APPENDIX B

GENERAL CONDITIONS

FOR

CONSTRUCTION MANAGER AT RISK PROJECTS

DEFINITIONS

City of Columbus (Owner) General Conditions for Construction Manager at Risk Project

TABLE OF CONTENTS

ARTICLE 1 - CMAR’S RESPONSIBILITIES

ARTICLE 2 - OWNER’S RIGHTS AND RESPONSIBILITIES

ARTICLE 3 - AR’S RESPONSIBILITIES

ARTICLE 4 - SUBCONTRACTORS

ARTICLE 5 - PRECONSTRUCTION SERVICES

ARTICLE 6 - CONSTRUCTION AND CLOSEOUT

ARTICLE 7 - MODIFICATIONS

ARTICLE 8 - DISPUTE RESOLUTION

ARTICLE 9 - COMPENSATION AND PAYMENT

ARTICLE 10 - BONDS, INSURANCE, AND INDEMNIFICATION

ARTICLE 11 - SUSPENSION AND TERMINATION

ARTICLE 12 - GENERAL PROVISIONS

OWNER’S SUPPLEMENTAL CONDITIONS

ARTICLE 1 - CMAR’S RESPONSIBILITIES

Project Overview Pursuant to Columbus City Codes, Section 329.23(B), the City of Columbus (“Owner”) selected a Construction Manager-at-Risk (“CMAR”) for this project (the “Project”).

1.1 Equal Opportunity Clause

Per City Code Section 3906.02(B):

1) The CMAR will not unlawfully discriminate against any employee or applicant for employment because of race, sex, sexual orientation, gender identity or expression, color, religion, ancestry, national origin, age, disability, familial status or military status. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, sex, sexual orientation, gender identity or expression, color, religion, ancestry, national origin, age, disability, familial status or military status. Such action shall include, but not be limited to, the following: employment up-grading, demotion, or termination; rates of pay or other forms of compensation;

and selection for training. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices summarizing the provisions of this Equal Opportunity Clause.

2) The CMAR will, in all solicitations or advertisements for employees placed by or on behalf of the CMAR, state that the CMAR is an equal opportunity employer.

3) It is the policy of the City of Columbus (Owner) that business concerns independently owned, operated, and controlled by MBE/WBEs shall have the maximum practicable opportunity to participate in the performance of contracts awarded by the Owner.

4) The CMAR shall permit access to any relevant and pertinent reports and documents by the Office of Diversity and Inclusion Director for the sole purpose of verifying compliance with this Title 39 and the Office of Diversity and Inclusion regulations. All such materials provided to the Office of Diversity and Inclusion Director by the CMAR shall be considered confidential.

5) The CMAR will not obstruct or hinder the Office of Diversity and Inclusion Director or his/her deputies, staff and assistants in the fulfillment of the duties and responsibilities imposed by Title 39 of the Columbus City Codes.

6) The CMAR and each subcontractor will include a summary of this Equal Opportunity Clause in every subcontract. The CMAR will take such action with respect to any subcontractor as is necessary as a means of enforcing the provisions of the Equal Opportunity Clause.

7) The CMAR agrees to refrain from subcontracting any part of this contract or contract modification thereto to a contractor not holding a valid certification number as provided for in Title 39.

8) Failure or refusal of the CMAR or subcontractor to comply with the provisions of Title 39 may result in cancellation of this contract.

1.2 Prevailing Wages

1.2.1 The CMAR shall comply with the prevailing wage requirements described under ORC Chapter 4115 that include, without limitation, the requirements described under this Section 1.2. The Project is subject to payment of prevailing wage rates, and the CMAR shall:

1.2.1.1 pay to laborers and mechanics performing Work on the Project the prevailing wage rates of the Project locality, as determined by the Ohio Department of Commerce, Wage and Hour Bureau;

1.2.1.2 post in a prominent place readily accessible by all workers on the Site, a legible listing of the current classifications of laborers, workers, and mechanics employed under this Contract;

1.2.1.3 ensure that the rates posted are current and remain posted in legible condition during the period of the Contract; and

1.2.1.4 not be entitled to an increase in the Contract Sum on account of an increase in prevailing wage rates, except as otherwise provided by Applicable Law; and

1.2.1.5 ensure that its Subcontractors of any tier comply with these prevailing wage requirements

1.2.2 Current prevailing wage rates may be found at the following website: https://ohio.gov/jobs/resources/prevailing-wage

1.3 Payment of Prevailing Wage Rates

1.3.1 The CMAR and its Subcontractors shall pay the prevailing wage rates of the Project locality, as issued by the Ohio Department of Commerce, Division of Industrial Compliance, Bureau of Wage and Hour Administration to laborers and mechanics performing Work on the Project.

https://ohio.gov/jobs/resources/prevailing-wage

1.3.2 The CMAR and its Subcontractors, shall comply with the provisions, duties, obligations, and is subject to the remedies and penalties of ORC Sections 4115.03 to 4115.21.

1.3.3 If the CMAR or its Subcontractors fail to comply with ORC Sections 4115.03 to 4115.21, the Owner may withhold payment pursuant to Section 9.2.13.2.5 of the General Conditions. The CMAR is liable for violations committed by the CMAR or its Subcontractors to the extent provided in ORC Sections 4115.03 to 4115.21.

1.3.4 The CMAR shall submit all payroll reports in compliance with the requirements of Section 1.2 for all of the employees of the CMAR and of the CMAR’s Subcontractors.

1.3.5 By executing the MSA, the CMAR certifies that it based its Response to the Owner’s Request for Proposal upon the prevailing rates of wages as ascertained by the Ohio Department of Commerce, Division of Industrial Compliance, Bureau of Wage and Hour Administration for the Project as provided in ORC Sections 4115.03 through 4115.14, which are inserted at the end of this document.

1.4 Prevailing Wage Rate Revisions

1.4.1 The CMAR is responsible for monitoring and implementing any change in prevailing wage rates. The prevailing wage rates are available at the Ohio Department of Commerce’s web site: https://ohio.gov/jobs/resources/prevailing-wage.

1.4.2 The CMAR shall pay any revised wage rates issued during the term of the Contract.

1.5 Payroll Schedule

1.5.1 Within 10 days of the date of the Notice to Proceed, the CMAR shall provide the Owner’s Prevailing Wage Coordinator the schedule of dates for the term of the Contract on which wages shall be paid to employees for the Project.

1.6 Payroll Reports

1.6.1 The CMAR shall submit payroll reports with each CMAR Payment Request, which reports shall be certified by the CMAR that the payroll is correct and complete, and the wage rates shown are not less than those required by the Contract.

The CMAR is responsible for submitting all payroll reports of its Subcontractors.

1.6.1.1 Each payroll report shall indicate the period covered and include a list containing the name, address, and social security number of each employee of the CMAR and its Subcontractors paid for the Work.

1.6.1.2 Each payroll report shall list the number of hours each employee worked each day on the Project during the reporting period, the total hours each week on the Project, the employee’s hourly rate of pay, job classification, hourly rate of fringe benefits, and all deductions from wages and net pay.

1.6.1.3 Each payroll report shall list each fringe benefit and state if it is paid as cash to the employee or to a named plan.

1.6.1.4 The CMAR and its Subcontractors shall submit apprenticeship agreements for all apprentices utilized on the Project.

1.6.1.5 The CMAR and its Subcontractors and Consultants shall provide monthly reporting of all prevailing wage and diversity and inclusion compliance with the Owner requirements in a format and level of detail acceptable to the Owner.

1.7 Royalties and Patents

1.7.1 The CMAR shall pay all royalties, license fees, and assume all costs incident to the use, in the performance of the Work or the incorporation in the Work, of any invention, design, process, product, or device that is the subject of patent rights or copyrights held by others, except to the extent required by the Contract Documents.

1.7.2 If the CMAR has reason to believe that use of the specified item is subject to patent or copyright protection, the CMAR shall immediately notify the Owner and the AR.

1.8 Assignment of Antitrust Claims

1.8.1 By signing the MSA, the CMAR assigns, conveys and transfers to the Owner any right, title, and interest to any claims or causes of action it may have or acquire under state or federal antitrust laws relating to any goods, products, or services purchased, procured, or rendered to the Owner pursuant to the Contract.

1.9 Use of Domestic Steel

1.9.1 The CMAR and Subcontractors are to supply domestically produced steel products used for load bearing structural purposes and shall furnish the certifications required by Section 6.20.8.

1.10 Drug Free Safety Program Participation

1.10.1 The CMAR shall comply with Applicable Law regarding smoke-free and drug-free workplaces and shall make a good-faith effort to ensure that none of its employees or the Subcontractors’ employees engaged in Work or services under the Contract purchase, transfer, use, or possess alcohol or illegal drugs, or abuse prescription drugs in any way while on, or about the Project.

1.10.2 The CMAR shall be enrolled in, and in good standing in, a Drug Free Safety Program approved by the Ohio Bureau of Workers Compensation and shall cause a requirement to be included in all Subcontracts for the Project that Subcontractors in all tiers shall be enrolled in, and in good standing in, a Drug Free Safety Program approved by the Ohio Bureau of Workers Compensation.

1.11 LEED Certification Services

1.11.1 Reserved

1.12 Electronic Correspondence

1.12.1 Electronic correspondence is an acceptable method of communication for general correspondence, submittals, RFIs, and other information as seen fit by the Owner with written approval.

1.13 Owner Work Rules/Regulations and Quality Contractor Standards

1.13.1 The CMAR shall consult with the Owner to obtain full knowledge of the Owner’s rules, regulations, or requirements affecting the Project. This includes to the extent referenced in these General Conditions, the currently published CMSC and any supplemental specifications issued by the Owner.

1.13.2 The CMAR shall comply with the standards set forth in the RFSQ/RFP for the Project, shall cause a requirement to be included in all Subcontracts for the Project that Subcontractors in all tiers shall comply with the Owner’s Quality Contractor Standards.

1.14 Emergency

1.14.1 In the event of an emergency affecting the safety of the Project, other property, or individuals, the CMAR, without special instruction or authorization, shall act to prevent the threatened damage, injury, or loss.

1.14.2 If the CMAR believes that it is entitled to an adjustment of the Preconstruction Stage Compensation, Contract Sum, or Contract Times on account of its actions in response to an emergency, the CMAR may request a Modification by giving written notice under Section 7.1.1 or Section 7.3.2, as applicable.

1.15 CMAR’s Standard of Care

1.15.1 The CMAR shall perform the Work in a professional and thorough manner, consistent with the standards of skill and care exercised by Persons licensed to perform (where required under Applicable Law) and regularly performing comparable work in the same or similar locality under the same or similar circumstances.

1.16 [Reserved]

1.17 Sustainability Requirements

1.17.1 The CMAR shall assist the AR to incorporate cost-effective, energy-efficient, green building practices to the maximum extent possible into the Project. in accordance with the approved OPR Document or other such documents referenced in the Contract Documents.

ARTICLE 2 - OWNER’S RIGHTS AND RESPONSIBILITIES

2.1 Owner Project Representative

The Owner will designate a Project Representative and point-of-contact, authorized to act on behalf of the Owner to perform specific responsibilities during the Project, to act on behalf of the Owner with respect to the Project to the extent provided in the Contract Documents, and to seek approvals from the Owner. The Owner may change the Project Representative upon notice to the CMAR.

2.2 Owner

2.2.1 The CMAR shall not modify any form provided by the Owner.

2.2.2 To the extent available, the Owner shall furnish information and services required of it in a timely manner.

2.2.3 The Owner shall have access to the Work at all times including but not limited to whenever the Project is in preparation or progress, subject to the CMAR’s site safety requirements.

2.2.4 Upon issuance of the Notice to Proceed, the Owner shall provide the Site to the CMAR in a condition to permit the CMAR to perform the Work.

2.2.5 The Owner is not responsible for construction means, methods, manners, techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, or for the CMAR’s failure to carry out the Work in conformity with the Contract Documents.

2.3 Approval of Owner

2.3.1 The Owner’s review and approval of the Work and any information the CMAR submits to the Owner is for the sole purpose of determining whether the Work and information are generally consistent with the Contract’s intent and will not relieve the CMAR of its sole responsibility for the performance, preparation, completeness, and accuracy of the Work and information.

2.4 CMAR Performance Evaluation

2.4.1 The Owner may evaluate the CMAR’s performance during the progress of the Work, at completion of a Phase or Stage of the Project, completion of the Project, or any of the foregoing. The Owner shall retain the evaluation(s).

2.4.1.1 The CMAR may request a copy of the completed evaluation(s). If the CMAR wishes to comment on or object to any rating or remark, the CMAR must send a response in writing to the Owner within 30 days of receiving the evaluation(s).

2.4.1.2 The Owner may use the evaluation(s) in determining the responsibility of the CMAR for award of future contracts.

2.4.1.3 The Owner may request information from the CMAR for use in evaluating the AR’s performance. If information is requested, the CMAR must comply in a timely and responsive manner.

2.4.1.4 If a breach of the Contract is committed by the CMAR or is attributable to a Subcontractor, and such breach is not cured within the time required under the Contract or subcontract, that breach may be used in the responsibility analysis of the CMAR and Subcontractor (where applicable) for future contracts with the Owner or subcontracts on Owner projects for 5 years after the date of the breach.

ARTICLE 3 – ARCHITECT OF RECORD’S RESPONSIBILITIES

3.1 The AR’S Contract Administration Duties

3.1.1 The AR shall administer the Contract as provided in the Contract Documents and AR Agreement, including, but not limited to, performance of the functions described as follows:

3.1.1.1 The AR shall attend and participate in weekly progress meetings. The AR shall review minutes of progress meetings attended and timely provide comments and corrections to the CMAR in writing. The AR shall attend and participate in preconstruction, quality-control, pre-installation, and special meetings. The AR shall participate in coordination meetings as requested by the CMAR.

3.1.1.2 The AR may authorize minor changes or alterations in the Work that are consistent with the intent of the Contract Documents and do not involve adjustment of the Contract Sum or Contract Times, or both, by written notice to the Owner and the CMAR. The AR has no authority to authorize the CMAR to perform additional or extra Work for which the CMAR may seek adjustment of the Contract Sum or Contract Times, or both.

3.1.1.3 The AR shall review and recommend, certify, or approve applicable forms required under the Contract Documents.

3.1.1.4 The AR shall render interpretations and recommendations in connection with the CMAR’s responsibilities under the Contract Documents and submit recommendations to the Owner for enforcement of the Contract as necessary.

3.1.2 The AR is the initial interpreter of all requirements of the Contract Documents. All interpretations and recommendations of the AR are subject to final determination by the Owner.

3.2 Site Visits and Observation

3.2.1 The AR shall notify, advise, and consult with the Owner and protect the Owner against Defective Work throughout completion of the Project and the Correction Period.

3.2.1.1 The AR shall designate a field representative, subject to the Owner’s approval, to attend to the Project, to review the Work of the CMAR for Defective Work, to maintain familiarity with the progress and quality of the Work on the Project, to observe and check the progress and quality of the Work, and to take action as necessary or appropriate to require the CMAR to achieve conformity with the Contract Documents.

3.2.1.2 The AR and its consultants shall visit the Project at intervals required by its agreement with the Owner.

3.2.2 The AR is authorized to disapprove or reject Defective Work and shall disapprove or reject Defective Work that it knows or within the Standard of Care should have known does not conform to the Contract Documents. The AR shall immediately notify the Owner any time the AR disapproves or rejects an item of Work. If required by the Owner, the AR shall deliver written notice to the CMAR to correct such Defective Work. Such written notice shall specify the time within which the CMAR shall correct the Work (“72-Hour Notice”).

3.2.3 The AR is not responsible for construction means, methods, manners, techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, or for the CMAR’s failure to carry out the Work in conformity with the Contract Documents.

3.2.4 The AR shall conduct inspections to determine the date of Substantial Completion and shall receive, review and forward to the Owner and Owner Representative all Project record submittals required by the Contract Documents.

3.3 Testing and Inspection Services

3.3.1 Unless otherwise specified in the Contract Documents, the AR shall apply for, secure, and pay for the costs of structural testing and special inspections under Chapter 17 of the Ohio Building Code; testing including geotechnical analysis, environmental testing and analysis, concrete, masonry, structural steel, reinforced steel, welding, bolts, steel connections, HVAC systems and controls, plumbing and piping, air and water balancing and testing, or other testing;

and/or approval required by Applicable Law. The AR shall coordinate with the CMAR’s Construction Progress Schedule and notify the CMAR and the Owner of the times scheduled for conducting such testing and inspection. The AR shall provide copies of such testing and inspection reports to the CMAR.

3.4 Approval of AR

3.4.1 The AR’s review and approval of the Work and any information the CMAR submits to the AR is for the sole purpose of determining whether the Work and information are generally consistent with the Contract requirements and will not relieve the CMAR of its sole responsibility for the performance, preparation, completeness, and accuracy of the Work and information. The CMAR must adhere to the requirements stated in CMSC Section 105.03.

3.5 Limitation of AR’s Authority

3.5.1 Under no circumstances is the AR authorized to:

3.5.1.1 bind the Owner to any authorizations under, modifications of, or amendments to any contract other than as expressly described under Section 3.1.1.2.

3.5.1.2 accept any defective or non-conforming services, Work, or vendor-furnished items.

3.5.1.3 make any settlements on behalf of the Owner; or

3.5.1.4 assume any responsibilities of the CMAR or Subcontractors.

3.5.2 The AR shall not have any authority to authorize the CMAR or any Subcontractor to perform additional or extra Work for which the CMAR or the Subcontractor will seek compensation or extension or time.

3.5.3 The AR shall not be responsible for and shall not have control or charge of construction means, methods, manners, techniques, procedures, or scheduling of construction used by the CMAR or any Subcontractor to comply with the CMAR’s obligations for the Project or for safety precautions and programs in connection with Work on the Project. The AR shall not be responsible for or have control or charge over the acts or omissions of the CMAR or Subcontractors or any of their agents or employees, or any other Persons performing Work on the Project.

ARTICLE 4 – SUBCONTRACTORS

4.1 Applicability of Requirements

4.1.1 Sections 4.3 through 4.5 apply to all Work during the Construction Stage (including the CMAR’s procurement of long-lead-time items before the Date of Commencement) except:

4.1.1.1 the CMAR’s management and administration of the entire Work, including administration of Subcontracts;

4.1.1.2 General Conditions Work;

4.1.1.3 the balance of the Work under a Subcontract where the CMAR terminated the Subcontract for cause and the CMAR obtains the Owner’s written approval before commencement of that portion of the Subcontract Work; and

4.1.1.4 Work performed by a Delegated Design Firm under a contract authorized by the Owner and entered into by the CMAR as described under Section 4.8.

4.2 Subcontracting Plan

4.2.1 The CMAR shall place development, review, and approval of the Subcontracting Plan on the Project Schedule.

4.2.2 Before soliciting Bids for any particular Subcontract, the Subcontracting Plan shall (1) include a proposed list of prequalified prospective Bidders for that Subcontract and a proposed Bidding Schedule for that Subcontract and (2) be submitted to and approved by the Owner.

4.3 Prequalification Criteria

4.3.1 The CMAR intending to self-perform work and Subcontractors shall comply with Office of Prequalification requirements per Columbus City Codes Chapter 329. Upon reaching an agreement between the CMAR and the Owner regarding the procedure and schedule for determining a GMP, the CMAR shall disclose to the Owner, in writing, all contractors it has solicited or that it plans to solicit Bids or proposals from for the Project.

4.3.2 The CMAR will provide advance written notice to the Owner of its intention to use a contractor other than a contractor(s) designated as required by City Code Section 329.23(B)(g)(3)(i), including reasons for the change, and will consult with the Owner prior to implementing any such change.

4.3.3 Written notices from the CMAR received by the Owner regarding changes to designated contractors shall be posted on the website of the City’s Department of Finance and Management.

4.3.4 Consistent with City Code Section 329.23(B)(g)(4), the CMAR shall coordinate criteria for prequalification of prospective Bidders on Subcontracts that shall;

4.3.4.1 include the experience of a prospective Bidder, the prospective Bidder’s financial condition, conduct and performance on previous contracts, facilities, management skills, and ability to execute the associated Subcontract properly;

4.3.4.2 further any goals set as part of any diversity and inclusion program required by Applicable Law;

4.3.4.3 require prospective Bidders to affirmatively state that they have not violated any affirmative action program during the last five years preceding the date of the prequalification application;

4.3.4.4 require prospective Bidders to submit proof of current licenses to perform the associated Work as required by the Owner or by Applicable Law;

4.3.4.5 require prospective Bidders to comply with the Responsibility Prequalification provisions of City Code Sections 329.211 and 329.212;

4.3.4.6 require prospective Bidders to provide the number of years in business under present and former business names;

4.3.4.7 require prospective Bidders to provide a complete listing of all ongoing and completed public and private construction contracts of the Bidder in the last three years, including the nature and value of each contract and the name, address and phone number of a representative of the owner of each related project;

4.3.4.8 require prospective Bidders to certify that they have implemented an OSHA compliant safety Program and provide evidence of such upon request;

4.3.4.9 require prospective Bidders to certify they do not have an Experience Modification Rating of greater than

1.5 with respect to the Ohio Bureau of Workers’ Compensation risk assessment rating, as adjusted for comprehensive changes in the rating made by the Bureau from time to time.

4.3.5 The CMAR shall include any additional criteria for specific Subcontracts required by the Owner that are consistent with the scope and needs of the Project.

4.3.6 The CMAR shall submit its proposed prequalification criteria for each Subcontract to the Owner consistent with the provisions contained herein and shall designate the time for such submission on the Project Schedule.

4.3.7 The Owner shall approve or reject, in whole or in part, the prequalification criteria submitted by the CMAR. The Owner will use the approved prequalification criteria for any future analysis it may conduct concerning a prospective

Bidder’s responsibility to perform a Subcontract for the Project.

4.4 Prequalification Process

4.4.1 The CMAR shall require that Subcontractors complete the prequalification process for each applicable Subcontract in advance of the date the CMAR intends to start to solicit Bids for that Subcontract unless the Owner agrees otherwise in writing.

4.4.2 During the Prequalification Process, the CMAR shall develop prospective Bidders’ interest in the Project in coordination with the Owner and invite at least 3 prospective Bidders for each Subcontract to submit qualifications for evaluation. The Owner may require the CMAR to invite and evaluate more than 3 prospective Bidders, including specifically those prospective Bidders (if any) the Owner asks the CMAR to contact. The Owner may also require that the CMAR organize opportunity events for Subcontractors to provide additional information about the Project and to develop Bidders’ interest.

4.4.2.1 To reach prospective Bidders, the CMAR may place a notice on: (1) the State’s public notice website created under ORC Section 125.182 (with assistance of the Owner), (2) the official website of the Owner, (3) on other websites such as appropriate trade association websites, news media, or other public media websites, or (4) any combination of the foregoing.

4.4.3 The CMAR shall evaluate the qualifications of each prospective Bidder that timely submits its qualifications and notify each of them whether they are qualified. The CMAR’s determination that a Bidder that timely submits its qualifications does not meet the prequalification criteria shall be final.

4.4.4 The CMAR shall submit the names and qualifications of at least 3 qualified prospective Bidders to the Owner. The CMAR may submit the names of fewer than 3 qualified prospective Bidders if the CMAR submits to the Owner satisfactory documentation that fewer than 3 qualified prospective Bidders are available. The Owner and CMAR may meet to review the qualifications of the prospective Bidders on the list the CMAR submits to the Owner.

4.4.5 Notwithstanding Section 4.4.4, the Owner may require the CMAR to submit the names and qualifications of more than 3 qualified prospective Bidders for all or any particular Bid package. In that case, the CMAR may submit the names of fewer than the required number of qualified prospective Bidders if the CMAR submits to the Owner satisfactory documentation that fewer than the required number of qualified prospective Bidders are available.

4.4.6 The Owner shall review the list the CMAR submits and may rely on the CMAR’s representations to verify that prospective Bidders meet the prequalification criteria. The Owner shall complete its review within the period agreed between the Owner and CMAR or otherwise with reasonable promptness. The Owner may eliminate any prospective Bidder it determines is not qualified and notify the CMAR of the Owner’s determination and the basis for it. The CMAR shall promptly notify the prospective Bidder in writing of the Owner’s decision to eliminate the prospective Bidder and the basis for the Owner’s determination that the Bidder does not meet the prequalification criteria. The Owner’s determination that the Bidder does not meet the Owner’s prequalification criteria shall be final pursuant to City Code Chapter 329.

4.5 Subcontract Bidding Process

4.5.1 The solicitation and selection of the Subcontractors shall be conducted under an Open Book Pricing Method. The CMAR shall create a Bid package for each Subcontract and solicit Bids, using City Code bidding requirements, from qualified prospective Bidders identified under Section 4.4 for that Bid package in accordance with the Project Schedule.

Execution of a GMP Amendment concerning the Work for which the CMAR is soliciting Bids is not a condition precedent to commencement or completion of the Subcontract Bidding process.

4.5.2 At completion of the Subcontract Bidding Process for each Subcontract and no later than 15 days before the Work is scheduled to begin under that Subcontract, the CMAR and Owner will meet to review the Bids of qualified prospective Bidders identified under Section 4.4 for that Subcontract and determine to which prospective Bidder the CMAR will award the Subcontract. During the review meeting, the CMAR shall identify the prospective Bidder to whom the CMAR proposes to award the Subcontract.

4.5.2.1 Each Bidder to whom the CMAR proposes to award a Subcontract shall, to the CMAR’s reasonable satisfaction, (1) be qualified to perform the Subcontracted portion of the Work and (2) have submitted a Bid, which conforms to the requirements of the Contract Documents

.1 For the purpose of evaluating and reconciling the Bids, the CMAR may conduct scope-review meetings with Bidders that are usual and customary within the Bidders’ trade. Bids that have been reconciled with other Bids for the same scope of Work through that review process will be considered in conformance with the Contract Documents.

.2 The CMAR is not required to propose to award the Subcontract to the Bidder that submitted the lowest Bid.

Subject to Section 4.7, the CMAR may also propose to self-perform the Work in a Bid package even if the CMAR did not submit the lowest Bid for that Work.

4.5.2.2 If the Owner does not reject the CMAR-proposed Bidder, the CMAR shall enter into the Subcontract with the selected Bidder.

.1 All Subcontracts shall be on the CMAR Subcontract Form (City “Form B5”).

.2 No less than 10 days before Work is to be performed by the Subcontractor, or within a shorter period as mutually agreed by the CMAR and Owner, the CMAR shall submit to the AR a Subcontractor and Material Supplier Declaration Form through which the CMAR identifies the Subcontractor. After receiving the form, the AR shall verify that it is complete and deliver it to the Owner. If the AR finds the form is incomplete, the AR shall return it to the CMAR and identify the incomplete information.

.3 Execution of a GMP Amendment concerning the Work to be performed by the Subcontractor is a condition precedent to the CMAR entering into the Subcontract with that Subcontractor.

.4 No less than 10 days before Work is to be performed by the Subcontractor, or within a shorter period as mutually agreed by the CMAR and Owner, the CMAR shall submit to the Owner a complete copy of the executed Subcontract between the CMAR and Subcontractor.

4.5.2.3 If the Owner rejects the CMAR-proposed Bidder, the CMAR shall propose a replacement Bidder, which shall be evaluated as described above.

.1 If the majority of the Work included in the Bid package that the CMAR proposed to award to the rejected Bidder is covered by a GMP Amendment before the Owner rejects the CMAR-proposed Bidder, and the rejected Bidder was reasonably capable of performing the Work included in that Bid package, the CMAR may request an increase of the Contract Sum by giving written notice under Section 7.3.2; provided, however, that the increase shall not be greater than the difference between the Bid of the rejected Bidder and the Bid of the replacement Bidder as the CMAR presented those Bids as described under Section 4.5.2.

.2 Notwithstanding Section 4.5.2.3.1, the CMAR shall not be entitled to any associated adjustment of the Contract Sum if the Owner rejected the CMAR-proposed Bidder because the Bidder met the criteria for debarment as described under City Code Section 329.16.

.3 Notwithstanding Section 4.5.2.3.1, the CMAR shall not be entitled to any associated adjustment of the Construction Budget or the Contract Sum if the majority of the Work included in the Bid package that the CMAR proposed to award to the rejected Bidder is not covered by a GMP Amendment before the Owner rejects the CMAR-proposed Bidder.

4.6 Evaluation of Lower-Tier Subcontractors

4.6.1 As used in this Section 4.6, a “lower-tier Subcontractor” is any Subcontractor not in privity of contract with the

CMAR.

4.6.2 No less than 10 days before Work is to be performed by any lower-tier Subcontractor, or within a shorter period as mutually agreed by the CMAR and Owner, the CMAR shall submit to the AR a Subcontractor and Material Supplier Declaration Form through which the CMAR identifies lower-tier Subcontractors.

4.6.3 The CMAR’s failure to timely submit the information regarding a proposed lower-tier Subcontractor may result in withholding payment in accordance with Section 9.2.13.

4.6.4 After receiving the Subcontractor and Material Supplier Declaration Form, the AR shall verify that it is complete and deliver it to the Owner. If the AR finds the form incomplete, the AR shall return it to the CMAR and identify the incomplete information.

4.6.5 If the Owner rejects any proposed lower-tier Subcontractor for failure to meet Owner requirements as described in Section 4.5.2.3.2, the CMAR shall propose a replacement lower-tier Subcontractor with no adjustment of the Contract Sum. The proposed replacement lower-tier Subcontractor will be evaluated as described above.

4.7 Self-Performed Work

4.7.1 Neither the CMAR nor a CMAR Affiliated Entity shall directly perform with its own employees or other resources any Work on the Project during the Construction Stage except:

4.7.1.1 Work not subject to Bidding as described under Section 4.1; and

4.7.1.2 as otherwise provided in this Section 4.7.

4.7.2 If the CMAR or a CMAR Affiliated Entity intends to Bid on any Work subject to Bidding as described under Section 4.1:

4.7.2.1 During preparation of the Subcontracting Plan, the CMAR shall notify the Owner that the CMAR or a CMAR Affiliated Entity may Bid on a portion of the Work. The Owner, CMAR, and AR shall review that Work in detail and agree on its scope before the CMAR finalizes the Subcontracting Plan.

4.7.2.2 At least 14 days before issuing Bidding Documents for the scope of Work the CMAR or a CMAR Affiliated Entity intends to Bid on, the CMAR shall, in writing, seek the Owner’s permission for the CMAR or CMAR Affiliated Entity to Bid on that particular Work.

4.7.3 If the Owner permits the CMAR or CMAR Affiliated Entity to submit a Bid for a particular scope of Work:

4.7.3.1 The CMAR or CMAR Affiliated Entity (as applicable) shall meet in all respects the Bidder prequalification criteria approved by the Owner under Section 4.3.

4.7.3.2 The Bidding Documents shall specifically state that the CMAR or a CMAR Affiliated Entity may submit a Bid for that Work.

4.7.3.3 The CMAR shall ensure strict separation of the personnel of the CMAR or CMAR Affiliated Entity involved with Bidding on the Work from the personnel of the CMAR or CMAR Affiliated Entity otherwise involved in the Project. That separation includes, without limitation, prohibiting any communication (other than communication that is permitted by all Bidders) between those two groups before the Owner opens the associated Bids.

4.7.3.4 The CMAR or CMAR Affiliated Entity (as applicable) will be subject to all requirements applicable to the other Bidders for that Work.

4.7.3.5 The CMAR or CMAR Affiliated Entity (as applicable) shall submit its sealed Bid to the Owner no less than 4 hours before the deadline for submission of Bids to the CMAR for that scope of Work. No Bid will be opened prior to the deadline for submission of Bids.

4.7.4 If the CMAR or a CMAR Affiliated Entity submits a Bid as described under Section 4.7.3 and fewer than two other Bidders submit Bids for the same Work, the Owner may require that Work to be rebid.

4.7.5 If the Owner awards to the CMAR or CMAR Affiliated Entity the right to self-perform a particular scope of Work by operation of Sections 4.7.2 and 4.7.3, the CMAR may not use CMAR Contingency for that Work. The foregoing prohibition applies specifically but not exclusively to using CMAR Contingency to make up for the CMAR’s underestimation of that scope of Work in the CMAR’s detailed estimate of the Cost of the Work described under Section 5.7.6.6.

4.7.6 If the Owner awards to a CMAR Affiliated Entity the right to self-perform a particular scope of Work by operation of Sections 4.7.2 and 4.7.3, the CMAR Affiliated Entity will be a Subcontractor under the Contract and the CMAR’s Subcontract with the CMAR Affiliated Entity shall be on the CMAR Subcontract Form.

4.8 Delegated Design Firms

4.8.1 Authorization. After receipt of a written request from the CMAR, the Owner, along with the approval of the AR, may authorize the CMAR to engage a Delegated Design Firm to perform a scope of delegated design services and associated Work agreed upon by the Owner and CMAR in writing. The Owner and the AR will specify all performance and design criteria that such delegated design services must satisfy. The CMAR shall be entitled to rely upon the adequacy and accuracy of the performance and design criteria provided in the Contract Documents.

4.8.1.1 The CMAR may request authorization to engage a Delegated Design Firm at any point in the Project that is appropriate or necessary to facilitate the Project’s design and construction.

.1 The CMAR may not provide delegated design services directly or through a CMAR Affiliated Entity.

4.8.1.2 The CMAR shall include in its request (1) a detailed description of the scope of the delegated design services and associated Work, which the CMAR proposes to be performed by a Delegated Design Firm; (2) the date that the CMAR will be required to establish an estimated price for the scope of Work to be performed by the selected Delegated Design Firm; and (3) the target date that the selected Delegated Design Firm will be required to propose a price to perform the associated Work.

4.8.1.3 If the Owner authorizes the CMAR to engage a Delegated Design Firm, the CMAR shall (1) follow the procedures described in this Section 4.8 and (2) identify in the Project Schedule the dates described in Section 4.8.1.2.

4.8.1.4 If the CMAR fails to comply with this Section 4.8, the Owner may revoke the CMAR’s authorization to engage a Delegated Design Firm in addition to other remedies available to the Owner under the Contract and Applicable Law.

4.8.1.5 Notwithstanding any provision of this Section 4.8 to the contrary, at any time before entering into the authorized delegated design contract, the CMAR may, by notice to the Owner and AR, abandon the effort to engage a Delegated Design Firm to perform the scope of delegated design services and associated Work agreed upon by the Owner and CMAR.

4.8.2 Delegated Design Firm Selection. The CMAR shall award authorized delegated design contracts on the basis of the CMAR’s evaluation of a submission to the CMAR from each potential Delegated Design Firm that (1) establishes the qualifications of the potential Delegated Design Firm to provide the associated design-assist services and Work and (2) includes a proposal for (a) the potential Delegated Design Firm’s portion of the CMAR’s General Conditions Costs; and

(b) the potential Delegated Design Firm’s Construction Stage overhead and profit mark-ups and Construction Stage contingency.

4.8.2.1 Should a Design-Assist Firm consulting with the CMAR on the Project during the Preconstruction Stage provide a submission to the CMAR for potential delegated design services all information acquired by the Design Assist Firm during their consultation with the CMAR shall be made available to all potential Delegated Design Firms prior to submission and evaluation.

4.8.3 Delegated Design Contract Requirements. All delegated design contracts shall:

4.8.3.1 include the CMAR Subcontract Form;

4.8.3.2 provide that the Owner and AR shall be entitled to rely upon the adequacy and accuracy of the services, certifications, and approvals performed or provided by such Delegated Design Firm, provided the Owner and AR have specified to the CMAR the performance and design criteria that such services must satisfy; and

4.8.3.3 provide that (1) the CMAR may terminate the delegated design contract without cause if the CMAR and Delegated Design Firm fail to reach agreement on the compensation to be paid by the CMAR to the Delegated Design Firm on account of the Delegated Design Firm’s performance of the Work associated with the delegated design contract and (2) in the event of that termination, (a) the CMAR shall be obligated to pay the Delegated Design Firm for delegated design services or the associated Work the Delegated Design Firm performed before the date of termination but (b) the CMAR shall not be obligated to pay any compensation to the Delegated Design Firm for delegated design services or the associated Work that the Delegated Design Firm did not perform on account of the termination.

4.8.4 Additional Delegated Design Requirements. Unless the Owner agrees otherwise in writing the CMAR shall not be entitled to any adjustment of the Preconstruction Stage Compensation, Contract Sum, or Contract Times on account of the CMAR’s effort to engage, or engagement of, a Delegated Design Firm.

4.8.4.1 In order to facilitate compensation of the Delegated Design Firm and establishment of the Contract Sum through the GMP Amendment, every Delegated Design Firm the CMAR engages shall be considered a Subcontractor during the Construction Stage.

.1 The compensation to be paid by the CMAR to the Delegated Design Firm on account of the Delegated Design Firm’s performance of Work during the Construction Stage shall be included in the GMP and Contract Sum.

4.8.4.2 No less than 10 days before Work is to be performed by a Delegated Design Firm during the Construction Stage, or within a shorter period as mutually agreed by the CMAR and Owner, the CMAR shall submit to the Owner and AR detailed estimate of the Work to be performed by the Delegated Design Firm and a complete copy of the executed Subcontract between the CMAR and Delegated Design Firm. After receiving the estimate and Subcontract, the AR shall verify that they are complete and deliver them to the Owner. If the AR finds the estimate and Subcontract incomplete, the AR shall return them to the CMAR and identify the incomplete information.

.1 Execution of a GMP Amendment is a condition precedent to the CMAR incurring an obligation to pay the Delegated Design Firm on account of the Delegated Design Firm’s performance of that Work in the Construction Stage.

4.9 Replacement of Subcontractors and Delegated Design Firms

4.9.1 The CMAR shall not replace any Subcontractor after execution of the Subcontract without the prior written approval of the Owner.

4.9.2 The CMAR shall not replace any Delegated Design Firm after execution of the delegated design contract without the prior written approval of the Owner.

4.10 CMAR’s Responsibility

4.10.1 The CMAR is fully responsible for all acts and omissions of its Subcontractors and is responsible for scheduling and coordinating the Work of its Subcontractors.

4.10.1.1 The CMAR is fully responsible for any delay, interference, disruption, impact, or hindrance attributable to its Subcontractors.

4.10.1.2 The CMAR shall require that each of its Subcontractors have a competent supervisor at the Site whenever the Subcontractor is performing Work.

4.10.1.3 The CMAR shall not enter into any Subcontract or other agreement which seeks to bind the Owner to terms inconsistent with or at variance from the Contract Documents.

4.10.2 The CMAR will not be relieved of its full responsibility for Subcontractors and their performance of the Work by

(1) the participation of the Owner and AR in the processes described under this Article 4 or other related provisions of the Contract Documents or (2) the Owner’s rejection of a Bidder or failure to reject a Bidder under Section 4.4.5.

4.11 Contingent Assignment of Subcontracts

4.11.1 The CMAR hereby assigns its agreement with each Subcontractor to the Owner provided that the assignment is effective only after termination of the Contract by the Owner and only for those agreements that the Owner accepts by notifying the CMAR and applicable Subcontractor in writing. The Owner may re-assign accepted agreements.

4.12 Prompt Payment

4.12.1 The CMAR shall make payments to Subcontractors in accordance with Applicable Law, including ORC Section

4113.61 that include, without limitation, the requirements described under this Section 4.12.

4.12.1.1 If a Subcontractor requests payment in time to allow the CMAR to include the request in its CMAR Payment Request, the CMAR shall pay within 10 days after receipt of payment from the Owner:

.1 To a Subcontractor other than a Material Supplier, an amount equal to the percent of completion allowed by the Owner for the Subcontractor’s Work.

.2 To a Material Supplier, an amount equal to all or that portion of the CMAR Payment Request that represents the materials furnished by the Material Supplier.

4.12.2 The CMAR may reduce the amount to be paid to a Subcontractor pursuant to Section 4.12.1 at a rate equal to the percentage retained from the CMAR and may withhold amounts necessary to (1) resolve disputed liens or claims involving the Work of the Subcontractor or (2) account for the failure of the Subcontractor to perform its obligations under its agreement with the CMAR.

4.12.2.1 Labor Payments.

.1 Partial payments to the Subcontractor for labor performed under either a Unit Price or lump sum Subcontract shall be made at the rate of 92 percent of the amount invoiced through the Subcontractor’s request for payment that shows the Work of the Subcontractor is 50 percent complete. After the Work of the Subcontractor is 50 percent complete, as evidenced by payments of at least 50 percent of the total amount due under the Subcontract, no additional funds shall be retained from payments for labor.

4.12.2.2 Material Payments.

.1 The CMAR shall pay the Subcontractor at the rate of 100 percent of the scheduled value for materials incorporated into the Project.

.2 The CMAR shall pay the Subcontractor at the rate of 92 percent of the invoice cost, not to exceed the scheduled value in a Unit Price or lump sum Subcontract, for materials delivered to the Site, or other off-site storage location approved by the AR, provided the Subcontractor provides the information required by Sections

9.2.11.2.1 and 9.2.11.2.2.

4.12.3 If the CMAR fails to comply with this Section 4.12, the CMAR shall pay interest to the applicable Subcontractor, compounded annually, as defined in the CMAR/ Subcontractor agreement.

4.12.4 In order to establish rights to funds payable to the CMAR, Subcontractors shall comply with Applicable Law, including ORC sections 1311.26, 1311.261, and 1311.29.

4.12.5 If the Owner receives a Claim Affidavit from a Subcontractor, it shall proceed as required by Applicable Law.

4.12.6 Laborers, Subcontractors, and Material Suppliers may secure payment bond rights in accordance with Applicable Law.

ARTICLE 5 - PRECONSTRUCTION SERVICES

5.1 General Requirements

5.1.1 Commencement.

5.1.1.1 The CMAR’s Preconstruction Services will begin on the date set forth in a notice that the Owner issues to the CMAR (“Notice to Commence Services”).

5.1.2 Scope of Preconstruction Services.

5.1.2.1 The CMAR shall perform the Preconstruction Services, which consist of the activities and Stages set forth in Sections 5.2 through 5.7, inclusive. The CMAR shall provide its services according to a Staffing Plan and scope as approved by the Owner.

5.1.3 Consultation.

5.1.3.1 The CMAR and AR shall jointly schedule and attend regular meetings with the Owner. The CMAR shall consult with the Owner and AR regarding Site use and improvements and the selection of materials, building systems, and equipment. The CMAR shall provide recommendations to the Owner and AR on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to Construction Cost, including estimates of alternative designs or materials, budgets and possible economies of scale.

5.1.3.2 At all appropriate times throughout the performance of the Work, the CMAR shall contact, meet, consult, and otherwise coordinate with the Owner, AR, governmental authorities with jurisdiction over the Project, and others for the purpose of facilitating the Project’s design and construction.

5.1.4 Project Schedule.

5.1.4.1 The CMAR shall provide and maintain a Project Schedule with a logical sequence of events coordinated with the AR’s design schedule and with any key Milestones or activities required by the Owner; reasonable periods of time for the Owner, AR and CMAR to review the CMAR’s deliverables and for the CMAR to revise and resubmit those deliverables; and sufficient detail to properly anticipate and monitor progress on the Project.

5.1.5 Long-Lead-Time Items.

5.1.5.1 The CMAR shall recommend to the Owner and AR a schedule for procurement of long-lead-time items that will…