 Requested Changes

The County may at any time and without notice to the sureties, if any, make changes in the services to be performed by the CMAR under this Agreement by written modification.

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6.8 Adjustment of Compensation

The County may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this Agreement in any one or more of the following:

(i) Description of services to be performed.

(ii) Time of performance (i.e., hours of the day, days of the week, etc.).

(iii) Place of performance of the services.

(a) If any such change causes an increase or decrease in the cost, or the time required for performance of any part of the Work under this Agreement, whether or not changed by the order, the County may make an equitable adjustment in the Agreement price, the delivery schedule, or both, and may modify the Agreement.

(b) The CMAR must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order; however, if the County decides that the facts justify, the County may receive and act upon a proposal submitted before final payment of the Agreement.

(c) If the CMAR’s proposal includes the cost of property made obsolete or excess by the change, the County shall have the right to prescribe the manner of the disposition of the property.

(d) Failure to agree to any adjustment shall be a dispute under Section 11.20; however, nothing in this clause shall excuse the CMAR from proceeding with the Agreement as changed.

(e) The CMAR shall provide current, complete, and accurate documentation to the County in support of any equitable adjustment within fourteen (14) calendar days of any request by the County. Failure to provide adequate documentation after a request from the County will be deemed a waiver of the CMAR’s right to dispute the equitable adjustment proposed by the County, where such equitable adjustment has a reasonable basis at the time it is determined by the County.

6.9 Preconstruction Services Performance Schedule

The CMAR shall perform and complete the services required under this Agreement according to the schedule (“Preconstruction Services Performance Schedule”) set forth in PreConstruction Exhibit B. If the performance of services is delayed in the time period outlined in Preconstruction Exhibit B, the CMAR shall notify the County’s Representative in writing of the reasons for the delay and include a plan which brings the CMAR performance into compliance with the Preconstruction Performance Schedule.

7. CONSTRUCTION TERMS

Construction Services will only commence upon successful negotiation of the Guaranteed Maximum Price which can be found in Addendum 1. Prior to execution of Addendum 1 by both parties, CMAR shall (a) provide the County with a list of the labor or portions of the work which are estimated by the CMAR to exceed one percent (1%) of the estimated cost of the public work; (b) identify each subcontractor who is to provide labor or a portion of the work which is estimated by the CMAR to exceed one percent (1%) of the estimated cost of the public work in accordance with NRS 338.16991 and 338.16995 and provide the names of each selected subcontractor to the public body on the Listing of Work Estimated by CMAR to Exceed 1% of Cost of Public Work; PreConstruction Exhibit G; and (c) provide a description of the labor or portion of the work that the prime contractor will self-perform, or provide a statement that the CMAR will perform all work other than that being performed by a subcontractor listed pursuant to, and any other required exhibits set forth in Construction Exhibit J (Insurance Requirements).

A Notice to Proceed will be provided to CMAR by Owner which will trigger the Construction Portion of this agreement and all incorporated construction exhibits.

7.1 Commencement and Contract Time

Time is of the essence in the performance and completion of this Contract. The CMAR shall commence the Work on the date set by the Owner in the Notice to Proceed, and shall achieve Substantial Completion of the entire Work within ( ) calendar days thereafter, subject to adjustments of the Contract Time as provided in the Contract Documents.

8. AUDIT: ACCESS TO RECORDS

8.1 Records

The County shall have the right to audit the CMAR books, records and other documents directly pertinent to the performance of this Agreement. The CMAR agrees to maintain books, records and other documents directly pertinent to performance of this Agreement in accordance with generally accepted accounting principles and practices.

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The CMAR shall also maintain the financial information and data used to prepare or support the invoices submitted to the County. Audits conducted pursuant to this provision shall be in accordance with generally accepted auditing standards, procedures and guidelines of the County, or its designated representative. The County, or its duly authorized representatives, shall have access to such books, records, and documents for the purpose of inspection, audit and copying. The CMAR will provide proper facilities for such access and inspection.

8.2 Disclosure

The CMAR shall be afforded the opportunity for an audit entrance and exit conference and an opportunity to comment and submit any supporting documentation on the pertinent portions of the draft audit report, and that the final audit report will include the written comments, if any, of the CMAR.

8.3 Period of Maintenance

The books, records and other documents under Sections 8.01 and 8.02 of this Agreement shall be maintained for three (3) years after the date of the final payment for the services under this Agreement. In addition, those records and other documents which relate to any arbitration, litigation or the settlement of any claim arising out of this Agreement, or to which an audit exception has been taken, shall be maintained and made available until three

(3) years after the date that the arbitration, litigation or exception has been resolved.

8.4 Subcontract Provisions

The CMAR agrees to include Sections 8.1 through 8.3 of this Agreement in all its subcontracts directly related to performance of services specified in this Agreement which are in excess of $10,000.

9. LIQUIDATED DAMAGES

The CMAR agrees that time is of the essence of this Contract and further agrees to satisfactorily complete the Work in accordance with the Contract Documents. If the CMAR shall neglect, fail, or refuse to complete the Work for any reason within the time specified for Substantial Completion in the Contract plus any adjustments to the Contract Time resulting from approved Change Orders, then the CMAR does hereby agree, as a part consideration for the awarding of this Contract, to pay to the Owner, as liquidated damages and not as a penalty, as follows:

Liquidated damages shall not accrue after the date of Substantial Completion provided the CMAR completes all punch-list work within thirty (30) calendar days after the date of the Certificate of Substantial Completion. Liquidated damages shall accrue at the sum of $100 per calendar day if the CMAR does not complete all punch-list work within the time limit stipulated in the Certificate of Substantial Completion. [For projects with multiple GMPs, see D1 progress schedules].

The said amounts are fixed and agreed on by and between the CMAR and the Owner because of the impracticability and extreme difficulty of fixing and ascertaining the true value of the damages which the Owner will sustain by failure of the CMAR to complete the Work on time, such as architectural and engineering inspection, supervision and contract administration, loss of revenue, cancellation costs for schedule performances, interest charges, delays caused to other construction activities of Owner by failure to perform this Contract, and other damages, some of which are indefinite and not susceptible of easy proof, said amount is agreed to be a reasonable estimate of the amount of damages which the Owner will sustain and said amount shall be deducted from any monies due or that may become due to the CMAR.

10. MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES

Except with respect to the indemnity obligations set forth in Sections 11.7 and 11.12 of this agreement, and in Section 9 of Construction Exhibit A General Conditions, in no event will either party be liable to the other party for consequential damages arising out of or relating to this agreement. This waiver does not extend to claims for consequential damages brought by third parties.

11. MISCELLANEOUS PROVISIONS

11.1 Right of Suspension

The County may, without cause, order the CMAR in writing to suspend, delay or interrupt the Work, in whole or in part, for such period of time as determined by the County. An adjustment to the compensation or the Term of the Agreement may be made for the change in the cost or time of performing the Agreement caused by the suspension, delay, or interruption.

No adjustment shall be made to the extent that:

(i) The performance is, was or would have been so suspended, delayed or interrupted by another cause for which the CMAR is responsible; or

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(ii) An equitable adjustment is made or denied under another provision of the Contract Documents, or

(iii) The CMAR could have mitigated the increase in cost to perform the Contract.

11.2 Termination for Convenience

The County reserves the right to terminate this Agreement without cause or default on the part of the CMAR with ten

(10) days’ prior written notification to the CMAR. Notification of the CMAR is deemed to have occurred on the date that the County either:

(i) Faxes a copy of the notice to the CMAR to the fax number provided in the Section entitled “Notice” of the Agreement, or

(ii) Deposits written notification with the United States Postal Service, postage prepaid, and addressed to the party and location contained in the Section entitled “Notice” of the Agreement.

(iii) In the event of termination, without cause or default, the County agrees to pay to the CMAR the reasonable value for the services performed as of the date that notification of termination is received by the CMAR. In no event shall the County be liable to the CMAR for services in excess of the percentage completed at the time of termination.

11.3 Termination Caused by Lack of Agreement on Guaranteed Maximum Price

Should the parties be unable to reach an agreement on the price of the Construction pursuant to NRS 338.1696. the agreement will terminate upon ten (10) business days written notice provided by County to CMAR. This termination will be considered a termination for Convenience. County will then have the right to bid out the construction portion of project using all of CMAR’s preconstruction designs and documents. CMAR may submit a bid for the project.

11.4 Termination for Cause

A. Default

The occurrence of any of the following events shall constitute a default by the CMAR hereunder (herein “Event of Default”):

(i) the CMAR defaults in the due observance and performance of any term, condition or covenant contained in this Agreement;

(ii) the CMAR (a) voluntarily terminates operations or consent to the appointment of a receiver, trustee or liquidator of the CMAR for all or a substantial portion of its assets, (b) is adjudicated bankrupt or insolvent or files a voluntary petition in bankruptcy, or admits in writing to the inability to pay its debts as they become due, (c) make a general assignment for the benefit of creditors, (d) file a petition or answer seeking reorganization or an arrangement with creditors or take advantage of any insolvency law, or (e) if action shall be taken by the CMAR for the purpose of effecting any of the foregoing;

(iii) any warrant, execution or other writ is issued or levied upon any property or assets of the CMAR and continues unvacated and in effect for a period of thirty (30) days; or

(iv) the CMAR, in the judgment of the County, fails to provide the services hereunder properly and with proper dispatch in accordance with the time schedule set forth in this Agreement; and

(v) the default is continuing five (5) days after written notice is given to the CMAR pursuant to Section 11.1.

B. County’s Rights

Upon the occurrence of an Event of Default the County may, without prejudice to any other right or remedy it may have at law or equity:

(i) Terminate this Agreement, suspend payment of all pending invoices otherwise due to the CMAR hereunder, and finish this Agreement by such means as deemed appropriate by the County, reserving the right to deduct from any balance due CMAR the cost of completing this Agreement. In the event the cost of finishing the CMAR performance of this Agreement exceeds the balance due the CMAR, the excess shall be paid by the CMAR to the County within five (5) days of invoicing by the County, or

(ii) Terminate this Agreement, and the obligations imposed hereunder, including the obligation of any further payment for the services of the CMAR except for the reasonable value for the services performed to the date of termination.

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In the event that the County elects to implement (i) above, and at the request of CMAR, the costs and expenses of completion of this Agreement shall be computed and audited by an individual identified by the County who is independent of the process. The audit shall be conducted in accordance with generally accepted accounting principles and the cost thereof shall be paid by the CMAR.

11.5 Ownership of Documents

A. Except for Design Professionals, Consultants and sub-consultants regulated under NRS Chapter 625, any and all test results, evaluations, reports, plans, drawings, specifications, studies and other documents (including magnetic or electronic media) prepared or assembled by the CMAR or any of its subcontractors which are related to the performance of this Agreement are deemed to be the property of the County. In the event of completion or termination of this Agreement, the County reserves the right to require delivery of any and all test results, evaluations, reports, plans, drawings, specifications, studies and other documents (including magnetic or electronic media) not in its possession. The CMAR shall be entitled to retain a reproducible copy of such test results, evaluations, reports, plans, drawings, specifications, studies and other documents furnished to the County.

B. The test results, evaluating reports, plans, drawings, specifications, studies or other documents (including magnetic or electronic media) which are given, prepared or assembled by the CMAR or subcontractors under this Agreement shall not be made available to any individual or organization without the prior written consent of the County. Except for marketing pamphlets and submittals to clients, the CMAR shall not publish, submit for publication, or publicly display the Project without the written consent of the County.

11.6 Insurance

A. CMAR shall obtain and maintain the insurance coverage required in Preconstruction Exhibit H and

Construction Exhibit I incorporated herein by this reference. CMAR shall comply with the terms and conditions set forth in Preconstruction Exhibit H and Construction Exhibit J and shall include the cost of the insurance coverage in their prices.

B. If CMAR fails to maintain any of the insurance coverage required herein, Owner may withhold payment, order CMAR to stop the work, declare CMAR in breach, suspend or terminate this Agreement.

11.7 Indemnity

To the extent permitted by NRS 338.155, and notwithstanding any of the insurance requirements set forth in Section 11.6, and not in lieu thereof, the CMAR shall defend, indemnify and hold the County, its Board of Commissioners, officers, employees and agents (herein the “Indemnitees”), harmless from and against any and all claims (including, without limitation, patent infringement and copyrights claims), damages, losses, expenses, suits, actions, decrees, judgments, arbitration awards or any other form of liability (including, without limitation, reasonable attorney fees and court costs) (collectively herein the “Claims”), arising out of or resulting from this agreement, to the extent that such Claims are caused in whole or in part by the negligence, errors, omissions, recklessness or intentional misconduct of the CMAR, its employees, subcontractors, agents or anyone employed the CMAR’s subcontractors or agents, in the performance of this Agreement.

As part of its obligation hereunder, the CMAR shall, at its own expense, defend the Indemnitees against the Claims brought against them, or any of them, which is caused by the negligence, errors, omissions, recklessness or intentional misconduct of the CMAR, its employees, subcontractors or agents, for and against which the CMAR is obligated to indemnify the Indemnitees pursuant to this Section, unless the Indemnitees, or any of them elect to conduct their own defense which, in such case, shall not relieve the CMAR of its obligation of indemnification set forth herein. If the CMAR or the CMAR’s insurer fails to defend the Indemnities as required herein, the Indemnitees shall have the right, but not the obligation, to defend the same and, if the CMAR is adjudicated by the trier of fact to be liable, the CMAR agrees to pay the direct and incidental costs of such defense (including attorney fees and court costs) which is proportionate to the liability of the CMAR. As used in this Section 11.7, “agents” means those persons who are directly involved in and acting on behalf of the County or the CMAR, as applicable, in furtherance of the contract or the public work to which the contract pertains.

Nothing herein shall be construed to require CMAR to indemnity County against liability cause by the sole negligence of the County.

The provisions of this section shall survive any termination or completion of this Agreement.

11.8 Assignment

The County and the CMAR each bind itself and its partners, successors, administrators and assigns to the other party of this Agreement and to the partners, successors, executors, administrators and assigns of such other party in respect to all covenants of this Agreement, except the CMAR shall not assign, sublet or transfer any obligation or benefit under this Agreement without the written consent of the County. Nothing contained herein shall be construed as creating any personal liability on the part of any officer or agent of the County.

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11.9 Waiver

No consent or waiver, express or implied, by either party to this Agreement, or of any breach or default by the other in the performance of any obligations hereunder, shall be deemed or construed to be a consent or waiver of any other breach or default by such party hereunder. Failure on the part of any party hereto to complain of any act, or failure to act of the other party, or to declare that other party in default hereunder, irrespective of how long such failure continues, shall not constitute a waiver of the rights of such party hereunder. Inspection, payment, or tentative approval or acceptance by the County or the failure of the County to perform any inspection hereunder, shall not constitute a final acceptance of the Work or any part thereof and shall not release the CMAR of any of its obligations hereunder.

11.10 CMAR Warranties

The CMAR hereby represents and warrants:

(i) That it is financially solvent, able to pay its debts as they mature, and is possessed of sufficient working capital to complete this Agreement; that it is experienced, competent, qualified and able to furnish the plant, tools, materials, supplies, equipment and labor which is used to perform the services contemplated by this Agreement, and that it is authorized to do business in the State of Nevada.

(ii) That it holds a license, permit or other special license to perform the services included in this Agreement, as required by law, or employs or works under the general supervision of the holder of such license, permit or special license.

(iii) That its computer hardware, software, and firmware will continue functioning without interruption, and will continue to accurately process date, time, and data necessary to the performance of this Agreement.

11.11 CMAR Employees

The CMAR shall be responsible for maintaining satisfactory standards of competency, conduct and integrity, of personnel assigned to the Project, and shall be responsible for taking such disciplinary action with respect to such personnel as may be necessary. In the event the CMAR fails to remove any employee from the Work of this Agreement whom the County deems incompetent, careless or insubordinate, or whose continued employment on the Work is deemed by the County to be contrary to the public interest, the County reserves the right to require such removal as a condition for the continuation of this Agreement.

11.12 Independent Contractor

It is hereby expressly agreed and understood that in the performance of the services required herein, the CMAR shall be, and is, an independent contractor, and is not an agent, representative or employee of County and shall furnish such services in its own manner and method except as required by this Contract. Further, CMAR has and shall retain the right to exercise full control over the employment, direction, compensation, and discharge of all persons employed by CMAR in the performance of the services hereunder. CMAR shall be solely responsible for, and shall indemnify, defend, and hold County harmless from all matters relating to the payment of its employees, including compliance with social security, withholding and all other wages, salaries, benefits, taxes, demands, and regulations of any nature whatsoever.

11.13 Applicable Law

This Agreement shall be construed and interpreted in accordance with the laws of the State of Nevada.

11.14 Compliance with Laws

The CMAR shall in the performance of its obligations hereunder comply with all applicable laws, rules and regulations of all governmental authorities having jurisdiction over the performance of this Agreement including, without limitation, the Federal Occupational Health and Safety Act and all state and federal laws prohibiting and/or related to discrimination by reason of race, sex, age, religion or national origin.

11.15 Severability

In the event that any provisions of this Agreement shall be held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain valid and binding on the parties hereto.

11.16 Confidentiality

The CMAR shall treat the information relating to the Project, which has been produced by the CMAR or provided by the County, as confidential and proprietary information of the County and shall not permit its release to other parties or make any public announcement or publicity release without the County’s written authorization. The CMAR shall also require each subcontractor to comply with this requirement.

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11.17 Site Inspection

The CMAR represents that it has visited the location of the Project and has satisfied itself as to the general condition thereof and that the CMAR compensation as provided for in the Agreement is just and reasonable compensation for performance hereunder including reasonably foreseen and foreseeable risks, hazards and difficulties in connection therewith based on such above-ground observations.

11.18 Modification

All modification or amendments to this Agreement are null and void unless reduced in writing and signed by the parties hereto.

11.19 Prohibition Against Contingent Fees

The CMAR warrants that no person or entity has been employed or retained to solicit or secure this Agreement with the agreement or understanding that a commission, percentage, brokerage or contingent fee would be paid to that person. For breach or violation of this provision, the County shall have the right to annul this Agreement without liability or, in its discretion, to deduct from the compensation to be paid to the CMAR, or otherwise recover, the full amount of such commission, percentage, brokerage or contingent fee.

11.20 Claim or Dispute Resolution

A. Notice of Claim or Dispute

For each claim or dispute which the CMAR has against or with the County (except for any claim for an equitable adjustment under Section 6.8 which is subject to the 30-day limitation set forth therein), notice of the claim must be submitted in writing to the County’s Representative within thirty (30) days after the claim or dispute arises. The purpose of written notification is to place the County on notice so that proper measures can be taken to properly consider the claim, and if necessary, defend against the claim or dispute, and the failure to give such notice shall preclude the CMAR from subsequently mediating that particular claim or dispute pursuant to Section 10.20C of this Agreement, and the CMAR shall have no further recourse against the County. Pending a final decision on the claim or dispute under Sections 10.20B or 10.20C, the CMAR shall proceed diligently with the performance of this Agreement.

B. Resolution by Management

The County’s Representative and the CMAR Representative shall meet within a reasonable time after receipt of the written notice received pursuant to Section 11.20A in an attempt to resolve the claim or dispute to the mutual satisfaction of the parties. If the matter is not disposed of by mutual agreement between the County’s Representative and the CMAR Representative, the claim or dispute shall be decided by the Director of Public Works, Parks & Recreation whose decision shall be reduced to writing and mailed or otherwise furnished to the CMAR. The decision of the Director shall be final and conclusive unless, within thirty (30) days after the date on which the CMAR receives its copy of such decision, the CMAR mails or otherwise furnishes to the Director a written request to mediate the claim or dispute, in which event the parties shall proceed pursuant to provisions of Section 11.20C. The failure to make such request shall preclude the CMAR from proceeding any further on the claim or dispute, and the CMAR shall have no further recourse against the County.

C. Resolution by Mediation

Upon receipt of the request to mediate authorized pursuant Section 11.3B or Section 11.20B, the County and the CMAR shall come to an agreement as to the appointment of a mediator for purposes of hearing the appeal.

If the parties cannot agree upon an independent private mediator within 45 days after notice of the receipt of the request to mediate, the party may proceed to file a judicial action with the Eighth Judicial District Court, Clark County, Nevada. The mediation shall take place in Clark County, Nevada, unless otherwise agreed to by the parties. The fees and expenses of the mediator shall be equally shared by both parties. Each party is responsible for their own costs, expenses, consultant fees and attorney fees incurred in the presentation or defense of any claim, dispute or controversy that is subject to mediation between the parties. The decision of the mediator shall be non-binding.

D. Right of Judicial Action

Any claim, dispute, or other matter in question between the parties concerning any provisions of this

Agreement that cannot otherwise be resolved between the parties through the use of mediation required herein may be submitted for judicial action. Prior to the exercise of this right, the party seeking judicial relief shall have provided the other party 30 days prior written notice before filing such judicial action.

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11.21 Attorney Fees

The prevailing party in any litigation brought to enforce the provisions of this Agreement shall be entitled to reasonable attorney fees and court costs.

11.22 Calendar Day

All references in this Agreement to days are to calendar days unless otherwise indicated.

11.23 Counterpart Signatures

This Agreement may be executed in counterparts, all such counterparts will constitute the same contract and the signature of any party to any counterpart will be deemed a signature to, and may be appended to, any other counterpart. Executed copies hereof may be delivered by facsimile or e-mail and upon receipt will be deemed originals and binding upon the parties hereto, regardless of whether originals are delivered thereafter.

11.24 County's Right to Replace Subcontractor

If the County objects to a subcontractor identified during the selection process, the CMAR shall change the subcontractor and be compensated for any change in costs resulting from the replacement.

11.25 Non-Discrimination and Fair Employment Practices

A. Discrimination

The County is committed to promoting full and equal business opportunity for all persons doing business in

Clark County, Nevada. The CMAR acknowledges that the County has an obligation to ensure that public funds are not used to subsidize private discrimination. CMAR recognizes that if the CMAR or their subcontractors are found guilty by an appropriate authority of refusing to hire or do business with an individual or company due to reasons of race, color, religion, sex, sexual orientation, gender identity or gender expression, age, disability, national origin, or any other legally protected status, the County may declare the CMAR in breach of contract and terminate the Contract.

B. Fair Employment Practices

In connection with the performance of work under this Contract, the CMAR agrees not to discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, sexual orientation, gender identity or gender expression, age, disability, or any other legally protected status. Such agreement shall include, but not be limited to, the following: employment; upgrading; demotion or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation;

and selection for training, including apprenticeship.

The CMAR further agrees to insert this provision in all subcontracts hereunder. Any violation of such provision by a CMAR shall constitute a material breach of this Contract

11.26 Employment of Unauthorized Aliens

In accordance with the Immigration Reform and Control Act of 1986, CMAR agrees that it will not employ unauthorized aliens in the performance of this Contract.

11.27 No COUNTY Employee Benefits or Rights

CMAR acknowledges that CMAR and any subcontractors, agents or employees employed by CMAR shall not, under any circumstances, be considered employees of COUNTY, and that they shall not be entitled to any of the benefits or rights afforded employees of COUNTY, including, but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers' compensation insurance benefits. COUNTY will not provide or pay for any liability or medical insurance, retirement contributions or any other benefits for or on behalf of CMAR or any of its officers, employees or other agents.

11.28 Federal, State and Local Statutes, Codes, Etc.

CMAR will not produce a work product or provide Preconstruction services, which violates or infringes on any copyright or patent rights, or violates any Federal, State, and Local Statutes, codes, ordinances, or resolutions, or regulations.

COUNTY’S review, approval, acceptance, or payment for any of CMAR’S services herein shall not be construed to operate as a waiver of any rights under this Contract or of any cause of action arising out of the performance of this Contract, and CMAR shall be and remain liable in accordance with the terms of this Contract and applicable law for all damages to COUNTY caused by CMAR’S performance or failures to perform under this Contract. COUNTY’S review, approval, acceptance, or payment for any of the services performed by CMAR shall not be construed as a waiver of any rights of COUNTY under this Contract.

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Prior to each design submittal, CMAR shall check all documents. Each submittal shall be in accordance with the appropriate submittal requirements listed herein. Incomplete submittals shall be rejected. All cost associated with the re-submittal shall be borne by the CMAR.

11.29 Staff Availability

CMAR agrees that its officers and employees will cooperate with COUNTY in the performance of services under this Contract and will be available for consultation with COUNTY at such reasonable times with advance notice as to not conflict with their other responsibilities.

CMAR has or will retain such employees as it may need to perform the services required by this Contract. Such employees shall not be employed by COUNTY.

11.30 Disclosure of Ownership/Principals

CMAR agrees to provide the information on the attached “Disclosure of Ownership/Principals” form prior to any contract award by the Board of County Commissioners.

11.31 Rights and Remedies

The rights and remedies of COUNTY provided for under this section are in addition to any other rights and remedies provided by law or under other sections of this Contract.

11.32 Change of Ownership / Key Personnel

CMAR shall notify COUNTY in writing thirty (30) days prior to any change in ownership of CMAR or any key personnel listed for this PROJECT. The approval of this contract has, to some degree, been based on the participation and qualifications of CMAR and other key personnel, listed in CMAR’S response to the Request for Proposal submitted prior to receiving this Contract. COUNTY has the option to either approve or disapprove any proposed alternate personnel related to the PROJECT. If CMAR fails to notify COUNTY of key personnel changes, COUNTY may terminate this Contract for default.

Significant change in the level of participation may be defined as:

1. CMAR or key personnel not actively participating in the PROJECT for a continuous period of time greater than one month, e.g. sabbatical leave, or a 25% reduction in time devoted to the PROJECT.

11.33 Covenant Against Contingent Fees

CMAR warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide permanent employees. For breach or violation of this warranty, COUNTY shall have the right to annul this Contract without liability or in its discretion to deduct from the Contract price or consideration or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.

11.34 Gratuities

1. COUNTY may, by written notice to CMAR, terminate this Contract if it is found after notice and hearing by COUNTY that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by CMAR or any agent or representative of CMAR to any officer or employee of COUNTY with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending or making of any determinations with respect to the performance of this Contract.

2. In the event this Contract is terminated as provided in paragraph 1 hereof, COUNTY shall be entitled:

a. to pursue the same remedies against CMAR as it could pursue in the event of a breach of this Contract by CMAR; and

b. as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by COUNTY) which shall be not less than three (3) nor more than ten (10) times the costs incurred by CMAR in providing any such gratuities to any such officer or employee.

3. The rights and remedies of COUNTY provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

11.35 Covenant

CMAR covenants that it presently has no interest and that it will not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. CMAR further covenants, to its knowledge and ability, that in the performance of said services no person having any such interest shall be employed.

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11.36 Confidential Treatment of Information

CMAR shall preserve in strict confidence any information obtained, assembled or prepared in connection with the performance of this Contract.

11.37 ADA…