Attachment B_CM General Conditions Template_DRAFT.pdf

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions ii

CONSTRUCTION

MANAGEMENT (CM)

Contract Template:

Exhibit A – General Conditions to

Agreement

LisaWilliams

DRAFT

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions iii

Copyright © 2023 Water Collaborative Delivery Association. All rights reserved.

WCDA NO. CM-106-2023

By using this WCDA template document, you agree to the terms outlined below:

The Water Collaborative Delivery Association (WCDA) provides this template document for general educational purposes only. Because every project has unique characteristics and requirements, owners and other industry participants should obtain advice from an experienced CM professional on how the general principles and guidance contained in this publication apply to a particular project. This publication does not constitute and should not be considered to be legal advice. Parties seeking legal advice should consult with legal counsel familiar with their particular circumstances. You acknowledge that WCDA documents are protected by US and international copyright laws. Content used for any purpose must maintain unaltered copyright and other proprietary notices, including attribution to Water Collaborative Delivery Association as the source of the content.

All copies you make of our content to distribute must carry the following notice: "Reproduced with permission. Copyright © 2023 Water Collaborative Delivery Association. All rights reserved.”

This WCDA template document cannot be sold or otherwise monetized by owners or other entities.

This template can be reproduced and modified, where indicated, for procurement and education purposes only.

This document was developed by WCDA with the support and review of our members via a pro bono task force of dedicated subject matter experts, including Jessica Adams-Weber, PE (HDR), David Rieken, Jr., PE, DBIA, ENV SP (Sundt Construction), Catherine Lang, Esq. (HDR), Michael C. Loulakis, Esq., FDBIA (Capital Project Strategies, LLC), Peter W. Tunnicliffe, PE, DBIA, CIRM (CDM Smith), and Paul Franke, Esq. (Polsinelli).

Water Collaborative Delivery Association PO Box 13333, 951 20th Street Denver, CO 80201 303-641-0550 info@WaterCollaborativeDelivery.org www.watercollaborativedelivery.org

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions iv

CONTENTS

ARTICLE 1 — General Provisions

ARTICLE 2 — CM Preconstruction Phase and Construction Phase Responsibilities

ARTICLE 3 — Owner’s Responsibilities

ARTICLE 4 — Subcontracts

ARTICLE 5 — Time

ARTICLE 6 — Compensation

ARTICLE 7 — Changes

ARTICLE 8 — Payment

ARTICLE 9 — Indemnity, Insurance, Waivers, and Bonds

ARTICLE 10 — Suspension, Notice to Cure, and Termination of the Agreement . 39

ARTICLE 11 — Claims, Claims Procedures, Dispute Mitigation, and Resolution . 43

ARTICLE 12 — Miscellaneous Provisions

Copyright © 2023 Water Collaborative Delivery Association | Exhibit A to CM Agreement – General Conditions 1

Project Name

General Conditions to Agreement Dated ____________________, 20____ (“Agreement”)

Between

___________________________, as Owner (“Owner”), whose address is:

and

_____________________________, as Construction Manager (“CM”), whose address is:

For the following Project (“Project”):

In which ____________________________ is the Engineer (“Engineer”).

Capitalized terms used herein but not defined herein shall have the meanings given them in the Agreement, Phase II Construction Price Amendment, and other Contract Documents.

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

ARTICLE 1— General Provisions

1.1 Contract; Order of Precedence

The Contract Documents are enumerated in the Agreement and consist of the Agreement, Conditions of the Contract (General, Supplementary, and other Conditions), Drawings, Specifications, addenda issued prior to execution of the Agreement, other documents or exhibits listed in or attached to the Agreement, and Modifications issued after execution of the Agreement. A “Modification” is (a) a written amendment to the Agreement signed by both the Owner and the CM (each a “Party” and collectively, the “Parties”), (b) a Change Order, (c) an Owner Change Directive, or (d) a written order for a minor change in the Work issued by the Engineer. Unless specifically enumerated in the Agreement, the Contract Documents do not include the advertisement or invitation to bid, instructions to bidders, sample forms, other information furnished by the Owner in anticipation of receiving bids or proposals, the CM’s bid or proposal, or portions of addenda relating to bidding or proposal requirements. Conflicts, ambiguities, or inconsistencies between or amongst the Contract Documents are governed by and subject to the order of precedence set forth in Paragraph 1.1.5 hereof.

1.1.1 The Drawings and Specifications are complementary. If Work is shown only on one but not on the other, the CM shall perform the Work as though fully described on both, in all cases consistent with the Contract Documents.

1.1.2 In case of conflicts or inconsistencies between the Drawings and Specifications, the Owner and the CM shall attempt to resolve the conflict or inconsistency through mutual and good faith discussions and if the Parties are unable to resolve the matter in a mutually satisfactory manner, the CM shall be entitled to submit a Claim in accordance with Article 11 hereof for the increased cost and time caused by or resulting from such conflict or inconsistency.

1.1.3 Where figures are given, they shall be preferred to scaled dimensions.

1.1.4 Any terms that have well-known technical or trade meanings, unless otherwise specifically defined in the Agreement or these General Conditions, shall be interpreted in accordance with their well-known meanings.

1.1.5 In the event of a conflict between provisions of any of the Contract Documents which cannot be resolved by giving effect to both provisions, the order of precedence of the Contract Documents in descending order, shall be as follows:

1.1.5.1 Amendments and Change Orders, with precedence of

amendments and Change Orders in reverse order of execution;

1.1.5.2 The Agreement, including all exhibits thereto; in event of a conflict between the body of the Agreement and (or between) Agreement exhibits which cannot be resolved by giving effect to both provisions, the order of

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions precedence shall be the body of the Agreement followed by the exhibits in the order they are attached to the body of the Agreement, with precedence of such exhibits given in the order in which they are attached to the Agreement;

1.1.5.3 Supplementary Conditions, if any, to the Contract Documents;

1.1.5.4 These General Conditions;

1.1.5.5 Drawings and Specifications; and

1.1.5.6 Notice to Proceed.

If any provision of the Agreement conflicts with or is inconsistent with any other provision of other Contract Documents, the provisions of the Agreement govern, unless the other provision specifically refers to the provision it supersedes and replaces it in the Agreement or unless otherwise superseded by the order of precedence set forth above in this Paragraph 1.1.5.

1.1.6 The Agreement and other Contract Documents are solely for the benefit of the Owner and the CM except to the extent expressly provided in the Agreement, represents the entire and integrated agreement between such Parties, and supersedes all prior negotiations, representations, or agreements, either written or oral.

1.2 Relationship of Parties

The Owner and the CM agree to proceed with the Project based on mutual trust, good faith, and fair dealing.

1.2.1 The CM shall furnish preconstruction, permitting assistance, construction, administration, and management services and use the CM’s reasonable efforts to perform the Work in an expeditious manner consistent with the Contract Documents. The Owner and CM shall endeavor to promote harmony and cooperation among all Project participants.

1.2.2 The CM represents that it is an independent contractor and that in its performance of the Work it shall act as an independent contractor.

1.2.3 Neither the CM nor any of its agents or employees shall act on behalf of or in the name of the Owner except as provided in the Agreement unless authorized in writing by the Owner’s Representative.

1.2.4 The Owner’s Representative shall possess full authority to give instructions from the Owner and shall be able to issue directions and Change Orders to the

CM.

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

1.2.5 The CM Representative shall possess full authority to receive instructions from the Owner and to act on those instructions. The CM shall notify the Owner in writing of a change in the designation of the CM Representative. Upon such notice, the Owner will have [NUMBER] Business Days to approve or reject the change in designation. Should the Owner reject the CM Representative, the CM and Owner shall meet within one (1) Business Day to decide on who will serve as the CM Representative.

1.2.6 The Owner and the CM shall perform their obligations with integrity, ensuring at a minimum that:

1.2.6.1 Conflicts of interest shall be avoided or disclosed promptly to the other Party; and

1.2.6.2 The Owner and the CM warrant that they have not and shall not pay nor receive any contingent fees or gratuities to or from the other Party, including their agents, officers, and employees, Subconsultants, or Others from whom they may be liable, to secure preferential treatment.

1.3 Engineer

The Owner, through its Engineer, shall provide all engineering and other design services necessary for the completion of the Work. The Owner shall obtain from the Engineer either a license for the CM and Subcontractors to use the design documents prepared by the Engineer or ownership of the copyrights for such design documents, and shall indemnify, defend, and hold harmless the CM against any suits or claims of infringement of any copyrights or licenses arising out of the use of the design documents except if used by the CM or any other entity on work not contemplated by this Agreement or work outside the Project.

ARTICLE 2 — CM Preconstruction Phase and Construction Phase Responsibilities

2.1 General Responsibilities

2.1.1 The CM shall provide all labor, materials, equipment, and services necessary to complete the Work, all of which shall be provided in full accord and consistent with the Contract Documents as being necessary to produce the indicated results.

2.1.2 The CM shall be responsible for the supervision and coordination of the Work, including the construction means, methods, techniques, sequences, and procedures used, unless the Contract Documents give other specific instructions.

In such case, the CM shall not be liable to the Owner for damages resulting from compliance with such instructions unless the CM recognized and failed to timely report to the Owner any error, inconsistency, omission, or unsafe practice that it

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions discovered in the specified construction means, methods, techniques, sequences, or procedures. The CM shall not be required to provide professional services which constitute the practice of architecture or engineering except as otherwise provided in Subparagraph 2.1.6 nor shall the CM be liable for professional services rendered by or design documents prepared by the Engineer or any of its consultants or subconsultants at any tier. The CM shall be entitled to rely upon the adequacy, accuracy, and completeness of all design, engineering, and other consulting services provided by the Engineer and its consultants and subconsultants at all tiers and/or other consultants retained directly or indirectly by the Owner. The CM shall have no liability to the Owner or any other Party for the failure of any Drawings, Specifications, or other design or engineering produced by Others to be adequate, correct, complete, and free from defect for any purpose or to comply with Applicable Law, all of which shall remain the responsibility of the Engineer.

2.1.3 The CM shall perform Work only within locations allowed by the Contract Documents, applicable permits, and Applicable Law.

2.1.4 The CMand its Subcontractors shall review and compare each of the Contract Documents with the others and with information furnished or made available by Owner and shall, subject to limitations set forth in Subparagraph 2.1.2 hereof, promptly report in writing to Owner’s Representative any errors, inconsistencies, or omissions it discovers in the Contract Documents or inconsistencies it discovers with Applicable Law observed by the CM or its Subcontractors. The CM and its Subcontractors shall take field measurements, verify field conditions, and compare with the Contract Documents with such field measurements and conditions before commencing any of the Work. The observations and measurements are for the purpose of facilitating coordination and construction by the CM and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, they are opportunities for the CM to identify any readily observable or potential errors, omissions, or inconsistencies in the Contract Documents. Readily observable errors, inconsistencies, or omissions discovered by the CM shall be promptly reported in writing to Owner’s Representative. The CM maintains responsibility for losses, including the costs of correcting Defective Work involving an error, inconsistency, or omission by the CM and/or its Subcontractors which are caused by or are attributable to the CM, but the CM does not have responsibility for losses arising from design or engineering errors or omissions and it is recognized that the CM’s review, observations, and measurements are made in the CM’s capacity as a construction manager and not as a licensed design or engineering professional.

2.1.5 Worksite Visit. The CM acknowledges that it has visited, or has had the opportunity to visit, the Worksite to visually inspect the general and local conditions which could affect the Work and, during the Preconstruction Phase, has participated in Owner/Engineer work sessions and provided input and feedback to the Owner and Engineer on the design and engineering of the Project, both from a constructability and a budgeting and cost-trending analysis standpoint. The CM

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions will advise the Owner if it requires additional visits to increase its familiarity with the general and local conditions of the Worksite which may impact the Work.

2.1.6 Professional Services. The CM may be required to procure professional services to carry out its responsibilities for construction means, methods, techniques, sequences, and procedures or as such services are specifically called for by the Contract Documents. The CM shall obtain these professional services and any design certifications required from licensed design professionals. All Drawings, Specifications, calculations, certifications, and submittals prepared by such design professionals shall bear the signature and seal of such design professionals and the Owner and the Engineer shall be entitled to rely upon the adequacy, accuracy, and completeness of such design services. If professional services are specifically required by the Contract Documents, the Owner, through the Engineer, shall indicate all required performance and design criteria. The CM shall not be responsible for the adequacy of such performance and design criteria.

The CM shall not be required to provide such services in violation of Applicable Law in the jurisdiction where the Project is located. Should the CM refuse to provide services based on the inadequacy of design criteria or because of a violation of existing Applicable Law, the CM shall provide notice and an explanation to Owner within [NUMBER] Business Days of the CM becoming aware of the issue.

The CM shall work with Owner to mitigate the issue.

2.2 Preconstruction Phase Services

The CM’s Scope of Work responsibilities include the Preconstruction Phase Services defined and described in the Agreement. The CM shall perform such Preconstruction Phase Services at the time, in the manner, and for the Fee set forth in Article 2 of the Agreement. Unless otherwise mutually agreed in writing by the Owner and the CM, such Preconstruction Phase Services do not require or obligate the CM to generate or produce any design or engineering for the Project but will require the CM to participate in Owner/Engineer work sessions and provide input and feedback to the Owner and Engineer on the design and engineering of the Project from a constructability, budgeting, schedule, and cost-trending analysis standpoint. The CM, when providing input and feedback, shall not be responsible or liable for any design or engineering related work or services. However, the CM shall be responsible for any temporary works or related construction engineering necessary to implement the construction of the Project.

2.3 Construction Phase Services

2.3.1 Commencement. Unless otherwise provided to the contrary elsewhere in this Agreement or the other Contract Documents, the CM’s Construction Phase Services shall commence upon execution of a Phase II Construction Price Amendment for the Project or specific Bid Package or other portion of the Work.

2.3.2 Coordination. The CM shall supervise, coordinate, and direct the Work using the CM’s ordinary skill and attention. Subject to Subparagraph 2.1.2, the CM

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions shall be solely responsible for and have control over construction means, methods, techniques, sequences, procedures, and the coordination of all portions of the Work. The CM shall manage and administer all phases of construction activities to achieve the completion of all Work within the requirements of the Contract Documents. The CM shall coordinate the Work of its Subcontractors and Material Suppliers to optimize efficiency and minimize conflict and interference between the various Subcontractors on-site. It is recognized, however, that the CM is not acting in the capacity of a licensed design professional, and that the CM’s examination is to facilitate construction and does not create an affirmative responsibility to detect errors, omissions, or inconsistencies in the design Drawings or plans created by the Engineer or to ascertain from the design Drawings or plans created by the Engineer compliance with Applicable Laws. The CM does not have an affirmative responsibility to detect errors or omissions by the Engineer.

2.3.3 Cost Reporting. The CM shall keep such full and detailed accounts as are necessary for proper financial management under this Agreement. The CM shall maintain a complete set of all books and records prepared or used by the CM with respect to the Project. The CM’s records supporting its performance and billings under this Agreement shall be current, complete, and accurate and maintained according to Generally Accepted Accounting Principles, consistently applied. The Owner shall be afforded access to all the CM’s records, books, correspondence, instructions, Drawings, receipts, vouchers, memoranda, and similar data relating to this Agreement. The CM shall preserve all such records for a period of three years after the Final Payment in accordance with Paragraph 8.9 hereof or longer where required by law.

2.3.4 Construction Personnel and Supervision

2.3.4.1 The CM shall provide competent supervision for the performance of the Work. Before commencing the Work, the CM shall notify the Owner in writing of the name and qualifications of its proposed superintendent(s) and project manager so the Owner may review the individual’s qualifications. If, for reasonable cause, the Owner refuses to approve the individual, or withdraws its approval after once giving it, the CMshall name a different superintendent for the Owner’s review. Any disapproved superintendent shall not perform in that capacity thereafter at the Worksite.

2.3.4.2 The CM shall be responsible to the Owner for acts or omissions of Parties or entities performing portions of the Work for or on behalf of the CM or any of its Subcontractors and Material Suppliers.

2.3.4.3 The CM shall permit only fit and ordinarily skilled persons to perform the Work. The CM shall enforce safety procedures, discipline, and good order among persons performing the Work. If the Owner reasonably determines that a particular person does not follow safety procedures, or is unfit or unskilled for the assigned Work, the CM shall immediately reassign the person on receipt of the Owner’s written notice to do so.

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.3.5 Submittals

2.3.5.1 The CM shall be responsible to the Owner for the accuracy and conformity of its submittals to the Contract Documents. The CM shall prepare and deliver its submittals to the Owner and Engineer in such time and sequence so as not to delay the performance of the Work or the work of the Owner and Others. When the CM delivers its submittals to the Owner, the CMshall identify in writing for each submittal all changes, deviations, or substitutions from the requirements of the Contract Documents. The review and approval of any CM submittal shall not be deemed to authorize changes, deviations, or substitutions from the requirements of the Contract Documents unless express written approval is obtained from the Owner specifically authorizing such deviation, substitution, or change. To the extent a change, deviation or substitution causes an impact to the Phase II Construction Price or Contract Time, such approval shall be promptly memorialized in a Change Order. Further, the Owner shall not make any change, deviation, or substitution through the submittal process without specifically identifying and authorizing such deviation to the CM. If the Contract Documents do not contain submittal requirements pertaining to the Work, the CM agrees upon request to submit in a timely fashion to the Owner for review and approval any submittals, samples, product data, manufacturers’ literature, or similar submittals as may reasonably be required by the Owner.

2.3.5.2 The CM shall perform all Work strictly in accordance with approved submittals. Approval does not relieve the CM from responsibility for Defective Work resulting from errors or omissions of any kind on the approved submittals.

2.3.5.3 Record copies of the following, incorporating field changes and selections made during construction, shall be maintained at the Worksite and available to the Owner upon request: Drawings, Specifications, addenda, and other Modifications, and required submittals including product data, samples, and shop drawings.

2.3.5.4 No substitutions shall be made in the Work unless permitted in the Contract Documents and then only after the CM obtains all approvals required under the Contract Documents for substitutions. All such substitutions shall be memorialized promptly by written approval by the Owner no later than seven (7) days following the Owner’s receipt of a written request for approval thereof. If required, the CM will prepare a Change Order request within seven (7) days following approval by the Owner and, if applicable, provide for an adjustment in the Phase II Construction Price or Contract Time.

2.3.5.5 The CM shall prepare and submit to the Owner updated

electronic data, in accordance with Subparagraph 3.8.1.

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.3.6 Cooperation with Work of Owners and Others

2.3.6.1 The Owner may perform work at the Worksite directly or by Others. Any agreements with Others to perform construction or operations related to the Project shall include provisions pertaining to insurance, indemnification, waiver of subrogation, coordination, interference, cleanup, and safety which are substantively the same as the corresponding provisions of this Agreement.

2.3.6.2 If the Owner elects to perform work at the Worksite directly or by Others, the CM and Owner shall coordinate the activities of all forces at the Worksite and agree upon fair and reasonable schedules and operational procedures for Worksite activities. The Owner shall require each separate contractor to cooperate with the CM and assist with the coordination of activities and the review of construction schedules and operations. The Phase II Construction Price or the Date of Substantial Completion or the Date of Final Completion [shall / may] be equitably adjusted, as mutually agreed by the Parties, for changes made necessary by the coordination of construction activities, and the Schedule of the Work shall be revised accordingly. The CM, Owner, and Others shall adhere to the revised Schedule of the Work until it may subsequently be revised.

2.3.6.3 With regard to the work of the Owner and Others, the CM shall

(a) proceed with the Work in a manner which does not hinder, delay, or interfere with the work of the Owner or Others or cause the work of the Owner or Others to become defective, (b) afford the Owner or Others reasonable access for introduction and storage of their materials and equipment and performance of their activities, and (c) coordinate the CM’s construction and operations with theirs as required by Subparagraph 2.3.6.2.

2.3.6.4 Before proceeding with any portion of the Work affected by the construction or operations of the Owner or Others, the CM shall visually examine such work performed by the Owner or Others and give the Owner prompt, written notification of any defects the CM discovers therein of their work which will prevent the proper execution of the Work. The CM’s obligations in this Subparagraph 2.3.6.4 do not create a responsibility for the work of Others but are for the purpose of facilitating the Work. If the CM does not notify the Owner of patent defects interfering with the performance of the Work, the CM acknowledges that to the CM’s reasonable knowledge at the time, the work of the Owner or Others is not defective and is acceptable for the proper execution of the Work. Following receipt of written notice from the CM of defects, the Owner shall promptly inform the CM what action, if any, the CM shall take regarding the defects.

2.3.7 Cutting, Fitting, and Patching

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.3.7.1 The CMshall perform cutting, fitting, and patching necessary to coordinate the various parts of the Work and to prepare its Work for the work of the Owner or Others, if within the CM’s Scope of Services.

2.3.7.2 Cutting, patching, or altering the work of the Owner or Others shall be done with the prior written approval of the Owner. Such approval shall not be unreasonably withheld.

2.3.8 Cleaning Up

2.3.8.1 The CM shall regularly remove debris and waste materials at the Worksite resulting from the Work. Prior to discontinuing Work in an area, the CM shall clean the area and remove all rubbish and its construction equipment, tools, machinery, waste, and surplus materials. The CM shall minimize and confine dust and debris resulting from construction activities.

At the completion of the Work, the CM shall remove from the Worksite all construction equipment, tools, surplus materials, waste materials, and debris created by the CM and its Subcontractors.

2.3.8.2 If the CM fails to commence compliance with cleanup duties within two (2) Business Days after written notification from the Owner of noncompliance, the Owner may implement appropriate cleanup measures without further notice and the cost shall be deducted from any amounts due or to become due the CM in the next payment period.

2.3.9 Access to Work. The CM shall facilitate the access of the Owner, its Engineer, and Others to Work in progress. The Owner, Engineer, and Others shall follow safety protocols in effect and in compliance with OSHA.

2.3.10 Materials Furnished by the Owner or Others

2.3.10.1 In the event the Work includes installation of materials or equipment furnished by the Owner or Others, it shall be the responsibility of the CM to visually examine the items so provided and thereupon handle, store, and install the items, unless otherwise provided in the Contract Documents, with such skill and care as to provide a satisfactory and proper installation. Loss or damage due to acts or omissions of the CM shall be the responsibility of the CM and may be deducted from any amounts due or to become due the CM. Any defects discovered in such materials or equipment shall be reported at once to the Owner. Following receipt of written notice from the CM of defects, the Owner shall promptly inform the CM what action, if any, the CM shall take regarding the defects.

2.3.11 Tests and Inspections

2.3.11.1 The CM shall schedule all required tests, approvals, and inspections of the Work or portions thereof at appropriate times so as not to delay the progress of the Work or other Work related to the Project. The CM

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions shall give proper notice to all required Parties of such tests, approvals, and inspections. If feasible, the Owner and Others may timely observe the tests at the normal place of testing. Except as provided in Subparagraph 2.3.11.3 below or unless otherwise required by the Contract Documents, the Owner shall bear all expenses associated with tests, inspections, and approvals required by the Contract Documents which, unless otherwise agreed to, shall be conducted by an independent testing laboratory or entity retained by the Owner. Unless otherwise required by the Contract Documents, required certificates of testing, approval, or inspection shall be secured by the CM and promptly delivered to the Owner.

2.3.11.2 If the Owner or appropriate authorities determine that tests, inspections, or approvals in addition to those required by the Contract Documents will be necessary, the CM shall arrange for the procedures and give timely notice to the Owner and Others who may observe the procedures. Costs of the additional tests, inspections, or approvals are at the Owner’s expense except as provided in Subparagraph 2.3.11.3.

2.3.11.3 If the procedures described in Subparagraph 2.3.11.1 and

2.3.11.2 indicate that portions of the Work fail to comply with the Contract Documents due to the negligence of the CM, the CM shall be responsible for costs of correction and retesting.

2.4 Warranty

2.4.1 The CM warrants that all materials and equipment furnished under the Construction Phase of this Agreement will be new unless otherwise specified, of good quality, and in conformance with the Specifications set forth in the Contract Documents. The CM further warrants that the Work shall be free from defects in materials and workmanship not intrinsic in the design or materials required in the Contract Documents. The CM’s warranty does not include remedies for defects or damages caused by normal wear and tear during normal usage, use, or operation for a purpose for which the Project was not intended, improper or insufficient maintenance, inadequate, incomplete, or defective design, modifications performed by the Owner or Others, or abuse. TO THE MAXIMUM EXTENT

PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES OF

MERCHANTABILITY, SUITABILITY, AND FITNESS FOR PARTICULAR

PURPOSE ARE HEREBY DISCLAIMED AND ARE NULL AND VOID. The CM’s warranty pursuant to this Subparagraph 2.4.1 shall commence on the earlier of (a) the Date of Substantial Completion of the Work or the designated portion as agreed to by the Owner and the CM, and (b) the date the Owner takes beneficial use of the Work or designated portion of the Work as agreed to by the Owner and the CM.

2.4.2 The CM shall use commercially reasonable efforts to obtain from its Subcontractors and Material Suppliers any special or extended warranties expressly required by the Contract Documents. The CM’s liability for such

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions warranties shall be limited to the one-year correction period referred to in Subparagraph 2.5. After that period, the CM shall assign them to the Owner and provide reasonable assistance to the Owner in enforcing the obligations of Subcontractors and Material Suppliers.

2.5 Correction of Defective Work

2.5.1 If prior to Substantial Completion and within one year after the date of Substantial Completion of the Work any Defective Work is found, the Owner shall promptly notify the CM in writing. Unless the Owner provides written acceptance of the condition, the CM shall promptly correct the Defective Work. If the Owner discovers a defect, the Owner shall notify the CM within [NUMBER] Business Days of the date of discovery. Work that is found not to conform to the requirements of the Agreement prior to Substantial Completion but does not prevent achievement of Substantial Completion may be corrected prior to Final Completion.

2.5.2 With respect to any portion of Work first performed after Substantial Completion, the one-year correction period for the Defective Work shall be extended by the time period between Substantial Completion and the actual performance of the later Work.

2.5.3 If the CM fails to correct Defective Work within a mutually agreed time after receipt of written notice from the Owner prior to Final Payment, the Owner may correct it in accordance with the Owner’s right to carry out the Work in Subparagraph 10.2.3. In such case, an appropriate Change Order shall be issued deducting the cost of correcting such deficiencies from payments then or thereafter due the CM. If payments then or thereafter due the CM are not sufficient to cover such amounts, the CM shall pay the difference to the Owner.

2.5.4 If after the one-year correction period but before the periods of limitations and repose applicable to the Work in the jurisdiction in which the Project is located have run the Owner discovers any Defective Work, the Owner shall, unless the Defective Work requires emergency correction, promptly notify the CM. If the CM elects to correct the Work, it shall provide written notice of such intent within fourteen (14) days of its receipt of notice from the Owner. The CM shall complete the correction of Work within a mutually agreed time frame. If the CMdoes not elect to correct the Work, the Owner may have the Work corrected by itself or Others and charge the CM for the reasonable cost of the correction. The Owner shall provide the CM with an accounting of correction costs it incurs.

2.5.5 If the CM’s correction or removal of Defective Work causes damage to or destroys other completed or partially completed Work or existing building, the CM shall be responsible for the cost of correcting the destroyed or damaged property.

2.5.6 The one-year period for correction of Defective Work does not constitute a limitation period with respect to the enforcement of the CM’s other obligations under the Contract Documents.

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.5.7 Prior to Final Payment, at the Owner’s option and with the CM’s agreement, the Owner may elect to accept Defective Work rather than require its removal and correction. In such cases, the Phase II Construction Price [shall / may] be equitably adjusted for any diminution in the value of the Project, if any, caused by such Defective Work.

2.6 Correction of Covered Work

2.6.1 On request of the Owner, Work that has been covered without a requirement that it be inspected prior to being covered may be uncovered for the Owner’s inspection. The Owner shall pay for the costs of uncovering and replacement if the Work proves to be in conformance with the Contract Documents, or if the defective condition was caused by the Owner or Others and the CM shall be entitled to a Change Order adjusting the Contract Time and/or the Phase II Construction Price for any resulting delay or added cost. If the uncovered Work proves to be defective, the CM shall pay the costs of uncovering and replacement.

2.6.2 If a portion of the Work is covered, contrary to specific requirements in the Contract Documents or contrary to a specific request from the Owner, the Owner, by written request, may require the CM to uncover the Work, at a mutually convenient time, for the Owner’s observation. In this circumstance, the Work shall be replaced at the CM’s expense and with no adjustment to the Contract Time.

2.6.3 The CM is required to correct in a timely fashion any Work rejected by the Owner which fails to comply with the Contract Documents prior to the commencement of the warranty period(s) or during the correction period(s) established under Paragraph 2.5. The CM shall correct at its own cost and time and bear the expense of additional services required for correction of any Defective Work for which it is responsible.

2.7 Safety of Persons and Property

2.7.1 Safety Precautions and Programs. The CM shall have overall responsibility for safety precautions and programs in the performance of the Work.

While this Paragraph 2.7 establishes the responsibility for safety between the Owner and CM, it does not relieve the Engineer or Subcontractors of their responsibility for the safety of persons or property in the performance of their Work, nor for compliance with the provisions of Applicable Laws.

2.7.2 The CM shall seek to avoid injury, loss, or damage to persons or property by taking reasonable steps to protect:

2.7.2.1 Its employees and other persons at the Worksite;

2.7.2.2 Materials and equipment stored at on-site or off-site locations for use in the Work; and

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.7.2.3 Property located at the Worksite and adjacent to Work areas, whether the property is part of the Work.

2.7.3 CM’s Safety Representative. The CM shall designate an individual at the Worksite in the employ of the CMwho shall act as the CM’s authorized safety representative with a duty to prevent accidents in accordance with Subparagraph

2.7.2. The CM shall report immediately in writing all accidents and injuries occurring at the Worksite. When the CM is required to file an accident report with a public authority, the CM shall furnish a copy of the report to the Owner concurrent with the report’s distribution with the public authority.

2.7.4 The CM shall provide the Owner with copies of all notices required of the CM by Applicable Law. The CM’s safety program shall comply with the requirements of Governmental Authorities having jurisdiction.

2.7.5 Damage or loss not insured under property insurance which may arise from the Work to the extent caused by negligent acts or omissions of the CM, or anyone for whose acts the CM may be liable, shall be promptly remedied by the CM. If the Owner deems any part of the Work or Worksite unsafe, and such safety concerns are due to the fault or neglect of the CM, its Subcontractors, or anyone else for whom such Parties are responsible, the Owner, without assuming responsibility for the CM’s safety program, may require the CM to stop performance of the Work or take corrective measures satisfactory to the Owner, or both. If the CM does not adopt corrective measures, the Owner may perform them and deduct their cost from the Phase II Construction Price. The CM agrees to make no claim for damages, or an increase in the Phase II Construction Price, or for a change in the Dates of Substantial or Final Completion based on the CM’s compliance with the Owner’s reasonable request.

2.8 Emergencies

2.8.1 In an emergency, the CM shall act in a reasonable manner to prevent personal injury or property damage. If appropriate, an equitable adjustment in the Phase II Construction Price or Date of Substantial Completion or Date of Final Completion [shall / may] be determined in a Change Order.

2.9 Hazardous Materials

2.9.1 A Hazardous Material is any substance or material identified now or in the future as hazardous under any federal, state, or local law or regulation, or any other substance or material that may be considered hazardous or otherwise subject to statutory or regulatory requirement governing handling, disposal, or cleanup. The CM shall not be obligated to commence or continue Work until any unknown Hazardous Material discovered or encountered at the Worksite has been removed, rendered, or determined to be harmless by the Owner as certified by an independent testing laboratory and approved by the appropriate government agency. The Owner shall retain generator status of any preexisting hazardous

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions materials contained on-site and shall sign manifests for removal of preexisting hazardous materials.

2.9.2 If after the commencement of the Work, unknown Hazardous Material is discovered or encountered at the Worksite, the CM shall be entitled to immediately stop Work in the affected area. The CM shall report the condition to the Owner, the Engineer, and, if required, the Governmental Authority with jurisdiction.

2.9.3 The CM shall not be required to perform any Work relating to or around Hazardous Material without written mutual agreement.

2.9.4 The Owner shall be responsible for retaining an independent testing laboratory to determine the nature of the material encountered and whether the material requires corrective measures or remedial action. Such measures shall be the sole responsibility of the Owner and shall be performed in a manner minimizing any adverse effects upon the Work. The CM shall resume Work in the area affected by any Hazardous Material only upon written agreement between the Parties after the Hazardous Material has been removed or rendered harmless and only after approval, if necessary, of the Governmental Authority with jurisdiction.

2.9.5 If the CM incurs additional costs or is delayed due to the presence or remediation of Hazardous Material, the CM [shall / may] be entitled to an equitable adjustment in the Phase II Construction Price and in the Dates of Substantial and Final Completion.

2.9.6 To the extent not caused by the negligent acts or omissions of the CM, its Subcontractors and Sub-subcontractors, and the agents, officers, directors, and employees of each of them (collectively, the “CM Indemnitees”), the Owner shall defend, indemnify, and hold harmless the CM Indemnitees from and against any and all direct or indirect claims, suits, damages, losses, costs, and expenses (including, but not limited to, attorneys’ fees and costs) incurred by any such CM Indemnitees in connection with or arising out of or relating to the performance of the Work in any area contaminated or affected by Hazardous Material or any bodily injury or property damage suffered or incurred by any CM Indemnitee, in each case arising out of, relating to, resulting from, or incurred in connection with the generation, location, transportation, or the existence, remediation, or removal of any Hazardous Materials located on, under, in, or adjacent to the Project Site or transported to or from such Project Site, in each case where such generation, location, transportation, or the existence, remediation, or removal resulted from events or circumstances either (a) occurred prior to the CM’s execution of any Phase II Construction Price Amendment and entry onto the Project site at commencement of the Construction Phase Services covered by such Phase II Construction Price Amendment, and/or (b) did not result from or arise out of any errors or omissions of the CM or its Subcontractors at any tier. To the fullest extent permitted by law, such indemnification shall apply regardless of the fault, negligence, breach of warranty or contract, or strict liability of the Owner and such

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions indemnity obligations shall survive the termination of this Agreement and/or the completion of the Work and the transactions contemplated herein.

2.9.7 To the extent not caused by the acts or omissions of the Owner, its Engineer or other consultants, the agents, officers, directors, and employees of any of them, or any person or entity in the chain of title to the real property comprising the Project or any portion thereof, whether as owner, tenant, guest, licensee, invitee, or otherwise (collectively, the “Owner Indemnitees”), the CM shall defend, indemnify and hold harmless the Owner Indemnitees from and against any and all direct or indirect claims, suits, damages, losses, costs, and expenses (including, but not limited to, attorneys’ fees and costs) incurred by any such Owner Indemnitees in connection with or arising out of or relating to any Hazardous Materials first introduced onto the Project site by the CM or its Subcontractors on or after the date of the Agreement; provided however, that in no event shall such indemnity and defense obligations apply to (a) any Hazardous Materials specified for the Work by the Owner, the Engineer, any consultants of such Parties or any other person or entity for whom the Owner is legally responsible, or (b) common cleaning solvents used by the CM in the performance of the Work. To the fullest extent permitted by law, such indemnification shall survive the termination of this Agreement and/or the completion of the Work and the transactions contemplated herein.

2.9.8 Removal of Hazardous Materials

2.9.8.1 To the extent the Hazardous Materials not the subject of Subparagraph 2.9.7 above are identified in other applicable provisions above of this Paragraph 2.9, the CM shall proceed with remediation and removal of such Hazardous Materials as agent for the Owner in accordance with this Subparagraph 2.9.8.

2.9.8.2 The Owner hereby appoints the CM as its agent to act in the Owner’s name and on the Owner’s behalf to negotiate, enter, and execute contracts with third parties to remove, transport, and/or dispose of Hazardous Materials. The CM’s scope of authority as agent does not include the execution of any manifests or governmental documents related to the Hazardous Materials. All documents executed by the CM acting within the CM’s scope of authority shall provide that the CM is acting solely as agent for the Owner. The CM shall maintain appropriate records of all acts undertaken as agent for the Owner and all such documents shall be available for audit by the Owner.

2.9.8.3 The authority of the CM to act as agent on behalf of the Owner shall terminate upon termination or assignment of the Construction Agreement.

2.10 Materials Brought to the Worksite

Copyright © 2023 Water Collaborative Delivery Association | Attachment B to CM Agreement – General Conditions

2.10.1 Material Safety Data (MSD) sheets as required by law and pertaining to materials or substances used or consumed in the performance of the Work, whether obtained by the CM, Subcontractors, the Owner, or Others, shall be maintained at the Worksite by the CM and made available to the Owner, Subcontractors, and Others.

2.10.2 The CM shall be responsible for the proper delivery, handling, application, storage, removal, and disposal of all materials and substances brought to the Worksite by the CM in accordance with the Contract Documents and used or consumed in the performance of the Work.

2.10.3 To the extent caused by the negligent acts or omissions of the CM, its agents, officers, directors, and employees, the CM shall defend, indemnify, and hold harmless the Owner, its agents, officers, directors, and employees, in accordance with Paragraph 2.9.7 hereof, from and against claims, damages, losses, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, costs, and expenses incurred in connection with any dispute resolution process, in each case arising out of or relating to the delivery, handling, application, storage, removal, and disposal of all materials and substances.

2.11 Differing Site Conditions

2.11.1 If the CM encounters Differing Site Conditions, the CM shall stop Work and shall provide the Owner and the Engineer with written notice of its claim for Differing Site Conditions within the time period set forth in Paragraph 11.1. Any change in the Phase II Construction Price, estimated Cost of the Work and/or CM’s Fee (where applicable), Date of Substantial Completion, or Date of Final Completion and, if appropriate, the Compensation for Construction Phase Services because of the Differing Site Conditions shall be determined as provided in Article 11. The CM shall only be entitled to pursue a claim for Differing Site Conditions if the Parties have not agreed, in writing, that Differing Site Conditions have occurred after the CM’s submission of appropriate backup documentation.

2.12 Permits And Taxes

2.12.1 The CM shall give public authorities all notices required by law and, except for permits and fees which are the responsibility of the Owner pursuant to Paragraph 3.6 hereof, shall obtain and pay for all necessary permits, licenses, and renewals pertaining to the Work. The CM shall provide to the Owner copies of all notices, permits, licenses, and renewals required under this Agreement.

2.12.2 The CM shall pay all applicable taxes legally enacted when bids are received or negotiations…