Draft_General_Conditions_AIA_A133-2019.DOCX

ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed.

This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification.

AIA Document A201™–2017, General Conditions of the Contract for Construction, is adopted in this document by reference. Do not use with other general conditions unless this document is modified.

AIA® Document A133™ – 2019 DRAFT

Standard Form of Agreement Between Owner and Construction Manager as Constructor where the basis of payment is the Cost of the Work Plus a Fee with a Guaranteed Maximum Price

ELECTRONIC COPYING of any portion of this AIA® Document to another electronic file is prohibited and constitutes a violation of copyright laws as set forth in the footer of this document.

AIA Document A133™ – 2019. Copyright © 1991, 2003, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 09:50:09 ET on 08/11/2022 under Order No.2114240984 which expires on 09/17/2022, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org.DRAFT

User Notes: (1817467202)

AIA Document A133™ – 2019. Copyright © 1991, 2003, 2009, and 2019 by The American Institute of Architects. All rights reserved. The “American Institute of Architects,” “AIA,” the AIA Logo, and “AIA Contract Documents” are registered trademarks and may not be used without permission. This draft was produced by AIA software at 09:50:09 ET on 08/11/2022 under Order No.2114240984 which expires on 09/17/2022, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org.DRAFT

User Notes: (1817467202)

AGREEMENT made as of the _______ day of __________ in the year 20____

BETWEEN the Owner:

City of St. Petersburg, Florida and the Construction Manager:

xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx for the following Project:

xxxxxxxxxxx

The Architect:

xxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxxx

The Owner and Construction Manager agree as follows.

TABLE OF ARTICLES

1 INITIAL INFORMATION

2 GENERAL PROVISIONS

3 CONSTRUCTION MANAGER’S RESPONSIBILITIES

4 OWNER’S RESPONSIBILITIES

5 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES

6 COMPENSATION FOR CONSTRUCTION PHASE SERVICES

7 COST OF THE WORK FOR CONSTRUCTION PHASE

8 DISCOUNTS, REBATES, AND REFUNDS

9 SUBCONTRACTS AND OTHER AGREEMENTS

10 ACCOUNTING RECORDS

11 PAYMENTS FOR CONSTRUCTION PHASE SERVICES

12 DISPUTE RESOLUTION

13 TERMINATION OR SUSPENSION

14 MISCELLANEOUS PROVISIONS

EXHIBIT A SCOPE OF PRE-CONSTRUCTION PHASE SERVICES

EXHIBIT B INSURANCE AND BONDS

EXHIBIT C PRECONSTRUCTION STAFFING PLAN

EXHIBIT D SCHEDULE

EXHIBIT E OWNER DIRECT PURCHASE POLICY

ARTICLE 1 INITIAL INFORMATION

§ 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1.

§ 1.1.1 Intentionally Left Blank

§ 1.1.2 Intentionally Left Blank

§ 1.1.3 The Owner’s budget for the Guaranteed Maximum Price is an estimated construction cost of $ xxxxx as of the effective date of this Agreement. The Owner has the sole and absolute authority to change the estimated construction cost budget as it is refined during Construction Manager’s performance of Preconstruction Services. The estimated construction cost shall remain an estimate until execution of the Guaranteed Maximum Price Amendment, at which time the final Guaranteed Maximum Price will be determined.

§ 1.1.4 The Owner’s anticipated design milestone dates:

.1 Design phase milestone dates:

xxxxxxxxxxx § 1.1.5 Intentionally Left Blank.

§ 1.1.6 Intentionally Left Blank

§ 1.1.7 Intentionally Left Blank.

§ 1.1.8 The Owner identifies the following representative in accordance with Section 4.2:

xxxxxxxxxxxxx Engineering and Capital Improvements Department P. O. Box 2842 St. Petersburg, FL 33731-2842 xxxxxxxxxxxxx xxxxxxxxxxxxx

§ 1.1.9 The persons or entities, in addition to the Owner’s representative, who are required to review the Construction Manager’s submittals to the Owner are as follows:

The Architect

§ 1.1.10 Intentionally Left Blank.

§ 1.1.11 The Architect’s representative:

xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

§ 1.1.12 The Construction Manager identifies the following representative in accordance with Article 3:

xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx

§ 1.1.13 The Owner’s requirements for the Construction Manager’s staffing plan for Preconstruction Services, as required under Section 3.1.9:

See Exhibit C, which is attached hereto and made a part of the Contract.

§ 1.1.14 Intentionally Left Blank

§ 1.1.15 Other Initial Information on which this Agreement is based:

§ 1.2 Both parties acknowledge and recognize that the Initial Information may change throughout the duration of the Contract.

§ 1.3 Neither the Owner’s nor the Construction Manager’s representative shall be changed without ten days’ prior notice to the other party.

ARTICLE 2 GENERAL PROVISIONS

§ 2.1 The Contract Documents This Agreement and the Contract Documents form the Contract between the Owner and the Construction Manager. The Contract Documents consist of the Conditions of the Contract (General (i.e., AIA Document A201™–2017, as modified by the Owner, hereinafter “A201-2017”), Supplementary and other Conditions), Specifications, the Request for Qualifications, Construction Manager’s statement of qualifications, other documents listed or referenced in or attached to this Agreement or the Contract Documents, and Modifications issued after execution of this Agreement, all of which are a part of the Contract as if attached to this Agreement or repeated herein. Upon the Owner’s acceptance of the Construction Manager’s Guaranteed Maximum Price proposal, the Contract Documents will also include the documents described in Section 3.2.3 and identified in the Guaranteed Maximum Price Amendment and revisions prepared by the Architect and furnished by the Owner as described in Section 3.2.8. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral.

§ 2.1.1 Order of Precedence for the Contract Documents

In the event of an inconsistency or conflict between or among the documents referenced herein, the following order of precedence governs: (i) Modifications, exclusive of exhibits (ii) this Agreement, exclusive of its exhibits; (iii) the General Conditions of the Contract (i.e., A201-2017); (iv) the Guaranteed Maximum Price Amendment containing a Guaranteed Maximum Price proposal submitted by the Construction Manager and accepted by the Owner; (v) the other exhibits; and (vi) all other Contract Documents. Any inconsistency or conflict between all other Contract Documents will be initially resolved by the Owner after consulting with the Construction Manager, with Construction Manager reserving all rights to dispute such resolution under Article 12.

§ 2.2 Relationship of the Parties

The Construction Manager accepts the relationship of trust and confidence established by the Contract and covenants with the Owner to cooperate with the Architect and exercise the Construction Manager’s skill and judgment in furthering the interests of the Owner; to furnish efficient construction administration, management services and supervision; to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and economical manner consistent with the Owner’s interests. The Construction Manager has informed the Owner, and hereby represents to the Owner, that it has extensive experience in constructing projects similar to the Project identified in the Contract, and that it is well acquainted with the components that are properly and customarily included within such a Project and the requirements of applicable Laws (as defined in Section 14.6) or any licensing entity having jurisdiction over the Project, including building, labor, safety, licensing or environmental laws and local building codes, building standards, and trade practices affecting the Project. The Owner agrees to furnish or approve, in a timely manner, information required by the Construction Manager and to make payments to the Construction Manager in accordance with the requirements of the Contract.

§ 2.3 General Conditions § 2.3.1 A201-2017 shall apply to all the services and Work being performed or provided by the Construction Manager pursuant to the Contract. The term “Contractor” as used in A201-2017 shall mean the Construction Manager.

ARTICLE 3 CONSTRUCTION MANAGER’S RESPONSIBILITIES

The Construction Manager’s Preconstruction Phase responsibilities are set forth in Sections 3.1, 3.2, and the Contract. The Construction Manager’s Construction Phase responsibilities are set forth in Section 3.3 and the Contract. The Owner and Construction Manager may agree, in consultation with the Architect, for the Construction Phase to commence prior to completion of the Preconstruction Phase, in which case, both phases will proceed concurrently. The Construction Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the Project.

§ 3.1 Preconstruction Phase § 3.1.1 Extent of Responsibility The Construction Manager shall exercise reasonable care in performing its Preconstruction Services. The Owner and Architect shall be entitled to rely on, and shall not be responsible for, the accuracy, completeness, and timeliness of services and information furnished by the Construction Manager. The Construction Manager, however, does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The Construction Manager is not required to ascertain that the Drawings and Specifications are in accordance with applicable Laws but the Construction Manager shall promptly report to the Architect and Owner any nonconformity discovered by or made known to the Construction Manager as a request for information in such form as the Architect may require.

§ 3.1.2 The Construction Manager shall provide the Preconstruction Services set forth in Exhibit A, and shall provide such services in accordance with the Schedule attached hereto as Exhibit D. Exhibit A and Exhibit D are attached hereto and made a part of the Contract.

§ 3.1.3 Consultation § 3.1.3.1 The Construction Manager shall schedule and conduct meetings with the Architect and Owner to discuss such matters as procedures, progress, coordination, and scheduling of the Work.

§ 3.1.3.2 The Construction Manager shall advise the Owner and Architect on proposed site use and improvements, selection of materials, building systems, and equipment. The Construction Manager shall also provide recommendations to the Owner and Architect, consistent with the Project requirements, on constructability; availability of materials and labor; time requirements for procurement, installation and construction; prefabrication; and factors related to construction cost including, but not limited to, costs of alternative designs or materials, preliminary budgets, life-cycle data, and possible cost reductions.

§ 3.1.4 Project Schedule When Project requirements in Section 4.1.1 have been sufficiently identified, the Construction Manager shall prepare and periodically update a Project schedule for the Architect’s review and the Owner’s acceptance. The Construction Manager shall obtain the Architect’s approval for the portion of the Project schedule relating to the performance of the Architect’s services. The Project schedule shall coordinate and integrate the Construction Manager’s services, the Architect’s services, other Owner consultants’ services, and the Owner’s responsibilities; and identify items that affect the Project’s timely completion. The updated Project schedule shall include the following: submission of the Guaranteed Maximum Price proposal; components of the Work; times of commencement and completion required of each Subcontractor; ordering and delivery of products, including those that must be ordered in advance of construction; and the occupancy requirements of the Owner. The Project schedule must be submitted in writing in a format agreed to by the Owner and Construction Manager.

§ 3.1.5 Phased Construction The Construction Manager shall provide recommendations with regard to accelerated or fast-track scheduling, procurement, and sequencing for phased construction. The Construction Manager shall take into consideration cost reductions, cost information, constructability, provisions for temporary facilities, and procurement and construction scheduling issues.

§ 3.1.6 Cost Estimates § 3.1.6.1 Based on the preliminary design (e.g., initial conceptual design) and other design criteria prepared by the Architect, the Construction Manager shall prepare, for the Architect’s review and the Owner’s approval, preliminary estimates of the Cost of the Work or the cost of program requirements using area, volume, or similar conceptual estimating techniques. If the Architect, Owner or the Construction Manager suggests alternative materials and systems, the Construction Manager shall provide cost evaluations of those alternative materials and systems.

§ 3.1.6.2 As the Architect progresses with the preparation of design documents that are required to be prepared by Architect pursuant to and in accordance with the architect/engineering agreement between the Architect and the Owner (“A/E Agreement”) , the Construction Manager shall prepare and update, at appropriate intervals agreed to by the Owner and Construction Manager, an estimate of the Cost of the Work with increasing detail and refinement. The Construction Manager shall include in the estimate those costs to allow for the further development of the design until such time as the Owner and Construction Manager agree on a Guaranteed Maximum Price for the Work. The estimate shall be provided for the Architect’s review and the Owner’s approval. The Construction Manager shall inform the Owner and Architect in the event that the estimate of the Cost of the Work exceeds the Owner’s Construction Cost Budget, and make recommendations for corrective action.

§ 3.1.7 As the Architect progresses with the preparation of design documents that are required to be prepared by Architect pursuant to and in accordance with the A/E Agreement, the Construction Manager shall consult with the Owner and Architect and make recommendations regarding constructability and schedules, for the Architect’s review and the Owner’s approval.

§ 3.1.8 The Construction Manager shall provide recommendations and information to the Owner and Architect regarding equipment, materials, services, and temporary Project facilities.

§ 3.1.9 The Construction Manager shall comply with its staffing plan for Preconstruction Phase services set forth in Exhibit C, which is attached hereto and made a part of the Contract.

§ 3.1.10 Intentionally Left Blank

§ 3.1.11 Subcontractors and Suppliers § 3.1.11.1 Intentionally Left Blank.

§ 3.1.11.2 The Construction Manager shall develop bidders’ interest in the Project.

§ 3.1.11.3 The processes described in Article 9 shall apply if bid packages will be issued during the Preconstruction Phase.

§ 3.1.12 Procurement The Construction Manager shall prepare, for the Architect’s review and the Owner’s acceptance, a procurement schedule for items that must be ordered in advance of construction. The Construction Manager shall expedite and coordinate the ordering and delivery of materials that must be ordered in advance of construction. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price, the Owner or the Construction Manager shall procure the items on terms and conditions either reviewed by the Construction Manager if items will be purchased by the Owner or approved by the Owner if items will be purchased by the Construction Manager. The Construction Manager shall coordinate with the Owner regarding implementation of the Owner’s Direct Purchase Policy set forth in Exhibit E, which is attached hereto and made a part of the Contract. If the Owner procures items for a Project, upon the Owner’s approval of the Guaranteed Maximum Price Amendment, the Owner shall transfer possession of these items to the Construction Manager, and the Construction Manager shall thereafter safeguard, store, and protect them until their incorporation into the Work.

§ 3.1.13 Compliance with Laws The Construction Manager shall comply with applicable Laws, and with equal employment opportunity programs, and other programs as may be required by governmental and quasi-governmental authorities for inclusion in the Contract or a specific Contract Document

§ 3.2 Guaranteed Maximum Price Proposal § 3.2.1 At a time to be mutually agreed upon by the Owner and the Construction Manager, the Construction Manager shall prepare a Guaranteed Maximum Price proposal for the Owner’s and Architect’s review, and the Owner’s acceptance.

§ 3.2.2 To the extent that the Contract Documents are anticipated to require further development, the Construction Manager shall provide in the Guaranteed Maximum Price proposal for such further development consistent with the Contract and reasonably inferable therefrom. Such further development does not include such things as changes in scope that may be directed by the Owner, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order.

§ 3.2.3 The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include the following:

§ 3.2.4 In preparing the Construction Manager’s Guaranteed Maximum Price proposal, the Construction Manager shall include a contingency to cover those costs considered reimbursable as the Cost of the Work but not included in a Change Order. Construction Manager shall obtain Owner’s written approval to using such contingency. Such contingency may be used for any costs reasonably required to perform or manage the Work to address items that include, but are not limited to: items inadvertently omitted during the estimating and bidding process, schedule recovery costs associated with weather and other causes of delay that are not otherwise compensable, interfacing omissions between and from the various categories of work, additional costs incurred due to the withdrawal or disqualification of a subcontractor bid that the Construction Manager had relied upon prior to execution of a written subcontract, general conditions over-runs, costs associated with subcontractor default, cost increases due to unanticipated local labor and material market conditions, selective overtime, or the like. Upon Final Completion of the Project, if the contingency has not been used, these remaining funds shall be disbursed back to the Owner to be used at its sole discretion.

§ 3.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal within thirty (30) calendar days after receipt of such proposal by the Owner. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both.

§ 3.2.6 The Owner shall notify the Construction Manager in writing when the Owner has accepted the Guaranteed Maximum Price proposal and, once accepted, the Owner shall begin preparing the Guaranteed Maximum Price Amendment. Following approval of the Guaranteed Maximum Price Amendment by the St. Petersburg City Council, the Owner and Construction Manager shall execute such amendment amending the Contract. Once the Guaranteed Maximum Price Amendment has been executed, the Owner shall provide a copy to the Architect. The Guaranteed Maximum Price Amendment shall set forth the agreed upon Guaranteed Maximum Price with the information and assumptions upon which it is based and other terms and conditions agreed upon by the parties.

§ 3.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to the execution of the Guaranteed Maximum Price Amendment, unless the Owner provides prior written authorization for such costs.

§ 3.2.8 The Owner shall authorize the Architect to prepare revisions to the Contract Documents that incorporate the agreed-upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment. The Owner shall promptly furnish such revised Contract Documents to the Construction Manager. The Construction Manager shall notify the Owner and Architect of any inconsistencies between the agreed-upon assumptions and clarifications contained in the Guaranteed Maximum Price Amendment and the revised Contract Documents.

§ 3.2.9 The Construction Manager shall include in the Guaranteed Maximum Price all sales, consumer, use and similar taxes for the Work provided by the Construction Manager that are legally enacted, whether or not yet effective, at the time the Guaranteed Maximum Price Amendment is executed.

§ 3.3 Construction Phase § 3.3.1 General § 3.3.1.1 For purposes of Section 8.1.2 of A201–2017, the date of commencement of the Work shall mean the date of commencement of the Construction Phase.

§ 3.3.1.2 Provided that all required permits have been obtained, the Construction Phase shall commence upon the Owner’s issuance of a Notice to Proceed which shall occur within a mutually agreed upon number of days after execution of the Guaranteed Maximum Price Amendment by both parties.

§ 3.3.2 Administration § 3.3.2.1 The Construction Manager shall schedule and conduct meetings to discuss such matters as procedures, progress, coordination, scheduling, and status of the Work. The Construction Manager shall prepare and promptly distribute minutes of the meetings to the Owner and Architect.

§ 3.3.2.2 Upon the execution of the Guaranteed Maximum Price Amendment, the Construction Manager shall prepare and submit to the Owner and Architect a construction schedule for the Work and a submittal schedule in accordance with Section 3.10 of A201–2017.

§ 3.3.2.3 Monthly Report The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect, showing percentages of completion and other information required by the Owner.

§ 3.3.2.4 Daily Logs The Construction Manager shall keep, and make available to the Owner and Architect, a daily log containing a record for each day of weather, portions of the Work in progress, number of workers on site, identification of equipment on site, problems that might affect progress of the Work, accidents, injuries, and other information required by the Owner.

§ 3.3.2.5 Cost Control The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect and shall provide this information in its monthly reports to the Owner and Architect, in accordance with Section 3.3.2.3 above.

§ 3.3.2.6 Buy-Out Savings The Construction Manager will track and log buyout savings and buyout losses on a buyout log. The Construction Manager will review the buyout log with the Owner no less than monthly. Trade contracts and the Construction Manager’s records will be open book and shall, upon request, be shared with the Owner throughout the Project. At the end of the Project, 100% of the buyout savings shall be credited to the Owner.

ARTICLE 4 OWNER’S RESPONSIBILITIES

§ 4.1 Information and Services Required of the Owner § 4.1.1 Upon request, the Owner shall provide information, if available, with reasonable promptness, regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner’s objectives, constraints, and criteria, including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems, sustainability and site requirements.

§ 4.1.2 Intentionally Left Blank

§ 4.1.3 The Owner shall establish and periodically update the Owner’s budget for the Project, including (1) the budget for the Cost of the Work as defined in Article 7, (2) the Owner’s other costs, and (3) reasonable contingencies related to all of these costs. If the Owner significantly increases or decreases the Owner’s budget for the Cost of the Work, the Owner shall notify the Construction Manager and Architect. The Owner and the Architect, in consultation with the Construction Manager, shall thereafter agree to a corresponding change in the Project’s scope and quality.

§ 4.1.4 Structural and Environmental Tests, Surveys and Reports. During the Preconstruction Phase, the Owner shall furnish the following information or services with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Construction Manager’s performance of the Work with reasonable promptness after receiving the Construction Manager’s written request for such information or services. Information provided by the Owner to the Construction Manager is without warranty or guarantee of its accuracy. The Construction Manager relies upon such information at its own risk and further represents that after the exercise of due diligence and review, it is not aware of any inaccuracies in such information unless it has timely notified Owner of such inaccuracies in writing.

§ 4.1.4.1 The Owner shall furnish tests, inspections, and reports, required by applicable Laws and as otherwise agreed to by the parties, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials.

§ 4.1.4.2 The Owner shall furnish surveys describing legal limitations and utility locations for the site of the Project, and a legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries of the site; locations, dimensions and other necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark.

§ 4.1.5 During the Construction Phase, the Owner shall furnish information or services required of the Owner by the Contract Documents with reasonable promptness. The Owner shall also furnish any other information or services under the Owner’s control and relevant to the Construction Manager’s performance of the Work with reasonable promptness after receiving the Construction Manager’s written request for such information or services.

§ 4.2 Owner’s Designated Representative The Owner shall identify a representative authorized to act on behalf of the Owner with respect to the Project. The Owner’s representative shall render decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the Construction Manager. Except as otherwise provided in Section 4.2.1 of A201–2017, the Architect does not have such authority. The term “Owner” means the Owner or the Owner’s authorized representative.

§ 4.3 Architect The Owner shall retain Architect to provide services, duties and responsibilities as described in the A/E Agreement. Upon request, the Owner shall provide the Construction Manager with a copy of the A/E Agreement and any amendments thereto.

ARTICLE 5 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES

§ 5.1 Compensation

§ 5.1.1 For the Construction Manager’s Preconstruction Phase services, the Owner shall pay the Construction Manager on the following basis:

(Check the appropriate box.)

[ « » ] Time and materials basis pursuant to the fee schedule and rates set forth in Exhibit C, at an amount not to exceed _____________.

[ « » ] A lump sum amount of ______________.

The amount indicated above includes a xxxxxxxxxx dollar ($xxx) allowance. Use of the allowance (if any)requires prior written approval from the City. The compensation paid to the Construction Manager pursuant to this § 5.1.1 is inclusive of all out-of-pocket expenses, including but not limited to transportation, lodging, meals, and materials.

§ 5.1.2 The hourly billing rates for Preconstruction Phase services provided pursuant to the Contract are set forth in Exhibit C, which is attached hereto and made a part of the Contract.

§ 5.2 Payments § 5.2.1 The Construction Manager shall invoice the Owner for Preconstruction Services on a monthly basis and the Owner shall pay the Construction Manager within twenty (20) business days of receipt of such invoice (provided the Construction Manager is in compliance with the terms and conditions of the Contract). The monthly invoice shall detail the services provided by Construction Manager. The amount set forth in Section 5.1.1 may be increased only in strict accordance with the Contract.

ARTICLE 6 COMPENSATION FOR CONSTRUCTION PHASE SERVICES

§ 6.1 Contract Sum § 6.1.1 For Construction Phase services, the Owner shall pay the Construction Manager the Contract Sum in current funds. The Contract Sum is the Cost of the Work as defined in Article 7 plus the Construction Manager’s Fee.

§ 6.1.2 The Construction Manager’s Fee will be _______ (__%) of the Cost of the Work.

§ 6.1.3 Intentionally Left Blank

§ 6.1.4 A Subcontractor’s overhead is limited to ten percent (10%) and profit for increases in the cost of its portion of the Work is limited to five percent (5%).

§ 6.1.5 Intentionally Left Blank

§ 6.1.6 The parties agree that it would be extremely difficult and impractical under known and anticipated facts and circumstances to ascertain and fix the actual damages Owner would incur if Construction Manager does not achieve timely Substantial Completion. Therefore, the Construction Manager and its surety shall be liable for and shall pay to the Owner the sums hereafter stipulated as fixed, agreed and acknowledged as reasonable liquidated damages, not as a penalty, for each calendar day of delay until the Work is substantially complete in the aggregate amount of ______________ dollars ($XXXXXXXXX) per calendar day. The liquidated damages shall be capped at One Hundred Percent (100%) of the Construction Manager’s Fee. These liquidated damages shall be the Owner’s sole and exclusive remedy for the Construction Manager’s delay of the Work.

§ 6.2 Guaranteed Maximum Price The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximum Price set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time in accordance with the Contract. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner.

§ 6.3 Changes in the Work § 6.3.1 The Owner may, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions. The Owner shall issue such changes in writing. The Construction Manager may be entitled to an equitable adjustment in the Contract Time and/or Contract Sum as a result of changes in the Work as approved in writing by the Owner.

§ 6.3.1.1 Intentionally Left Blank

§ 6.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in Article 7 of AIA Document A201–2017.

§ 6.3.3 Adjustments to subcontracts awarded on the basis of a stipulated sum shall be determined in accordance with Article 7 of A201–2017, as they refer to “cost” and “fee,” and not by Articles 6 and 7 of this Agreement. Adjustments to subcontracts awarded with the Owner’s prior written consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts.

§ 6.3.4 In calculating adjustments to the Guaranteed Maximum Price, the terms “cost” and “costs” as used in Article 7 of AIA Document A201–2017 shall mean the Cost of the Work as defined in Article 7 of this Agreement and the term “fee” shall mean the Construction Manager’s Fee as defined in Section 6.1.2 of this Agreement.

§ 6.3.5 In the case of changes in the Work, to the extent of such changes, in the aggregate, will cause substantial inequity to the Owner or Construction Manager, the Construction Manager’s Fee shall be equitably adjusted on the same basis that was used to establish the Fee for the original Work, and the Guaranteed Maximum Price shall be adjusted accordingly.

ARTICLE 7 COST OF THE WORK FOR CONSTRUCTION PHASE

§ 7.1 Costs to Be Reimbursed § 7.1.1 Subject to the Guaranteed Maximum Price Amendment, the term Cost of the Work shall mean costs necessarily, reasonably and actually incurred by the Construction Manager in the proper performance of the Work. . The Cost of the Work shall include only the items set forth in Sections 7.1 through 7.7.

§ 7.1.2 Where, pursuant to the Contract Documents, any cost is subject to the Owner’s prior approval, the Construction Manager shall obtain such approval in writing prior to incurring the cost.

§ 7.1.3 Costs shall be at rates not higher than the standard rates paid at the place of the Project, except with prior approval of the Owner.

§ 7.2 Labor Costs § 7.2.1 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner’s prior approval, at off-site workshops.

§ 7.2.2 Wages of the Construction Manager’s supervisory and administrative personnel when stationed at the site and performing Work, with the Owner’s prior approval.

§ 7.2.3 Wages of the Construction Manager’s supervisory or administrative personnel engaged at factories, workshops or while traveling, 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.

§ 7.2.4 Costs paid or incurred by the Construction Manager for taxes, insurance, assessments and benefits required by law or collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided such costs are based on wages and salaries included in the Cost of the Work under Sections 7.2.1 through 7.2.3.

§ 7.3 Subcontract Costs Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the Contract.

§ 7.4 Costs of Materials and Equipment Incorporated in the Completed Construction § 7.4.1 Costs, including transportation and storage at the site, of materials and equipment incorporated, or to be incorporated, in the completed construction provided that such materials and equipment have been delivered to the Project site and are actually incorporated into the Work.

§ 7.5 Costs of Other Materials and Equipment, Temporary Facilities and Related Items § 7.5.1 Costs of transportation, storage, installation, dismantling, maintenance, and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site and fully consumed in the performance of the Work. Costs of materials, supplies, temporary facilities, machinery, equipment, and tools, that are not fully consumed, shall be based on the cost or value of the item at the time it is first used on the Project site less the value of the item when it is no longer used at the Project site. Costs for items not fully consumed by the Construction Manager shall mean fair market value.

§ 7.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by construction workers that are provided by the Construction Manager at the site, and the costs of transportation, installation, dismantling, minor repairs, and removal of such temporary facilities, machinery, equipment, and hand tools. Rates and quantities of equipment owned by the Construction Manager, or a related party as defined in Section 7.8, shall be subject to the Owner’s prior approval. The total rental cost of any such equipment may not exceed the purchase price of any comparable item. Rental Charges for equipment owned by the Construction Manager and quantities of equipment shall be subject to the Owner’s prior written approval, and consistent with those prevailing in the area.

§ 7.5.3 Costs of removal of debris from the site of the Work and its proper and legal disposal.

§ 7.5.4 Costs of the Construction Manager’s site office, including general office equipment and supplies.

§ 7.5.5 Costs of materials and equipment suitably stored, insured and bonded off the site at a mutually acceptable location, subject to the Owner’s prior written approval.

§ 7.6 Miscellaneous Costs § 7.6.1 Premiums for that portion of insurance and bonds that can be directly attributed to the Contract, with the Owner’s prior written approval. Self-insurance for either full or partial amounts of the coverages required by the Contract, with the Owner’s prior written approval. Premiums for the Builder’s Risk Insurance and Public Construction Bond required by the Contract that are obtained by the Construction Manager and passed directly through to the Owner are considered reimbursable as Cost of the Work, however are not for the purpose of applying the Construction Manager’s Fee.

§ 7.6.2 Sales, use, or similar taxes, imposed by a governmental authority, that are related to the Work and for which the Construction Manager is liable.

§ 7.6.3 Fees and assessments for the building permit, and for other permits, licenses, and inspections, for which the Construction Manager is required by the Contract to pay.

§ 7.6.4 Fees of laboratories for tests required by the Contract ; except those related to defective or nonconforming Work for which reimbursement is excluded under Article 13 of AIA Document A201–2017 or by other provisions of the Contract, and which do not fall within the scope of Section 7.7.3.

§ 7.6.5 Royalties and license fees paid for the use of a particular design, process, or product, required by the Contract.

§ 7.6.5.1 The cost of defending suits or claims for infringement of patent rights arising from requirements of the Contract, payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims, and payments of settlements made with the Owner’s consent. The costs of legal defenses, judgments, and settlements shall not be included in the Cost of the Work used to calculate the Construction Manager’s Fee or subject to the Guaranteed Maximum Price.

§ 7.6.6 Costs for electronic equipment, and software directly related to the Work and located at the site, with the Owner’s prior approval.

§ 7.6.7 Costs of document reproductions, facsimile transmissions and long-distance telephone calls, postage and parcel delivery charges, telephone service at the site and reasonable petty cash expenses of the site office.

§ 7.6.8 Deposits lost for causes other than the Construction Manager’s negligence or failure to fulfill a specific responsibility in the Contract.

§ 7.6.9 Intentionally Left Blank

§ 7.6.10 Intentionally Left Blank

§ 7.6.11 That portion of the reasonable expenses of the Construction Manager’s supervisory or administrative personnel incurred while traveling in discharge of duties connected with the Work.

§ 7.7 Other Costs and Emergencies § 7.7.1 Other costs incurred in the performance of the Work, if, and only to the extent, approved in advance in writing by the Owner.

§ 7.7.2 Costs incurred in taking action to prevent threatened damage, injury, or loss, in case of an emergency affecting the safety of persons and property, as provided in Article 10 of AIA Document A201–2017.

§ 7.7.3 Costs of repairing or correcting damaged Work executed by the Construction Manager, Subcontractors or suppliers, provided that such damaged Work was not caused by negligence or failure to fulfill a specific responsibility of the Construction Manager, Subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recovered by the Construction Manager from insurance, sureties, Subcontractors, suppliers, or others.

§ 7.8 Related Party Transactions § 7.8.1 For purposes of this Section 7.8, the term “related party” shall mean (1) a parent, subsidiary, affiliate, or other entity having common ownership of, or sharing common management with, the Construction Manager; (2) any entity in which any stockholder in, or management employee of, the Construction Manager holds an equity interest in excess of ten percent in the aggregate; (3) any entity which has the right to control the business or affairs of the Construction Manager; or (4) any person, or any member of the immediate family of any person, who has the right to control the business or affairs of the Construction Manager.

§ 7.8.2 If any of the costs to be reimbursed arise from a transaction between the Construction Manager and a related party, the Construction Manager shall notify the Owner of the specific nature of the contemplated transaction, including the identity of the related party and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. If the Owner, after such notification, authorizes the proposed transaction in writing, then the cost incurred shall be included as a cost to be reimbursed, and the Construction Manager shall procure the Work, equipment, goods, or service, from the related party, as a Subcontractor, according to the terms of Article 9. If the Owner fails to authorize the transaction in writing, the Construction Manager shall procure the Work, equipment, goods, or service from some person or entity other than a related party according to the terms of Article 9.

§ 7.9 Costs Not To Be Reimbursed § 7.9.1 The Cost of the Work shall not include the items listed below:

ARTICLE 8 DISCOUNTS, REBATES, AND REFUNDS

§ 8.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included the amount to be paid, less such discount, in an Application for Payment and received payment from the Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds, and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be obtained.

§ 8.2 Amounts that accrue to the Owner in accordance with the provisions of Section 8.1 shall be credited to the Owner as a deduction from the Cost of the Work.

ARTICLE 9 SUBCONTRACTS AND OTHER AGREEMENTS

§ 9.1 The Construction Manager may perform Work with the Construction Manager’s own personnel. Those portions of the Work that the Construction Manager does not perform with the Construction Manager’s own personnel shall be performed under subcontracts or other appropriate agreements with the Construction Manager. The Owner may designate specific persons from whom, or entities from which, the Construction Manager shall obtain bids. The Construction Manager shall obtain bids from Subcontractors, and from suppliers of materials or equipment fabricated especially for the Work, who are qualified to perform that portion of the Work in accordance with the requirements of the Contract Documents. The Construction Manager shall deliver such bids to the Architect and Owner. The Owner shall then determine, with the advice of the Construction Manager and the Architect, which bids will be accepted. All construction Work for trade categories or systems shall be competitively bid out excluding Work proposed to be performed with the Construction Manager’s own personnel. The competitive bid process to be used by the Construction Manager shall be submitted to and approved by the Owner prior to initiating the bid process. The Construction Manager shall document and submit to the Owner all low, responsive bids proposed for construction Work. The Construction Manager shall warrant that there are no conflicts of interest in the performance of construction Work by the Construction Manager or any of its Subcontractors.

Neither the Owner’s determination of which bids will be accepted, nor anything else contained herein will relieve the Construction Manager of its responsibility to perform the Work in accordance with the Contract. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection.

§ 9.1.1 After execution of the Guaranteed Maximum Price Amendment, if a specific subcontractor or supplier (1) is recommended to the Owner by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid that conforms to the requirements of the Contract without reservations or exceptions, but the Owner requires that another bid be accepted, then the Construction Manager may require that a Change Order be issued to adjust the Contract Time and the Contract Sum by the difference between the bid of the person or entity recommended to the Owner by the Construction Manager…