Attachment B1_CM Contract Template Agreement_DRAFT.pdf

CONSTRUCTION

MANAGEMENT

Agreement

LisaWilliams

DRAFT

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement ii

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

WCDA NO. CM-105-2023

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 | CM Agreement iii

CONTENTS

ARTICLE 1 — Definitions

ARTICLE 2 — CM Responsibilities

ARTICLE 3 — Owner Responsibilities

ARTICLE 4 — Subcontracts and Labor Relations

ARTICLE 5 — Time

ARTICLE 6 — Compensation

ARTICLE 7 — Changes

ARTICLE 8 — Payment

ARTICLE 9 — Liability

ARTICLE 10 — Dispute Mitigation and Resolution

ARTICLE 11 — Miscellaneous Provisions

Exhibit A—General Conditions to Agreement

Exhibit B—CM Phase I Preconstruction Scope of Services

Exhibit C—Phase I Notice to Proceed

Exhibit D—Phase I Early Work(s) Package(s) (if applicable)

Exhibit D.1—Phase I Early Work(s) Package(s) Amendment Form (if applicable)

Exhibit E—Phase II Construction Price Amendment

Exhibit F—Initial Schedule of Work

Exhibit G—Project Technical Scheduling Requirements

Exhibit H—Preconstruction Phase Services Hourly Rate Schedule

Exhibit I—Project Technical Performance Requirements

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Solids Handling Improvement Project – Phase 1 Agreement Between Owner and

Construction Manager (CM)

Agreement

This Agreement is made this ____ day of _________ in the year 20___ (the “Contract Date”), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, by and between the

OWNER

Maury Service Authority

130 Osage Lane

Lexington VA, 24450 and the

CONSTRUCTION MANAGER (CM):

Company Name

Address

City, State, Zip for services in connection with the following Project:

PROJECT NO.: ________________________

PROJECT NAME: PHASE 1 BIOSOLIDS PROCESSING IMPROVEMENTS

PROJECT

PROJECT LOCATION: LEXINGTON-ROCKBRIDGE REGIONAL WQCF

Project Summary:

The proposed biosolids improvements focus on modernizing solids handling and increasing operational flexibility, reliability, and redundancy. The centerpiece of the project is replacement of the obsolete GBT-1 with a combination gravity belt thickener/belt filter press (GBT/BFP) unit within the existing Sludge Control Facility.

This configuration allows the facility to both thicken and dewater sludge, providing the ability to produce either liquid biosolids or dewatered cake depending on operational needs. Supporting upgrades include replacement of sludge feed

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 2 pumps, installation of a new polymer system, new sludge transfer piping and controls, a cake conveyor system, electrical and structural modifications, and integration of instrumentation and controls. A covered cake storage area will also be provided to support land application or disposal of dewatered biosolids.

The project also includes replacement of the existing 0.5-MG sludge storage tank.

While a previous study recommended increasing storage to 1.0 MG to support liquid biosolids management.

PROJECT PHASING: None

Notice to the Owner and/or CM (each individually a “Party” and collectively, the “Parties”) shall be given at the above addresses.

Accordingly, the Parties hereto hereby agree as follows.

ARTICLE 1 — Definitions

1.1 Definitions

1.1.1 “Agreement” means this Agreement between Owner and CM (where the Basis of Payment is the Cost of the Work plus CM’s Fee with a Guaranteed Maximum Price or a Lump Sum, as modified by the Parties, and the exhibits and attachments made part of this Agreement upon its execution), as modified by subsequent Amendments.

1.1.2 “Allowance” is an estimated sum to be used as Owner directs for categories of Work that cannot be established at the time the GMP or Fixed Price are agreed upon. Owner can direct Work under Allowances only up to the established amount.

Any work directed over the established Allowance amount is to be processed by Change Order to CM.

1.1.3 “Applicable Law” or “Applicable Laws” means, collectively, all applicable federal, state, and local laws, statutes, rules, regulations, tariffs, levies, embargoes, ordinances, codes, and binding administrative or judicial precedents or authorities, including the binding interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation, or administration thereof, and all applicable administrative orders, directed binding duties, licenses, authorizations, and permits of, and binding agreements with, any Governmental Authority, in each case applicable to or affecting the Project or the Work of CM under this Agreement or the other Contract Documents.

1.1.4 “Assumptions” and “Clarifications” are material terms associated with CM’s Guaranteed Maximum Price or Lump Sum upon which the Owner and CM agree and are more particularly described in Attachment 23 of the Phase II Construction Price Amendment.

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1.1.5 “Bid Package” or “Bid Packages” means one or more design bid packages for specific scopes of the Work that are developed and generated by the Engineer for bidding and award pursuant to this Agreement.

1.1.6 The term “Business Day” means any day other than a Saturday, Sunday, or legal holiday on which national banks located in the state jurisdiction in which the Project is situated are not required or permitted to be open for business to the public.

1.1.7 A “Change Order” is a written order signed by the Owner and the CM after execution of this Agreement indicating any change to the Agreement including, among other things, changes in the Scope of the Work, the CM’s Fee for Preconstruction Phase Services, the Phase II Construction Price and Date of Substantial Completion, or Date of Final Completion.

1.1.8 A "Change Order Proposal" is a proposal submitted by the CM or the Owner for a change in the Work as evidenced by a Change Order.

1.1.9 The “CM” is [NAME].

1.1.10 The “CM Representative” is [NAME].

1.1.11 “Construction Phase” or “Construction Phase Services” means the Work of the CM undertaken during Phase II pursuant to the Drawings and Specifications in accordance with Paragraph 2.2 of this Agreement and other applicable terms and provisions of this Agreement and the other Contract Documents.

1.1.12 “Construction General Conditions Costs” are an element of the Cost of Work that is included in the Construction Price as agreed to by the CM and the Owner and has the meaning set forth in Article 5 of the Phase II Construction Price Amendment.

1.1.13 “Contingencies,” where applicable, has the meaning set forth in Paragraph

10.5 of the Phase II Construction Price Amendment.

1.1.14 The “Contract Documents” represents the entire and integrated agreement between the Parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. It consists of this Agreement, the General Conditions, the Phase II Construction Price Amendment, the Drawings, Specifications, addenda issued prior to execution of this Agreement, information furnished by the Owner under Paragraph 3.8 of the General Conditions, any supplemental or other conditions attached as an exhibit to this Agreement, performance Specifications attached as an exhibit to this Agreement, the CM’s qualifications, Assumptions, and Clarifications mutually agreed upon by Owner and CM and identified in and attached to this Agreement and/or the Phase II Construction Price Amendment, the other documents listed in this Agreement, and any modifications issued after its execution, including, without limitation, Change Orders and Owner Change Directives. The Contract Documents do not

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1.1.15 The “Contract Time” is the overall time period allowed for performance of the Work.

1.1.16 “Cost of the Work,” where applicable, has the meaning of the sum of all allowed direct and indirect costs necessarily and reasonably incurred and paid by CM in the performance of the Work including those set forth in the Phase II Construction Price Amendment.

1.1.17 The term “Day” or “day” shall mean calendar day unless otherwise specifically defined.

1.1.18 “Defective Work” is any portion of the Work that does not conform to the Contract Documents, as more fully described in Paragraphs 2.4 and 2.5 of the General Conditions.

1.1.19 “Differing Site Conditions” means conditions at the Project site that are: (a) subsurface or other physical conditions materially different from those indicated in the Contract Documents, or (b) unusual or unknown physical conditions materially different from conditions ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract Documents.

1.1.20 “Drawings” means the documents prepared by Engineer or other consultants of Owner showing the design, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.

1.1.21 "Early Work(s) Package(s)” is procurement or construction work that may be performed during Phase I or Phase II that may benefit the Project.

1.1.22 “Engineer” means the licensed Engineer and its consultants, retained by Owner to perform design services for the Project. The Engineer for the Project is Hazen and Sawyer.

1.1.23 “Engineer Contract” means the engineering contract dated June 19, 2026 between Owner and Engineer for the design and/or engineering of the Project or portions thereof.

1.1.24 “Fee” or “CM Fee” means, where a GMP has been selected by the Owner and CM as the basis for establishing a Phase II Construction Price for the Project or Bid Package, as applicable, the Fee to be charged by the CM, which shall either be (a) expressed as a percentage of the Cost of the Work, or (b) a fixed dollar amount based on the Cost of the Work, in each case agreed upon by the Owner and the CM at the time of execution of, and in accordance with, the Phase II Construction Price Amendment for the CM’s performance of the Work.

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1.1.25 "Field Order” means minor changes in the Work if the changes do not involve an adjustment in the Phase II Construction Price or the Contract Times and are compatible with the design of the completed Project as a functioning whole as indicated by the Contract Documents.

1.1.26 “Final Completion” occurs on the date when the CM’s obligations under this Agreement are complete and accepted by the Owner and final payment becomes due and payable in accordance with Article 14 of the Phase II Construction Price Amendment and Paragraph 8.9 of the General Conditions. This date shall be confirmed by a Certificate of Final Completion signed by the Owner and the CM.

1.1.27 “Final Payment” has the meaning set forth in Article 14 of the Phase II Construction Price Amendment.

1.1.28 “Force Majeure,” as defined in the General Conditions in Paragraph 5.4.1.3.

1.1.29 The “General Conditions" to the Agreement is included as Exhibit A.

1.1.30 “GMP” or “Guaranteed Maximum Price” means, with regard to the Project as a whole or any Bid Package for construction of any portion of the Work where a GMP is selected by the Parties as the basis for the Phase II Construction Price, as may be further defined in the Phase II Construction Price Amendment for the Project, as applicable. The Guaranteed Maximum Price for the Work covered thereby, as established by a Phase II Construction Price Amendment executed by and between Owner and CM, is further defined as the Cost of Work plus Allowances and fee for such Work. Subject to Change Orders and other allowable adjustments made pursuant to this Agreement or the other Contract Documents, where the Phase II Construction Price for any Work is based on a GMP, the Phase II Construction Price for such Work shall not exceed the GMP for such Work plus any approved additions or deductions to the GMP.

1.1.31 “Governmental Authorities” means any federal, state, local, or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank, public office, court, arbitration or mediation panel, or other entity exercising executive, legislative, judicial, taxing, regulatory, or administrative powers or functions of government.

1.1.32 “Lump Sum” means a lump-sum contract price established for the Phase II Construction Phase Services in accordance with a Phase II Construction Price Amendment.

1.1.33 A “Material Supplier” is a person or entity retained by the CM or a Subcontractor to provide material or equipment for the Work.

1.1.34 “Others” means other contractors, Material Suppliers, and persons at the Worksite who are not employed by the CM or Subcontractors.

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1.1.35 “Owner” is Maury Service Authority and includes the Owner’s representative and any other Owner authorized person or entity.

1.1.36 “Owner’s Approved Budget” means the sum of $[NUMBER].

1.1.37 “Owner Change Directive” means a directive issued by Owner to CM to undertake and perform a change in the Work prior to the time such Parties have reached agreement on the adjustment, if any, of the Phase II Construction Price or the Contract Time.

1.1.38 The Owner’s authorized representative is L. Jordan Combs (the “Owner’s Representative”).

1.1.39 “Phase I” means the Preconstruction Phase.

1.1.40 “Phase II” means the Construction Phase Services performed by CM pursuant to this Agreement and the other Contract Documents.

1.1.41 “Phase II Construction Price” means the contract price established by the Parties for CM’s performance of the Work during the Construction Phase in accordance with this Agreement and the other Contract Documents and as reflected in the Phase II Construction Price Amendment, as the same may be modified by any Change Orders increasing or reducing such contract price and may be either a Lump-Sum price or GMP.

1.1.42 “Phase II Construction Price Amendment” has the meaning given to it in Exhibit B, Paragraph 1.15.

1.1.43 “Phase II Construction Price Proposal” has the meaning given to it in Exhibit B, Paragraph 1.15.2.

1.1.44 “Preconstruction Phase” or “Preconstruction Phase Services” means the Phase I Preconstruction Services performed by CM in connection with the Project and described in Paragraph 2.1 of this Agreement.

1.1.45 “Project” is the building, facility, or other improvements for which the CM is to perform Work under this Agreement. It may also include construction by the Owner or Others which is not part of the Work of this agreement.

1.1.46 “Risk Register” is the result of an assessment led by either the Owner or the CM, and agreed to by both parties, that identifies potential project risks and the likelihood of occurrence and allocates the responsibility for mitigation of each risk element.

1.1.47 “Schedule” is the critical path method (CPM) schedule prepared by the CM that specifies the dates on which the CM plans to begin and complete various parts of the Work, including all activities during Phase I Preconstruction and Phase II Construction.

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1.1.48 “Schedule Update” means any update to the Schedule prepared and submitted by CM to Owner concurrently with CM’s submission to Owner of a Phase II Construction Price Proposal, a Phase II Construction Price Amendment, or as otherwise required or permitted hereunder.

1.1.49 “Specifications” means the documents prepared by Owner, Engineer, or other consultant of Owner consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work and performance of related services.

1.1.50 A “Subcontractor” is a person or entity retained by the CM as an independent contractor to provide the labor, materials, equipment, or services necessary to complete a specific portion of the Work. The Subcontractor obligations within this Agreement shall also apply to the CM for all self-perform trade work.

1.1.51 “Substantial Completion of the Work,” or “Substantially Complete” or a designated portion, occurs on the date when the Work is sufficiently complete in accordance with the Contract Documents so that the Owner may occupy or utilize the Work, or a designated portion, for the beneficial use for which it is intended.

This date shall be confirmed by a certificate of Substantial Completion signed by the Engineer and CM with Owner’s consent. The issuance of a certificate of occupancy is not a prerequisite for Substantial Completion if the certificate of occupancy cannot be obtained due to factors beyond the CM’s control. In addition to and without limiting the generality of the foregoing requirements of this Paragraph 1.1.51, “Substantial Completion” of the Work or a portion of the Work shall not be deemed to have occurred unless and until the Project or a portion thereof is available for beneficial use and satisfies any other requirements set forth in the Phase II Construction Price Amendment.

1.1.52 A “Sub-subcontractor” is a person or entity who has an agreement with a Subcontractor to perform any portion of the Work.

1.1.53 “Work” means the construction and services necessary or incidental to fulfill the CM’s obligations for the Project in conformance with this Agreement and the other Contract Documents, including the Preconstruction Phase Services and the Construction Phase Services as set forth in the Scope of Work.

1.1.54 “Worksite” means the location of the Project as identified in Article 1 where the Work is to be performed.

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

ARTICLE 2 — CM Responsibilities

2.1 Phase I Preconstruction Phase Services

2.1.1 Commencement. Preconstruction Phase Services, as described in Exhibit B attached hereto, shall commence no later than seven (7) calendar days following the Owner’s issuance of a Phase I Notice to Proceed in substantially the form of Exhibit C attached hereto and incorporated herein by this reference with the appropriate box checked. For the performance of the Preconstruction Phase Services CM shall be paid the Preconstruction Phase Services fees in the amount and in the manner set forth in Paragraph 6.1.

2.1.2 Early Work(s) Package(s). If applicable, Early Work(s) Package(s) commenced prior to mutual execution of a Phase II Construction Price Amendment shall be performed and paid for pursuant to Exhibit D and Exhibit D.1 to this Agreement but otherwise subject to the terms, covenants, and conditions of this Agreement and the other Contract Documents.

2.1.3 Completion. CM’s Preconstruction Phase Services shall be deemed to have been completed upon mutual execution of a Phase II Construction Price Amendment for the Work, hereto attached as Exhibit E, covered by the Construction Phase Services. If the Owner and CM are unable to reach a written agreement on a Phase II Construction Price Amendment, the Owner may terminate this Agreement for convenience on fourteen (14) business days’ written notice to the CM in accordance with Paragraph 10.3 of the General Conditions. In the event of such termination for convenience, the CM shall be compensated for

(1) the portion of the CM’s Preconstruction or Construction Phase Services, if any, performed to the date of such termination, but the CM shall not be entitled to compensation for Work not performed, plus (2) reasonable demobilization costs, if any, which shall include, but not be limited to, reasonable cost(s) incurred by CM to break contractual obligations with Subcontractors, Subconsultants, Suppliers, Vendors, and Materialmen entered prior to Subcontractor’s receipt of the notice of termination. In such event, the CM shall have no obligation to perform the Scope of Work covered by such unexecuted Phase II Construction Price Amendment.

2.2 Construction Phase Services

2.2.1 Commencement. Unless otherwise provided to the contrary elsewhere in this Agreement or the other Contract Documents, CM’s Construction Phase Services shall commence within seven (7) days of the Phase II Notice to Proceed.

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2.2.2 Self-Perform Work. As part of the CM’s Construction Phase Services, the CM may be entitled to self-perform work on a negotiated basis or competitively bid against the market in accordance with applicable law and Owner approval. Any self-perform Work, whether negotiated or competitively bid, that is approved by the Owner is subject to the terms and conditions of and as identified in Exhibit B and the following provisions of this Paragraph 2.2.2.

2.2.2.1 The CM may seek to perform portions of the Work itself, other than minor work that may be included in the CM’s Construction General Conditions Costs, if the CM or CM team member submits its proposal and is awarded for those portions of Work in the same manner as all other Subcontractors. If the CM intends to submit a proposal for such Work, it shall notify Owner prior to soliciting Proposals and all such proposals shall be submitted directly to the Owner in accordance with Exhibit B. If the Owner determines that the CM’s bid or CM team member’s proposal provides the best value, based on cost and relevant experience for the Owner, the CM or CM team member may be awarded that portion of the Work.

2.2.2.2 If a selected Subcontractor defaults in the performance of its Work or fails to execute a subcontract after being selected in accordance with this paragraph, the CM may, without advertising, fulfill the contract requirements through selection of an alternate Subcontractor or self-performance, in each case with the Owner’s prior written approval. Owner shall be notified in the event of a Subcontractor default or failure to execute the subcontract.

2.2.2.3 Work identified pursuant to Exhibit B and performed directly by the CM shall be limited to 90% of the Phase II Construction Price unless a lower or higher percentage is requested and approved by the Owner. For any Work that will be performed by the CM, bids or request for proposal shall be submitted to and reviewed by the Owner’s Representative or any other neutral party as determined by the Owner to avoid a conflict of interest.

ARTICLE 3 — Owner Responsibilities

3.1 Owner Responsibilities

Owner shall be responsible for providing the information and delivering the materials set forth in Article 3 of the General Conditions.

ARTICLE 4 — Subcontracts and Labor Relations

4.1 Subcontractors

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The work not performed by the CM with its own forces shall be performed by Subcontractors. All subcontracts shall be issued on a Lump-Sum basis unless the Owner has given prior written approval of a different method of payment to the Subcontractor. Owner may require CM to competitively bid subcontracts for all services or supplies. CM may subcontract any services or supplies that are under $10,000 without the approval or competitive requirement to Subcontractors.

4.2 Labor Relations

4.2.1 Prevailing Wages.

4.2.1.1 Check if applicable: ☐Applicable laws. The current prevailing wage rate determinations for public works contracts by the Owner, the Director of the State Department of [LABOR / INDUSTRIAL RELATIONS], and, if federal funding is used for the Project, the current General Wage Determination Decisions, as determined by the US Secretary of Labor, as same may be changed during the term of this Agreement, are incorporated by this reference.

4.2.1.1.1 Check if applicable: ☐ Davis-Bacon. Should Owner

obtain federal funding for the Project, CM shall be responsible for ensuring that all subcontracts and Subcontractors fully comply with all applicable requirements of the Davis-Bacon Act, including but not limited to applicable prevailing wage, contractual provisions, and recordkeeping.

4.2.1.1.2 Check if applicable: ☐ CM shall pay any person

performing labor necessary to complete any portion of Work on the Project not less than the highest general prevailing rate of wages. If federal funds are used for the Project, where the minimum rate of pay for any classification differs among city, state, and federal wage rate determinations, the highest rate of pay shall prevail.

4.2.1.1.3 Check if applicable: ☐ CM shall include, in any

contract or subcontract relating to Work on the Project, a requirement that all persons performing labor under such contract or subcontract shall be paid not less than the highest prevailing rate of wages for the labor so performed.

4.2.2 Compliance Monitoring. CM shall require every subcontract to provide certified payroll reports with respect to all persons performing labor necessary to complete any portion of Work on the Project.

4.2.3 Nondiscrimination / Nonharassment. CM shall not engage in any form of discrimination or harassment because of race, color, creed, national origin, Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 11 ancestry, age, sex, sexual orientation, disability, or any other protected classification against any employee or applicant for employment on the Project.

ARTICLE 5 — Time

5.1 Performance of the Work

5.1.1 Date of Commencement. The Date of Commencement of the

Preconstruction Phase Services and Construction Services, as applicable, shall be as set forth in Subparagraph 5.1.1 of the General Conditions. The Work shall proceed in general accordance with the Schedule of Work as such Schedule may be amended from time to time, subject to other provisions of this Agreement. The Schedule is subject to allowable adjustments in the Contract Time as permitted herein or in the other Contract Documents.

5.1.2 Substantial / Final Completion. Unless the Parties agree otherwise, the Date of Substantial Completion and the Date of Final Completion shall be established pursuant to the Phase II Construction Price Amendment, subject to adjustments as provided for in the Contract Documents. If a Phase II Construction Price is not established and the Parties desire to establish a Date of Substantial Completion or Date of Final Completion, it shall be set forth via Amendment.

5.1.3 The CM shall not knowingly commence the Work before the effective date of insurance to be provided by the CM and Owner as required by the Contract Documents.

5.2 Schedule of the Work

5.2.1 The initial Schedule is attached hereto as Exhibit F.

5.2.2 Owner will timely review the baseline Schedule submitted by CM. If the Owner determines that additional supporting data are necessary to fully evaluate the Schedule, the Owner will request additional supporting data in writing. Such data shall be furnished no later than seven (7) days after the date of such request.

Owner will render a decision promptly and in any case within seven (7) days after the latter of the receipt of the Schedule update or the deadline for furnishing such additional supporting data. Owner shall review, approve, and/or provide comments in a reasonable time.

5.2.3 Contemporaneously with CM’s submission of its Phase II Construction Price Proposal in accordance with Phase II Construction Price Amendment, the CM shall submit to the Owner and, if directed, the Engineer, a Schedule Update, in compliance with the technical scheduling requirements attached hereto as Exhibit G and the requirements of this Paragraph 5.2, that shall show the dates on which the CM plans to commence and complete various parts of the Work, including dates on which information and approvals are required from the Owner.

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5.3 Contract Time, Delays, and Extensions of Time

5.3.1 The Contract Time is [NUMBER] days.

5.3.2 The Contract Time, as it may be modified from time to time in accordance with this Agreement and any other applicable Contract Documents, shall control the determination of liquidated damages payable to CM under Paragraph 5.4 and in the determination of any delay under Paragraph 5.3.

5.3.3 The CM will include [NUMBER] days of weather-related delays within the Project Construction Schedule. If the number of weather-related delays exceeds [NUMBER] days, the CM may be entitled to a commensurate extension of time and reimbursement of costs associated with the delay, including Construction General Conditions Costs, in each case as may be agreed upon by the Owner and CM but subject to the requirements of Article 5 of the General Conditions.

5.3.4 In the event delays to the Work are encountered for any reason, the CM shall provide prompt written notice to the Owner of the cause of such delays after CM first recognizes the delay. Excusable delays shall be adjusted upon and subject to the terms and conditions of Article 5 of the General Conditions.

5.3.5 A waiver of or failure by the Owner or Owner’s Representative to enforce any requirement in this Article 5 hereof or the requirements of Article 5 of the General Conditions, including, without limitation, the requirements in Paragraph

5.3 thereof, in connection with any or all past delays shall not constitute a waiver of, and shall not preclude the Owner or Owner’s Representative from enforcing such requirements in connection with any present or future delays.

5.4 Liquidated Damages

5.4.1 Substantial Completion. The Owner and the CM agree that this Agreement shall provide for the imposition of liquidated damages for any CM delay not excused by Paragraph 5.3 hereof or elsewhere in this Agreement.

5.4.1.1 The CM agrees that if the Work of the Project is not Substantially Completed on or before the Substantial Completion Date applicable to the Project or related Bid Package, the CM shall pay the Owner as liquidated damages and not as a penalty the sum of $[NUMBER] per day for each day of unexcused delay past the Substantial Completion Date. The liquidated damages provided herein shall be the sole and exclusive remedy for any unexcused delay in the performance of CM’s obligations hereunder and shall be in lieu of any and all other liability to the Owner for extra costs, losses, expenses, claims, penalties and any other damages of whatever nature (whether actual, compensatory, direct, indirect, special, consequential, punitive, or otherwise) incurred by the Owner and which are caused by any unexcused CM delay in timely achieving Substantial Completion on or before the Substantial Completion Date. The Parties

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 13 acknowledge and agree that it would be extremely difficult, if not impossible, to quantify the economic loss incurred by the Owner as a result of such unexcused delay, that the liquidated damages contemplated herein are reasonable and represent a fair approximation of the economic loss to be incurred by Owner as a result of such unexcused delay, and that such liquidated damages shall be enforceable to the maximum extent permitted under Applicable Law.

ARTICLE 6 — Compensation

6.1 CM’s Compensation for Preconstruction Phase Services

6.1.1 The Owner shall compensate CM for performance of the CM’s Preconstruction Phase Services outlined in Paragraph 2.1 hereof on the following basis: Cost of the Work Plus CM’s Fee Not to Exceed a Guaranteed Maximum Price. Such compensation shall be based on the direct personnel costs incurred by CM and includes the direct salaries of the CM’s personnel providing Preconstruction Phase Services on the Project and CM’s customary and mandatory contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, employee retirement plans and similar contributions and, unless otherwise provided, includes all sales, use, consumer, and other taxes mandated by applicable law, and appropriate fee applied to such costs.

6.2 CM Compensation for Early Work(s) Package(s)

6.2.1 If the Parties agree to negotiate Early Work Packages, refer to Exhibit D.

Services performed for Early Works shall be subject to this Agreement and the General Conditions and other provisions of the Contract Documents applicable to the Phase II Construction Services.

6.3 CM’s Compensation for Construction Phase Services

6.3.1 The Owner shall compensate the CM for Work performed and described in a Phase II Construction Price Amendment on the basis of either a Lump-Sum Phase II Construction Price or Guaranteed Maximum Price, in each case as set forth in such Phase II Construction Price Amendment and General Conditions.

6.4 Hourly Rates

6.4.1 Where Work or portions thereof performed by the CM for Preconstruction Phase Services is charged on an hourly rate basis, such Work shall be subject to and completed in accordance with the CM’s hourly rate schedule attached hereto as Exhibit H and incorporated herein by this reference and shall be inclusive of markup for overhead and profit. A separate hourly rate schedule for Construction Phase Services shall be attached to the Phase II Construction Price Amendment

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 14 upon Owner’s and CM’s mutual execution of the same and shall be at cost without markup for overhead and profit.

ARTICLE 7 — Changes

Changes in the Work that are within the general scope of this Agreement shall be accomplished, without invalidating this Agreement, by Change Order, Owner Change Directive, and Field Order, in each case in accordance with and subject to the terms and provisions of Article 7 of the General Conditions and any Phase II Construction Price Amendment executed in connection herewith for the Project.

ARTICLE 8 — Payment

Payments for Preconstruction Phase Services shall be made [MONTHLY] in proportion to services performed unless otherwise agreed, in writing, by Owner and CM. Payments are due and payable upon presentation of the CM’s request for payment. Amounts unpaid more than [NUMBER] days after the invoice date shall bear interest at the rate of (choose one) [NUMBER% / The statutory post judgement interest rate in effect on the date hereof in the state in which the project is located].

8.1 Payments for Construction Phase Services performed following the execution of a Phase II Construction Price Amendment for the same shall be made in accordance with such Amendment and the General Conditions.

ARTICLE 9 — Liability

9.1 Waiver of Consequential Damages

Except for (a) damages mutually agreed upon by the Parties as liquidated damages in Paragraph 5.4 hereof, and (b) subject to the following provisions set forth in this Paragraph 9.1, notwithstanding anything else herein to the contrary, the Owner and the CM agree to waive all claims against each other for any consequential or other special damages that may arise out of or relate to this agreement. The Owner agrees to waive consequential or other special damages including, but not limited to, the Owner’s loss of use of the Project, any rental expenses incurred, loss of tax abatements or credits, cost of substitute facilities or services, cost of purchased or replacement product or claims from customers or suppliers of Owner, loss of income, profit, or revenue related to the Project, as well as the loss of business, opportunity, loss of financing, principal office overhead and expenses, loss of profits not related to this Project, loss of reputation or goodwill and/or insolvency regardless of whether any of the foregoing are found to

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 15 be direct or indirect. The CM agrees to waive consequential damages including, but not limited to, loss of business, loss of financing, loss of profits not related to this Project, loss of bonding capacity, loss of reputation and / or insolvency. The provisions of this paragraph shall also apply to the termination of this Agreement and shall survive such termination.

9.2 CM’s Limitation of Liability

Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the maximum liability, in the aggregate, of the CM, its Subcontractors, sureties (if any) and their respective officers, directors, shareholders, employees, agents, successors and assigns to Owner and anyone claiming by, through, or under Owner for any loss, damage, suit, action, liability, claim, or expense caused by, resulting from, or arising out of or relating in any way to this Agreement or the Project from any cause whatsoever, including, without limitation, the negligence, breach of contract, strict liability, express or implied warranty, indemnity, professional errors or omissions, or any other cause arising at law or in equity, shall in all events be limited to and not exceed 100% of the Phase II Construction Price. This limitation has been freely bargained for by the Parties for valuable consideration and shall be enforceable to the maximum extent permitted by applicable law.

9.3 Releases, waivers, and limitations on liability and remedies expressed in the Contract Documents shall apply even in the event of the fault, tort (including negligence), strict liability, breach of contract or warranty, or other basis of liability of the benefited Party, and shall extend to and benefit the Subcontractors, agents, employees, officers, directors, assignees, affiliates, and vendors and each of their respective Subcontractors, agents, employees, officers, directors, assignees, affiliates, and vendors of each Party.

ARTICLE 10 — Dispute Mitigation and Resolution

10.1 Claims Procedures

Claims procedures are governed by Article 11 of the General Conditions.

10.2 Preconstruction Phase Services

If, during the Preconstruction Phase Services the Parties cannot reach resolution on a matter relating to or arising out of the Agreement, the Parties shall endeavor to reach resolution through good faith direct discussions between the Parties’ representatives, who shall possess the necessary authority to resolve such matter and who shall record the date of first discussions. If the Parties’ representatives

Copyright © 2023 Water Collaborative Delivery Association | CM Agreement 16 are not able to resolve such matter within five (5) business days from the date of first discussion, the Parties’ representatives shall immediately inform senior executives of the Parties in writing that resolution was not affected. Upon receipt of such notice, the senior executives of the Parties shall meet within five (5) business days to endeavor to reach resolution. If the dispute remains unresolved after fifteen (15) days from the date of first discussion, the Parties shall submit such matter to the mediation procedures identified in Paragraph 11.2.2 of the General Conditions as a condition precedent to any judicial forum or voluntary binding alternative dispute resolution proceeding subsequently agreed to by the Parties.

10.3 Construction Phase Services

During the Construction Phase Services, the Parties shall resolve any disputes between them in accordance with the dispute mitigation and resolution procedures selected by them in Article 11 of the General Conditions.

ARTICLE 11 — Miscellaneous Provisions

11.1 Governing Law

This Agreement shall be governed by the law in effect at the location of the Project.

11.2 Severability

The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision.

11.3 No Waiver of Performance

The failure of either Party to insist, in any one or more instances, on the performance of any of the terms, covenants, or conditions of this Agreement, or to exercise any of its rights, shall not be construed as a waiver or relinquishment of such term, covenant, condition, or right with respect to further performance or any other term, covenant, condition, or right.

11.4 Titles and Groupings

The titles given to the articles of this Agreement are for ease of reference only and shall not be relied upon or cited for any other purpose. The grouping of the articles in this Agreement and of the Owner’s Specifications under the various headings is solely for the purpose of convenient organization and in no event shall the grouping of provisions, the use of paragraphs, or the use of headings be construed to limit or alter the meaning of any provisions.

11.5 Joint Drafting

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The Parties expressly agree that this Agreement was jointly drafted, and that both had opportunity to negotiate its terms and to obtain the assistance of counsel in reviewing its terms prior to execution. Therefore, this Agreement shall be construed neither against nor in favor of either Party but shall be construed in a neutral manner.

11.6 Compliance with Section 306 of the Clean Air Act and Section 508 of the Clean Water Act

Contractor must maintain compliance with Section 306 of the Clean Air Act and Section 508 of the Clean Water Act requirements.

11.7 Compliance with Minority and Women's Business Enterprise Goals (MBE/WBE)

The contractor must demonstrate a "good faith effort" in the solicitation and utilization of Minority and Women's Business Enterprises (MBE/WBE) during the bid process in order to be considered a responsive bidder. Efforts such as public notice and/or direct telephone or postal solicitations must be undertaken. Evidence of these efforts as well as information regarding the anticipated utilization of MBE/WBE firms must be presented and must demonstrate a "good faith effort".

11.8 Compliance Civil Rights Act of 1964

Contractor must maintain compliance with the Civil Rights Act of 1964

11.9 Compliance with Age Discrimination Act of 1975, Rehabilitation Act of 1973, and the prohibition against sex discrimination

Contractor must maintain compliance with Age Discrimination Act of 1975, Rehabilitation Act of 1973, and the prohibition against sex discrimination

11.10 Compliance with Equal Employment Opportunity

Contractor mush maintain compliance with Equal Employment Opportunity reequipments.

11.11 Counterparts; Electronic Signatures

This Agreement, the General Conditions, and other Contract Documents may be executed in counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. Facsimile or electronic signatures on this Agreement and/or the other Contract Documents, as applicable, shall be deemed originals for all purposes.

11.12 Procurement of goods and materials from Small Businesses

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Procurement of goods and materials from Small Businesses in Rural Areas of the Commonwealth of Virginia wherever practical and feasible

11.13 Drug-free Workplace

Contractor or subcontractor shall maintain a drug-free workplace during the performance of contract duties for any wastewater revolving loan-assisted project

11.14 Attorneys’ Fees

In the event of any claim, controversy, or dispute involving this Agreement, the Parties’ performance hereunder or interpretation hereof, the substantially prevailing Party in such claim, controversy, or dispute shall be awarded its reasonable attorneys’ fees and costs, including attorneys’ fees and costs of any associated appeal.

11.15 Exhibits, Schedules, and Addenda

Exhibits, schedules, and addenda bearing on the payment and performance of the Construction Phase Services will be attached to the Phase II Construction Price Amendment for such Construction Phase Services. The following exhibits pertaining to the Preconstruction Phase Services are attached hereto and incorporated herein by this reference:

Exhibit A General Conditions to Agreement

Exhibit B CM Phase I Preconstruction Scope of Services

Exhibit C Phase I Notice to Proceed

Exhibit D Phase I Early Work(S) Package(S) (if applicable)

Exhibit D.1 Phase I Early Work(S) Package(S) Amendment Form (if applicable) [Refer to Phase II Construction Price Amendment Template for completion of Early Works Amendment]

Exhibit E Phase II Construction Price Amendment

Exhibit F Initial Schedule of Work

Exhibit G Project Technical Scheduling Requirements

Exhibit H Preconstruction Phase Services Hourly Rate Schedule

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Exhibit I Project Technical Performance Requirements

Other [LIST]

11.16 Other Provisions

[INSERT OTHER PROVISIONS, IF ANY, THAT PERTAIN TO THIS

AGREEMENT.]

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This Agreement is entered into as of the date entered in Article 1.

OWNER: ____

BY:

PRINT NAME _____

PRINT TITLE

CONSTRUCTION MANAGER (CM)

BY:

PRINT NAME

PRINT TITLE

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Exhibit A—General Conditions to Agreement

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Exhibit B—CM Phase I Preconstruction Scope of Services

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Exhibit C—Phase I Notice to Proceed

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Exhibit D—Phase I Early Work(s) Package(s) (if applicable)

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Exhibit D.1—Phase I Early Work(s) Package(s) Amendment Form (if applicable)

[Refer to Phase II Construction Price Amendment Template for Completion of Early Works Amendment]

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Exhibit E—Phase II Construction Price Amendment

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Exhibit F—Initial Schedule of Work

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Exhibit G—Project Technical Scheduling Requirements

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Exhibit H—Preconstruction Phase Services Hourly Rate Schedule

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Exhibit I—Project Technical Performance Requirements