Att C CMGC Contract.docx

Three Rivers School District Illinois Valley High School Athletic Building

ILLINOIS VALLEY HIGH SCHOOL ATHLETIC BUILDING

CM/GC CONTRACT

(Construction Manager/General Contractor)

THIS CONTRACT IS BETWEEN:

Owner: THREE RIVERS SCHOOL DISTRICT

And

Construction Manager/ General Contractor (Referred to as "the CM/GC"):_______________________Contractor Name

The Project is: ILLINOIS VALLEY HIGH SCHOOL ATHLETIC BUILDING

The Engineer is: ZCS Engineering & Architecture

Table of Contents

CONTENTS

Three Rivers School District Illinois Valley High School Athletic Building

Page ii of 47

The Owner and CM/GC agree as set forth below:

THIS CM/GC CONTRACT (the “CM/GC Contract”) is made and entered into by and between Three Rivers School District (Owner) and Contractor Name (“CM/GC”) (Collectively, the “Parties”) as of the Effective Date of the Contract.

RECITALS

WHEREAS, the Owner requires the services of a Construction Manager / General Contractor (CM/GC) for the Illinois Valley High School Athletic Building. The Owner will use the CM/GC Contract delivery approach for the construction of this Project. The Owner will enter into this CM/GC Contract with the CM/GC firm to provide Pre-Construction Phase Services only, with provisions for adding Construction Phase Services through an Early Work Amendment, and through later acceptance of a Guaranteed Maximum Price (GMP) by subsequent GMP Amendment. Alternatively to these Amendments, the Owner may choose not to continue the CM/GC Contract beyond the completion of Pre-Construction Phase Services or any Early Work, instead soliciting bids from qualified contractors for the construction of the Project, and otherwise reserving all rights to terminate the Contract for public convenience.

WHEREAS, the Owner may require additional related Work within the general vicinity of the Project which, if required, shall be included in the Project and added to the Contract by Change Order; and

WHEREAS, the Owner requires a contractor competent to perform all Work necessary to complete the Project in accordance with the terms and conditions for the Contract, and able to do so within the Contract Price and Time allocated herein; and

WHEREAS, the CM/GC asserts that it is competent and prepared to perform all Work necessary to complete the Project in accordance with the terms and conditions of Contract, and that it is able to do so within the Contract Price and Time allotted herein;

ARTICLE 1

GENERAL CONTRACT PROVISIONS

1.1 INCORPORATION OF RECITALS: The foregoing Recital incorporated herein and made a part hereof for all purposes as if fully set forth; constitute additional promises, representations and warranties of the Parties.

1.2 APPLICABLE VERSION OF LAW OR STANDARD: All Work shall be performed in accordance with the Law and Standards then in effect, unless otherwise specified in the Contract Document.

ARTICLE 2

DEFINITIONS

Except as expressly defined or modified below or elsewhere in this Contract, all capitalized terms shall have the following meanings. The terms below are expressly defined as follows:

2.1 OWNER/OWNER NAME: Owner/Owner Name shall mean the Three Rivers School District.

2.2 PROJECT NAME: Project/Project Name shall mean Illinois Valley High School Athletic Building.

2.3 CONTRACTOR NAME/CM/GC: Contractor Name/ CM/GC shall mean Contractor Name.

2.4 AFFILIATE: Affiliate shall mean any subsidiary of CM/GC, and any other entity in which CM/GC has a financial interest or which has a financial interest in CM/GC (including without limitation parent companies, related businesses under the same holding company, or any other business controlled by, under common control with, or which controls CM/GC).

2.5 ALLOWANCES: Allowances shall mean the allowance amounts shown in the GMP Supporting Documents, together with such further allowances as may be developed by the parties as the Project progresses.

2.6 AMENDMENT: Amendment shall mean a written modification of this Contract (including without limitation any agreed change to the GMP), identified as an Amendment, and executed by CM/GC, the Owner’s Authorized Representative.

2.7 BUSINESS DAYS: Business Days shall mean every day except Saturday, Sunday, and legal holidays recognized for employees of the State of Oregon.

2.8 CHANGE ORDER: Change Order shall mean a written modification of this Contract, identified as a Change Order and executed by the Owner’s Authorized Representative, CM/GC, where applicable, and, where required, approved in writing by Owner.

2.9 CM/GC CONTINGENCY: The CM/GC contingency is available to the Contractor to cover increased costs incurred as the result of causes beyond its control, such as lost time, increases in bid or negotiated contracts, acceleration required to meet owner directed changes in scope of work, correcting defective, damaged or nonconforming work; design errors or omissions due to incomplete destructive investigation and/or lack of constructability review as defined in section 4.1.3 (c); subcontractor defaults; or unanticipated general condition expenses. The CM/GC is to provide the owner written notice of why the CM/GC is requesting the use of contingency funds for approval. Upon the completion of the project and final acceptance, any unused CM/GC contingency will be returned to the Owner.

2.10 OWNER CONTINGENCY: The Owner contingency is for the Owner’s use in paying for design errors or omissions that could not have been identified through complete destructive investigation and/or complete construction feasibility review, unforeseen conditions neither the CM/GC nor Engineer could have anticipated during preconstruction services and changes in scope as directed by the Owner. All draws on Owner contingency shall be requested in writing and shall be approved prior to proceeding. Upon the completion of the project and final acceptance, any unused Owner contingency will be returned to the Owner.

2.11 CM/GC FIELD WORK: CM/GC Field Work shall mean customary layout, clean up, supervision, and portions of the Work of a minor nature and not feasibly part of the subcontracted work due to: exclusions by the Subcontractor not resolved through the process described in Article 12.3.3, undeveloped design owing to deviations in Work performed or materials delivered by Subcontractors or suppliers that do not represent defective or nonconforming work, a breach or failure to perform by the Subcontractor or supplier, complexity of coordination of the Work, and other similar reasons typically providing cause for “pick-up” or GC Work under industry standards; provided, however, that (i) the CM/GC has reasonably determined that doing such portion of the Work itself is in the best interests of the Owner, (ii) such Work is identified as CM/GC Field Work in monthly billings and (iii) CM/GC receives prior approval of the Owner’s Authorized Representative as to the scope of such CM/GC Field Work.

2.12 CM SERVICES: CM Services shall have the meaning given in Article 4.3 below.

2.13 CONSTRUCTION DOCUMENTS: Construction Documents shall have the meaning given in the Services Agreement with the Engineer of Record for this Project.

2.14 CONSTRUCTION PHASE: The Construction Phase shall mean the period commencing on the Owner's execution of a GMP Amendment or Early Work Amendment, together with the earlier of (i) issuance by the Owner of a Notice to Proceed with any on-site construction or (ii) execution of a subcontract or issuance of a purchase order for materials or equipment required for the Work.

2.15 CONSTRUCTION PHASE SERVICES: Construction Phase Services shall mean all of the Work other than the Preconstruction Phase Services.

2.16 CONTRACT DOCUMENTS: The Contract Documents shall mean the writings and drawings embodying the legally binding obligations between the Owner and the Contractor for completion of the work.

2.17 DESIGN DEVELOPMENT DOCUMENTS: Design Development Documents shall have the meaning given in the Services Agreement with the Engineer of Record for this Project.

2.18 EARLY WORK: Early Work shall mean Construction Phase Services authorized by Amendment that the parties agree should be performed in advance of establishment of the GMP. Permissible Early Work shall be limited to: early procurement of materials and supplies; early release of bid or proposal packages for site development and related activities; and any other advance work related to critical components of the Project for which performance prior to establishment of the GMP will materially affect the critical path schedule of the Project.

2.19 EARLY WORK AMENDMENT: Early Work Amendment shall mean an Amendment to this Contract executed by and between the parties to authorize Early Work.

2.20 FIXED COST FOR GENERAL CONDITIONS WORK: Fixed Cost for General Conditions Work or GC Work shall mean that fixed sum identified in Article 9.

2.21 GENERAL CONDITIONS WORK: General Conditions Work (“GC Work”) shall mean (i) that portion of the Work required to support construction operations that is not included within overhead or general expense but is called out as GC Work, and (ii) any other specific categories of Work approved in writing by the Owner’s Authorized Representative as forming a part of the GC Work.

2.22 GUARANTEED MAXIMUM PRICE (GMP): GMP shall mean the Guaranteed Maximum Price of this Contract, as stated in dollars within the GMP Amendment, as determined in accordance with Article 7, and as it may be adjusted from time to time pursuant to the provisions of this Contract.

2.23 GMP AMENDMENT: GMP Amendment shall mean an Amendment to this Contract, issued in the form of Exhibit A and executed by and between the parties, to establish the GMP and identify the GMP Supporting Documents for Construction Phase Services.

2.24 GMP SUPPORTING DOCUMENTS: GMP Supporting Documents shall mean the documents referenced in the GMP Amendment as the basis for establishing the GMP. The GMP Supporting Documents shall expressly identify the Plans and Specifications, assumptions, qualifications, exclusions, conditions, allowances, unit prices, and alternates that form the basis for the GMP.

2.25 PRECONSTRUCTION PHASE: The Preconstruction Phase shall mean the period commencing on the date of this Contract and ending upon commencement of the Construction Phase; provided that if the Owner and CM/GC agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently, subject to the terms and conditions of the Contract Documents.

2.26 PRECONSTRUCTION PHASE SERVICES: Preconstruction Phase Services shall mean all services described in Article 4.1, and any similar services described in the Request for Proposals, including such similar services as are described in the CM/GC's RFP Response to the extent they are accepted by the Owner, but excluding any Early Work. Early Work shall be considered part of Construction Phase Services.

2.27 SCHEMATIC DESIGN DOCUMENTS: Schematic Design Documents shall have the meaning given in the Services Agreement with the Engineer of Record for this Project.

2.28 SCOPE CHANGE: Scope Change shall mean only (i) changed site conditions not reasonably inferable from information available to CM/GC at the time of execution of the GMP Amendment, and (ii) significant Work modifications (including additions, substitutions, and deletions), application of Allowances, and selection of alternates, all as approved by the Owner under this Contract beyond that identified or inferable from the GMP Supporting Documents (but in the case of Allowance items, the GMP will increase only if the cost to the Owner of the Allowance items exceeds the total amount of the Allowances).

ARTICLE 3

CONTRACT DOCUMENTS

3.1 CONTRACT DOCUMENTS: For valuable consideration as stated below, the Owner and the CM/GC agree to the terms of the agreement that are set forth in the Contract Documents which include this CM/GC Contract and all other Contract Documents. The Contract Documents other than this CM/GC Contract, and all exhibits attached to this CM/GC Contract, are by this reference incorporated herein. Exhibits incorporated into this CM/GC Contract include the following:

· Exhibit A – Sample GMP Amendment to CM/GC Contract

· Exhibit B – CM/GC Cost Matrix

3.2 Effective Date: This CM/GC Contract (hereafter the "Contract") shall become effective on the first date on which every party has signed this Contract and the Owner has received all necessary approvals.

3.3 The Contract; Order of Precedence: This Contract, together with the other Contract Documents, form the entire agreement between the parties. Except as expressly otherwise provided herein, the order of precedence shall be as follows if there are inconsistent or conflicting terms among the Contract Documents:

ARTICLE 4

WORK OF THIS CONTRACT

4.1 PRECONSTRUCTION PHASE SERVICES: The CM/GC agrees to provide all of the Preconstruction Phase Services described below on an ongoing basis in support of, and in conformance with, the time frames described in the Request for Proposals. Commencement of the Construction Phase shall not excuse CM/GC from completion of the Preconstruction Phase Services, if such services have not been fully performed at commencement of the Construction Phase. Preconstruction Phase Services shall include CM Services performed during the Preconstruction Phase.

4.1.1 The CM/GC shall provide at the minimum the following personnel to participate in all meetings between the design team and Owner related to constructability reviews, project schedules and cost estimates:

a. Project Manager;

b. Project Superintendent:

· It is understood that the Project Superintendent has other responsibilities and shall at a minimum attend meetings and present the constructability reports, budgets and schedules to the owner and design team.

4.1.2 The CM/GC shall provide a preliminary evaluation of the Owner’s program and budget requirements, each in terms of the other.

4.1.3 The CM/GC shall provide the following services relating to design and construction tasks:

a. The CM/GC shall consult with, advise, assist, and provide recommendations to the Owner and the design team on all aspects of the planning and design of the Work in the form of a written report.

b. The CM/GC shall jointly schedule and attend regular meetings with the Engineer of Record and the Owner’s Authorized Representative. The CM/GC shall consult with the Engineer of Record regarding site use and improvements, and the selection of materials, building systems and equipment.

c. Given the complications associated with working in existing construction, the CM/GC will be relied upon during preconstruction services to review the existing construction with respect to as-built plans, verify existing construction elements, and assist with pricing models associated with varying in-situ conditions. This review will result in areas and details about the existing construction that are concealed and cannot be adequately documented without exposing the concealed construction. The CM/GC and the Engineer shall work together with the Owner to define exploratory locations to adequately identify the unknown construction techniques and detailing. Once all parties agree to the number and size of exploratory locations the Contractor shall provide a proposal to perform the destructive investigation to expose concealed construction. Included in the proposal the contractor shall include any pricing necessary for temporary patching as required by the Owner to maintain operations. The contractor’s proposal will be processed as an early work amendment to the contract and following destructive investigation the contractor shall report to the Engineer and Owner the results of the investigation.

d. The CM/GC shall provide recommendations on constructability; 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, preliminary budgets and possible economies in the form of a written report.

e. The CM/GC shall review in-progress design documents, including the documents generally described in the industry as Schematic Development Documents, Design Development Documents, and Construction Documents and provide input and advice on construction feasibility, alternative materials, and availability. CM/GC shall review these completed Schematic Development Documents, Design Development Documents, and Construction Documents and timely suggest modifications to improve completeness and clarity.

4.1.4 The CM/GC shall provide the following services related to the Project schedule:

a. The CM/GC shall prepare, and periodically update, a preliminary Project schedule for the Engineer of Record and the Owner’s Authorized Representative’s review and the Owner’s Authorized Representative’s approval.

b. The CM/GC shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Engineer of Record, and CM/GC. As design proceeds, CM/GC shall update the preliminary Project schedule to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a GMP proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead time procurement, and the Owner’s occupancy requirements showing portions of the Project having occupancy priority, provided that the date(s) of Substantial Completion shall not be modified without the Owner’s prior written approval. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the CM/GC shall make appropriate recommendations to the Owner’s Authorized Representative and Engineer of Record.

4.1.5 The CM/GC shall make recommendations to the Owner’s Engineer of Record, authorized representative regarding the phased issuance of plans and specifications to facilitate phased construction of the work, if such phased construction is appropriate for the project, taking into consideration such factors as economics, time of performance, availability of labor and materials, and provisions for temporary facilities.

4.1.6 Provide the following services relating to cost estimating:

a. The CM/GC shall prepare, for the review of the Owner’s Engineer of Record; owner’s authorized representative and approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques.

b. When Schematic Design Documents have been prepared by the Engineer of Record and approved by the Owner, the CM/GC shall prepare for the review of the Engineer of Record and the Owner’s Authorized Representative and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the CM/GC shall update and refine this estimate at appropriate intervals agreed to by the Owner, Engineer of Record and the Owner’s Authorized Representative and CM/GC.

c. When Design Development Documents have been prepared by the Engineer of Record and approved by the Owner, the CM/GC shall prepare a detailed estimate with supporting data for review by the Engineer of Record and the Owner’s Authorized Representative and approval by the Owner. During the preparation of the Construction Documents, the CM/GC shall update and refine this estimate at appropriate intervals agreed to by the Owner, the Owner’s Authorized Representative, and Engineer of Record and CM/GC.

d. If any estimate submitted to the Owner exceeds previously approved estimates or the Owner’s budget, the CM/GC shall make appropriate cost reduction recommendations to the Owner’s Authorized Representative and Engineer of Record.

e. CM/GC shall notify the Owner and the design team immediately if any construction cost estimate appears to be exceeding the construction budget.

f. The CM/GC otherwise shall work with the Engineer of Record and the Owner to develop a GMP within the Target GMP Range and within the Owner’s schedule.

4.1.7 Perform the following services relating to Subcontractors and suppliers:

a. The CM/GC shall seek to develop Subcontractor and supplier interest in the Project, consistent with applicable legal requirements, and shall furnish to the Owner’s Authorized Representative and Engineer of Record for their information a list of possible Subcontractors and suppliers, including suppliers who may furnish materials or equipment fabricated to a special design, from whom competitive bids, quotes, or proposals (collectively, "Offers") will be requested for each principal portion of the Work. Submission of such list is for information and discussion purposes only and not for prequalification. The receipt of such list shall not require the Owner, the Owner’s Authorized Representative or the Engineer of Record to investigate the qualifications of proposed Subcontractors and suppliers, nor shall it waive the right of the Owner or Engineer of Record later to object to or reject any proposed Subcontractor, supplier, or method of procurement.

b. The CM/GC shall provide input to the Owner and the design team regarding current construction market bidding climate, status of key subcontract markets, and other local economic conditions. CM/GC shall determine the division of work to facilitate bidding and award of trade contracts, considering such factors as bidding climate, improving or accelerating construction completion, minimizing trade jurisdictional disputes, and related issues. CM/GC shall advise the Owner on subcontracting opportunities for minority/women/ESB firms.

4.1.8 The CM/GC shall recommend to the Owner’s Authorized Representative and Engineer of Record a schedule for procurement of long-lead time items which will constitute part of the Work as required to meet the Project schedule, which shall be procured by the CM/GC upon execution of either a GMP Amendment or Early Work Amendment covering such procurement, and approval of such schedule by the Owner’s Authorized Representative. The CM/GC shall expedite the delivery of long-lead time items.

4.1.9 The CM/GC shall work with the Owner in identifying critical elements of the Work that may require special procurement processes, such as prequalification of Offerors or alternative contracting methods.

4.1.10 The CM/GC shall Work with the Owner and Owner’s Engineer of Record to maximize energy efficiency in the Project, including without limitation providing estimating and value engineering support to the Owner’s analysis and application for energy related incentive programs offered by local utilities and the Oregon Department of Energy.

4.2 CONSTRUCTION PHASE SERVICES:

4.2.1 Upon execution of an Early Work Amendment or GMP Amendment, the CM/GC shall provide Construction Phase Services as provided in the Contract Documents, including, without limitation, providing and paying for all materials, tools, equipment, labor and professional and non-professional services, and performing all other acts and supplying all other things necessary to fully and properly perform and complete the Work, as required by the Contract Documents, to furnish to the Owner a complete, fully functional Project, capable of being legally occupied and fully used for its intended purposes upon completion of the Contract (or, as to an Early Work Amendment, to furnish such Work as is described in the Early Work Amendment). Construction Phase Services shall include CM Services performed during the Construction Phase.

4.2.2 Notwithstanding any other references to Construction Phase Services in this Contract, this Contract shall include Preconstruction Phase Services only unless (i) the parties execute a GMP Amendment or (ii) the parties execute an Early Work Amendment, defined below.

4.2.3 The parties may execute one or more Early Work Amendments identifying specific Construction Phase Services that must be performed in advance of establishment of the GMP, without exceeding a “not-to-exceed budget”, a “not-to-exceed guaranteed maximum price”, or a “fixed price” ("Early Work Price") to be stated in such Amendment, with such Amendment including all necessary State of Oregon approvals where required. If the Early Work Price is a “not-to-exceed budget”, then CM/GC shall be obligated to perform the Early Work only to the extent that the Cost of Work therefore, together with the CM/GC Fee, does not exceed the Early Work Price; however if CM/GC performs Early Work with a cost in excess of the Early Work Price the CM/GC shall pay such excess cost without reimbursement. If one or more Early Work Amendments are executed, the CM/GC shall diligently continue to work toward development of a GMP Amendment acceptable to the Owner, which shall incorporate the Early Work Amendments.

4.2.4 Prior to commencement of the Construction Phase, and in any event not later than mutual execution of the GMP Amendment, CM/GC shall provide to the Owner a full performance bond and a payment security bond. If an Early Work Amendment is executed, CM/GC shall provide such bond in the amount of the Early Work Price under the Early Work Amendment. CM/GC shall provide to the Owner additional or replacement bonds at the time of execution of any subsequent Early Work Amendment or GMP Amendment, in each case prior to execution of the Amendment and the supplying of any labor or materials for the prosecution of the Work covered by the Amendment, and in each case in a sufficient amount so that the total bonded sum equals or exceeds the total Early Work Price or the GMP, as the case may be. In the event of a Scope Change that increases the GMP, CM/GC shall provide to the Owner an additional or supplemental bond in the amount of such increase prior to performance of the additional Work.

4.3 CONSTRUCTION MANAGEMENT (CM) SERVICES: Throughout the Preconstruction Phase and Construction Phase of the Project, the CM/GC shall provide CM Services, generally consisting of coordinating and managing the building process as an independent contractor, in cooperation with the Owner, the Owner’s Authorized Representative, the Engineer of Record and other designated Project consultants (the "Construction Principals"). CM Services shall include, but are not limited to:

4.3.1 Providing all Preconstruction Phase Services described above;

4.3.2 Developing and delivering schedules, preparing construction estimates, performing constructability review, analyzing alternative designs, studying labor conditions, coordinating and communicating the activities of the Construction Principals throughout the Construction Phase to all Construction Principals;

4.3.3 Continuously monitoring the Project schedule and making adjustments to ensure completion of the Project in the most expeditious manner possible;

4.3.4 Working with the Owner, Owner’s Authorized Representative, and the Engineer of Record to analyze the design, participate in decisions regarding construction materials, methods, systems, phasing, and costs, and suggest modifications to achieve the goals of providing the Owner with the highest quality Project within the budget, GMP and schedule;

4.3.5 Providing Value Engineering ("VE") services ongoing through the Project. CM/GC shall develop cost proposals, in the form of additions or deductions from the GMP, including detailed documentation to support such adjustments and shall submit such proposals to the Owner for its approval. CM/GC shall actively participate in a formal VE study anticipated to be held at the end of the Design Development phase. CM/GC acknowledges that VE services are intended to improve the value received by the Owner with respect to cost reduction or life cycle of the Project;

4.3.6 Holding and conducting weekly construction meetings with the Owner’s authorized representative and the Owner’s Engineer of Record to coordinate, update and ensure progress of the Work. The following shall be the responsibility of the CM/GC to provide at each of the construction meetings:

a. Meeting Agenda;

b. Review of last week’s meeting minutes;

c. 2-week look ahead schedule;

d. RFI Log;

e. Submittal Log;

f. Change Management Log;

g. Discussion of old business and schedule/budget impacts;

h. New Business Discussion;

i. Provide Owner & EOR meeting minutes no more than 3 days after meeting for review.

4.3.7 Submitting monthly written report(s) to the Owner's authorized representative. Each report shall include, but shall not be limited to, Project updates including (i) actual costs and progress for the reporting period as compared to the estimate of costs; (ii) explanations of significant variations; (iii) work completed; (iv) work in progress; (v) changes in the work; and (vi) other information as determined to be appropriate by the Owner. Oral or written updates shall be provided to the Owner as deemed appropriate by the CM/GC or as requested by the Owner;

4.3.8 Maintaining a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered, safety violations and incidents of personal injury and property damage, and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Engineer of Record on request;

4.3.9 Developing and implementing a system of cost control for the Work acceptable to the Owner’s Authorized Representative, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The CM/GC shall identify variances between actual and estimated costs and report the variances to the Owner, owner’s authorized representative and Owner’s Engineer of Record at regular intervals;

4.3.10 Cooperating with any and all consultants hired by the Owner, including engineering and abatement firms, for the successful completion of the project;

4.3.11 At the Owner's request, cooperating and performing warranty and inspection Work for the Project through the expiration date of the applicable warranty period;

4.3.12 Assisting the Owner with start-up of the Project. Such start-up may occur in phases due to phased occupancy;

4.3.13 Incorporating commissioning and inspection agents' activities into the Project schedule and coordinating Subcontractors required to participate in the commissioning and inspection process;

4.3.14 Performing all other obligations and providing all other services set forth in the Contract Documents; and performing all other acts and supplying all other things necessary to fully and properly perform and complete the Work as required by the Contract.

ARTICLE 5

RELATIONSHIP AND ROLES OF THE PARTIES

5.1 CO-LOCATION REQUIREMENTS: The owner may require co-location of key personnel during the pre-construction and construction phases of the project. Co-location requirements will be negotiated with the selected CM/GC.

5.2 INDEPENDENT CONTRACTOR: The CM/GC is an independent contractor and not an officer, employee, or agent of the Owner as those terms are used in ORS 30.265.

5.3 PERFORMANCE OF WORK: The CM/GC covenants with the Owner to cooperate with the Engineer of Record and the Owner’s Authorized Representative and utilize the CM/GC's professional skill, efforts and judgment in furthering the interests of the Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in conformance with the terms and conditions of the Contract Documents and in an expeditious and economical manner consistent with the interests of the Owner.

5.4 DESIGN CONSULTANTS: The Owner has a separate contract with the Engineer of Record related to the Project. Both the CM/GC and the Engineer of Record shall be given direction by the Owner through the Owner’s Authorized Representative. The CM/GC agrees to support the Owner's efforts to create a collaborative and cooperative relationship among the CM/GC, Engineer of Record, other Project consultants, and the Owner’s Authorized Representative.

5.5 FORMS AND PROCEDURES: The Owner has developed or may develop procedures and forms for the administration and tracking of the Contract. The CM/GC agrees to abide by those procedures and use those forms.

5.6 CM/GC'S PROJECT STAFF: The CM/GC's Project staff shall consist of the following personnel:

5.6.1 Project Manager and Assistant Project Manager: NAME shall be the CM/GC's Project Manager and NAME shall be CM/GC’s Assistant Project Manager and one or both will supervise and coordinate all Construction Phase and Preconstruction Phase Services of CM/GC and participate in all meetings throughout the Project term unless otherwise directed by the Owner. CM/GC represents that each of the Project Manager and Assistant Project Manager has authority to execute Change Orders and Contract Amendments on behalf of CM/GC.

5.6.2 Job Superintendent: If Construction Phase Services are requested and accepted by the Owner, NAME shall be the CM/GC's on-site job superintendent throughout the Project term.

5.7 KEY PERSONNEL: The CM/GC's personnel identified in Article 5.6, shall be considered Key Personnel and shall not be replaced during the Project without the written permission of the Owner, which shall not be unreasonably withheld. If the CM/GC intends to substitute personnel, a request must be given to the Owner at least 30 Days (or such shorter period as permitted by the Owner) prior to the intended time of substitution. When replacements have been approved by the Owner, the CM/GC shall provide a transition period of at least 10 Business Days during which the original and replacement personnel shall be working on the Project concurrently. Once a replacement for any of these staff members is authorized, further replacement shall not occur without the written permission of the Owner.

5.8 AGENCY REPRESENTATIVE AND CONTACT INFORMATION: The Owner’s representative for this Project is the Owner Project Manager (Owner PM).

Name: ___________________________________________________ Address: _________________________________________________ E-mail Address: ____________________________________________ Phone / Fax Numbers: _______________________________________

ARTICLE 6

DATE OF COMMENCEMENT; SUBSTANTIAL AND FINAL COMPLETION

6.1 NOTICE TO PROCEED: If Construction Phase Services are added to the Contract as set forth in Article 4.2, then a notice to proceed will be issued by the Owner to begin the designated or full Construction Phase Services (“Notice to proceed”). It is anticipated that the Notice to Proceed will be issued on or about Month ___, Year. A separate Notice to Proceed shall be issued for any and every Early Work Amendment.

6.1.1 The CM/GC shall not allow any Subcontractor to enter onto, or move Materials, Equipment or Workers onto, the Project Site until the CM/GC has confirmed that the Subcontractor has filed the required Public Works Bond with the Construction Contractors Board.

6.1.2 Construction Phase Services may be added to the Contract as set forth in Article 4.2.

6.1.3 A Notice to Proceed (NTP) will be issued by the Owner to begin Work under each Early Work Amendment and the GMP Amendment.

6.2 COMPLETION OF PROJECT: The CM/GC shall achieve Substantial Completion, as defined by Oregon Law, of the entire Work not later than (to be included in GMP work Amendment) and shall achieve Final Completion not later than 30 Days after the earlier of (i) Substantial Completion or (ii) the required date for Substantial Completion.

(Complete all Work to be done under the Contract GMP Amendment, except for plan establishment and punch list items.

6.3 TIME IS OF THE ESSENCE: All time limits stated in the Contract Documents are of the essence.

6.4 TIME EXTENSIONS: The Owner and the CM/GC agree that timely completion of the Work is essential to the success of the Project, and that approval for time extension shall be granted only as a last resort. During this CM/GC Contract for Pre-Construction Services and Contract Amendments for Construction Phase Services, the CM/GC agrees to make every effort to avoid delays and recover “lost” time in a manner acceptable to the Owner.

6.5 LIQUIDATED DAMAGES RELATED TO AMENDMENTS FOR CONSTRUCTION PHASE SERVICES: The CM/GC acknowledges that the Owner will sustain loss of use damages as a result of the CM/GC’s failure to complete the Work by the Interim and Contract Completion Dates in accordance with the Contract Documents. The liquidated damages for loss of use cover only loss of revenue and cost of replacement facilities. The liquidated damages for loss of use do not cover (and the Owner does not waive) delay damages incurred by the Owner for extended overhead or management costs, extra or extended financing costs, extra or extended services by the Engineer of Record or other design professionals, claims by other contractors, and possibly other types of costs, expenses and damages incurred by the Owner. The CM/GC and the Owner acknowledge that the actual amount of the Owner’s loss of use damages would be difficult to determine accurately and agree that the liquated damages figure(s) established represent a reasonable estimate of such damages and is not a penalty.

The CM/GC agrees to pay to the Owner the liquidated damage sums established for each Calendar Day of delay or any fraction thereof and further agrees that the Owner may deduct such sums from payments the Owner otherwise owes to the CM/GC. If such deduction does not result in payment to the Owner of the assessed liquidated damages in full, the CM/GC shall promptly pay any and all remaining sums due to the Owner upon demand.

The daily amount of liquidated damages applicable to the Owner established Contract Completion Date defined in Article 6.2 is:

· Liquidated damages for failure to complete all Work by the Contract Completion Date specified in Article 6.2 shall equal (to be determined by the Owner and CM/GC during the GMP Amendment) per Calendar Day.

· Liquidated damages that would apply to an Early Work Package will be negotiated based upon the scope of Work and schedule for completion of Work.

ARTICLE 7

CONTRACT SUM AND GMP

7.1 GMP: The GMP shall be determined in accordance with the formula set forth below and as described in this Article 7:

Pre-Construction Costs (Becomes a not-to-exceed amount) + CM/GC Fee (Initially based on a percentage of the Cost of the Work but becomes fixed dollar amount, which is subject to adjustment in accordance with Article 7.3) + Early Work Amendment(s)

= GMP

7.2 PRECONSTRUCTION FEE: The Preconstruction Fee shall be payable to CM/GC on a cost reimbursement basis up to a maximum sum of $X,XXX.XX, which shall cover constructability review, value engineering, cost estimating, development of GMP, and all other Preconstruction Phase Services, as described in Article 4. If CM/GC's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction Fee, CM/GC shall pay such additional cost without reimbursement. CM/GC shall not be entitled to any CM/GC Fee upon the Preconstruction Fee. The Owner shall pay the Preconstruction Fee on a cost-reimbursement basis with each application for payment during the Preconstruction Phase. If the total actual Preconstruction Fee is less than the maximum Preconstruction Fee used for initial calculation of the GMP as provided above, the GMP shall be reduced by the difference; provided that the Owner may direct instead that any applied portion of the maximum Preconstruction Fee be applied to Construction Phase Services, in which case the GMP shall not be reduced by the portion so applied. Except to the extent the parties may expressly agree to the contrary in the GMP Amendment, no Preconstruction Fee or other fee, compensation or reimbursement shall be payable to CM/GC with respect to Preconstruction Services performed after execution of the GMP Amendment.

7.3 ESTABLISHMENT OF CM/GC FEE; ADJUSTMENTS TO CM/GC FEE:

7.3.1 The "CM/GC Fee" shall be a fixed dollar lump sum to be identified in the GMP Amendment, and shall be calculated as XX% of the Estimated Cost of the Work at the time of establishment of the GMP. In making such calculation, the Estimated Cost of the Work shall exclude the Preconstruction Fee, the CM/GC Fee itself, and any other cost or charge for which this Contract states is not to be included in calculating the CM/GC Fee, but shall include Allowances, selected alternates, Fixed Cost for GC Work, and reasonable CM/GC contingencies as designated in the GMP Supporting Documents. The CM/GC Fee is inclusive of profit, overhead, and all other indirect or non-reimbursable costs. The Owner shall pay the CM/GC Fee ratably with each application for payment during the Construction Phase. In the case of Early Work, the CM/GC Fee shall be the above percentage multiplied by the actual Cost of the Early Work, until such time as a GMP Amendment is executed, at which time such CM/GC Fee payments shall be credited against the CM/GC Fee fixed therein.

7.3.2 Unless the parties agree in writing to the contrary, any Amendment or Change Order that increases or decreases the GMP shall adjust the CM/GC Fee then in effect by multiplying the percentage shown in Article 7.3.1 by the change in the Estimated Cost of the Work reflected in such approved Amendment or Change Order. In addition, if the Contract is terminated for any reason prior to full completion of the Work (including, without limitation, termination during or following performance of Early Work), the CM/GC Fee shall be limited to the total CM/GC Fee multiplied by the percentage of Work completed and accepted at the time of termination. The CM/GC Fee shall not be subject to adjustment for any other reason, including, without limitation, schedule extensions or adjustments, Project delays, unanticipated costs, or unforeseen conditions.

7.4 DETERMINATION OF PRICING OF WORK PACKAGES:

7.4.1 Collaboration: The CM/GC shall collaborate with the Owner and the Engineer of Record in the development of Work Packages, including those for any Early Work Amendments(s) and the GMP Amendment. Scope of the Work and value of each Work Package shall be determined through collaboration with the Owner and the Engineer of Record, and agreed to by the Owner prior to execution of any Amendment.

7.4.2 Bid (Pay) Items: The CM/GC shall propose Pay Items and corresponding estimated quantities for all Work items included in a Work Package. Once the Owner has agreed to the Pay Items and estimated quantities for all items of Work, the CM/GC shall propose a fixed lump sum, fixed unit cost, or estimated actual cost reimbursable amount for each Pay Item. The Owner and the CM/GC shall meet to review all proposed Pay Items and all necessary supporting data, including but not limited to, the following:

a. Cost build-ups: All open-book cost build-ups including Subcontractor quotes and estimates inclusive of labor, material, equipment, overhead, general conditions and fee;

b. Project Bid Item List: The CM/GC shall prepare and submit along with its cost estimate a complete Bid Item List for each Work Package;

c. Cost Estimate Format: The CM/GC shall submit a Microsoft Excel spreadsheet, with all construction cost bid items broken out in a format agreed to by the Project Team. The CM/GC’s estimates shall be in the agreed format to facilitate quantity and unit price reconciliation;

d. Detailed Back-up: The CM/GC’s construction estimate shall be supported by quantity and material take-off calculations, and details cost build-ups for each proposed bid item as either a unit cost or lump sum item. The detailed cost build-up, in addition to being in the format agreed upon between the parties, shall include labor, materials, equipment type and rates, overhead and indirect costs not in the CM/GC Fee, and Construction General Conditions;

e. Construction General Conditions: The CM/GC shall provide a detailed itemization of all anticipated Construction General Condition costs with back-up to verify actual cost of each of these items, or estimated cost where actual cost is not available;

f. Assumptions: The CM/GC shall provide a list of clarifications and assumptions it made in the establishment of the proposed unit costs, including site conditions, access, staging, construction means and methods, and identification of Work to be subcontracted or self-performed by the CM/GC;

g. Schedule Milestone: The CM/GC shall propose key schedule milestones including any Interim Completion Date(s) applicable to the Work Packages and the Contract Completion Date for the GMP amendment;

h. Risk: The CM/GC shall identify proposed costs related to construction risks, agreed upon between the Owner and CM/GC;

i. Pay Item Measurement: The CM/GC shall propose how each Pay Item will be measured and reimbursed as 1) a fixed lump sum amount, or 2) a fixed unit price amount with an estimated quantity independently taken off by the CM/GC, or 3) an actual cost reimbursable amount, or 4) an estimated allowance or provisional sum amount pending later bidding or further scope definition.

7.4.3 Good Faith Negotiations: The Owner and CM/GC shall negotiate the fixed lump amounts, estimated quantities, fixed unit prices, estimated cost reimbursable amounts, and all other aspects of any Work Packages in good faith and shall establish a set of assumptions upon which all Work and unit prices are based.

7.4.4 Cost of work package: Once all components of a Work Package are agreed upon by the Agency and CM/GC, all Pay Item total costs (the Pay Item estimated quantity multiplied by the unit price) shall be rolled into one total amount, which becomes the Cost of the Work for the Work Package. The CM/GC Fee shall then be applied by multiplying the percentage stated by the Cost of the Work for the Work Package. The CM/GC Fee then becomes a fixed amount for that Work Package, subject to adjustment by Change Order in accordance with Article 8. The estimated actual reimbursable costs for any applicable bonds and insurance shall be included.

7.4.5 Cost of the Work + CM/GC Fee Bonds & Insurance = Early Work Price

7.5 DETERMINATION OF GMP:

7.5.1 Preliminary, Updated and Final GMP Milestones: All provisions of Article 7 apply to the determination for the GMP. The CM/GC shall deliver to the Owner a proposed GMP and GMP Supporting Documents at the following milestones:

(a) Milestone #1 –Month ___, 20XX: Final Firm GMP @ Approved Permit Level Drawings

7.5.2 Risk / Contingency Allowance: The parties may agree to include within the GMP a risk/contingency allowance for the estimated cost of certain risk/contingency items. If the parties agree that the GMP will include a risk/contingency allowance, they will set forth their agreement in the GMP Amendment, including but not limited to their agreement on the amount and conditions under which the CM/GC may use the risk/contingency allowance. These are amounts for risk related to Pay Items that are not included in the Cost of the Work.

a. Risk Management Plan: Certain risk cost items may be identified in the risk management plan, that the parties agree to carry within the GMP, but not price as part of the Cost of the Work when the Amendment for certain construction work is executed.

b. Escalation / De-Escalation and Risk of Changes: The parties may agree to identify and carry contingency to reflect potential escalation of material and commodity prices during the course of construction, as well as estimated risk costs for changes and differing site conditions.

7.5.3 GMP Supporting Documents: In accordance with Article 7.5.1, four (4) GMP submittals are required: 1) Preliminary GMP, 2) 60% Drawing Preliminary GMP 3) Updated Preliminary GMP, and 4) Final Firm GMP. The GMP supporting documents shall include:

a. A list of the Plans and Specifications, including all Addenda thereto and the conditions of the Contract, which were used in preparation of the GMP proposal.

b. A list of the clarifications and assumptions made by the CM/GC in the preparation of the GMP proposal to supplement the information contained in the Plans and Specifications;

c. Risk Management Plan;

d. Conduct of Construction Plan;

e. Baseline Schedule;

f. Site specific work plans related to each Work Package;

g. The proposed Cost of the Work including detailed cost breakdown and build-up of all Pay Items for the Owner open-book review, with all costs organized by Pay Items and Early Work Packages. Cost breakdown of Pay Items unit prices shall show estimated labor, material, equipment, general conditions, quantities, and overhead costs.