8-CMaR Agreement (draft).pdf

City of Columbus Agreement Form (CMAR at Risk Project)

This Agreement is made as of the date set forth below between City of Columbus Department of Finance and Management (Owner), and Vendor Name (the “Construction Manager at Risk” and the “CMAR”) in connection with the Project.

Project Number:

Ordinance Number:

Project Name:

Site Address:

Owner: City of Columbus, Ohio Department of Finance and Management 90 W. Broad St., 4th Fl.

Columbus, OH 43215

PM:

Construction Manager at Risk (“CMAR”):

CMAR’s Principal Contact:

Address:

Architect-of-Record (“AR”):

AR’s Principal Contact:

ARTICLE 1 - SCOPE OF WORK; CONSTRUCTION BUDGET

1.1 The CMAR shall perform and provide all of the Work described in the Contract.

1.2 The Construction Budget is TBD. The Target Cost of the Work is $ and the assumed construction duration is X months.

ARTICLE 2 - PRECONSTRUCTION AND EARLY PROCUREMENT

STAGE COMPENSATION

2.1 The Preconstruction and Early Procurement Stage Compensation is $ (written out), which is the sum of the (1) Preconstruction Fee, (2) Preconstruction Stage Personnel Costs, (3) Preconstruction Stage Reimbursable Expenses,

(4) GMP1 associated fees and expenses and (5) contingency. The Owner shall pay the Preconstruction Stage Compensation to the CMAR in exchange for the CMAR’s proper, timely, and complete performance of the Preconstruction Services.

2.2 Preconstruction Fee. The CMAR’s Preconstruction Fee is subject to the following allocation:

Project Stage/Task Fee Amount Portion of Total Fee Preconstruction Stage Personnel Costs $ Preconstruction Fee $ Bonds for Initial Agreement $ GMP1 Project Specific Conditions $ GMP1 Early Procurement Allowance $ GMP1 Staff & General Conditions $ Contingency $ Total Preconstruction Fee $ 100%

2.3 Preconstruction Stage Personnel Costs. The CMAR’s Preconstruction Stage Personnel Costs shall not exceed the fixed fee amount listed above, and shall be paid as a lump sum amount. Any additional scope of work directed by the Owner will be submitted as a change order according to the rates set forth in the Personnel Costs Rate Schedule attached as Exhibit A.

2.4 Preconstruction Stage Reimbursable Expenses. The CMAR’s Preconstruction Stage Reimbursable Expenses shall not exceed $ (written out), and shall be paid according to the Preconstruction Stage Reimbursable Expenses Schedule attached as Exhibit B.

ARTICLE 3 - CONSTRUCTION STAGE COMPENSATION

3.1 As described in the General Conditions, the Owner and the CMAR will establish the Guaranteed Maximum

Price for the Contract Sum, Contract Times, Milestones, and other commercial terms relevant to the Construction Stage through at least one GMP Amendment, the form of which is attached as Exhibit D. If the CMAR submits proposed pricing for the GMP Amendment that attempts to modify or alter or exceed the caps for the CMAR’s Fee, General Conditions, or Contingency submitted with its original proposal submitted in response to the Owner’s RFP shall be a material breach of this Agreement by the CMAR. In addition, any attempt by the CMAR to alter the terms of this Agreement and the General Conditions executed by the parties for the Project, as a condition or assumption of the GMP shall be a material breach of this Agreement by the CMAR. CMAR acknowledges that this Agreement is to be administered on an "open book" arrangement relative to Costs of the Work including Contingency funds used. CMAR shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. The Owner and the Owner’s accountants shall be afforded access to review and audit the CMAR’s records in accordance with the Contract Documents.

3.2 The CMAR shall propose the amount of the CMAR’s Construction Stage Personnel Costs portion of the Cost of the Work as a part of the proposed GMP Amendment; provided, however, that the CMAR’s Construction Stage Personnel Costs shall not exceed $ (written out).

3.2.1 The CMAR’s Construction Stage Personnel Costs shall be based upon the rates set forth in the Personnel Costs Rate Schedule attached as Exhibit A and the staff, roles, and hours as described in the CMAR Stage 2 technical proposal attached as Exhibit G.

3.3 The CMAR shall propose the amount of the General Conditions Costs portion of the Cost of the Work as a part of the proposed GMP Amendment; provided, however, that the General Conditions Costs shall not exceed $ (written out).

3.3.1 A detailed description of the items of Work included in the General Conditions Costs portion of the Cost of the Work is set forth in the General Conditions Costs Description attached as Exhibit C and as further detailed in the CMAR Stage 2 technical proposal attached as Exhibit G.

3.4 The CMAR shall propose the amount of the CMAR’s Contingency as a part of the proposed GMP Amendment;

provided, however, that the CMAR’s Contingency shall not exceed an amount equal to 2.0% percent of the Cost of the Work identified by the CMAR in the proposed GMP Amendment.

3.4.1 Buy Out Savings Change Order. Unless otherwise provided in the GMP Amendment, no more than 30 days before final payment to the CMAR, the Owner and the CMAR shall execute a Change Order to reduce the GMP for the Contract Sum by an amount equal to (1) 100 percent of the funds then remaining in the CMAR’s Contingency plus (2) an associated reduction of the CMAR’s Fee in an amount equal to 1.75% of the amount by which the GMP for the Contract Sum is reduced on account of return of the CMAR’s Contingency.

3.5 The CMAR shall propose the amount of the CMAR’s Fee as a part of the proposed GMP Amendment;

provided, however, that the CMAR’s Fee shall not exceed an amount equal to 1.75% of the sum of the Cost of the Work plus CMAR’s Contingency, both as identified by the CMAR in the proposed GMP Amendment.

3.6 If the Owner and the CMAR cannot agree on a GMP for the Contract Sum, the Owner may terminate the Contract for convenience. If the Owner thereafter decides to pursue the Project using the Multiple-Prime Contract with Construction Manager Adviser project-delivery method and to enter into a related construction-management agreement with the CMAR, the CMAR’s Fee under that contract shall not exceed 1.75%. The Owner is not obligated to offer or enter into a Construction Manager Adviser contract with the CMAR for the Project.

ARTICLE 4 - KEY PERSONNEL

4.1 The CMAR’s key personnel for the Project are:

4.1.1 4.1.2 4.1.3

4.2 The CMAR’s key personnel are authorized to act on the CMAR’s behalf with respect to the Project and all matters concerning the Project.

ARTICLE 5 - CONSULTANTS

5.1 The CMAR’s Consultants for the Project are:

5.1.1

5.1.2

5.2 The CMAR may provide a portion of the Work through one or more Consultants, provided, however, the CMAR will remain responsible to the Owner for all duties and obligations of the CMAR under the Contract.

5.2.1 If the CMAR engages a Design-Assist Firm, follow the requirements under the General Conditions, Section 4.8.

5.3 By appropriate written agreement using the Subcontract Form attached hereto as Exhibit Z, the CMAR shall require each Consultant, to the extent of the Consultant’s portion of the Work, to be bound to the CMAR by the terms of the Contract, and to assume toward the CMAR all of the obligations and responsibilities which the CMAR assumes toward the Owner.

5.3.1 The CMAR shall not retain any Consultant on terms inconsistent with the Contract.

5.3.2 All agreements between the CMAR and a Consultant shall identify the Owner as the agreement’s intended third-party beneficiary.

5.3.3 The Owner’s receipt and approval of a copy of the agreement between the CMAR and a Consultant is a condition precedent to the Owner’s obligation to pay the CMAR on account of the Consultant’s services.

5.4 The Owner has no obligation to pay or see to the payment of money to any Consultant.

5.5 The CMAR shall obtain the Owner’s written approval before engaging any Consultant not named above. The CMAR shall not employ any Consultant against whom the Owner has a reasonable objection. The Owner’s approval or disapproval of any Consultant, however, will not relieve the CMAR of the CMAR’s full responsibility for the performance of the Work.

5.6 The CMAR shall not remove any Consultant from the Project or reduce the extent of any Consultant’s participation in the Work without the Owner’s prior written consent. The CMAR shall not permit any Consultant to replace any previously identified team member except with the Owner’s prior written consent unless the Consultant ceases to employ that individual. On notice from the Owner, the CMAR shall immediately and permanently remove from the Project any Consultant or Person under a Consultant’s or CMAR’s control whose performance is not satisfactory to the Owner.

5.7 The Owner may communicate with any Consultant either through the CMAR or directly with the Consultant, but the Owner may not modify the contract between the CMAR and any Consultant.

5.8 The CMAR hereby assigns to the Owner each Consultant’s agreement provided that the assignment is effective only after the Owner terminates this Contract and only for those agreements which the Owner accepts by notifying the Consultant and CMAR in writing. The Owner may re-assign accepted agreements.

ARTICLE 6 - GENERAL PROVISIONS

6.1 Escalation of Personnel Cost Rates.

6.1.1 The CMAR may adjust the rates set forth in the Personnel Costs Rate Schedule attached as Exhibit A in accordance with the CMAR’s normal salary-review practices, but (1) not before the date one year after the date of this Agreement,

(2) Not more than once in any one-year period thereafter, and (3) not in excess of 3 percent per annual increase.

6.1.2 No rate increase will (1) apply to any Work performed before the Owner receives written notice of the increase from the CMAR, or (2) result in an increase in a previously established fixed or not-to-exceed fee such as under

(a) Sections 2.3 and 3.2 of this Agreement, (b) the GMP Amendment, or (c) as the Owner and the CMAR may agree upon from time to time in connection with all or any part of the Work by a Modification signed by both.

6.2 Effectiveness.

6.2.1 It is expressly understood by the CMAR that none of the rights, duties, and obligations described in the Contract Documents shall be valid and enforceable unless the City Auditor first certifies that there is a balance in the appropriate Owner fund, or in the process of collection not already encumbered to pay existing obligations in accordance with ORC Section 5705.41 and with sections 159 and 161 of the City’s Charter.

6.2.2 Subject to Section 6.2.1, the Contract shall become binding and effective upon execution by the CMAR and the Owner.

6.2.2.1 If the CMAR is a joint venture, (1) each individual participant in the joint venture shall (a) sign the Agreement in its own name and (b) be a party to the Contract, and (2) the Contract, Performance Bond, and Payment Bond shall be binding on and apply to all joint ventures jointly and severally.

6.2.2.2 If the CMAR is a limited liability company, which the Owner reasonably believes to be a special purpose or similar entity, the Owner may in its discretion require the limited liability company and each member of the limited liability company to (1) sign the Agreement in its own name and (2) be a party to the Contract. In that case, the Contract, the Performance Bond, and the Payment Bond shall be binding on and apply to the limited liability company and to all of its members jointly and severally.

6.2.3 This Agreement may be executed in several counterparts, each of which shall constitute a complete original Agreement, which may be introduced in evidence or used for any other purpose without production of any other counterparts.

6.3 Representations.

6.3.1 The CMAR represents and warrants that it is not suspended or debarred under Columbus City Code Section 329.19 “Authority to Debar or Suspend”) and is not subject to an unresolved finding for recovery under ORC Section 9.24 “Findings for Recovery”. If this representation and warranty is found to be false, the Contract is void, and the CMAR shall immediately repay to the Owner any funds paid under this Contract.

6.3.2 The CMAR hereby certifies that neither the CMAR nor any of the CMAR’s partners, officers, directors, shareholders nor the spouses of any such person have made contributions in excess of the limitations specified in ORC Section 3517.13.

6.3.3 The CMAR, by signature on this Agreement, certifies that it is currently in compliance with, and will continue to adhere to, the requirements of Ohio ethics laws and conflict of interest laws and will take no action inconsistent with those laws.

ARTICLE 7 - ENUMERATION OF DOCUMENTS

7.1 The Contract Documents constitute the substance of the Contract, and include, but are not limited to, this Agreement (including all of its exhibits), the GMP Amendment if executed, final Drawings, final Specifications, Addenda if any, Contracting Definitions, City of Columbus (Owner) General Conditions for Construction Manager at Risk Project, Wage Rate Requirements, Project Manual, and Modifications if any.

7.2 This Agreement includes the following documents:

7.2.1 Personnel Costs Rate Schedule attached as Exhibit A;

7.2.2 Preconstruction Stage Reimbursable Expenses Schedule attached as Exhibit B;

7.2.3 General Conditions Costs Description attached as Exhibit C;

7.2.4 Subcontract Form attached as Exhibit Z;

7.2.5 GMP Amendment form attached as Exhibit D;

7.2.6 Modified General Conditions attached as Exhibit E;

7.2.7 CMAR Stage 1 Request for Qualifications response as Exhibit F; and

7.2.8 CMAR Stage 2 Technical Proposal as Exhibit G

7.2.9 CMAR Early Procurement Budget as Exhibit H

7.2.10 CMaR Final Waiver & Release Affidavit as Exhibit I

7.2.11 Subcontractors, Suppliers Final Waiver & Release Affidavit as Exhibit J

7.2.12 Community Benefit Agreement as Exhibit K

7.2.13 Ohio Workers’ Compensation Insurance Fund Certificates attached as Exhibit L

7.2.14 Certificate(s) of Insurance attached as Exhibit M

ARTICLE 8 – MBE & WBE CONTRACT GOAL

8.1 This contract was advertised with an anticipated City of Columbus MBE/WBE Program goal of 0%. The CMAR shall make a good faith effort to engage MBE/WBE firms in meaningful roles as an integral part of the team proposed to provide the requested services and later during the solicitation and selection of subcontractors for construction work. The CMAR is expected to develop and implement a plan for a good faith effort to obtain MBE/WBE participation by firms holding a valid certification.

ARTICLE 9 – COMMUNITY BENEFIT AGREEMENT

9.1 This contract was advertised with an anticipated Community Benefits Agreement (CBA). The CMAR shall enter into a CBA agreement substantially similar to that attached herein as Exhibit I and make good faith efforts to comply with all provisions of the CBA as set forth therein.

SIGNATURES

IN WITNESS WHEREOF, the Owner and the CMAR have executed this Agreement as of the date set forth below:

Vendor Name: CITY OF COLUMBUS

Signature Signature

Printed Name Printed Name

Director Title Title

Approved as to Form: Approved as to Content:

Date: Date:

AUDITOR’S CERTIFICATION

This signature certifies the amount required to meet the obligation in the fiscal year in which this Agreement is made has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances.

Signature

Printed Name

City Auditor

CERTIFIED COPY OF CORPORATE RESOLUTION

(Name of Corporation)

I hereby certify that I am duly elected and acting Secretary of the above-named corporation, a corporation duly organized and existing under the laws of the State of __________ and that on _____ day of _________, the

Board of Directors of said corporation authorized and approved submission of a certain Proposal to City of

Columbus (Owner) for the delivery of certain services and Work by said corporation and any Contract resulting therefrom and empowered the of said corporation to execute said Proposal and any contract resulting therefrom with the City of Columbus, Ohio, and in behalf of said corporation; that said authority is not contrary to any provision in the governing instruments of said corporation;

that said authority has not been rescinded or modified; and that is duly elected and acting in the above official capacity of said corporation.

IN WITNESS WHEREOF, 1 have hereunto subscribed my name on , 20 .

Name of Corporation:

By:

Name:_ Secretary

END OF DOCUMENT

Exhibit A - Personnel Costs Rate Schedule City of Columbus Standard Conditions (CMAR at Risk)

Name Role Firm Rate

$ per hour

END OF EXHIBIT

Exhibit B - Preconstruction Stage Reimbursable Expenses Schedule City of Columbus Standard Conditions (CMAR)

Item Description Amount

Total $

Exhibit C - General Conditions Costs Description City of Columbus Standard Conditions (CMAR)

Item Description Amount

Total $

Exhibit Z Subcontract Form (CMAR Project) City of Columbus Standard Conditions This Agreement is made as of the date set forth below between the Construction Manager and the Subcontractor in connection with the Project.

Project Number:

Site Address:

Construction Manager (“CMAR”):

CMAR’s Principal Contact:

Owner: City of Columbus, Department of Finance & Management Contact:

ARTICLE 1 - NATURE OF SUBCONTRACT

1.1 The Subcontractor shall perform the entire Subcontract Work as specified in Exhibit «B» and described in the Contract Documents for the Project.

ARTICLE 2 - COMPENSATION

2.1 The CMAR agrees to pay for the performance of this Subcontract, subject to additions and deductions as provided in the Contract Documents, the Subcontract Sum of «insert Subcontract Sum», comprised of the following:

«insert Subcontract Sum component»........................................................$«insert amount» «insert Subcontract Sum component»........................................................$«insert amount» «insert Subcontract Sum component»........................................................$«insert amount» «insert Subcontract Sum component»........................................................$«insert amount»

ARTICLE 3 - TIME OF PERFORMANCE

3.1 Time is of the essence. The Subcontractor shall diligently prosecute and complete all Subcontract Work in accordance with the construction progress schedule agreed between the CMAR and Subcontractor consistently with the Project Schedule.

ARTICLE 4 - CONTRACT DOCUMENTS

4.1 To the extent that the contract between the Owner and the CMAR applies to the Subcontract Work:

4.1.1 The CMAR and the Subcontractor agree to be mutually bound by the terms of the Contract Documents;

4.1.2 The CMAR assumes toward the Subcontractor the rights, remedies, obligations, and responsibilities that the Owner has and assumes toward the CMAR;

4.1.3 The Subcontractor assumes toward the CMAR the rights, remedies, obligations, and responsibilities that the CMAR assumes toward the Owner; and

4.1.4 The Subcontractor agrees to perform its portion of the Work in accordance with the Contract Documents.

4.2 The Subcontract and any modifications, amendments, or alterations thereto shall be governed, construed, and enforced by and under the laws of the State of Ohio.

4.3 Chapter 377 of the Columbus City Codes is hereby incorporated into the contract and Contractor is required to comply with said chapter. This includes, but is not limited to, reporting requirements and the obligation to review the commission list of contractors and subcontractors that received an adverse determination. Penalties for failure to comply with the wage theft prevention code included suspension for three years, up to permanent disbarment.

4.4 If any term or provision of the Subcontract, or the application thereof to any Person or circumstance, is finally determined, to be invalid or unenforceable by a court of competent jurisdiction, the remainder of the Subcontract or the application of such term or provision to other Persons or circumstances, shall not be affected thereby, and each term and provision of the Subcontract shall be valid and enforced to the fullest extent permitted by law.

4.5 The Subcontract shall be binding on the CMAR and Subcontractor, their successors and assigns, in respect to all respective covenants and obligations contained in the Contract Documents, but the Subcontractor may not assign the Subcontract without the prior written consent of the CMAR and the Owner.

ARTICLE 5 - EFFECTIVENESS

5.1 The Subcontract shall become binding and effective upon execution by the CMAR.

5.2 This Subcontract has been executed in several counterparts, each of which shall constitute a complete original Subcontract, which may be introduced in evidence or used for any other purpose without production of any other counterparts.

5.3 Any signatory may deliver a copy of its counterpart signature page to this Subcontract via fax or e-mail. Each signatory shall be entitled to rely upon a signature of any other signatory delivered in such a manner as if such signature were an original.

ARTICLE 6 - REPRESENTATIONS

6.1 Contingent Assignment. The CMAR’s contingent assignment of this Subcontract to the Owner, as provided in the Contract, is effective after termination of the CMAR by the Owner and notice of the Owner’s acceptance of the assignment in writing to the Subcontractor. The Subcontractor consents to the assignment and shall be bound at the same price and terms as in the Subcontract to the Owner. Unless the Owner takes assignment of the Subcontract, the Subcontractor will not have any contractual rights against the Owner.

6.2 Intended Third-Party Beneficiary. The Owner is an intended third-party beneficiary of the Subcontract, entitled to enforce any rights thereunder for its benefit.

6.3 Insurance. The Subcontractor shall maintain insurance in accordance with the Contract Documents. Exhibit «N» sets forth the minimum limits of liability for the insurance required in the Contract Documents.

6.4 Right to Audit. The Subcontractor agrees that the Owner or any agents designated by the Owner have access to and the right to audit and the right to copy, at the Owner’s cost, all of the Subcontractor’s books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to the Work for a period of not less than 3 years following completion of the Work consistent with Ohio Revised Code (“ORC”) Section 149.43 with regard to the Owner’s obligation to maintain confidentiality of trade secrets.

6.5 Indemnity. To the fullest extent permitted by law, the Subcontractor shall indemnify, defend, and hold harmless the Owner, the CMAR, their consultants and employees from and against all claims and expenses for bodily injury and property damage other than to the Work itself, that may arise from the performance or nonperformance of the Subcontract Work, including reasonable attorneys' fees, costs and expenses, but only to the extent caused by the negligent acts or omissions of the Subcontractor or a Person for whom the Subcontractor may be liable. This Subcontract does not require a Subcontractor to waive its immunity under the Workers Compensation laws of Ohio from claims brought against the Subcontractor by the Subcontractor’s employees.

6.6 Prompt Pay. The CMAR shall at a minimum make payments to the Subcontractor in accordance with Applicable Law, including ORC Section 4113.61. Progress payments to the Subcontractor for satisfactory performance of Subcontract Work shall be made no later than 10 days after receipt by the CMAR of payment from the Owner for Subcontract Work.

6.7 Retainage. Subcontractor retainage shall be at a rate equal to the percentage retained from the CMAR’s payment by the Owner for the Subcontract Work, unless a lesser percentage is otherwise specified.

6.8 Warranty. The Subcontractor fully warrants, for the benefit of the Owner, that all materials and equipment shall be new unless otherwise specified, of good quality, in conformance with the Contract Documents and free from defective workmanship or materials.

6.9 Non-Waiver of Lien Rights or Payment Bond Rights. This Subcontract shall not prohibit a Subcontractor from exercising its rights under ORC Chapter 1311 or under any CMAR-provided payment bond.

6.10 Non-Discrimination. The Subcontractor agrees to fully comply with Applicable Law regarding equal opportunity, including ORC Section 153.59 for non-discriminatory hiring practices.

6.11 Equal Opportunity Clause Contractor agrees to abide by all of the terms, conditions and requirements set forth in Columbus City Code Section 3906.02, Equal Opportunity Clause. Failure or refusal of a Contractor or Subcontractor to comply with the provisions of Title 39 may result in cancellation of this Contract.

6.12 Dispute Resolution. The supplemental conditions to this Subcontract shall provide for a dispute resolution process comparable to the Contract’s dispute resolution process in terms of timing, notice, substantiation, and informal dispute resolution efforts. The dispute resolution process provided in the supplemental conditions shall result in prompt access to the ultimate dispute resolution mechanism selected by the CMAR and the Subcontractor.

6.13 In the event that any supplemental conditions or other Subcontract terms conflict with the Subcontract Form, the Subcontract Form takes precedence and this Subcontract shall be read and enforced to include the provisions of the Subcontract Form.

6.14 The following exhibits are attached to and are a part of this Subcontract:

6.14.1 Exhibit A:

6.14.2 Exhibit B:

6.14.3 Exhibit C:

6.14.4 Exhibit D:

IN WITNESS WHEREOF, the CMAR and the Subcontractor have executed this Subcontract Form.

«INSERT SUBCONTRACTOR’S NAME» «INSERT CMAR’S NAME»

Date

Exhibit D - GMP Amendment (CMAR) CITY OF COLUMBUS Standard Conditions (CMAR)

When preparing this GMP Amendment for execution, revise the text above from “Agreement Exhibit D” to “GMP Amendment No. N”, where “N” is the sequential number of the GMP Amendment, and delete these notes.

The Owner and the CMAR enter into this Amendment to establish a Guaranteed Maximum Price as of the date set forth below to amend the Contract they entered into as of «insert date of Agreement» in connection with the Project known as:

Project Number: «insert project number» Project Name:

«insert project name»

Owner: City of Columbus, Department of Finance &

Management

Construction Manager (“CMAR”): Vendor Name

ARTICLE 1 - CONTRACT SUM AND RELATED ITEMS FOR THIS AMENDMENT

1.1 The Guaranteed Maximum Price which the Contract Sum shall not exceed is $«insert amount», which is the sum of the estimated Cost of the Work, plus the CMAR’s Contingency, plus the CMAR’s Fee as follows:

1.1.1 The estimated Cost of the Work is $«insert amount», which includes all Allowances (if any) and Unit Prices (if any) defined through this Amendment, and is the sum of:

1.1.1.1 CMAR’s Construction Stage Personnel Costs in the amount of $«insert amount», which amount shall not exceed $«insert CMAR’s Construction Stage Personnel Costs cap from the Agreement»;

1.1.1.2 General Conditions Costs in the amount of $«insert amount», which shall not exceed $«insert General Conditions Costs cap»;

.1 Since the date of the Agreement, the scope of the General Conditions Work has been increased as follows:

«insert text description of the increase of the scope of the General Conditions Work».

.2 On account of the increase in the scope of the General Conditions Work, the General Conditions Costs cap stated in the Agreement is hereby changed to $«insert new General Conditions Costs cap».

1.1.1.3 all Work the CMAR proposes to provide through Subcontractors in the amount of $«insert amount»;

1.1.1.4 all Work the CMAR proposes to self-perform directly or through a CMAR Affiliated Entity in the amount of

$«insert amount», which amount does not include any costs accounted for under the CMAR’s Construction Stage Personnel Costs or General Conditions Costs.

1.1.2 The CMAR’s Contingency in the amount of $«insert amount», which shall not exceed «insert CMAR Contingency percentage from the Agreement» percent of the above-identified Cost of the Work.

1.1.2.1 Notwithstanding Article 9 of the General Conditions, the Contingency Review Dates will be the dates on which the CMAR achieves the following activities identified in the Construction Progress Schedule attached as GMP Exhibit E:

«insert activity number, activity name» «insert activity number, activity name» «insert activity number, activity name»

Delete Section 1.1.2.1 completely if it is not applicable.

1.1.3 The CMAR’s Fee in the amount of $«insert amount», which shall not exceed «insert CMAR Fee percentage from the Agreement» percent of the sum of the above-identified Cost of the Work plus the above-identified CMAR’s Contingency.

1.2 Recap of Guaranteed Maximum Price (“GMP”) for the Contract Sum and Related Items:

Compensation Component Description (refer to complete description in the Section of this GMP Amendment referenced below)

Current Amount (before execution of this GMP Amendment)

Increase(Decrease) (amount added to or (deducted from) Current Amount)

Amended Amount (after execution of this GMP Amendment)

1.1 Guaranteed Max Price for the Contract Sum $ $ $

1.1.1 Estimated Cost of the Work $«insert amount» $«insert amount» $«insert amount»

1.1.1.1 Personnel Costs $«insert amount» $«insert amount» $«insert amount»

1.1.1.2 General Conditions Costs $«insert amount» $«insert amount» $«insert amount»

1.1.1.3 Subcontracted Work $«insert amount» $«insert amount» $«insert amount»

1.1.1.4 Self-performed Work $«insert amount» $«insert amount» $«insert amount»

1.1.2 CMAR’s Contingency $«insert amount» $«insert amount» $«insert amount»

1.1.3 CMAR’s Fee $«insert amount» $«insert amount» $«insert amount»

If this is the first GMP Amendment for the Project, the values in the Current Amount column must be $0.00. If this

NOT the first GMP Amendment for the Project, the values in the Current Amount column must be the same as the values in the Amended Amount column on the last previously executed GMP Amendment. In either case, the values in the Increase (Decrease) column must match the values in Section 1.1 and subsequent sections, and the values in the Amended Amount must be the Current Amount plus the Increase (Decrease). The Preconstruction Services Amendment Form must be used to modify Preconstruction

1.3 The CMAR’s total compensation shall include the CMAR’s Preconstruction Stage Compensation plus the amended amount of the Guaranteed Maximum Price for the Contract Sum identified in the table above.

1.4 The penal sum of the CMAR’s Bonds shall equal 100 percent of the CMAR’s total compensation.

ARTICLE 2 - CONTRACT TIMES

2.1 The Contract Times are the periods established in the following table for the achievement of the associated Milestones:

Construction Stage Milestone(s) to which Liquidated Damages apply

Contract Time (which shall commence on the date in Owner’s Notice to Proceed)

Projected Date (as of the date of this

GMP

Amendment)

«insert description of interim milestone – add more rows if necessary – delete if none»

«insert number of calendar days» calendar days

«insert date»

Substantial Completion of all Work «insert number of calendar

Contract Completion (Final Completion of all Work) «insert number of calendar

2.1.1 The projected dates listed under “Projected Date (as of the date of this GMP Amendment)” are provided only for convenient reference during the consideration and negotiation of this GMP Amendment. The durations listed under “Contract Time” define the Contract Times and take precedence over the projected dates. The Contract Times herein shall only be changed or modified by an executed Change Order or Modification, regardless of any dates in the Construction Progress Schedule, created by any person, including the CMAR.

Each duration in the Contract Time column above must be calculated from the anticipated date of the Notice

Proceed for the Work covered by this GMP Amendment to the date that the milestone must be achieved. DO NOT insert durations calculated between interim milestones as this DOES NOT comply with the General Conditions.

ARTICLE 3 - LIST OF EXHIBITS

3.1 This Amendment is based upon the following documents however, to the extent any part of the documents hereto purport to modify the Agreement terms, the Agreement shall control:

3.1.1 Basis Documents attached as GMP Exhibit A;

(This exhibit includes the Design Intent Statement and a list, which identifies by number, title, and date, all of the Drawings, Specifications, and other documents, upon which the CMAR relied to prepare this Amendment.)

3.1.2 Assumptions and Clarifications attached as GMP Exhibit B (incorporated for reference only, to the extent not inconsistent with the Agreement);(This exhibit includes a complete list of the assumptions and clarifications made by the CMAR in the preparation of this Amendment, which list is intended to clarify the information contained in the Basis Documents but is not intended to otherwise modify the Contract.)

3.1.3 Project Estimate attached as GMP Exhibit C;

(This exhibit includes a detailed estimate of the Cost of the Work which (1) allocates the cost of each of item of the Work to labor and materials/equipment organized by trade categories and (2) does not contain a lump-sum estimate for any item other than the CMAR’s Fee and the CMAR’s Contingency. This exhibit is informational only. It is included to provide a tool to evaluate, analyze, and discuss the proposed Contract Sum.)

3.1.4 Project Schedule attached as GMP Exhibit D;

3.1.5 Construction Progress Schedule attached as GMP Exhibit E;

3.1.6 Staffing Plan attached as GMP Exhibit F;

(This exhibit includes the CMARs detailed plan for staffing the Project during the Construction Stage and an outline of the qualifications and experience of the CMAR’s proposed project manager and proposed superintendent, including references, unless the CMAR previously submitted that information and the CMAR’s project manager and superintendent were approved.)

3.1.7 Subcontractor Work Scopes attached as GMP Exhibit G;

(This exhibit includes a detailed scope-of-Work description for each anticipated Subcontract.)

3.1.8 Scope of CMAR’s Self-Performed Work attached as GMP Exhibit H;

(This exhibit includes a detailed scope-of-Work description for all trade Work the CMAR proposes to perform itself or through a CMAR Affiliated Entity if the requirements in the Contract are met; otherwise this scope of Work will be performed by a Subcontractor.)

3.1.9 Schedule of Allowances attached as GMP Exhibit I (if applicable);

(This exhibit includes a complete list and detailed description of all Allowance Items with related measurement and payment terms.)

3.1.10 Schedule of Unit Prices attached as GMP Exhibit J (if applicable);

(This exhibit includes a complete list and detailed description of all Unit Price items with related measurement and

3.1.11 Schedule of Alternates attached as GMP Exhibit K (if applicable); and (This exhibit includes a complete list and detailed description of all Alternates with related measurement and

3.1.12 Schedule of Incentives and Shared Savings attached as GMP Exhibit L (if applicable).

(This exhibit includes a detailed description of all performance incentives/bonuses applicable to the Work including related measurement/entitlement and payment terms.)

IN WITNESS WHEREOF, the Owner and the CMAR have executed this Amendment as of the date set forth below:

«INSERT CMAR’S NAME»

CITY OF COLUMBUS, OHIO

Director

Approved as to Form: Approved as to Content:

Date: Date:

AUDITOR’S CERTIFICATION

This signature certifies the amount required to meet the obligation in the fiscal year in which this Amendment is made has been lawfully appropriated for such purpose and is in the treasury or in process of collection to the credit of an appropriate fund free from any previous encumbrances.

Signature

Printed Name City Auditor

Document 00 61 13.13 - Performance Bond Form

(Form of Performance Bond prescribed by Ohio Administrative Code Section 153:4-1-02)

KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned

__________________________________________________________________________________ , as Principal, and as Sureties, are hereby held and firmly bound unto as Obligee(s), in the penal sum of dollars, for the payment of which well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

SIGNED AND SEALED this day of , .

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above-named Principal did on the day of , , enter into a Contract with the Obligee, which said Contract is made a part of this Bond the same as though set forth herein and which is more fully described as:

Contract Description: Construction Manager at Risk (CMaR) Services for Columbus Police Substation #6 (Easton) (re-bid)

NOW, THEREFORE, if the above-named Principal shall well and faithfully do and perform the things agreed by the

Principal to be done and performed according to the terms of said Contract then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

THE SAID Surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of said Contract or in or to the Plans and Specifications therefore shall in any way affect the obligations of said Surety on its bond, and it does hereby waive notice of any such modifications, omissions or additions in or to the terms of the Contract, the

Work or the Contract Documents, including without limitation the Plans and Specifications.

PRINCIPAL:

Principal Signature

Title:

SURETY: SURETY INFORMATION:

Surety Signature Street

Attorney-in-Fact City State Zip

Telephone Number

SURETY AGENT'S INFORMATION:

Agency Name

Street

City State Zip

Payment Bond Form

(Form of Payment Bond prescribed by Ohio Administrative Code Section 153:4-1-02)

KNOW ALL PERSONS BY THESE PRESENTS, that we, the undersigned

__________________________________________________________________________________ , as Principal, and as Sureties, are hereby held and firmly bound unto as Obligee(s), in the penal sum of dollars, for the payment of which well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators, successors, and assigns.

SIGNED AND SEALED this day of , .

THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, that whereas the above-named Principal did on the day of , , enter into a Contract with the Obligee, which said Contract is made a part of this Bond the same as though set forth herein and which is more fully described as:

Contract Description: Construction Manager at Risk (CMaR) Services for Columbus Police Substation #6 (Easton) (re-bid)

NOW, THEREFORE, if the above-named Principal shall pay all lawful claims of subcontractors, material suppliers, and laborers, for labor performed and materials furnished in the carrying forward, performing, or completing of said Contract;

we agreeing and assenting that this undertaking shall be for the benefit of any material supplier or laborer having a just claim, as well as for the Obligee(s) herein; then this obligation shall be void; otherwise the same shall remain in full force and effect;

it being expressly understood and agreed that the liability of the Surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated.

THE SAID Surety hereby stipulates and agrees that no modifications, omissions, or additions, in or to the terms of said Contract or in or to the Plans and Specifications therefore shall in any wise affect the obligations of said Surety on its bond, and said Surety hereby waives notice of any such modifications, omissions or additions in or to the terms of the

Contract, the Work or the Contract Documents, including without limitation the Plans and Specifications.

PRINCIPAL:

Principal Signature

Title:

SURETY: SURETY INFORMATION:

Surety Signature Street

Attorney-in-Fact City State Zip

SURETY AGENT'S INFORMATION:

Agency Name

Street

Exhibit E

Insert Modified General Conditions

EXHIBIT F

Insert Submitted Statement of Qualifications

EXHIBIT G

Insert Submitted Technical Proposal

EXHIBIT H

CMaR Early Procurement Budget

EXHIBIT I

CMAR’s Final Waiver & Release Affidavit

CONSTRUCTION MANAGER AT RISK’S FINAL WAIVER & RELEASE AFFIDAVIT

(“AFFIDAVIT”)

Project: _________________________________________

In consideration for payment received from the ____________________ (the "Owner") in the amount requested in CMAR’s Final Application for Payment to the Owner, the receipt of which is hereby acknowledged, the undersigned CMAR hereby waives and releases any rights it has or may have to any and all types of claims relating to the Project, including without limitation claims of payment, Mechanic’s Lien, stop notice, equitable lien, labor and material bond, breach of contract or unjust enrichment, or any other claim against the Owner, for any labor, materials, or equipment the undersigned may have delivered or provided to the Project, except for any Claims the undersigned has made by properly and timely submitting a Statement of Claim form. The undersigned further certifies that this Affidavit covers claims by all contractors, subcontractors, and suppliers who may have provided any labor, material, or equipment to the Project through the undersigned or at the undersigned’s request. The undersigned acknowledges that all such contractors, subcontractors, sub-subcontractors and suppliers have signed an affidavit in the form of this Affidavit releasing any and all claims against the Owner, except for any Claims the undersigned has made by properly and timely submitting a written statement of its Claim. The undersigned hereby represents and warrants that it has paid any and all welfare, pension, vacation or other contributions required to be paid on account of the employment by the undersigned of any laborers on the Project.

This Affidavit is for the benefit of, and may be relied upon by the Owner. The undersigned hereby agrees to indemnify, defend and hold harmless each of the foregoing, the Project, work of improvement, and real property from any and all claims, or liens that are or should have been released in accordance with this Affidavit.

Company Name

Authorized Signature (Company Officer)

Title

State of: County of

Subscribed and sworn to before me this_____________ day of _____________________________. The notarial act certified hereby is a jurat. An oath or affirmation was administered to the signer with regard to the notarial act certified to hereby.

Notary Public:

My Commission Expires:

EXHIBIT J

Error! Unknown document property name.

SUBCONTRACTORS, SUPPLIERS

FINAL WAIVER & RELEASE AFFIDAVIT

(“AFFIDAVIT”)

Project: _________________________________

Upon receipt of payment in the amount of $___________________ received from ________________________________________________________ (“Construction Manager at Risk” or “CMAR”) the undersigned Subcontractor or Supplier waives and relinquishes all rights of lien or claim that it may have either in law or equity (including but not limited to rights under Ohio Mechanics' Lien Laws, O.R.C. 1311.01 et seq.) with respect to the construction project known as ______________________________________ ("the Project"), for all labor, all equipment, and/or materials provided to or on behalf of the Project throughout its entirety, except for claims previously made pursuant to the agreement in place between Subcontractor or Supplier and CMAR, and any lien previously perfected and remaining unreleased.

The undersigned Subcontractor or Supplier acknowledges and agrees that such payment represents final payment in full for all such labor, equipment and/or materials including retainage, if any, and that the Subcontractor or Supplier has completed its work on the Project. The undersigned Subcontractor or Supplier certifies that all amounts have been paid by the Subcontractor or Supplier for all work or materials furnished by others to the Subcontractor or Supplier for which the Subcontractor or Supplier has received previous payments from CMAR, and Subcontractor or Supplier acknowledges that CMAR is now making payment to the Subcontractor or Supplier in reliance upon such certification. The undersigned Subcontractor or Supplier further certifies that it will pay all amounts lawfully owing for all work or materials furnished by others to the Subcontractor or Supplier with the payment received from CMAR referenced herein.

This Affidavit is for the benefit of, and may be relied upon by, the CMAR, the CMAR’s surety and the Owner.

The undersigned hereby agrees to indemnify, defend and hold harmless each of the foregoing, the Project, its Work, and real property from any and all claims, or liens that are or should have been released in accordance with this Affidavit and from any liability, cost, or expense incurred as a result of any breach of this Affidavit by the undersigned.

IN WITNESS WHEREOF, the undersigned has caused this Affidavit to be executed by its authorized representative as of the date indicated below.

THE INDIVIDUAL SIGNING THIS AFFIDAVIT REPRESENTS THAT HE/SHE IS AUTHORIZED TO DO SO.

SUBCONTRACTOR OR SUPPLIER:

Company Name

Authorized Signature (Company Officer)

Title

State of: County of

Subscribed and sworn to before me this_____________ day of _____________________________. The notarial act certified hereby is a jurat. An oath or affirmation was administered to the signer with regard to the notarial act certified to hereby.

Notary Public:

My Commission Expires:

EXHIBIT K

Signed Community Benefits Agreement (CBA) & Letter of Assent

EXHIBIT L

OHIO WORKERS’ COMPENSATION CERTIFICATE

EXHIBIT M

CERTIFICATE(S) OF REQUIRED LIABILITY INSURANCE

1. Bodily Injury Liability and Automobile Insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.00) for injuries, including those resulting in death, to any one person, and in an amount not less than One Million Dollars ($1,000,000.00) on account of any one accident or occurrence.

2. Property damage insurance in an amount not less than Five Hundred Thousand Dollars ($500,000.00) from damages on account of any one accident; and One Million Dollars ($1,000,000.00) on all accidents.

3. Valuable Papers Insurance in an amount sufficient to assure the restoration of any drawings, Agreement manual pages, field notes, or other similar data relating to the work under this Agreement, in the event of their loss or destruction, during the life of this Agreement.

4. Professional Liability Insurance in an amount as necessary to provide coverage for any negligent acts, errors, omissions or negligence by the Engineer and its technical subcontractors. Subcontractors of the Engineer who are manifestly not providing professional services need not carry Professional Liability Insurance.