15-Design Build Contract and GTC (SMALL Projects) - FINAL.pdf

Last Updated October 2024

DESIGN BUILD CONSTRUCTION AGREEMENT

CONTRACTOR-OWNER

STIPULATED SUM

(Infrastructure and Small Projects)

Project Description: RFP ________:

Design/Build Services for ________________ at ______________

Project No: ___________________________

Owner: Atlanta Independent School System 130 Trinity Avenue, SW

Atlanta, GA 30303

Contractor:

Email:

Address:

City, State, Zip Code:

This Design Build Construction Agreement (the Agreement or Contract) is effective ___, 20__ by and between Atlanta Independent School System, (the Owner) and _________________ (the Contractor). Owner intends to develop and construct ___________________ (the Project) and to retain Contractor to design/build services and to construct the Project for a stipulated sum.

1. Contract Documents:

The Contract Documents consist of: (i) this Agreement, together with all Exhibits hereto all of which are incorporated herein by reference; (ii) any modifications issued after execution of this Agreement in accordance herewith (including Change Orders, as hereafter defined) Contractor’s RFP Proposal as amended by Contractor’s BAFO, if any (including without limitation Contractor’s stipulated sum price proposal), the Request for Proposals, Request for Qualifications, and all Design Work approved by Owner.

1.1 Contractor is required to use Owner’s project management software, Procore. One (1) license will be distributed to Contractor, at cost to Owner, which will allow access into Procore for the Project. Usage of this license will be provided throughout the duration of the Project. Based on availability, additional licenses may be provided as needed. This Project will utilize Procore’s (www.procore.com) project management and collaboration system for all project documentation. Applicable team members of the Contractor (to include Subcontractors as determined by the Owner) will be invited to, and are required to create a Procore username (email) and password if they do not already have one. Contractor will be expected to obtain all relevant project information via this application. Contractor will notify Subcontractors as relevant items are added. It will be the responsibility of the Contractor to regularly check and review updated documents as they are added. Applicable team members of the Contractor are required to complete a free, one-hour Subcontractor training certification course located at https://learn.procore.com/page/procore-certification within (2) two weeks following execution of this Agreement. There will be no cost to the Contractor for use of Procore. It is recommended that Contractor provide mobile iOS or Android devices with the Procore App installed to at least one individual on-site to provide real-time access to current posted drawings, Specifications, RFIs, Submittals, project documents, as well as any deficient observations or Punch List items. Providing mobile access will improve communication, efficiency, and productivity for all parties.

1.2 All Project documents maintained in electronic format by Contractor at all times shall be uploaded to

Procore, available to Owner and not be subject to any encryption or other restricted access unless Owner has been provided in advance with all required keys, codes and similar access information. The obligations set forth in the preceding sentence shall survive termination or full performance of this Agreement.

1.3 Owner utilizes an electronic contract compliance system known as the B2GNow Compliance Reporting

System. This Contract is subject to compliance tracking. Contractor is required to use the B2GNow secure web-based system to submit project specific information including, but not limited to: monthly payments and progress reports on all subcontractors, sub-subcontractors and/or subconsultants (collectively referred to as “Subcontractors”). Contractor understands and agrees that all Subcontractors are also required to utilize the B2GNow Reporting System to manage their contact information, maintain project specific records, and respond to any noted instructions and/or information requests. Contractor agrees to and shall advise all Subcontractors in writing of the requirement to submit all contract compliance related data electronically in the B2GNow Reporting System. Contractor further understands and agrees that it is responsible for ensuring all Subcontractors have uploaded all requested items via the B2GNow Reporting System and adhere to any and all reporting requirements.

Contractor understands and agrees that its contact information and Subcontractor contact information https://nam11.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.procore.com%2F&data=04%7C01%7CCarrie.Roberts%40atlanta.k12.ga.us%7C843415e496fc42660ceb08d9d5e8fd87%7C0d95ef40a0dd431890985e10f876f635%7C0%7C0%7C637776018949604912%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000&sdata=KiAtIdO1mvXxETjBdyq%2Bhhd1d%2F0Ssg2BGE%2BkDrZyqEs%3D&reserved=0 https://learn.procore.com/page/procore-certification must remain accurate and up-to-date in the B2GNow Reporting System. Contractor agrees to and shall notify Owner of any changes to its contact information or that of any Subcontractor(s) within thirty (30) days of said change. Owner reserves the right to request additional information from the Contractor and/or its Subcontractors, which Contractor will provide within ten (10) business days via the B2GNow Reporting System. Contractor understands and agrees its obligations hereunder are continuing and shall survive the expiration or termination of the contract. Information concerning access of the B2GNow Reporting System will be provided to Contractor by Owner’s Office of Business and Supplier Diversity. The B2GNow Reporting System is web-based and can be accessed at the following Internet address https://aps.diversitycompliance.com/?TN=aps. Contractor shall contact the Office of Business and Supplier Diversity to register for training and support for the B2GNow Reporting System. Contractor is required to notify all Subcontractors in writing of their obligation to contact the Office of Business and Supplier Diversity to register for training and support for the B2GNow Reporting System.

1.4 Words and abbreviations which have well known technical or trade meanings are used in the Contract

Documents in accordance with such recognized meanings.

1.5 Modifications to parts of the Contract Documents are for the purpose of varying, modifying, rescinding or adding to the Contract Documents. All modifications should be read together with the portions of the Contract Documents to which they relate.

1.6 A typical or representative detail indicated on the Contract Documents shall constitute the standard for workmanship and materials throughout corresponding parts of the Work, unless otherwise shown.

SCOPE OF WORK; PAYMENTS TO OTHERS

2. Scope of Work:

2.1. “Design Work” is comprised of any and all design services required for proper design, construction and completion of the Project or otherwise required by the Contract Documents.

2.2. The “Work” includes all Design Work, labor, services, supervisions, materials, equipment, facilities, skills, instrumentalities and costs required, reasonably inferable from or necessary for the proper, complete, prompt and efficient performance the Scope of Work established by Exhibit A in accordance with the Contract Documents. The total Work under Exhibit A and this Agreement shall be the “Project” and the location of such Work shall be the “Site”.

2.3. Contractor shall cause or otherwise guaranty to be performed and provided through Subcontractors, or its own forces with respect to general conditions and general requirements work, all labor, material, equipment, tools and services required for the complete construction of the Project in accordance with the terms of the Contract Documents and laws, statutes and regulations applicable to the work to be performed by Contractor.

2.4. The Contractor agrees to furnish all labor, services, competent supervision, materials, equipment, facilities, skill, and instrumentalities used in, or in connection with, the full performance of all Work in accordance with the terms of this Contract, all Laws and the plans and specifications set forth in Exhibit A and otherwise in the Contract Documents. The Contractor agrees to prosecute the Work diligently and continuously; and agrees to achieve Substantial Completion (as defined in Section 4.3 of this Contract) of the Work no later than __________,___ 202_ (“Contract Time”). TIME IS OF THE https://aps.diversitycompliance.com/?TN=aps

ESSENCE FOR CONTRACTOR’S PERFORMANCE WITH RESPECT TO EACH AND EVERY TIME

LIMIT ESTABLISHED BY THIS CONTRACT.

2.5. Contractor shall use diligent, good-faith efforts, skill and judgment in performing its duties under this

Agreement. All material and equipment furnished or installed into the Project by Contractor shall be new unless otherwise specified in the Contract Documents.

2.6. Contractor shall commence the Work on the date set forth in the notice to proceed or purchase order issued by Owner (“the “Commencement Date”).

2.7. Contractor shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals employed by Contractor, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional services, for the preparation of the required drawings, specifications and other design submittals to permit Contractor to complete the Work consistent with the Contract Documents.

2.8. Within ten (10) days of execution of the Contract, Contractor shall prepare and provide to Owner a critical path schedule establishing the most efficient and effective path for sequencing the Work (the “Schedule”) in accordance with the Contract Documents. This Schedule shall provide for coordination of all trades for each and every portion of the Work, including all submittals relating to the Work.

Contractor shall continuously monitor the Schedule and update Owner on the status and progress of the Work according to the Schedule on a regular basis as may be reasonably required by Owner and/or otherwise required in the Contract Documents, showing the amount of Work constructed and comparing the Work in place to the progress required on the Schedule. Contractor shall inform Owner in writing if, at any time, the progress of the Work is such that the Contractor will not be able to complete the Work within the Contract Time. In such case, Contractor shall also present a recovery Schedule and plan for such overtime work or other measures that may be required to recover the Schedule and complete the Work within the Contract Time.

2.9. Contractor shall remain solely and exclusively responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with all Work. The Contractor shall give all notices and comply with all applicable laws, ordinances, codes, rules, regulations, orders, and other legal requirements (collectively, “Laws”) of public authorities related to the Work or the safety of persons or properties for protection of such persons or properties.

2.10. The Contractor shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and shall not proceed with that portion of the Work without further written instructions from the Owner.

2.11. The Contractor agrees that it is an independent contractor and that its employees are not employees of the Owner.

3. Payments to Others:

The Contractor agrees to:

3.1 Pay for all expenses, including, but not limited to, materials, skills, labor, services, supervisions, facilities, equipment and instrumentalities used in, or in connection with, the performance of the Work and any other claims arising out of the Work, when and as bills or claims therefor properly become due, and to save and protect the property and the Owner from all manner of claims, including without limitation, mechanics’ liens on account thereof that arise out of or result from the Work, and to furnish satisfactory evidence to the Owner, when and if required, that it has complied with the above requirements;

Contractor is required to furnish a performance bond (“Performance Bond”) and a payment bond (the “Payment Bond”) in the form attached as Exhibit C (the Performance Bond and Payment Bond are collectively hereinafter referred to as , the “Bonds”) issued by a surety company licensed by the Commissioner of Insurance for the State of Georgia, to do business as an insurance company in the State of Georgia. The Bonds must be in an amount equal to one hundred percent (100%) of the Stipulated Sum. The Bonds will be furnished as security for the faithful performance of the Work included in the Contract, including stipulations and agreements of the Contract, the payment of all bills and obligations arising out of the performance of the Contract, which bills and obligations might or would in any manner become a claim against Owner, and guaranteeing the Work included in the Contract against faulty materials or poor workmanship, or both, for one (1) year after final acceptance of the Work by Owner. All Bonds provided by Contractor must be accompanied by an affidavit from Contractor that an investigation has been made and that the surety is licensed by the Commissioner of Insurance to do business as an insurance company in Georgia and is further authorized to serve as a surety. The Performance Bond satisfactory to Owner in an amount equal to one hundred percent (100%) of the Stipulated Sum, and the Payment Bond satisfactory to Owner in an amount equal to one hundred percent (100%) of the Stipulated Sum, shall be required of Contractor to guarantee completion of the Work under contract and payment for all labor and materials. The Bonds shall be written on forms approved by Owner’s attorney, copies of which are included in the Contract, with appropriate Powers of Attorney attached to the Bonds when submitted. The Bonds shall be executed by an agent of the surety residing in the State of Georgia. The date of the Bonds shall be the same as the date of the Award Letter. The surety shall appoint an agent for service in Atlanta, Georgia, upon whom all notices shall be shown on each Bond. The person executing the Bonds on behalf of the surety shall file with the Bonds a General Power of Attorney, unlimited as to amount and type of bonds covered by such Power of Attorney, and certified by an official of said surety. If, at any time after the execution of the Contract, the surety has been determined to be unsatisfactory by Owner, Owner shall have the right to require new Bonds by issuing a notice to Contractor that the surety on the Bonds is unsatisfactory to Owner. Failure of the Contractor to provide replacement Bonds issued by a surety that is found to be satisfactory to Owner shall constitute a default under this Contract. Consent of surety shall be required prior to any reduction of retainage or payment of final invoice.

3.2. Keep the Project and the lands upon which it is situated free from all mechanics’ liens and all other liens and claims by reason of the Work or any labor, materials or other things used therein. Contractor agrees to satisfy and discharge any claims, or transfer to bond with good and sufficient surety reasonably acceptable to Owner, any liens filed (prior to or after Final Payment) by its subcontractors, suppliers, sub-subcontractors, or their materialmen of any tier against the Project or the Site or any funds related thereto within ten (10) days of such claim having been made or lien noticed, filed or recorded. If within such ten (10) day period, Contractor shall not have removed, satisfied, or discharged any lien claim as Owner may reasonably request, Owner may, at its option, pay such claims or remove or bond such lien and then set off and deduct from any payments due or to become due to Contractor all reasonable costs and expenses, including, but not limited to, reasonable attorneys’ fees, of removing, bonding, or satisfying such liens or other claims. If the balance due on this Contract or any agreement between the Owner and Contractor is not sufficient to cover such costs and fees, Contractor shall pay such outstanding amount to Owner within five (5) days of a request by Owner for such payment; and

3.3. Indemnify, defend, and hold harmless the Indemnified Parties (as defined in Section 14.1) for any reasonable costs, including attorneys’ fees, incurred as a result of liens or claims against Owner or otherwise in connection with the Project filed by its subcontractors, suppliers, sub-subcontractors, or their materialmen. Nothing in this Section 3 is intended to be or shall be construed as a waiver by any party of the right to claim a valid lien under applicable Laws.

PAYMENTS

4. Partial Payments - Final Payment - Release:

4.1. Stipulated Sum:

The price to be paid to Contractor by the Owner as full consideration for complete, timely, proper performance of the Work accepted by the Owner under this Contract is dollars and ($ ) (the “Stipulated Sum”). The Stipulated Sum, which is not to be exceeded without prior written authorization from Owner in accordance with this Contract, includes (i) all materials, equipment, labor, delivery, installation, overhead, costs of insurance, and profit, (ii) taxes, insurance premiums, licenses and permits (except as otherwise specifically set forth in the Contract Documents) required in connection with performance and (iii) any other costs or expenses in connection with, or incidental to, the performance of the Work.

4.2. Conditions Precedent to Payment:

In addition to any other terms for payment set forth in the Contract Documents, as a condition precedent to Contractor’s right to receive any payment:

4.2.1. Together with its Application for Payment, Contractor shall deliver to Owner from Contractor and its subcontractors, materialmen, laborers and suppliers (i) fully executed, notarized conditional lien releases or certifications, in a form acceptable to Owner covering all wages, materials, and equipment for which a lien could be filed, corresponding with the Work for which payment is sought and in the amount of the payment sought and (ii) fully executed notarized unconditional lien releases covering all wages, materials, and equipment for which a lien could be filed.

4.2.1.1 The truthful and complete preparation of lien releases duly executed and notarized by Contractor in the form acceptable to Owner shall be an express condition precedent to Owner’s duty to make any payments to Contractor under this Contract. Contractor agrees that Owner has the right to disclosure of the information requested in any lien release and that Owner has the right to withhold payments to the extent the Owner reasonably determines it is necessary to protect the interests of Owner if Contractor fails to submit any lien release or if any information contained in any lien release is determined to be false. The submission of any information in a lien release that is in any way false or misleading shall constitute a material breach under this Contract and entitle Owner to withhold payments due under this Contract to the extent the Owner reasonably determines it is necessary to protect the interests of Owner until Contractor cures such breach, or to pursue any other remedies.

4.2.1.2 Contractor further agrees to payments being made under this Contract by way of check being made jointly payable to Contractor and any person or entity being owed funds in connection with the Work. In the event Contractor refuses or is unavailable to endorse a joint check, Owner may also make direct payments to any person or Contractor owed funds in connection with the Work. For any such joint or direct payments, Owner shall be entitled to deduct payment from the Stipulated Sum. However, payment by joint or direct check shall be at the sole discretion of Owner, and Owner shall have no duty to issue joint checks or to make any further payment to or for the benefit of any subcontractor or supplier of any tier.

4.2.2. Contractor shall have provided proof of insurance of Contractor and its subcontractors, evidencing coverage in effect and that the same is compliant with the requirements of Exhibit B hereto.

4.2.3. Contractor shall have obtained all necessary approvals of the completed portion of the Work for which payment is sought from the Owner, all municipal and regulatory authorities, as well as anyone else whose approval therefor is required under the Contract Documents or applicable Laws.

4.3. Substantial Completion:

4.3.1. “Substantial Completion” shall be the time at which the Work has reached a state of progress where, in Owner’s opinion, the Work is sufficiently complete, in accordance with the Contract Documents, to be suitable for use for the purposes for which it is intended. When Contractor considers the entire Work to be nearing Substantial Completion, Contractor shall inform the Owner in writing and shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to Substantial Completion (“Punch List”).

4.3.2. In addition to any other requirements provided for in the Contract Documents, the Work shall not be Substantially Complete or eligible for consideration therefor unless:

.1 Contractor has obtained approval of all applicable governmental authorities and submitted an affidavit to Owner stating that all of the Work requiring inspection by governmental authorities or third party utility companies has been appropriately and fully approved and accepted by such governmental authorities. In the event that Contractor cannot obtain an acceptance from the appropriate governmental authorities due to acts or omissions which are the responsibility of the Owner, then Contractor shall provide Owner with documentation from the appropriate governmental authority setting forth all unapproved items or such other documentation as may be acceptable to Owner, copies of which shall be submitted with its Final Application for Payment;

.2 Contractor shall have completed the Work to Owner’s satisfaction and any and all other Work in accordance with the Contract Documents and obtained the approval and acceptance of the Work by Owner and such other representatives and/or consultants of Owner as Owner may designate for such purposes;

.3 Contractor has delivered to Owner satisfactory evidence that all claims, including taxes incurred with respect to the Work, and all labor and material account incurred by Contractor in connection with the Work, have either been paid in full or satisfactory provision has been made for payment in full upon receipt by Contractor of final payment;

.4 Contractor has furnished to Owner a complete and final release of all liens and claims in a form acceptable to Owner from all persons, firms and corporations who have performed Work or supplied materials in connection with a Project. Such lien releases may be conditional on receipt of final payment, in which case a notarized unconditional lien release shall be delivered contemporaneously with receipt of final payment (all lien releases shall be in a form reasonable acceptable to Owner);

.5 Contractor has delivered to Owner proof of insurance, evidencing coverage in effect and that the same is compliant with the requirements of Exhibit B hereto; and

.6 Contractor has delivered to Owner the consent of the surety, if any, to final payment; and

.7 Contractor has delivered to Owner all supporting documentation as may be otherwise reasonably requested by Owner.

4.3.3. All Work performed and all materials and workmanship furnished by Contractor shall be subject to final inspection, tests and acceptance by Owner and any authorities having jurisdiction.

Failure to include an item on the Punch List shall not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. All Punch List items shall be finished within 30 calendar days.

4.4. Liquidated Damages. The timely completion of the Work is critical to the Owner and time is of the essence with respect to the Work and every deadline in the Contract Documents. In the event that Contractor does not achieve Substantial Completion of the Work within the Contract Time as established by this Agreement, Contractor shall pay Owner liquidated damages. If the Contractor is more than one

(1) business day late in achieving Substantial Completion of the Work, the Contractor shall pay Owner as liquidated damages of Two Thousand Dollars ($2,000.00) per day for each day thereafter that Contractor fails to achieve Substantial Completion of the Work. Contractor acknowledges that these liquidated damages are fair and equitable and do not constitute a penalty in light of the difficulty of accurately determining the full extent of Owner’s damages if this Project is not completed on time.

Accordingly, instead of requiring any such proof, Owner and Contractor agree that Contractor shall pay Owner liquidated damages as set forth above for delays related to Substantial Completion of the Work.

4.5. Final Payment:

Once Contractor has Substantially Completed the Work as provided in Section above. Contractor shall submit a Final Application for Payment to Owner for the outstanding balance of the Stipulated Sum and approved Change Orders; provided, however, that Final Payment shall not become due unless and until the conditions precedents outlined in Section above and elsewhere in the Contract Documents have been satisfied. Once satisfied, Final Payment will be due within thirty (30) days of approval by Owner.

4.6. In no event shall the Work be deemed accepted until it has been actually accepted by Owner.

4.7. No payment shall be a representation that the Owner has made exhaustive or continuous on-site inspections to check the quality of the Work and no payment to Contractor, whether a progress or final, shall be deemed to constitute, or be construed as, acceptance of Contractor’s Work or any portion thereof.

4.8. Final Payment to the Contractor shall in no way relieve the Contractor of liability for any obligations assumed under this Contract, or for faulty or defective work discovered before or after Final Payment.

4.9. Acceptance of Final Payment by Contractor shall constitute a full waiver and release by Contractor of all claims, of any nature whatsoever, against Owner arising out of or relating to this Contract.

5. Deductions in General:

In addition to the rights enumerated elsewhere herein:

5.1. The Owner may withhold from any amounts due or to become due to Contractor sums equal to indebtedness owed by Contractor to Owner, or regarding matters for which Owner has received notice and for which Owner is or may possibly become liable due to the acts or omissions of Contractor or any of its subcontractors or suppliers of any tier, or on account of which Owner has incurred any indebtedness due to the acts or omissions of Contractor or any of its subcontractors or suppliers of any tier, including without limitation failure of Contractor to make payments properly to its subcontractors, suppliers, materialmen or laborers, a reasonable doubt that the required Work hereunder can be completed for the balance then unpaid, damage to Owner or the Owner’s separate contractors, defective work not remedied, failure to otherwise carry out the Work in accordance with the Contract Documents, or non-compliance with insurance requirements. In the event of any breach by Contractor of any provision or obligation of this Contract, Owner shall have the right to retain out of and deduct from any payments due or to become due to Contractor an amount sufficient to completely protect Owner from any and all loss, damage, or expenses therefrom until the breach, cause, or claim which prompted the withholding has been satisfactorily remedied or adjusted by Contractor. If the payments due or to become due to Contractor are not sufficient to cover such amounts, Owner shall be entitled to payment of such amounts from Contractor. The rights of the Owner under this Section shall not be exclusive of any other rights of the Owner herein or provided by Laws.

Changes in the Work

6. Change Orders:

The Work to be performed under this Contract may be modified by changes authorized by Owner in writing (“Change Order”) provided that the Stipulated Sum or Contract Time set forth in this Contract may only be adjusted by written Change Order issued and executed in accordance with the terms of this Contract. Change Orders and Construction Change Directives that do not increase costs or scope, and those involving minor changes to scope, may be authorized and documented in a Change Order executed by Owner’s Chief Operations officer or Senior Executive Director of Facilities.

6.1. Contractor shall not make any change in the Work, deviate from the Contract Documents or seek compensation for extra work unless Contractor receives a written Change Order signed by the Owner in accordance with this Section 6 and the Contract Documents prior to performing such Work. Every Change Order initiated by Contractor shall be preceded by a written Change Order proposal from the Contractor which shall describe the physical nature of the proposed change and the proposed amount of the adjustment to the, if any, in the Stipulated Sum and/or Contract Time (any adjustment to Stipulated Sum shall be itemized). When the Owner requests a proposal for a Change Order, the Contractor shall submit such a proposal within five (5) days of Owner’s request. The Owner will then, within ten (10) days of receiving the Change Order proposal, either approve, deny or approve with conditions the Change Order proposal submitted by the Contractor. If Contractor performs any change in the Work without following the requirements of this paragraph, then Contractor waives the right to seek or receive any additional compensation or time related to such Work.

6.2. Contractor specifically acknowledges and agrees that Owner has a strict policy with respect to the payment for extra work, which requires that to be eligible for payment there must be a valid and effective Change Order signed by Owner.

6.3. In the event that the Owner issues a Change Order to Contractor as provided above, Contractor shall perform such extra work, which shall be deemed to be part of the Work and carried out promptly and expeditiously. If the Change Order is issued or is to be issued on a basis other than a mutually agreed upon lump sum or unit price, or if a Construction Change Directive is issued by Owner, the price for the Work authorized or to be authorized thereby shall be, to the extent applicable, determined by the lump sum or unit prices stipulated in the Contract Documents, if any, and deemed to include (i) all materials, equipment, labor, delivery, installation, overhead, and profit, and (ii) any other costs or expenses in connection with, or incidental to, the performance of the Work. If no such lump sums or unit prices are available, the Change Order or Construction Change Directive shall be issued on a time and materials basis, and to the extent applicable the rates and fees shall be those listed in the Rate Schedule included in Contractor’s RFP Proposal as amended by Contractor’s BAFO, if any, which rates and fees represent the maximum respective rates and fees allowed under this Contract unless otherwise agreed upon in writing. Charges for time and materials must be supported by records checked and approved by Owner.

6.4. Contractor shall promptly provide the Owner with any information reasonably requested by the Owner to substantiate the cost of any change in the Work.

6.5. No changes in the Work shall affect the Contract Time unless the Contract Time is specifically extended pursuant to the terms of the applicable Change Order. In the case of such an extension pursuant to a Change Order, all costs associated with such extension must be included as part of the cost of the Change Order; any costs not included in the Change Order shall not be subject to reimbursement.

6.6. Owner reserves the right to delete any portion of the Work, which deletion shall be effected by written notice from Owner to Contractor. Upon such notice, Owner shall issue deductive Change Order for the value of the portion of the Work deleted, including any profit and overhead applicable to such deleted portion of the Work accounted for in the original pricing thereof.

PERFORMANCE

7. Prosecution of Work:

7.1. Contractor shall comply with written instructions given by Owner to suspend, delay or accelerate the Work, provided that Contractor may be eligible to receive an appropriate adjustment, if any, of the Stipulated Sum and/or Contract Time as otherwise provided herein. Such instructions shall not relieve the Contractor of any of its obligations under the Contract Documents.

7.2. Contractor shall reasonably cooperate with the Owner and other contractors and shall participate in the preparation of coordinated work schedules as reasonably required by Owner, specifically noting and advising the Owner of any interference or potential interference by others.

7.3. Except as otherwise provided in the Contract Documents, Contractor shall give adequate notices pertaining to the Work to the proper authorities, and shall secure and pay for all necessary licenses and permits as part of the cost of the Work to carry on the Work, a copy to be provided to Owner by Contractor prior to the start of the Work.

7.4. Contractor shall review the Contract Documents, including all applicable construction documents, drawings, specifications, reports, studies and standards, including without limitation, subsurface, soils and geological reports, before commencement of the Work and shall inform Owner in writing of any Work, material or design it considers unsuitable for the Project.

7.5. Contractor represents that Contractor has itself visited the Site, become familiar with all existing conditions under which the Work is to be performed. Such conditions include without limitation equipment transportation routes, site access, mobilization area, staging area, appurtenances, sub-surface conditions or any other site related conditions that might affect the Work. Prior to the commencement of the Work, Contractor shall be responsible to check all areas that might be impacted by the Work and to bring to the attention of Owner any matter related to the Work that conflicts with or might affect Contractor’s performance of the Work. By commencing performance of Work in an area, Contractor shall be deemed to have determined that such area(s) are in suitable condition to perform the Work.

7.6. Should the Contractor fall behind in its progress of the Work (taking into account extensions of the Contract Time approved in accordance with the Contract) or otherwise fail to timely progress the Work to meet Owner’s reasonable expectations, Contractor shall, without being entitled to any additional compensation or extension of the Contract Time, work overtime, increase its forces, or take other such action as may be necessary or appropriate to complete the activity within the Contract Time, provided that such lack of progress is caused by Contractor or its subcontractors or material suppliers and such lack of progress is not caused by Owner, its employees, agents, or any licensed design professionals hired by Owner.

7.7. Unless otherwise stated in the Contract Documents, Contractor, as soon as practicable after signing the Contract, shall furnish in writing to Owner the names of all subcontractors and material suppliers proposed for each portion of the Work. Each subcontractor and material supplier shall be competent, qualified, able, legally authorized and properly licensed or registered, if necessary, to perform its portion of the Work, and shall carry insurance as required under the Contract Documents. Contractor shall not contract with or otherwise engage a subcontractor or material supplier that does not satisfy the foregoing requirements, or to whom Owner has made a reasonable and timely objection. Contractor shall not substitute a subcontractor or material supplier listed in connection with the Work without Owner’s prior written approval. Contractor shall furnish to Owner copies of all agreements with subcontractors and material suppliers as requested by Owner. Contractor shall be responsible to Owner for acts and omissions of Contractor’s subcontractors, material suppliers, and all other persons or entities performing portions of the Work at any tier and neither use of the foregoing nor Owner’s consent thereto shall release Contractor of its obligations under this Contract.

7.7.1. Compliance with Law: Contractor warrants that the goods and Work provided hereunder shall comply with all applicable laws, standards and regulations, whether governmental or industrial, in effect on the date of delivery or known in the industry to become effective after such date.

7.8. Contractor represents and warrants to Owner that Contractor has complied with all terms of this Contract in connection with any Work that may have been performed prior to the date of this Contract and that such Work shall be governed thereby.

7.9. In addition to all other obligations specified herein or otherwise in the Contract Documents concerning performance of the Work, Contractor shall be obligated to perform the Work in a good and workmanlike manner and with the degree of care and skill required for the Work being performed; provided that, if the Contract Documents specify a higher level of workmanship or standard of care, then Contractor shall perform the Work in accordance therewith.

7.10. Relationship to Owner. Contractor accepts the relationship established between it and Owner by this Agreement. Contractor shall coordinate, manage and cause the Work to be performed in the most expeditious and economical manner consistent with the interests of safety, Owner, and the terms of this Agreement. Contractor shall cooperate with Owner in furthering the interests of Owner and the Project.

Contractor understands that Owner is looking to Contractor to complete the Project on time, for the Stipulated Sum, and in accordance with the Contract Documents. Accordingly, Contractor will devote its best efforts toward: (i) managing the Project at the most cost-effective level possible consistent with good construction practices, (ii) carrying out Owner’s intent and the Contract Documents, and (iii) achieving the most rapid and efficient construction and completion of the Project. Contractor will notify Owner of known possibilities for time or money savings that may present themselves during the course of Contractor’s performance under this Agreement and will confer with Owner periodically in order to determine whether there are any areas where, by design change or otherwise, costs may be reduced.

7.11. Contractor’s Representative. Contractor designates _______________ as its representative who shall be fully acquainted with the scope of the Work and Contractor’s obligations and responsibilities, and who has full authority to render decisions promptly, furnish information expeditiously and act on behalf of and bind Contractor in connection with all aspects of this Agreement and the Project.

7.12. Subcontractor Work. Portions of the Work may be performed and material and equipment supplied under contracts with Subcontractors (“Subcontracts”) who also may retain sub-tier subcontractors, suppliers or vendors (referred to collectively as Subcontractors). All Subcontractors retained by Contractor shall be subject to Owner’s prior, written approval. Contractor shall be solely responsible for coordination of all Subcontractor work, means and methods, and any acts, errors or omissions arising out of all Subcontracts for Work on the Project. Contractor shall supervise the performance of the Work by Subcontractors and shall properly coordinate/schedule the Work of all Subcontractors on the Project.

7.12.1. It is the policy of the Owner to promote the utilization of women, minorities and small business enterprises in all phases of the design, development, construction and maintenance of the Project.

While the Owner does not impose any quotas regarding their utilization, Contractor shall take all steps established by the Contract Documents or otherwise reasonably requested by Owner to satisfy the Owner that they have made their “best efforts” to involve in the Work as many companies or firms owned by women, minorities and small business enterprises as practicable, provided they are qualified to conduct the Work.

7.12.2. Each Subcontract to be entered into by Contractor in connection with the Work shall contain a provision providing that, if this Agreement is terminated by Owner for cause, at the option of Owner in its sole discretion, the Subcontract shall be assigned by Contractor to Owner or to such other entity as Owner may direct. In such event, Owner, or its designee, as of the date of assignment shall assume all of Contractor’s post-assignment obligations thereunder provided, however, that nothing shall be deemed to release Contractor from liability to such Subcontractor, or to Owner or Owner’s designees, with respect to claims arising from events occurring prior to the effective date of such assignment.

7.13. Design Work. As part of the Design Work, Contractor shall:

7.13.1.1.1. meet and consult with Owner, the engineers and consultants with respect to the Work and development of the Drawings and Specifications for the Project, including, without limitation, geotechnical considerations and related site work, all building systems (e.g. MEP, structural, utilities, IT), and all governmental or other permits and approvals required in connection with the Project;

7.13.1.1.2. make recommendations to Owner with respect to the availability and cost of materials (including recommending to Owner the advance ordering / purchase of long lead time items and, when authorized by Owner, ordering such long lead time items), equipment and labor; the selection of materials; the selection of building systems and equipment, costs of construction (including the use of and estimates of unit pricing, and costs of alternative designs or materials), construction feasibility and alternative methods of construction, necessary temporary and support facilities;

7.13.1.1.3. provide and at appropriate intervals as reasonably required by Owner refine Project budget estimates for the Work, including monthly cost projections or forecasts once the major requirements of the Project have been identified;

7.13.1.1.4. review the Contract Documents and make recommendations to Owner with respect to constructability, material availability and cost, and value engineering,

7.13.1.1.5. develop and pursue programs to encourage interest in the Project with Subcontractors and material suppliers with a particular focus on minority, veteran and women owned businesses.

7.13.1.1.6. consistent with its obligations as a general contractor, Contractor shall investigate and become familiar with existing field conditions revealed by information furnished by Owner or that are apparent from a visual inspection of the Site. Contractor shall compare and report to Owner any visible or otherwise known inconsistencies presented by the existing field conditions with respect to the Drawings and Specifications.

7.14. Project Communications and Records. Contractor shall prepare, update, maintain and make available to Owner via Procore a digital record of: i) the Drawings, the Specifications and all associated addenda, bulletins, post approval amendments, sketches, and other agency approved drawings (ii) Change Order and potential Change Order logs and records of all changes in the Work necessitated by Change Orders and Construction Change Directives; (iii) the Construction Schedule, (iv) Submittal log and RFI log;

(v) material lists; (vi) records of all pertinent communications with Owners and Subcontractors and all responses; (vii) daily/weekly and monthly reports, which shall record manpower breakdowns on a Subcontractor-by-Subcontractor basis with a description of the Work being performed each working day by each Subcontractor, equipment and material deliveries, visitors, special occurrences, accidents, weather conditions, and other Work-related information; and (viii) quality control log.

7.15. Project Data. All applicable Project data shall be placed on the Procore software or accompanying website. Subject to any contrary direction of Owner, Contractor shall utilize Procore for, without limitation: (i) communicating with Owner throughout the duration of the Project; and (ii) tracking and exchanging documents related to changes in the Work, Submittals, RFIs and responses, etc. No party shall introduce any encryption methods or techniques or upload encrypted documents onto Procore, without providing keys and/or codes to Owner, and shall not be permitted to delete any items from Procore without

Owner’s prior written approval. Any Drawings, Specifications and copies furnished by Owner, are solely for Contractor’s reference with respect to the Project, and shall be used for no other or different purpose. Contractor has no ownership interest in the Drawings and/or Specifications.

7.16. Inspection of Subcontractor Work. Contractor shall inspect the Work performed by each Subcontractor to determine whether the Work has progressed to the point indicated on its Application for Payment and that it is being performed in accordance with the Contract Documents in order to guard Owner against defects and deficiencies in the Work. If at any time before acceptance of the Work, Owner or Contractor has reasonable cause to believe that any part of the Work is not in accordance with the Contract Documents, Owner may direct Contractor to require the responsible Subcontractor to remove or uncover, at Subcontractor’s own cost and expense, any portion of the completed Work. If defective, Contractor shall require Subcontractor, at its own cost and expense, to correct the Work within seven

(7) days or if such defect cannot be cured within seven (7) days then within thirty (30) days. If such Work is not defective, Owner shall bear the cost of uncovering the Work. Notwithstanding the foregoing, to the extent that any Work shall be covered contrary to the requirements of a Contract Document or prior written direction of Owner or Contractor, Contractor or the responsible Subcontractor shall bear all costs in connection with removal, uncovering and replacement regardless of whether the Work in fact complies with the requirements of the Contract Documents.

7.17. Procurement. Contractor shall, as part of Design Work and as part of the Work, arrange for and monitor the early procurement and expediting of long-lead materials and equipment required in connection with the Work, and provide to Owner a schedule showing the dates when Owner-supplied materials (if any) should be available.

7.18. Project Reports. Every thirty (30) days or in connection with the submittal of any Application for Payment (whichever is earlier), Contractor shall submit to the Owner via Procore the monthly reports which shall include the following:

a description of the Work activity on the Project during the immediately preceding month;

a description of the Work activity anticipated for the current month for each of the major trades;

a cash flow forecast with respect to the performance of the Construction Phase Work anticipated for each of the next succeeding three (3) months;

a list of outstanding RFIs;

an updated log indicating the status of Change Orders and anticipated Change Orders;

Project photographs;

an anticipated cost report;

an updated Construction Schedule (in both PDF and native formats, including all required sub-schedules);

the Submittal log;

the current Project directory of Key Personnel;

a detailed summary of Contingency use and balance.

7.18.1. Project Meetings/Logs. Contractor shall schedule and regularly conduct job meetings and keep logs in Procore of all relevant activity at the Site. Contractor shall schedule meetings with Owner when necessary (anticipated to be weekly) and when otherwise reasonably required by Owner, and coordinate meetings with the appropriate parties as necessary; within seven (7) days of each meeting, prepare and furnish to all attendees and Owner reasonably detailed minutes of such meetings. Contractor shall incorporate all comments issued by Owner in response to such meetings and re-issue updated meeting minutes as requested by Owner.

Contractor shall maintain detailed logs of all inspections conducted and/or monitored, with legible copies sent to Owner within seven (7) days of each inspection. All inspections, tests, etc. not expressly mandated by applicable law as being required by Owner to perform or contract for directly shall be Contractor’s responsibility.

7.19. Permits. Contractor shall promptly obtain all necessary licenses and permits, for the Work unless…