CMGC Sample Construction Agreement CC.pdf

Entity Name

CMGC CONSTRUCTION CONTRACT

THIS CONSTRUCTION CONTRACT (the “Construction Contract”) is made between the CITY OF COMMERCE CITY, a home rule and municipal corporation of the State of Colorado (the “City”) and [ENTITY NAME], a [STATE/TYPE OF CO] authorized to do business in Colorado, whose address is [ADDRESS] (“the Contractor”), jointly (“the Parties”).

RECITALS

1. The City wishes to build the [PROJECT NAME] [PROJECT DESCRIPTION].

CONTRACT CONTROL NO. ______________________, (the “Project”).

2. The Project will be implemented by the [AGENCY] [PROJECT NAME] [PROJECT

DESCRIPTION.]

3. In furtherance of the Project, the City contracted with [DESIGNER]. (the “Designer” or “Design Consultants” or “Consultant Team”) to perform professional architectural and engineering design services for the programming and design of the Project.

4. Pursuant to City procurement policies, the City commenced on _______________________, and advertised for at least three (3) consecutive days, the City’s solicitation for qualification submissions from qualified contractors for the Project.

5. The City’s solicitation sought a contractor to furnish all Construction Manager/General Contractor (“CM/GC”) work and services including preconstruction services and construction services, work effort, labor, tools, supplies, manufactured components, equipment, materials, construction administration, management, supervision, coordination and everything else necessary and required to complete the construction of the Project on an expedited basis and within budget; while satisfying the City’s longstanding commitment to quality, efficiency, value, innovation, partnering, responsiveness to agency and community needs and in compliance with all applicable regulatory requirements.

6. Submissions received pursuant to said advertisement were evaluated and formal proposals were requested from selected firms best meeting the City’s qualifications criteria for this Project.

7. Proposals received were evaluated and ranked by a selection committee and a recommendation was made to the City’s [AGENCY] or Director Designee, (“Director”) who evaluated the Proposals and recommended that contracts for performance on the Project be made and entered into with the above-named Contractor.

8. Based upon that ranking, the City and the Contractor entered into a Preconstruction Services

Agreement, Contract No. [Contract and Amendments listed here], to perform preconstruction services.

9. In accordance with the terms and conditions of the Preconstruction Services Agreement, the

Contractor has reviewed the Project Site and design documents and has performed constructability, availability, scheduling and cost estimating analysis on design documents prepared for the Project.

10. Based on this performance, the Contractor is thoroughly informed about the Project and the Project design. Contractor has submitted and the City has accepted an [Initial] GMP Proposal for long lead equipment and materials. The Parties anticipate revising this agreement by written amendment to replace the initial GMP with a revised GMP that will include all construction work, materials, equipment and services necessary to complete the Project.

11. As a consequence of the Project’s time limitations and in order to maintain the existing Project schedule, the Contractor and the City now desire to enter into a Construction Manager/General Contractor contract (the “Construction Contract”) for a Guaranteed Maximum Price to procure long lead equipment and materials. (for all of the Work necessary to complete the Project.)

12. The Contractor is willing, able and has the present capacity to perform the construction phase services, as an independent contractor, in accordance with this Construction Contract, said advertisement, the preconstruction agreement and the referenced selection documents.

NOW THEREFORE, in consideration of the compensation to be paid the Contractor, the mutual agreements hereinafter contained, and subject to the terms hereinafter stated, it is mutually agreed as follows:

1.0 PROJECT SUMMARY AND DEFINITIONS

1.1 Project. The “Project” as used herein shall mean:

The _____________________ and Site Improvements.

1.1.1 The Project includes the preconstruction and construction management services for approximately

_____________ sq. ft. of new facilities that houses the [PROJECT NAME] [PROJECT DESCRIPTION] and surrounding sitework.

1.1.2 The Project is located at the ___________________________ (the “Project Site”) as shown on Exhibit

1.1.3 The details of the Project are more particularly set forth in the ______________ Schematic Design

Package including the drawings, specifications and narratives prepared by the Designer dated _______________, the [___% Schematic Design / Construction dated ______________], (the “Design Documents”) and the Initial GMP Proposal dated _______________ (the “Initial GMP Proposal”). The Initial GMP Proposal is for long lead equipment and materials. The Parties anticipate amending this agreement and replacing the Initial GMP Proposal with a Revised GMP Proposal when construction drawings are 75% complete. Pricing agreed to in the Initial GMP Proposal will carry over into the Revised GMP Proposal and will not be renegotiated.

1.2 Guaranteed Maximum Price. The Initial GMP Proposal is a Guaranteed Maximum Price to procure long lead materials and equipment for the Project (the “GMP”). The Parties anticipate amending this agreement and replacing the initial GMP with a revised and final GMP by written amendment. The revised GMP will include all materials, equipment, work, costs and contractor services to complete the Project and become the single Guaranteed Maximum Price (the “GMP”), as defined in this Agreement, to complete the Project.

1.3 Contractor Selection. The City implemented and completed a competitive selection process to identify qualified Contractors to perform both preconstruction and construction services for the Project. The Contractor was selected as the first ranked proposer to perform such services for the City as set forth in the City’s Request for Proposals (the “RFP”) dated ____________; and the Contractor’s Response dated _____________ and _______________. In referencing these solicitations and submissions herein, the City and the Contractor acknowledge that the scope of the Project, as presented and addressed by these documents, has materially evolved since the issuance of these documents and that some information presented will not be applicable to this Construction Contract or the Project.

1.4 Budget. The Contractor acknowledges and accepts that there are limited funds available to design and construct the Project. The Project construction budget (the “Budget”) is ________________________ DOLLARS AND NO

CENTS ($000,000,000.00) and is subject to increase or decrease at the sole discretion of the Director. Contractor further acknowledges and accepts that the Project must be completed within the construction budget. As part of this acknowledgment and acceptance, the Contractor shall at all times cooperate fully with the City and the Design Consultant to develop the Project and its various components for construction and ultimately construct the Project so as not to exceed the limited funds available in the Budget.

1.5 Project Format. In the performance of this Construction Contract, the Contractor acknowledges and accepts that scope and schedule are critical for Project delivery. Based on these considerations, the City has elected to utilize a Construction Manager/General Contractor (“CM/GC”) project delivery approach and will fast track the Project.

1.5.1 The Contractor is familiar with this approach and understands that the CM/GC method is a specialized and rigorous delivery approach requiring maximum cooperation between all Parties. As a consequence of the delivery approach, the Contractor acknowledges and accepts the following: (1) that the complete services to be rendered by the Contractor, the organizational and process inter-relationships governing construction and the construction cost, schedule and sequencing are either in the developmental stage or have not yet been fully defined; and (2) that portions of the Project could have their design completed as separate phases.

1.5.2 In preparing and submitting its GMP proposal, the Contractor understands, confirms and agrees that its responsibility under this CM/GC approach is to construct the Project in accordance with the Contract Documents. It is further understood and accepted that because the GMP will be based, in part, on incomplete design documents, the Contractor shall exercise reasonable care and its best diligence, efforts and judgment to determine the intent of the most recent Project design documents, has or will have carefully considered this intent, both express and inferable, in calculating the GMP and has or will have based all of its GMP calculations on the scope of work, program and standards of workmanship, and quality of construction, equipment, materials and finishes that can be inferred from the most recent design documents and any documented Project expectations and/or requirements provided to the Contractor.

1.5.3 Subject to any allowed contingency provided for in Section 1.7.1, the Contractor further acknowledges and agrees the GMP fully accounts for any risks associated with failing to consider the design intent reasonably inferable from the Contract Documents. The Contractor has documented in its (Initial/Revised) GMP proposal any and all clarifications regarding the design intent, including the intended level of quality of the Project. No GMP increase or extension of the Contract Time will be allowed to account for any assumption, exclusion and clarification the Contractor failed to document or for any other item of Work covered by the Contract Documents that the Contractor failed to account for in its (Initial/Revised) GMP proposal.

1.6 Allowances. The allowances set forth in Contractor’s (Initial/Revised) GMP Proposal have been accepted by the Project Manager. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the City may direct, but the Contractor shall not be required to employ any persons or entities against which the Contractor may make reasonable objection. Contractor’s (Initial/Revised) GMP Proposal sets forth all allowances applicable to the Work. Unless otherwise provided for in the Contract Documents:

1.6.1 Contractor will provide the Project Manager with proposed deadlines for the City to select materials and equipment under allowances within 90 days of the City issuing the Notice to Proceed. The City and Contractor will agree on final deadlines that avoid delays in the Work while providing the City sufficient time to make selections.

Deadlines may be adjusted by mutual agreement of the Contractor and the Project Manager;

1.6.2 Allowances shall cover the cost to the Contractor of materials and equipment delivered at the Project

Site and all required taxes, less applicable trade discounts;

1.6.3 Contractor’s costs for unloading and handling at the Project Site, labor, installation costs, and other expenses contemplated for the stated allowance amounts are included in the allowances. However, Contractor’s home office overhead and profit for all allowance items are included in the Contractor’s Fee and are not in the allowance; and

1.6.4 Whenever costs are more than or less than the allowances, the GMP shall be adjusted accordingly by change order. The amount of the change order shall reflect the difference between actual costs and the allowances. If actual costs exceed allowances, the change order shall include Fee on the difference in accordance with allowable Contractor Fee under the Construction Contract.

1.7 GMP Contingency.

1.7.1 GMP Contingency Amount. The GMP includes a Construction Contingency in an amount equal to a lump sum of ____________________________________________ DOLLARS AND NO CENTS ($0,000,000.00) (“GMP Contingency”) to complete the Project.

1.7.2 GMP Contingency Accounting. The (Initial/Revised) GMP Proposal is not a line item GMP. During the course of the Work, some (Initial/Revised) GMP Proposal line items may exceed the estimated amounts and others may under run the estimated amounts shown in the (Initial/Revised) GMP Proposal without impacting the overall GMP.

The Contractor may charge to the GMP Contingency any costs which are properly reimbursable as Cost of the Work, but not the basis for a Change Order. These costs may include costs attributable to errors and omissions by the Contractor; costs to correct defective, nonconforming or damaged work; costs arising out of code changes or code upgrades required by governmental agencies; costs generated from development and clarification of the Contract Documents; overtime and acceleration costs to meet the contract schedule; and costs, including legal fees, for contractual disputes, with Parties other than the City. The GMP Contingency shall be increased to the extent that there are underruns in budget items included in the GMP that are not allowances. The Contractor shall request written approval of the Project Manager of each such charge or credit to the contingency prior to taking such action and shall provide a periodic reconciliation of contingency credits and expenditures in a format acceptable to the Project Manager.

1.7.3 Contingency Management. The Contractor acknowledges that, subject to available funding, it is the desire of the City to incorporate as many additional Work items into the Work as reasonable or otherwise increase the Work to be performed by the Contractor to enhance the Project. The Contractor agrees to accept a mutually agreeable reduction of the GMP Contingency whenever the City and the Contractor reasonably agree that the Project risk is substantially decreased and such agreement shall not be unreasonably withheld. Unused GMP Contingency shall be returned to the City.

1.8 Design Consultant. The “Design Consultant” or “Designer” as used herein shall mean the legally approved professional architect/engineer, or group or association or professional corporation or joint venture of such approved professional architects, engineers and/or consultants, who have contracted with the City to accomplish the architectural, engineering and other design and related technical services necessary to complete the Project. The Project Design Consultant is __________________________. In case of termination of the Design Consultant, the City will appoint a Design Consultant whose status under the Construction Contract shall be the same as that of the former Design Consultant.

1.9 User Agency. The “User Agency” as used herein shall mean the _____________.

1.10 Construction Team. The Contractor, the City, and the Design Consultant, called the “Construction Team,” shall work together to complete the Project. The Contractor shall provide leadership to the Construction Team on all matters relating to Construction.

2.0 CONTRACT DOCUMENTS

2.1 It is agreed by the Parties hereto that the following list of instruments, drawings and documents which are attached hereto, bound herewith or incorporated herein by reference constitute and shall be referred to as the “Contract Documents” and all of said instruments, drawings and documents taken together as a whole constitute the Contract and Agreement between the Parties hereto, and they are as fully a part of this Contract and Agreement as if they were set out verbatim and in full herein. The Contract Documents represent the entire and complete integration of all understandings between the City and the Contractor and supersedes all prior negotiations, representations or agreements. No prior or contemporaneous addition, deletion or other amendment hereto shall have any force or effect whatsoever, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion or other amendment hereto shall have any force or effect unless embodied in a written amendatory or other agreement or change order properly executed by the Parties. When the contract drawings and technical specifications are complete and issued by the Design Consultant for construction, they will, without further action be incorporated into this Construction Contract as if fully set forth herein.

This CM/GC Construction Contract

The City’s Request for Proposals, dated _______________ (RFP) (incorporated herein by reference).

Contractor’s Response to RFP dated __________________ and Contractor’s RFP Submittal dated ________________ (incorporated herein by reference).

Construction Contract General Conditions, (incorporated herein by reference; table of contents attached as Exhibit A).

Special Contract Conditions (attached as Exhibit B).

Preconstruction Services Agreement, dated _______________, with Amendments dated _______________, and ________________, (incorporated herein by reference as Exhibit C).

Equal Employment Opportunity Provisions (attached as Exhibit D).

Performance and Payment Bond (attached as Exhibit E).

Final/Partial Lien Release Form (attached as Exhibit F).

Notice to Proceed Form (attached as Exhibit G).

Contractor’s Certification of Payment Form (attached as Exhibit H).

Certificate of Contract Release (attached as Exhibit I).

Design Documents: [PROJECT NAME] Schematic Design Package including the drawings, specifications and narratives prepared by the Designer dated ____________________, and the [_________] Schematic Design dated _____________, (incorporated herein by reference as Exhibit J).

Equipment Rental Rates (attached as Exhibit K).

Billing Rates for Staffing and Salaried Schedule (attached as Exhibit L).

Contractor’s (Initial/Revised) GMP Proposal dated _______________, (attached as Exhibit M).

Contractor’s (Initial/Revised) GMP Proposal Summary (attached as Exhibit N).

Certificate of Insurance (attached as Exhibit O).

Approved Self-Performed Work Proposal (attached as Exhibit P).

2.2 If anything in the Contract Documents is inconsistent with this Construction Contract, this Construction Contract will govern. The order of precedence of the Contract Documents shall be as follows:

2.2.1 this Construction Contract, as may be modified by amendment or change orders;

2.2.2 the Special Contract Conditions;

2.2.3 the General Contract Conditions;

2.2.4 the Technical Specifications;

2.2.5 the Contract Drawings; and

2.2.6 the (Initial/Revised) GMP

2.2.7 all other Exhibits, whether attached to this Construction Contract, incorporated by reference or later added by Change Order.

2.3 The intent of the Contract Documents is to include all terms, conditions, work items and services necessary or required for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be binding as if required by all. Work items or services not covered in the Contract Documents will be required unless they are not consistent with the Contract Documents and are not inferable from the Contract Documents as being necessary to produce the result intended by the Contract Documents. Anything mentioned in the technical specifications and narratives and not shown on the contract drawings or shown on the contract drawings and not mentioned in the technical specifications and narratives, shall be of like effect as if shown or mentioned in both. Words and abbreviations that have well known technical or trade meanings are used in the Contract Documents in accordance with such recognized meaning.

2.4 It is contemplated by the Parties that numerous exhibits or attachments, including construction documents and final technical specifications, will not be accomplished or must be developed after execution of this Construction Contract and, as such, must be finalized, incorporated by reference and/or attached to and be made a part of the Contract Documents subsequent to execution of this Construction Contract. The incorporation of such exhibits or attachments into this Construction Contract shall be accomplished by written directive from the Director of Public Works or the Director’s designee. The Parties shall be diligent in accomplishing these exhibits and attachments. To the extent these new exhibits or attachments conflict with other exhibits or portions of this Construction Contract, the greater service, better quality or greater quantity shall be included in the Work.

2.5 Where reference is made in this Construction Contract to a provision of the General Conditions or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents.

3.0 SCOPE OF WORK

3.1 Completion Obligation. The Contractor shall execute the Project described in the Contract Documents, except to the extent specifically indicated in the Contract Documents as the responsibility of others. The Contractor agrees to commence and undertake the performance of the Work under this Construction Contract within ten (10) days of the date of issuance of a Notice to Proceed in substantially the form attached as Exhibit G and agrees to substantially complete said Work within the Contract Time and fully complete said Work in accordance with the Contract Documents. The Contractor may complete the Project earlier than the date for Substantial Completion established by the Contract Time, but any claim by the Contractor based on delay shall be based upon the date for Substantial Completion established by the Contract Time and not on an earlier projected completion date that the Contractor may propose.

3.2 Scope of Work. The entire Scope of Work shall include the following:

3.2.1 Preconstruction Phase Services. The Preconstruction Services are comprised of all those services, obligations and responsibilities set forth in the Preconstruction Services Agreement, incorporated herein by this reference as Exhibit C. In order to expedite Project completion, the Parties entered into the Preconstruction Services Agreement to perform Preconstruction Services, in anticipation of the start of the Construction Phase of the Project. In accordance with the terms of the Preconstruction Services Agreement, compensation for the performance of such services is based on a lump sum fee for services. For the duration of this Construction Contract, the Contractor shall continue to perform any further Preconstruction Services required by the Project as part of its obligations under this Construction Contract as a Cost of the Work with no increase to the GMP.

3.2.2 Construction Services. The Construction Services shall include the furnishing of all construction administration, management, supervision and coordination experience and expertise, as well as all construction services, work effort, labor, tools, supplies, manufactured components, equipment, materials, and everything else necessary and required to complete the construction of the Project on time and within budget; while satisfying the City’s longstanding commitment to quality, efficiency, value, innovation, partnering, responsiveness to agency and community needs and compliance with all applicable regulatory requirements in the performance of general public improvements.

Compensation for the Construction Services shall be in accordance with the terms and conditions of this Construction Contract.

3.2.3 Scope of Work. The Contractor shall perform all Construction Services, as set forth in the

(Initial/Revised) GMP Proposal, attached as Exhibit M.

3.2.4 The Work. The terms “Scope of Work” or “Work” as used herein shall mean all construction services required by, or reasonably inferable from, the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to necessary to complete the Project.

3.3 Acknowledgement of Scope of Work. The Contractor expressly recognizes and acknowledges that this Project must be completed within the time and fiscal constraints as set forth throughout this Construction Contract.

3.3.1 The Contractor further represents to the City that by executing this Construction Contract, it has been fully informed of and has thoroughly reviewed the following: the objectives of the Project; the work effort of the Design Consultant performed to date for the Project; all of the Contract Documents attached to this Construction Contract or incorporated by reference; the City’s general time and budget constraints and contingencies applicable to the Budget;

and all of the Work required by the Contractor by the Contract Documents. Based upon this thorough review and analysis and recognizing that the contract for design services is between the City and the Designer, the Contractor nonetheless represents to the City that it will provide or perform all of the necessary Work within the requirements of the Contract Documents.

3.3.2 Also by execution of this Construction Contract, the Contractor covenants and represents that the

Contractor has visited the Project Site and has had sufficient time and opportunity to independently examine and is sufficiently familiar with: the Project Site, the character and nature of the Project Site layout and materials, the character and nature of all Project Site constraints, restrictions and limitations, and limitations on ingress, egress and construction staging and performance; and the local conditions under which the Work is to be performed, including weather conditions and any other factors which may impact the Work. The Contractor further represents that it has taken into consideration and correlated these direct observations, examinations and investigations with the requirements of the Contract Documents and in the pricing of the Work, the formulation of the GMP, the Contractors Fee and in preparing all Exhibits.

3.3.3 Also by execution of this Construction Contract, the Contractor represents that it has reviewed and is familiar with the City’s general expectations and scheduling assumptions regarding the completion of the Project and opening of the completed facility and that, given the Scope of Work, these scheduling assumptions are reasonable and achievable. The Contractor further represents that it will take into consideration and correlate these assumptions and constraints with the requirements of the Contract Documents and in the pricing of the Work, the GMP and the Contractor’s Fee.

3.3.4 Finally, the Contractor represents that it has reviewed the Design Consultant Agreements and the

Design Documents, accepts the terms and requirements thereof and affirmatively states that the Project, as expressed by the design documents and the Project requirements and constraints is a reasonable and constructible Project, incorporating a reasonable and workable delivery approach, schedule and budget.

4.0 RELATIONSHIP OF THE PARTIES

4.1 The Parties intend herein to establish a relationship wherein the City relies upon the integrity and fidelity of the Contractor to complete the Project within the time and budget constraints set forth in this Construction Contract and in a manner which satisfies the City’s longstanding commitment to quality, efficiency, value, innovation, partnering, responsiveness to agency and community needs and compliance with all applicable regulatory requirements in the performance of general public improvements.

4.2 The Contractor accepts the relationship of trust and confidence established by this Construction Contract with the City. The Contractor further agrees to utilize the Contractor’s best skills, efforts, and judgment in furthering the interests of the City regarding the Project; to furnish at all times an adequate supply of qualified and competent workers and quality materials; and to perform the work in the best, most expeditious, and economical manner. Further, the Contractor agrees to furnish efficient business administration, construction management and superintendence and to use its best efforts to complete the Work in an expeditious and economical manner, consistent with the interests of the City.

4.3 The City has a separate agreement with the Design Consultant to design the Project and to provide construction contract administration services necessary to ensure that the Work conforms to the Design Documents and Technical Specifications. Both the Contractor and the Design Consultant shall be given direction by the City, or the City’s designated and authorized representative(s). The Contract Documents shall not be deemed to create any contractual relationship between the Design Consultant and the Contractor or any separate contractors, subcontractors of any tier or suppliers on the Project. The relationship between the Contractor and the Design Consultant is intended to be cooperative and proactive, with both participating on the same team with the City.

4.4 The Contractor shall accept the designated and authorized representatives of the City identified in the Contract Documents and perform its obligations toward and in response to such representatives in the same manner it would toward and in response to the City, pursuant to such designation and authorization.

5.0 COORDINATION AND COOPERATION

5.1 The Contractor agrees to cooperate and coordinate fully with the City in its performance of the Work to meet or exceed the City’s time and budgetary objectives and limitations, while maintaining the City’s longstanding commitment to quality, efficiency, value, innovation, partnering, responsiveness to agency and community needs and compliance with all applicable regulatory requirements in the construction of general public improvements.

5.2 The Contractor shall, as a continuing work item under this Construction Contract, facilitate coordination, communication and cooperation regarding its performance hereunder between the Project Manager, the Design Consultant, the User Agency, other City consultants and any affiliated entities. In addition, the Contractor shall coordinate its efforts under this Construction Contract with all involved governmental and regulatory entities.

5.3 The Contractor shall be responsible for taking accurate and comprehensive minutes at all construction meetings attended by the Contractor regarding the Project. Those minutes shall be prepared in a format approved by the Project Manager and issued to all attendees, as well as those other parties designated by the City, no later than three working days after the meeting. Unless approved in advance in writing by the Project Manager and to the greatest extent practicable, Project meetings with the City shall be conducted in the City of Commerce City, Colorado.

5.4 Nothing contained in the Contract Documents shall be deemed to give any third party any claim or right of action against the City, the Design Consultant or the Contractor that does not otherwise exist without regard to the Contract Documents.

5.5 The Contractor shall use its best efforts and take all necessary precautions to protect and prevent damage and/or disruption to all City facilities and equipment and shall coordinate all ingress and egress requirements with appropriate persons and agencies.

6.0 CONTRACT TIME, SUBSTANTIAL COMPLETION AND LIQUIDATED DAMAGES

6.1 Substantial Completion. The term “Substantial Completion” is defined in the General Conditions. The number of days the Contractor shall have to attain Substantial Completion of the Scope of the Work set forth in the Contract Documents is set forth in this Section.

6.2 Contract Time. The term “Contract Time” is defined as the total number of days between the date of the Notice to Proceed with Construction and the date on which Substantial Completion of all Work must be completed by the Contractor. The Contract Time shall be: _____________ Calendar Days.

6.3 Final Completion. Final Completion of the Work occurs following Substantial Completion when all punch list items are completed and the Contractor has provided the City with a Final Lien release Form (which may be contingent upon receipt of Final Payment, in the form of Exhibit H). The term “Final Completion” is defined in the General Conditions.

6.4 Liquidated Damages. The Parties recognize and agree that time is of the essence for this Contract. In the event that the Work is not Substantially Complete within the Contract Time, as that time may be extended for delays for which an extension of time is permitted under the terms of the Contract Documents, the City and the Contractor acknowledge and agree, after a full discussion of the implications of this section, that it would be impractical and extremely difficult to estimate the damages (including, by way of example but without limitation, direct and indirect, incidental, special and consequential damages) which the City might incur for failure of the Contractor to timely achieve Substantial Completion within the Contract Time. Therefore, the City and the Contractor have determined that a reasonable estimate of the total detriment that the City would suffer in the event that the Contractor so defaults and the Project is not Substantially Complete within the Contract Time, as extended as permitted herein, is and shall be, in the event of said default and failure, as the sole and exclusive remedy (whether at law or in equity) of the City for this delay, and not as a penalty, the amount per day stated below that the Work shall remain not Substantially Complete after the Contract Time, as applicable, including extensions, has elapsed. It is understood and agreed that the City reserves all of its other rights and remedies for any other or different breach or default of this Construction Contract by Contractor, or for any other cause of action.

Amount Per Day $___________

[There is a potential for multiple milestones as opposed to a single Substantial Completion date. This will be clarified as part of the preconstruction phase]

The Parties agree that the foregoing amount shall be the full amount of liquidated damages recoverable against the Contractor by the City for the Contractor’s breach of its covenants of timely performance hereunder. The amount so determined shall be the full, agreed upon and liquidated damages recoverable against the Contractor by the City for the Contractor’s breach of its covenants of timely performance hereunder. This paragraph 6.4 replaces General Contract Condition 602 but does not limit other rights and remedies of the City set forth in the General Contract Conditions.

7.0 Subcontractor Selection. The Contractor recognizes and accepts that the subcontractor and supplier selection and contracting procedures specified herein are intended to promote pricing or buyout of the Work which is fair and reasonable and, to the greatest extent practicable, is based on fair and open competition. As such, all Work, except for Work or Services included in the Contractor’s Fee, or the Contractor’s General Conditions or change order work performed by the Contractor with the prior written approval of the Project Manager shall be procured based upon competitive bids awarded to the lowest, responsive and qualified bidder and subcontracted to “Subcontractors” and “Suppliers,” which may include Contractor Self-Performed Work under Section 7.1, in accordance with Exhibit P and in compliance with the General Conditions, incorporated herein by reference as Exhibit A. Each Subcontractor and Supplier selection shall be reviewed by the City and the City reserves the right to reject any Subcontractor or Supplier in accordance with the terms and conditions of the General Conditions or in the event the City determines that the selection was not made after a competitive bid. The City may with the express written approval of the Project Manager waive the competitive bid requirement of this Section for Field Order/Change Directive work, Change Order work, to avoid delay, for safety reasons or when other exceptional or unusual situations make obtaining multiple bids impractical.

7.1 Self-Performed Work.

7.1.1 Upon prior written approval of the Project Manager, the Contractor may compete for designated

Subcontractor or Supplier Work packages. Should the Contractor submit a proposal for any such package, such proposal shall be submitted directly to the Project Manager prior to any proposal deadline and all bid or selection requirements shall apply to proposal or bid opening and evaluation. The Project Manager shall review with the Contractor all bids submitted where the Contractor has submitted a bid and shall make the final award after consultation with the Contractor. The City must approve any Self-Performed Work award to the Contractor.

7.1.2 The Contractor’s Approved Self-Performed Work Proposal is attached as Exhibit P. Such final

Proposal shall be for the scope of work described in the GMP Self-Performed Work Proposal attached hereto as Exhibit P and, under no circumstances, shall the proposal exceed the maximum amount for such work set forth in Exhibit M.

7.2 Subcontract Forms. All subcontracts will be between the Contractor and the selected Subcontractors or Suppliers. The form of each subcontract shall be furnished to the City for review and acceptance as to form, which acceptance shall not be unreasonably withheld. All subcontracts shall require that all Subcontractors or Suppliers of any tier performing Work accept and agree to be bound by the terms and conditions of the Contract Documents and to assume toward the Contractor all obligations and responsibilities the Contractor, by the Contract Documents, assumes toward the City. All subcontracts shall preserve and protect the rights of the City under the Contract Documents with respect to the Work to be performed by the Subcontractor so that the subcontracting thereof shall not prejudice these rights.

7.3 Substitution. The Contractor shall make no substitution for a Subcontractor or Supplier previously selected without the prior written approval of the Project Manager and such approval shall not be unreasonable withheld.

7.4 Responsibility. The Contractor shall be responsible to the City for the acts and omissions of its agents and employees, Subcontractors and Suppliers of any tier, and their agents and employees performing Work under this Construction Contract.

8.0 COMPENSATION

8.1 Cost of the Work. The term Cost of the Work shall consist of costs necessarily incurred in the proper performance of the Work for the Project as delineated below which shall be paid by the City to the Contractor. Cost of the Work shall not include any Fee of the Contractor. Any allowable mark-up by the Contractor is included in the Contractor’s Fee. Cost of the Work shall consist of the following Contractor incurred items set forth below:

8.1.1 Cost of wages paid for labor in the performance of the Work at the Project Site or with the City’s agreement at offsite workshops.

8.1.2 Cost of contributions, assessments or taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries or other remuneration paid pursuant to Section 8.1.1.

8.1.3 Cost of mock-ups and testing, as may be previously approved by the Project Manager.

8.1.4 Cost of all materials, supplies and equipment incorporated in the Work, including costs of transportation thereof.

8.1.5 Payments properly made by the Contractor to Subcontractors and Suppliers under Project subcontracts for performance of portions of the Work including insurance required by this Contract and bond premiums incurred.

8.1.6 Payments actually made for architects, engineers and other consultants providing services to the

Contractor reasonably required to perform the work, unless such services are to be provided to the Owner by the Design Consultant or other City-Retained Consultants (as defined in the Design Consultant’s Agreement for Professional Design Services).

8.1.7 Costs, including transportation, inspection, handling, storage and maintenance, of all temporary facilities and all materials, supplies, equipment and hand tools not owned by the workmen that are consumed in the performance of the Work on the Project. The Contractor shall negotiate with the City the salvage value of all items purchased and used on the Project but not consumed, damaged, lost or stolen at the completion of the work, crediting any proceeds against the Cost of the Work. If the Contractor and the City cannot agree on the salvage value of the above items then said items shall remain the property of the City and the Contractor shall give no credit to the Cost of the Work. The Contractor may institute a voluntary recycling program.

8.1.8 Actual rental charges of all necessary machinery and equipment, exclusive of hand tools, used at the

Project Site, whether rented from the Contractor (at rental rates approved by City and specified on Exhibit K or others, including equipment owned by the Contractor that is assigned to salaried staff and charged to the Project and costs of fuel, oil, insurance, maintenance and minor repairs and replacements, transportation, installation, dismantling and removal thereof. The City and the Contractor agree that the rates for the rented equipment shall be charged as a Cost of Work at the stipulated fixed rates set forth on the Equipment Rental Rate Schedule, attached as Exhibit K.

8.1.9 The actual cost of the premiums, not to exceed 1.28% of the Cost of the Work, for all bonds that the

Contractor is required to procure by this Construction Contract shall be charged as a Cost of the Work. The actual cost of the premiums, not to exceed 1.28% of the Cost of the Work, for all other insurance that the Contractor is required to procure by this Construction Contract or that are deemed necessary by the Contractor with the City’s written approval shall be charged as a Cost of the Work.

8.1.10 Applicable sales, use or similar taxes related to the direct performance of the Work and for which the

Contractor is liable, imposed by any governmental authority.

8.1.11 Permits, fees, licenses, costs of all tests, commissioning costs, inspections and approvals, as may be required by the Contract Documents or applicable laws, ordinances or public authority for the performance of the work (except for inspection and testing performed by the City, at its cost).

8.1.12 Actual costs of reproduction, telegrams, facsimile transmissions, mobile phones, long distance telephone calls, telephone service at the Project Site, postage and express delivery charges, and reasonable petty cash expenses of the Project Site office in connection with the Work.

8.1.13 Cost of removal of all debris from the Project Site.

8.1.14 Costs for temporary and permanent power, lighting, heat, chilled drinking water, sewer and water services as required to complete the Work at the Project Site, and costs for snow removal as required.

8.1.15 Cost incurred by the Contractor in repairing or correcting defective, damaged or nonconforming work, provided that such defective, damaged or nonconforming work was beyond the control of the Contractor, Subcontractors, or Suppliers, or caused by the ordinary mistakes or inadvertence, and not the negligence of the Contractor’s or any Subcontractor’s or Supplier’s supervisory personnel. If the costs associated with such defective, damaged or nonconforming work are recoverable from insurance or Subcontractors or Suppliers, the Contractor shall exercise its best efforts to obtain recovery from the appropriate source and credit the Cost of the Work if recovery is obtained.

8.1.16 Costs incurred due to any emergency affecting the safety of persons and property and related to the

Work unless otherwise covered by insurance or reimbursable from a Subcontractor or Supplier, or unless such costs are due to the fault or negligence of the Contractor or a Subcontractor or Supplier of any tier.

8.1.17 Wages or salaries of the Contractor’s supervisory and administrative personnel when stationed at the

Project Site, and when stationed off-site and working on the Project in accordance with the staffing and salary schedule set forth in Exhibit L, including vacation time, in accordance with the Contractor’s company policy, accrued and taken during the performance of the Work. This includes estimators, safety personnel, quality control personnel and their assistants.

8.1.18 Wages or salaries of the Contractor’s supervisory or administrative personnel engaged at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work in accordance with the staffing and salary schedule set forth in Exhibit L.

8.1.19 With prior written approval of the Project Manager, that portion of the reasonable travel and subsistence expenses of the Contractor’s personnel incurred while traveling in discharge of duties connected with the Work.

8.1.20 Fees of testing laboratories for tests required by the Contract Documents.

8.1.21 Legal, mediation and arbitration costs other than those arising from disputes between the City and the

Contractor reasonably incurred by the Contractor in the performance of the Work and with the City’s prior written permission of the Project Manager.

8.1.22 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City.

8.1.23 Costs associated with the implementation of any established company safety program, which costs shall be subject to City’s reasonable approval.

8.1.24 Contractor’s General Conditions expenses as identified in Exhibit A. These expenses include rented or purchased materials and equipment used by the Contractor at the Project Site office in connection with the Work.

8.1.25 Cost of warranty repairs, to the extent not covered by a subcontract or purchase agreement (provided that the Contractor shall use its best efforts to enforce the warranties received from subcontractors, suppliers and vendors). These costs include the Contractor’s administrative staff associated with supervision and management of the warranty repairs.

8.1.26 Reasonable data processing costs related to the work, including data line service, internet charges, software costs and licenses fees.

8.1.27 All costs and fees incurred in the performance of work and approved for payment under the

Preconstruction Services Agreement in Exhibit D.

8.1.28 Deposits for materials, design of manufactured items and supplied items is the responsibility of the contractor. Reimbursements will be made once the item is installed and accepted by the Project Manager.

8.2 Costs Not To Be Reimbursed. Cost of the Work shall not include expenditures made for any of the following:

8.2.1 Salary of any officer of the Contractor.

8.2.2 Salary of the Contractor’s employees stationed at the Contractor’s main office not working on the

Project.

8.2.3 Overhead, profit and general expenses of any kind except as included in the Contractor’s Fee.

8.2.4 The capital expenses of the Contractor, including interest on capital employed for the work.

8.2.5 Expenses of the Contractor’s principal office and offices, other than the Project Site office.

8.2.6 Costs incurred by the Contractor in situations where such costs may be covered by insurance or recoverable from a Subcontractor or Supplier, if the Contractor failed to use its best efforts to obtain such insurance proceeds or recovery from the responsible Subcontractor(s) or Supplier(s).

8.2.7 Expenses incurred for relocation and temporary living expenses of personnel required for the Work, or when such relocation is for the convenience of the Contractor.

8.2.8 Any cost that would cause the GMP to be exceeded.

8.2.9 Any costs not specifically included in the Cost of the Work, Section 8.1.

8.2.10 Costs of retesting non-conforming Work.

8.3 Contractor’s Fee. The Contractor’s Fee (the “Contractor’s Fee”) to be paid to the Contractor and included in the GMP shall be a lump sum of ________________________________________________ DOLLARS AND NO CENTS ($0,000,000.00), payable in progress installments pursuant to a mutually agreeable schedule of progress installments.

8.4 Guaranteed Maximum Price.

8.4.1 Guaranteed Maximum Price. The City agrees to pay the Contractor, and the Contractor agrees to accept, the not to exceed sum of ______________________________________ DOLLARS AND NO CENTS ($000,000,000.00) as the GMP, for which the Contractor will perform all Work necessary to complete the Project. The GMP is subject to the qualifications, clarifications, assumptions, exclusions and allowances in the GMP Proposal. The GMP is subject to adjustments as provided in the Contract Documents. The GMP includes Contractor’s Fee.

8.4.2 The Guaranteed Maximum Price consists of the sum of (i) the estimated Cost of the Work; and (ii) the

Fee. The Contractor has presented and the City has accepted Contractor’s GMP Proposal attached hereto as Exhibit M. The Parties specifically agree that the City shall not be subject to any cost, charge or fee under this Agreement that is not specified in this Agreement.

8.5 Savings. In the event that the actual Cost of the Work plus the Fee shall be less than the GMP, the resulting savings shall inure One Hundred Percent (100%) to the City. The Contractor shall distribute such savings to the City by Change Order that either reduces the GMP, increases Owner’s Contingency or implements enhancements or additions to the Project requested by the City.

8.6 Construction Contract Amount and Funding. In accordance with the terms of this Construction Contract, the maximum Construction Contract Amount to be paid by the City to the Contractor under this Agreement shall not exceed __________________________________________________ DOLLARS AND NO CENTS ($000,000,000.00). The Contractor guarantees and warrants that the Project will be completed by its performance hereunder for the GMP amount.