PW1404-23 Exhibit 2 - rev1 10-6 FINAL.pdf

MARION COUNTY

CM/GC CONTRACT

(CONSTRUCTION MANAGER/GENERAL CONTRACTOR)

THE CONTRACT IS BETWEEN:

OWNER: Marion County, a political subdivision of the State of Oregon, And

(“CM/GC” and, in the Marion County General Conditions for Public Improvement Contracts, September 1, 2014, Revised February 14, 2022 Edition, referred to as “Contractor”)

The Project is: ARPA - CM/GC - Brooks-Hopmere Water & Wastewater Improvement Project

The Engineer is:

Keller Associates, Inc.

245 Commercial St SE #210 Salem, OR 97301

The Owner's Target GMP Range is: $ TBD

Contract

MARION COUNTY

CM/GC CONTRACT

TABLE OF CONTENTS

ARTICLE PAGE

ARTICLE 1 DEFINITIONS

ARTICLE 2 CONTRACT DOCUMENTS

ARTICLE 3 WORK OF THE CONTRACT

ARTICLE 4 RELATIONSHIP AND ROLES OF THE PARTIES

ARTICLE 5 DATE OF COMMENCEMENT; SUBSTANTIAL AND FINAL COMPLETION 16

ARTICLE 6 FEES, CONTRACT SUM AND GMP

ARTICLE 7 CHANGES IN THE WORK

ARTICLE 8 COST OF THE WORK (To Be Reimbursed)

ARTICLE 9 COSTS EXCLUDED FROM COST OF WORK (Not To Be Reimbursed)

ARTICLE 10 DISCOUNTS, REBATES AND REFUNDS

ARTICLE 11 SUBCONTRACTS AND OTHER CONTRACTS

ARTICLE 12 ACCOUNTING RECORDS

ARTICLE 13 PROGRESS PAYMENTS

ARTICLE 14 FINAL PAYMENT

ARTICLE 15 TERMINATION OR SUSPENSION

ARTICLE 16 REPRESENTATIONS, WARRANTIES AND CERTIFICATIONS

ARTICLE 17 MISCELLANEOUS

Contract

RECITALS

A. On September ##, 2023, Owner issued Request for Proposals RFP PW1404-23 for Brooks-Hopmere Water and Wastewater Project (the "Project").

B. Project will construct new water supply and distribution, and new sanitary sewer conveyance and treatment infrastructure, serving the Brooks Community Service District, an entity composed of the unincorporated communities of Brooks and Hopmere within Marion County, Oregon.

C. The work of the Project (the “Work”) will be performed in two phases:

(i) During the Preconstruction Phase, the CM/GC will perform the pre-construction services (the “Pre-Construction Services”) described in Article 3.1. During the Preconstruction Phase, the CM/GC will comply with all terms of the Contract, except those requirements of the Marion County General Conditions applicable only to Construction Phase Services.

(ii) During the Construction Phase, the CM/GC will perform all portions of the Work (the “Construction Phase Services”), other than the Pre-Construction Services described in Article 3.1.

During the Construction Phase, the CM/GC will comply with all terms of the Contract, without exception. Until Owner and the CM/GC successfully negotiate and execute an Early Work Amendment or the GMP Amendment described in Article 6, the CM/GC has not been awarded the Construction Phase portion of the Work.

It is understood that time is of the essence and all parties shall work to construct and commission the full Project as soon as possible. It is anticipated that construction, commissioning, and invoicing shall be completed no later than November 1, 2026.

AGREEMENT

Owner and the CM/GC agree to give effect to the recitals above by mutually establishing the terms and conditions below, and the promises so exchanged constitute adequate consideration for this Contract.

ARTICLE 1

DEFINITIONS

Except as expressly defined or modified below or elsewhere in this agreement (the “Contract” or this “CM/GC Contract”), all capitalized terms shall have the meanings set forth in Section A of the Marion County General Conditions for Public Improvement Contracts, September 1, 2014, Revised February 14, 2022 Edition, attached as Exhibit A (the “Marion County General Conditions”). The terms below are expressly defined as follows:

1.1 Affiliate

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

1.2 Allowances

Allowances means the allowance amounts shown in the GMP Supporting Documents, together with any further allowances the parties may develop as the Project progresses.

1.3 Amendment

Amendment means a written modification of the Contract (including, without limitation, any change in the GMP to which the parties agree), that is identified as an Amendment, is executed by the CM/GC and Owner’s Authorized Representative (as identified on the cover page of this CM/GC Contract), and, if required, approved in writing on behalf of Owner by the County Legal Counsel.

1.4 Business Days

Business Days means every day except Saturday, Sunday, and legal holidays recognized for employees of Owner.

1.5 Change Order

Change Order means a written modification of the Contract under Section D.1 of the Marion County General Conditions, (including, without limitation, any change in the GMP to which the parties agree), that is identified as a Change Order, is executed by Owner’s Authorized Representative and CM/GC, if applicable, and, if required, approved in writing by the County Legal Counsel.

1.6 CM/GC Field Work

CM/GC Field Work means work the County and CM/GC determines to be in the best interest of the project; provided, however, that (i) the CM/GC has reasonably determined that the CM/GC doing such portion of the Work using staff and direct resources of the CM/GC is in the best interests of Owner, (ii) the Work is identified as CM/GC Field Work in monthly billings and (iii) the CM/GC receives prior approval of Owner’s Authorized Representative as to the scope of the CM/GC Field Work.

1.7 CM Services

CM Services has the meaning given in Article 3.3 below.

1.8 Construction Documents

Construction Documents has the meaning given in the Marion County Standard Professional Services Contract for Architectural, Engineering & Related Services (the “A/E Contract”) for this Project.

1.9 Construction Phase

Construction Phase means the period that begins when Owner executes a GMP Amendment or Early Work Amendment, together with the earlier of (i) issuance by Owner of a Notice to Proceed with any on-site construction or (ii) execution of a subcontract or issuance of a purchase order for materials or equipment required for the Work.

1.10 Construction Phase Services

Construction Phase Services means all of the Work other than the Preconstruction Phase Services, including Early Work.

1.11 Contract Documents

Contract Documents has the meaning given in Section A of the Marion County General Conditions, and as supplemented by Article 2.1 below.

1.12 Costs for General Conditions Work

Costs for General Conditions Work means the sums paid on a cost reimbursable maximum, not-to-exceed price basis as described in Article 8.8.

1.13 Design Development Documents

Design Development Documents has the meaning given in the A/E Contract for the Project.

1.14 Development Plan and Operations Manual

Development Plan and Operations Manual means the document described in Article 2.4.

1.15 Early Work

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

1.16 Early Work Amendment

Early Work Amendment means an Amendment to the Contract executed by and between the parties to authorize Early Work.

1.17 RESERVED.

1.18 General Conditions Work

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

1.19 Guaranteed Maximum Price (the “GMP”)

The GMP means the Guaranteed Maximum Price of this Contract, as stated in dollars in the GMP Amendment, as determined in accordance with Article 6, and as the price may be adjusted from time to time pursuant to the provisions of the Contract.

1.20 GMP Amendment

The GMP Amendment means an Amendment to the Contract, issued in the form of Exhibit C and executed by and between the parties, to establish the GMP and identify the GMP Supporting Documents for Construction Phase Services.

1.21 GMP Supporting Documents

The GMP Supporting Documents means the documents referenced in the GMP Amendment as the basis for establishing the GMP and that expressly identify the plans and specifications, assumptions, qualifications, exclusions, conditions, allowances, unit prices, and alternatives that form the basis for the GMP.

1.22 Preconstruction Phase

Preconstruction Phase means the period that begins on the date of this CM/GC Contract and ends upon commencement of the Construction Phase; provided that if Owner and the CM/GC agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently, subject to the terms and conditions of the Contract Documents.

1.23 Preconstruction Phase Services

Preconstruction Phase Services means all services described in Article 3.1, and any similar services described in the RFP, including such similar services as are described in the CM/GC’s response to Owner’s RFP to the extent that Owner agrees to the services, but excluding any Early Work.

1.24 Schematic Design Documents

Schematic Design Documents has the meaning given in the A/E Contract for the Project.

1.25 Scope Change

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

ARTICLE 2

CONTRACT DOCUMENTS

2.1 Contract Documents

For purposes of the Project, the document identified as “Marion County Public Improvement Agreement Form” in the Marion County General Conditions means this CM/GC Contract. This CM/GC Contract includes all exhibits attached, which by this reference are incorporated.

2.2 Effective Date

The Contract becomes effective on the first date on which every party has signed the Contract and Owner has received all necessary approvals, including approval for legal sufficiency by the County Legal Counsel.

2.3 The Contract; Order of Precedence

This CM/GC Contract, together with the other Contract Documents, forms the entire agreement between the parties. Except as otherwise expressly provided herein, the order of precedence of the Contract Documents is as established in Section A.3.1 of the Marion County General Conditions. The parties shall look to this order of precedence to resolve inconsistent or conflicting terms among the Contract Documents.

ARTICLE 3

WORK OF THE CONTRACT

3.1 Preconstruction Phase Services

The CM/GC agrees to provide all of the Preconstruction Phase Services described below on an ongoing basis in support of, and in conformance with, the time frames described in the RFP.

Commencement of the Construction Phase does not excuse the CM/GC from completion of the Preconstruction Phase Services, if such services have not been fully performed at commencement of the Construction Phase. Preconstruction Phase Services include CM Services performed during the Preconstruction Phase, but not including CM services related to early work as described in the Early Work Amendment.

3.1.1 Project Schedule:

Within one week of contract execution, the CM/GC shall establish a Pre-Construction Schedule according to the project scope elements in coordination with the Design Team. The CM/GC shall incorporate the preconstruction roles and responsibilities of the various team members. The

Preconstruction Schedule will be used to establish the initial schedule for the Project and shall include/consider a proposed construction schedule as well. The CM/GC shall provide continuous schedule validation for construction schedules and the overall schedule for the duration of the CM/GC preconstruction phase.

The CM/GC will incorporate or perform the following items while developing the Preconstruction Schedule and maintaining it for the duration of the CM/GC preconstruction phase:

a. Incorporate all pre-construction activities for both the Design Team and the CM/GC.

b. Impacts to the traveling public must be minimized and will be a consideration in the determination of daily working time schedules allowed. The CM/GC must work and communicate with Project stakeholders and citizens before and during construction. Seasonal, weekly, and daily traffic patterns must be considered when planning and scheduling work.

c. Notable Project schedule constraints to be considered:

i. Environmental Requirements

• All work is anticipated to conform to the environmental clearance and/or permit documents.

• Any early packages shall have the appropriate environmental clearances, approvals, and permits before GMP negotiation, and bid package construction.

ii. Lane Closures

iii. Utility Relocation

iv. Resource availability

v. Long-lead procurement items.

d. Develop a preliminary construction schedule and construction packaging strategy within Owner’s overall Project schedule and budget. Collaborate with the Design Team to determine if early construction packages are viable, cost effective and provide an overall benefit to the Project.

e. Assist in determining the scope for any potential early construction packages.

f. Prepare construction schedules and phasing alternatives at each pre-construction milestone to support development of Opinion of Probable Construction Costs (OPCC’s), validate deadlines, and help develop Project delivery strategies.

g. Develop a resource-loaded, critical path method, construction schedule at 30%, 60% and 90% OPCC milestones, as well as for all GMP proposals.

h. Ensure each GMP package will be severable; will have specific beginning and end points;

and will have independent overhead, mobilization, traffic control, and Project costs. Each GMP package will include provisions for liquidated damages and incentive/disincentive as determined by Owner in its sole discretion. The awarded CM/GC and Owner are responsible for ensuring the severability of each package.

i. Compare and verify construction schedules and all assumptions with the Independent Cost Estimator (ICE).

3.1.2 Meetings:

a. The Kick-Off meeting will emphasize the importance of partnering within the CM/GC delivery method by focusing on team building and partnering. This meeting is mandatory for all key team members including key subcontractors. This workshop will be facilitated by the Owner and will cover at a minimum the following items:

i. Introduction to the Project, CM/GC, partnering, Project stakeholder engagement, identification of roles and responsibilities. Subcontractors performing major and high-risk work items should be in attendance.

ii. The Team will review Project status, vision, goals, objectives, funding, preliminary preconstruction schedule, what success would look like, current design, etc.

iii. Initial discussion of preliminary innovations, phasing, and risk mitigations being proposed by the CM/GC, Design Consultant, and ICE.

iv. Coordinate Project Schedule review meetings.

v. Coordinate progress meeting frequencies and initiate working groups for various elements of the Project. Progress meetings may include project management meetings, design meetings, discipline/specialty meetings, stakeholder meetings, and public meetings.

vi. Strategy, timing, and approach for the Project Value Engineering Workshop.

b. The Project Value Engineering Workshop will be co-facilitated by the Owner, the CM/GC, ICE, and the Design Consultant. Attendance and duration will be outlined at the Kick-Off Meeting. It is also anticipated that Project stakeholders’ input will also be incorporated into this workshop. The approach, agenda, format, and duration for the workshop will be developed in collaboration with the Owner, the CM/GC, ICE, and the Design Consultant. The CM/GC shall provide input into how to achieve the desired results for the Project. This workshop could require several sessions. The purpose of this workshop is to evaluate the Preferred Alternative, consider any of the CM/GC innovations or design refinements for the Project, incorporate value engineering principles to the Project, incorporate stakeholder input and get support for endorsement of any potential changes to the Preferred Alternative.

c. The CM/GC shall at a minimum attend the following meetings. Other meetings may be deemed useful and necessary. Attendance to any additional meetings by the CM/GC shall be coordinated with Owner.

i. Kick-Off meeting

ii. Risk management and assessment workshop

iii. Regular partnering meetings

iv. Project Value Engineering Workshop

v. Field Inspection Review (FIR) for each construction scope package – 30%

vi. Design Office Review (DOR) for each construction scope package – 60%

vii. Final Office Review (FOR) for each construction scope package – 90%

viii. Quantity reconciliation meetings

ix. Regular risk management meetings

x. Innovation meetings

xi. Cost estimate review meetings

xii. GMP review meetings

xiii. GMP negotiations and assumption resolution meetings (if applicable)

xiv. Ongoing lessons learned

xv. Assist with and attend public meetings and/or open houses

xvi. Other Project meetings as may become necessary

3.1.3 The CM/GC shall provide the following services relating to design and preconstruction tasks:

a. Conduct a thorough review of all plans, specifications, reports, diagrams, shop drawings, as-built plans, site conditions, specifications, and all other necessary Project documentation to provide design validation from a construction expertise perspective.

b. Conduct and analyze preliminary field work (coring, sampling, test holes, etc.) to assist with the design phase.

c. Independently calculate quantities for verification purposes of construction packages, independent from both the Design Consultant and the Independent Contract Estimator.

d. Provide constructability input on all facets of the Project including, but not limited to:

i. Construction methods and elements

ii. Structures

iii. Geotechnical findings

iv. Geohazards

v. Environmental commitments

vi. Minimizing impacts of construction to the traveling public

vii. Material availability

viii. Staging

ix. Stormwater Management

x. Shoring and phasing techniques

xi. Accelerated construction techniques

xii. Existing subsurface utilities

xiii. Quality assurance of design deliverables specific to mitigation of error and omission prior to negotiation

e. Provide written reviews or reports and details/redlines of the Project plans and specification packages at Project milestones. Comments should be related to constructability, construction phasing, clarifications, design errors or omission mitigation and tracking, impacts to schedule, impacts to cost, risk identification, and recommendations to increase efficiencies of the Project.

f. Coordinate with the design team to make determinations whether early procurement packages for materials (long lead-time procurement) will benefit the Project.

g. Actively participate in discussions to study the feasibility of design options and provide input on constructability, pricing, innovation, value, risk mitigation, and quality.

h. Provide additional milestone reviews depending on package complexity.

i. Provide timely feedback from design reviews to assist in decision making.

3.1.4 Cost Estimating:

The CM/GC shall provide cost estimating along with schedule impact estimates as design concepts/alternatives are being developed and evaluated throughout the preconstruction phase to help inform decisions. This may include:

a. Evaluating means and methods of various construction techniques that may influence design solutions with considerations of cost and schedule impacts.

b. Evaluating industry standard operating and maintenance costs to determine life-cycle costs.

c. Proposing design alternatives to reduce cost.

d. Providing construction cost estimates at milestones that shall include the following activities:

i. Item identification that is compatible with the Owner’s cost estimating, standards, and specifications.

ii. Submission of Opinion of Probable Construction Costs (“OPCCs”) at 30%, 60% and 90% milestones for each construction package. Analysis should include availability of labor, equipment, and materials. Additional OPCCs may be required at the request of the Owner if: the package complexity indicates an added benefit, analysis of proposed alternatives is necessary, analysis of means and methods is necessary, or work is added to the Project.

iii. Additional OPCCs may be required before determining the GMP proposal if the Owner agrees on their necessity. To facilitate comparisons with ICE estimates, both CM/GC and subcontractor cost estimates will be included in an open book review.

iv. Submit a GMP proposal when both the CM/GC and Owner agree the design has progressed to the appropriate level, typically at 90%.

• Quantity and schedule reconciliation will be required between the Design Team and Owner. This may include verification of assumptions, and means of methods between Owner, the Design Consultant, and the ICE.

• Owner may require the CM/GC submit a GMP proposal on early construction packages, or for the procurement of long-lead items.

• During GMP proposal reviews, the CM/GC shall provide Owner all production rates, material assumptions, indirect costs, and any other information as requested by Owner to aid in reaching an agreement on a GMP proposal.

3.1.5 Risk:

The CMGC delivery method provides a forum to communicate and discuss risk in the design phase and to collaboratively address and reduce risk with the Owner, CM/GC and the Design Consultant. A primary benefit of CM/GC is the ability to contractually allocate risks to the party best able to manage the risk. Risk assessment will be a continual process throughout the pre-construction and construction stage with risk sharing between public and private parties that holds both accountable for performance and expenditure of public resources.

Risk management will be a topic at both the 1-day Kickoff meeting and an initial Risk Management and Assessment Workshop which shall be scheduled by the CM/GC early in the preconstruction phase. Regular risk meetings, facilitated by the CM/GC, will be held to monitor progress. Risk responsibilities include:

a. Facilitate quantitative and qualitative risk management discussions to identify risks, quantify probabilities, quantify impacts, develop mitigation strategies, and assign risk responsibility.

b. Set risk meeting frequencies and prepare and update the Project Risk Matrix throughout the Project lifecycle.

c. Collaborate with the Project Team to develop a Risk Management Plan, perform risk assessments, and prepare and update the Risk Matrix.

3.1.6 The CM/GC shall perform the following services relating to Subcontractors and suppliers:

a. The CM/GC shall seek to develop Subcontractor and supplier interest in the Project, consistent with applicable legal requirements, and shall furnish to Owner and the engineer a list of possible Subcontractors and suppliers, including suppliers who may furnish materials or equipment fabricated to a special design, from whom competitive bids, quotes, or proposals (collectively, “Offers”) will be requested for each principal portion of the Work.

The parties acknowledge and agree that the CM/GC’s submission of the list of possible Subcontractors and suppliers is for information and discussion purposes only and not for prequalification. The receipt of such list does not require Owner or the engineer to investigate the qualifications of proposed Subcontractors and suppliers. Owner or the engineer does not, as a consequence of receiving the list, waive any rights to object later to or reject any proposed Subcontractor, supplier, or method of procurement.

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

c. The CM/GC shall advise Owner on subcontracting opportunities for State of Oregon-certified minority-owned, women-owned, and emerging small business firms (“MWESBs”).

3.1.7 The CM/GC shall recommend to Owner and the engineer a schedule for procuring long-lead time items that will constitute part of the Work required to meet the Project schedule, which shall be procured by the CM/GC upon execution of either a GMP Amendment or Early Work Amendment covering the procurement and approval of the schedule by Owner. The CM/GC shall expedite the delivery of long-lead time items.

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

3.1.9 Deliverables:

In addition to the Work described above, the CM/GC shall develop and produce the following reports and deliverables:

a. Subsurface Exploration Plan

b. Subcontractor Selection Plan

c. Material and Equipment Sourcing Plan

d. Worker and Public Safety Plan

e. Risk Management Plan

f. Comments, input, and support that will be incorporated into the Value Engineering Report (the CM will not be creating the actual document)

3.2 Construction Phase Services.

3.2.1 Upon execution of an Early Work Amendment or GMP Amendment, the CM/GC shall provide Construction Phase Services as provided in the Contract Documents, including, without limitation, providing and paying for all materials, tools, equipment, labor and professional and non-professional services, and performing all other acts and supplying all other things necessary to fully and properly perform and complete the Work, as required by the Contract Documents;

and to furnish to Owner a complete, fully functional Project, capable of being legally occupied and fully used for its intended purposes upon completion of the Contract (or, with respect to an Early Work Amendment, to furnish such Work as is described in the Early Work Amendment).

Construction Phase Services include CM Services performed during the Construction Phase.

3.2.2 Notwithstanding any other references to Construction Phase Services in this Contract, the Contract includes Preconstruction Phase Services only unless (i) the parties execute a GMP Amendment or (ii) the parties execute an Early Work Amendment of the character described below.

3.2.3 The parties may execute one or more Early Work Amendments that identify specific Construction Phase Services that must be performed before establishing the GMP, without exceeding a not-to-exceed budget, a maximum not-to-exceed price, or a fixed price (“Early Work Price”) that is stated in the Early Work Amendment. The Early Work Amendment must include all necessary governmental approvals required for the Early Work. If the Early Work Price is a not-to-exceed budget, then the CM/GC shall perform the Early Work only to the extent that the Cost of the Work, together with the CM/GC Fee, does not exceed the Early Work Price. If the CM/GC performs Early Work in accordance with a maximum not-to-exceed price or a fixed price and the CM/GC incurs a cost in excess of the maximum not-to-exceed price or fixed price, respectively, the CM/GC shall complete the Early Work and pay the excess cost without reimbursement. If one or more Early Work Amendments are executed, the CM/GC shall diligently continue to work toward developing a GMP Amendment that is acceptable to Owner and incorporates the Early Work Amendments. If Owner thereafter terminates the Contract before executing a GMP Amendment, the provisions of Section J. of the Marion County General Conditions apply.

3.2.4 Before the Construction Phase begins, and in any event not later than the parties execute the GMP Amendment, the CM/GC shall provide to Owner a full performance bond and a payment security bond as required by Section G of the Marion County General Conditions that together are equivalent to the amount of the GMP. If an Early Work Amendment is executed, CM/GC shall provide a bond in the amount of the Early Work Price under the Early Work Amendment. The CM/GC shall provide to Owner additional or replacement bonds at the time the parties execute any subsequent Early Work Amendment or GMP Amendment, in each case before executing the Amendment and before any labor or materials are supplied to perform the Work covered by the Amendment, and in each case in an amount that equals or exceeds the total Early Work Price or the GMP, as the case may be. In the event of a Scope Change (as defined in Section 1.25 of this CM/GC Contract) that increases the GMP, the CM/GC shall provide to Owner an additional or supplemental bond in the amount of the increase before performing the additional Work.

3.2.5 As provided in Section C of the Marion County General Conditions, the CM/GC and all subcontractors shall comply with ORS 279C.800 through 279C.870. The Oregon Bureau of Labor and Industries (BOLI) prevailing wage rates that will apply to the Contract shall be the prevailing wage rates that are in effect at the time the first Early Work Amendment is executed or, if there is no Early Work Amendment, then the prevailing wage rates that are in effect at the time the GMP Amendment is executed. Once established, the prevailing wage rates are in effect for the remainder of the Contract. The prevailing wage rates that will apply will be those set forth in the then current version of the following BOLI booklet, together with any amendments to that booklet: “PREVAILING WAGE RATES for Public Works Contracts in Oregon”. For purposes of calculating the prevailing wage rates for the Project, the Construction Phase Services take place in Marion County, Oregon.

3.3 Construction Management (CM) Services

Throughout the Preconstruction Phase and Construction Phase of the Project, the CM/GC shall provide CM Services, generally consisting of coordinating and managing the building process as an independent contractor, in cooperation with Owner, the engineer and other designated Project consultants. CM Services include, but are not limited to:

3.3.1 Providing all Preconstruction Phase Services described above and as outlined in the RFP documents.

3.3.2 Implementing the CM/GC Safety Plan, including ensuring that all Subcontractors, suppliers, and other participants in the Project comply with the plan and reporting any incidents promptly to Owner.

3.3.3 Allowing access to the Project site for tours by representatives of Owner, the architect, the engineer, and other personnel as approved by Owner and providing personal protective equipment for tour participants.

3.3.4 Developing and delivering schedules, preparing construction estimates, performing constructability review, analyzing alternative designs, studying labor conditions, coordinating and communicating the activities of each of the construction principals (including Owner, Owner’s Authorized Representative, the A/E Service Provider [as defined in the A/E Contract], Subcontractors, suppliers and governmental agency representatives assigned to the Project (the “Construction Principals”) throughout the Construction Phase to other Construction Principals.

3.3.5 Continuously monitoring the Project schedule and recommending adjustments to ensure completion of the Project in the most expeditious manner possible.

3.3.6 Working with Owner and the engineer to analyze the design, participate in decisions regarding construction materials, methods, systems, phasing, and costs, and suggest modifications to achieve the goals of providing Owner with the highest quality Project within the budget, GMP and schedule.

3.3.7 Providing VE services ongoing throughout the Project. The CM/GC shall develop cost proposals, in the form of additions to or deductions from the GMP, including detailed documentation to support such adjustments, and shall submit such proposals to Owner and the Construction Principals for approval. The CM/GC acknowledges that VE services are intended to improve the value received by Owner with respect to the first cost and life cycle cost of the Project. The CM/GC shall hold and conduct periodic meetings with Owner and the engineer to coordinate, update and ensure progress of the Work.

3.3.8 Submitting monthly written report(s) to Owner. Each report must include, but not be limited to, Project updates including (i) actual costs and progress for the reporting period as compared to the estimate of costs; (ii) explanations of significant variations; (iii) work completed; (iv) a monthly Project schedule update, with a narrative explaining any line item changes in the Project schedule and a recovery plan for recuperating schedule delays; (v) work in progress; (vi) changes in the

Work; (vii) material and equipment delivery status; (viii) man-loading information; and (ix) other information as Owner determines is appropriate. The CM/GC shall provide oral or written updates to Owner as the CM/GC deems appropriate or as Owner requests.

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

3.3.10 Developing and implementing a system of cost control for the Work that is acceptable to Owner, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The CM/GC shall identify variances between actual and estimated costs and report the variances to Owner, the engineer and the engineer at regular intervals; maintaining an accurate system to propose and account for contingency utilization throughout the Project; maintaining an accurate system to account for usage of Allowances included in the GMP; providing detailed cost information, contingency utilization and Allowances usage to Owner on a minimum of a monthly basis.

3.3.11 Cooperating with any and all consultants hired by Owner.

3.3.12 Cooperating with inspection authorities and obtaining necessary permits for construction;

ensuring close-out of all permits; obtaining temporary permits as needed for placing equipment in operations and commissioning; and supporting the engineer and Owner as needed to secure final permits.

3.3.13 Preparing and submitting monthly payment applications for the engineer and Owner to review in accordance with Owner’s accounting standards and Project procedures and participating in reviews and reconciliations of monthly payment applications with Owner’s staff.

3.3.14 Preparing, implementing, and documenting Owner’s training program for all building systems and features.

3.3.15 Facilitating and participating in Owner’s move-in to the Project as required by the Contract Documents.

3.3.16 At Owner’s request, cooperating and performing warranty and inspection Work for the Project through the expiration date of the applicable warranty period(s).

3.3.17 Incorporating commissioning and inspection agents’ activities into the Project schedule and coordinating Subcontractors required to participate in the commissioning and inspection process.

Cooperating with and supporting the activities of Owner’s commissioning agent. Identifying a commissioning team that consists of a CM/GC test engineer and representatives of the major Subcontractors to plan, execute, and document commissioning activities in accordance with the Contract Documents.

3.3.18 Implementing all other testing activities required by the Contract Documents.

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

ARTICLE 4

RELATIONSHIP AND ROLES OF THE PARTIES

4.1 Independent Contractor

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

4.2 Performance of Work

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

4.3 Design Consultants

Owner has a separate contract with the engineer related to the Project. Both the CM/GC and the engineer shall be given direction by Owner through Owner. The CM/GC agrees to support Owner's efforts to create a collaborative and cooperative relationship among the CM/GC, the engineer, other Project consultants, and Owner.

4.4 Forms and Procedures

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

4.5 CM/GC's Project Staff

The CM/GC's Project staff shall consist of the following personnel:

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

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

4.6 Key Persons

The CM/GC's personnel identified in Article 4.5 and other key personnel identified in Exhibit I to this CM/GC Contract shall be considered Key Persons and shall not be replaced during the Project without the written permission of Owner, which shall not be unreasonably withheld. If the CM/GC intends to substitute personnel, a request must be given to Owner at least 30 days (or such shorter period as permitted by Owner) prior to the intended time of substitution. When replacements have been approved by Owner, the CM/GC shall provide a transition period of at least 10 Business Days, during which the original and replacement personnel shall be working on the Project concurrently.

Once a replacement for any of these staff members is authorized, further replacement shall not occur without the written permission of Owner. The Owner, at its sole discretion, may deduct $25,000 from the CM/GC’s invoice for each occurrence of replacement of key staff to account for the learning curve to bring new staff up to speed on the project

ARTICLE 5

DATE OF COMMENCEMENT; SUBSTANTIAL AND FINAL COMPLETION

5.1 Notice to Proceed

If Construction Phase Services are added to the Contract as set forth in Article 3.2, then a notice to proceed will be issued by Owner to begin the designated or full Construction Phase Services (“Notice to Proceed”). It is anticipated that the Notice to Proceed will be issued in or about the ____________.

A separate Notice to Proceed shall be issued for any and every Early Work Amendment.

5.2 Completion of Project

The CM/GC shall achieve Substantial Completion of the entire Work no later than____________.

The exact date for final completion will be determined during pre-construction and established in the GMP amendment.

5.3 Time is of the Essence

All time limits stated in the Contract Documents are of the essence.

5.4 Time Extensions

Notwithstanding provisions for Contract time extensions in Section D.2 of the Marion County General Conditions, Owner and the CM/GC agree that timely completion of the Work is essential to the success of the Project, and that approval for a time extension shall be granted only as a last resort.

The CM/GC agrees to make every effort to recover "lost" time.

ARTICLE 6

FEES, CONTRACT SUM AND GMP

6.1 Fees; Contract Sum; GMP

Owner shall pay the CM/GC the Preconstruction Fee described in Article 6.2. In addition, for each Early Work Amendment executed by the CM/GC and Owner, Owner shall pay the CM/GC, as payment for the Early Work, an amount equal to the sum of the CM/GC Fee attributable to the Early Work, and the actual cost of all Early Work completed and accepted by Owner, but not exceeding the Early Work Price.

If a GMP Amendment is executed, Owner shall pay the CM/GC, as payment for the Work, the “Contract Sum” which shall equal the sum of the Preconstruction Fee, the CM/GC Fee, the actual Cost of the Work including any Early Work, but not exceeding the GMP.

The GMP shall be determined in accordance with the formula set forth below and as described in Article 6.4. The "Cost of the Work" is defined in Article 8. Costs in excess of the GMP shall be paid by the CM/GC without reimbursement by Owner. Changes to the GMP shall only be authorized by Amendment or Change Order that includes any necessary governmental approvals, including any approvals by the County Legal Counsel.

Preconstruction Fee + GM/CG Fee + Estimated Cost of the Work (“ECOW”)

= GMP

Cost Reimbursement Not to Exceed

___% of ECOW (paid as Lump Sum)

Includes CM/GC’s Contingency, Allowances, and Maximum Cost for GC Work

(Note: Bonds, Insurance, & Builder’s Risk are not considered part of the ECOW when Calculating the CM/GC Fee)

6.2 Preconstruction Fee

The Preconstruction Fee shall be payable to the CM/GC on a cost reimbursement basis up to a maximum sum of $__________________, which shall cover constructability review, VE, cost estimating, development of the GMP, and all other Preconstruction Phase Services, as described in Article 3 (the “Preconstruction Fee”). If the CM/GC's costs for provision of Preconstruction Phase Services exceed the maximum Preconstruction Fee, the CM/GC shall pay such additional cost without reimbursement. The CM/GC shall not be entitled to any CM/GC Fee upon the Preconstruction Fee. Owner shall pay the Preconstruction Fee on a cost-reimbursement basis with each application for payment during the Preconstruction Phase. If the total actual Preconstruction Fee is less than the maximum Preconstruction Fee used for initial calculation of the GMP as provided above, the GMP shall be reduced by the difference; provided that Owner may direct, instead, that any unapplied portion of the maximum Preconstruction Fee be applied to Construction Phase Services, in which case the GMP shall not be reduced by the portion so applied.

6.3 Establishment of CM/GC Fee; Adjustments to CM/GC Fee.

6.3.1 The "CM/GC Fee" shall be a fixed dollar lump sum to be identified in the GMP Amendment, and shall be calculated as ___% of the ECOW at the time of establishment of the GMP. In making such calculation, the ECOW shall exclude the Preconstruction Fee, Performance and Payment Bonds, Commercial General Liability ”CCIP”, and Professional Liability Insurance, Builder’s Risk Insurance, the CM/GC Fee itself, and any other cost or charge that this CM/GC Contract states is not to be included in calculating the CM/GC Fee, but shall include Allowances, selected alternates, Maximum Cost for GC Work, and reasonable CM/GC contingencies as designated in the GMP Supporting Documents. The CM/GC Fee is inclusive of profit, overhead, and all other indirect or non-reimbursable costs. No additional markup will be paid to the CM/GC for change order or force account work or for subcontracted labor or materials, notwithstanding anything to the contrary in the Marion County General Conditions. Owner shall pay the CM/GC Fee ratably with each application for payment during the Construction Phase. In the case of Early Work, the CM/GC Fee shall be the above percentage multiplied by the actual Cost of the Early Work, until such time as a GMP Amendment is executed, at which time such CM/GC Fee payments shall be credited against the CM/GC Fee fixed therein.

6.3.2 Notwithstanding any provision of Section D.1.3 of the Marion County General Conditions to the contrary, and unless the parties agree in writing to the contrary, any Amendment or Change Order that increases or decreases the GMP shall adjust the CM/GC Fee then in effect by multiplying the percentage shown in Article 6.3.1 by the change in the ECOW reflected in such approved Amendment or Change Order. In addition, if the Contract is terminated for any reason prior to full completion of the Work (including, without limitation, termination during or following performance of Early Work), the CM/GC Fee shall be limited to the total CM/GC Fee multiplied by the percentage of Work completed and accepted at the time of termination. The CM/GC Fee shall not be subject to adjustment for any other reason, including, without limitation, schedule extensions or adjustments, Project delays, unanticipated costs, or unforeseen conditions.

6.4 Determination of GMP.

6.4.1 The CM/GC shall deliver to Owner a proposed GMP and GMP Supporting Documents at a time designated by Owner during the Preconstruction Phase. If any actual subcontract Offers (as defined in Article 3.1.6[a]) are available at the time the GMP is being established, CM/GC shall use those subcontract Offers in establishing the GMP.

6.4.2 As the Plans and Specifications (as defined in Section A.1 of the Marion County General Conditions) may not be developed to the stage of biddable design documents at the time the GMP proposal is prepared, the CM/GC shall provide in the GMP for further development of the Plans and Specifications by the engineer that is consistent with the Contract Documents and reasonably inferable therefrom. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be incorporated by Change Order or Amendment with a corresponding GMP adjustment.

6.4.3 The CM/GC shall include with the GMP proposal a written statement of its basis (the "GMP Supporting Documents"), which shall include:

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

b. A list of Allowances and a statement of their basis.

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

d. The proposed GMP, including a statement of the estimated cost organized by trade categories, allowances, contingency, and the other items and associated fees that comprise the

GMP.

e. The Date of Substantial Completion upon which the proposed GMP is based and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based.

6.4.4 The CM/GC shall meet with Owner and the engineer to review the GMP proposal and the written statement of its basis. If Owner or the engineer discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the CM/GC, which shall make appropriate adjustments to the GMP proposal, its basis or both.

6.4.5 Prior to Owner's acceptance of the CM/GC's GMP proposal and issuance of a Notice to Proceed, the CM/GC shall not incur any cost to be reimbursed as part of the Cost of the Work, except as specifically provided in an Early Work Amendment.

6.4.6 Owner shall authorize and cause the engineer to revise the Plans and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in the GMP Amendment. Such revised Plans and Specifications shall be furnished to the CM/GC in accordance with schedules agreed to by Owner, the engineer and the CM/GC. The CM/GC shall promptly notify the engineer and Owner if such revised Plans and Specifications are inconsistent with the agreed-upon assumptions and clarifications.

6.4.7 The GMP shall include in the ECOW only those taxes that are enacted at the time the GMP is established.

6.4.8 The ECOW shall include the CM/GC's contingency, a sum established by the CM/GC for the CM/GC's exclusive use to cover additional development of Plans and Specifications and unanticipated costs and unforeseen conditions which are properly reimbursable as a Cost of the Work but which are not the basis for a Change Order. For purposes of the CM/GC’s contingency, unanticipated costs and unforeseen conditions include Work within the scope of the Project and any conditions that the CM/GC reasonably should have anticipated might be encountered in a project of this size and complexity. The CM/GC shall provide advance, written notice to Owner each time the CM/GC proposes to use its contingency and shall include in the notice the proposed purpose for such use and those approved for use in advance by Owner.

6.4.9 The CM/GC shall work with the engineer and Owner to identify and confirm components and systems not specifically shown but required for a complete, fully functional Project.