Sample_CMAR_Contract.pdf

CITY OF KINGMAN, ARIZONA

PROJECT NAME

CONSTRUCTION MANAGER AT RISK

CONSTRUCTION SERVICES

PROJECT NO.

Table of Contents

ARTICLE 1 – DEFINITIONS

ARTICLE 2 ‐ CMAR’s SERVICES AND RESPONSIBILITIES

2.0 Standard Specifications and Details

2.1 General Services

2.2 Government Approvals and Permits

2.3 Pre‐construction Conference

2.4 Control of the Work

2.5 Control of the Work Site

2.6 Quality Control, Testing and Inspection

2.7 Project Record Documents

2.8 Project Safety

2.9 Warranty

2.10 Correction of Defective Work

ARTICLE 3 ‐ CITY’S SERVICES AND RESPONSIBILITIES

3.0 City’s Representative and Inspector

3.1 Design Professional Services

3.2 City’s Separate Contractors

3.3 Permit Review and Inspections

ARTICLE 4 ‐ CONTRACT TIME

4.0 Contract Time

4.1 Final Acceptance

4.2 Liquidated Damages

4.3 Project Schedule

ARTICLE 5 ‐ CONTRACT PRICE

5.0 General

5.1 Contract Price

ARTICLE 6 ‐ CHANGES TO THE CONTRACT PRICE AND TIME

6.0 Delays to the Work

6.1 Differing Site Conditions

6.2 Errors, Discrepancies, and Omissions

6.3 City Requested Change in Work

6.4 Change Orders

6.5 Minor Changes in the Work

6.6 Extra Work

6.7 Contract Modifications

6.8 Emergencies

ARTICLE 7 ‐ PROCEDURE FOR PAYMENT

7.0 Payment Procedure

7.1 Record Keeping and Finance Control

ARTICLE 8 ‐ CLAIMS AND DISPUTES

8.0 Dispute Avoidance and Resolution

8.1 Duty to Continue Performance

8.2 Representatives of the Parties

ARTICLE 9 ‐ SUSPENSION AND TERMINATION

9.0 Suspension and Termination

ARTICLE 10 ‐ INSURANCE AND BONDS

10.0 Insurance Requirements

10.1 Bonds and Other Performance Security

ARTICLE 11 ‐ INDEMNIFICATION

11.0 CMAR’s General

ARTICLE 12 ‐ GENERAL PROVISIONS

12.0 Contract Documents

12.1 Time is of the Essence

12.2 Mutual Obligations

12.3 Cooperation And Further Documentation

12.4 Assignment

12.5 Successorship

12.6 Third Party Beneficiary

12.7 Governing Law

12.8 Severability

12.9 Compliance with Laws

12.10 Legal Requirements

12.11 Independent Contractor

12.12 City's Right Of Cancellation

12.13 Survival

12.14 Covenant Against Contingent Fees

12.15 No Waiver

12.16 Notice

12.17 Hazardous Materials

12.18 Traffic Control

12.19 CMAR's Affidavit

12.20 Necessary Work Done By City Forces

12.21 Equipment Rental Rates For Actual Cost Work

12.22 Shop Drawings

12.23 Date Of Final Acceptance And Beginning Of Warranty Period

12.24 Payment For Stored Materials

12.25 The Clean Air Act

12.26 Project Closeout

12.27 Approved Applicators

12.28 Progress Meeting

12.29 Asbestos‐Free Facility Material Certification

12.30 Arizona Pollutant Discharge Elimination System (AZPDES)

12.31 Temporary Utilities For Construction

12.32 Utility Lines, Poles And Pedestals

EXHIBIT A

EXHIBIT B

EXHIBIT C

THIS CONTRACT is made and entered into on the _____ day of _________________, _____, by and between City of Kingman, hereinafter designated the “City” and____________________, hereinafter called the "Construction Manager at Risk" or “CMAR”.

RECITALS

A. The City engages the CMAR to perform Construction Services for the project known and described as the City of Kingman ________________________________, Project No. _______________, herein referred to as the “Project”.

B. To undertake the design of said Project, the City has entered into a contract with

____________________, Inc. herein referred to as the “Design Professional”.

C. The CMAR has represented to the City the ability to provide construction management services and based on this representation the City engages the CMAR to provide these services for the Project.

AGREEMENT

NOW THEREFORE, for and in consideration of the mutual covenants and considerations hereinafter contained, it is agreed by and between the City and the CMAR as follows:

ARTICLE 1 – DEFINITIONS

“Agreement (“Contract”) This written document signed by the City and CMAR covering the design and construction phase of the Project, and including other documents itemized and referenced in or attached to and made part of this Contract.

“Allowance” Unless otherwise provided in the Contract Documents, allowances shall cover the cost to the contractor for materials, equipment, Contractor’s costs for unloading and handling at the site, labor, installation costs, and other expenses contemplated for stated allowance. Whenever costs are more than or less than allowances, the Contract Price shall be adjusted accordingly by Change Order. Supporting information shall be provided to support cost adjustments, including but not limited to payroll information, invoices (including invoices for rented equipment), and operation time for contractor‐owned equipment. Cost for equipment owned by CMAR will be paid at a rate shown for such equipment in the

GMP. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances. The Change Order will allow for adjustments for bonds, insurance, and taxes.

“Change Order” A written order issued by the City to the CMAR to make changes in the Work or to perform extra work, and setting forth conditions for payment and/or adjustment in time of completion.

“City (“Owner” or “OWNER”) The City of Kingman, a municipal corporation, with whom CMAR has entered into this Contract and for whom the services are to be provided pursuant to said Contact.

“CMAR” The firm selected by the City to provide design and construction services as detailed in this

Agreement.

“Contingency, CMAR (Contractor’s) A fund to cover cost growth during the project used at the general discretion of the CMAR, with approval by the City, usually for costs that result from project circumstances.

The amount of the CMAR’s Contingency shall be negotiated as a separate line item in each GMP package.

Use of the CMAR’s Contingency is described in Section 5.1.2.3.

“Contingency, OWNER (City’s) A fund to cover City initiated changes during the project used at the sole discretion of the City. The amount of the City Contingency shall be provided to the CMAR during the GMP negotiations.

“Contract Amendment” See the definition for Change Order.

“Contract Documents” The following items and documents executed by the City and the CMAR: (i) all written Change Orders; (ii) this Agreement, including all exhibits and attachments and (iii) GMP Plans and

Specifications.

“Contract Price” The amount or amounts set forth in Article 5 and as modified by Change Order.

“Construction Fee” The CMAR’s administrative costs, office overhead, and profit, at the CMAR’s on‐site or office and/or office(s) maintained for exclusive use on the Project. This includes administrative costs and any limitations or exclusions that may be included in the General Conditions.

“Contract Time” The Days as set forth in Article 4 for the period of time, including authorized adjustments, allotted in the Contract Documents for Final Acceptance of the Work.

“Cost of the Work” The direct costs necessarily incurred by the CMAR in the proper performance of the

Work. The Cost of the Work shall include direct labor costs, subcontract costs, costs of materials and equipment incorporated in the completed construction, costs of other materials and equipment, temporary facilities required to construct the Work, permit and license fees, materials testing, and related items. The Cost of the Work shall not include the CMAR’s Construction Fee, General Conditions Costs, CMAR’s Contingency and taxes.

“Critical Path” The sequence of activities which control the overall duration of the project from the start of the Work to the Final Acceptance of the Project. Any delay in the completion of these activities will extend the Contract Time

“Day(s)” Calendar day(s) unless otherwise specifically noted in the Contract Documents.

“Design Professional” The qualified, licensed person, firm or corporation who furnishes design services required under the Contract Documents. Representatives of the Design Professional may perform Special and other inspection services at the site and may, at the Owner’s option, represent the Owner during the construction period.

“Differing Site Conditions” Concealed or latent physical conditions or subsurface conditions at the Site that, (i) materially differ from the conditions indicated in the Contract Documents or field investigation reports furnished to the CMAR by the City, or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work at the general area of the project site.

“Final Acceptance” The completion of the Work including punch list, as prescribed in Section 4.1.

“Float” The number of Days by which an activity can be delayed without lengthening the Critical Path and extend the Contract Time.

“General Conditions Costs” Includes but is not limited to the following types of costs for the CMAR during the construction phase: (i) payroll costs for project manager or CMAR for work conducted at the site, (ii) payroll costs for the superintendent. (iii) payroll costs for other management personnel resident and working at the site, (iv) costs of temporary offices and construction facilities specifically for the Project, including office materials, office supplies, office equipment and minor expenses, (v) cost of utilities, fuel, sanitary facilities and telephone services at the site, (vi) costs of liability insurance premiums not included in labor burdens for direct labor costs, (vii) costs of bond premiums, or contractors default insurance premiums.

“Guaranteed Maximum Price” or “GMP” The sum of the maximum Cost of the Work; the CMAR’s

Construction Fee; General Conditions Costs, taxes, bonds, insurance costs and Contingencies.

“GMP Plans and Specifications” The plans and specifications provided in the Design Phase Services upon which the Guaranteed Maximum Price Proposal is based.

“Legal Requirements” All applicable federal, state and local laws, codes, ordinances, rules, regulations, orders and decrees of any government or quasi‐government entity having jurisdiction over the Project or

Site, the practices involved in the Project or Site and relating to the performance of the Work. “

Notice to Proceed” or “NTP” A directive issued by the City, authorizing the CMAR to start the Work.

“Payment Request” The City form used by the CMAR to request progress payments for Work in accordance with Article 7.

“Product Data” Illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the CMAR to illustrate materials or equipment for some portion of the Work.

“Project Record Documents” The documents created pursuant to Section 2.7.

“Samples” Physical examples, which illustrate materials, equipment or workmanship and establish standards by which the Work will be evaluated.

“Shop Drawings” Drawings or reproductions of drawings, detailing; fabrication and erection of structural elements, falsework and forming for structures, fabrication of reinforcement steel, installed equipment and installation of systems, or any other supplementary plans or similar data, which the CMAR is required to submit for approval.

“Site” The land or premises on which the Project is located.

“Specifications” The part(s) of the Contract Documents for the construction phase consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto. Except as modified by the project plans, specifications and Change Orders, this Project shall be constructed using the current

Uniform Standard Specifications and Details for Public Works Construction as furnished by the Maricopa

Association of Governments and as amended by the City of Kingman, unless alternate specifications and details are provided in the Drawings and/or Specifications.

“Subcontractor” Those having direct contracts with the CMAR and those who furnish material worked into a special design according to the plans and specifications for the Work, but not those who merely furnish material not so worked.

“Supplier” A manufacturer, fabricator, supplier, distributor, material man or vendor having a direct contract with CMAR or any Subcontractor to furnish materials or equipment to be incorporated in the construction phase Work by CMAR or any Subcontractor.

“Work” or “Project” The entire completed construction or the various separately identifiable parts thereof, required to be furnished during the construction phase. Work includes and is the result of performing or furnishing labor and furnishing and incorporating materials, resources and equipment into the construction, and performing or furnishing services and documents as required by the Contract

Documents for the construction phase.

ARTICLE 2 ‐ CMAR’s SERVICES AND RESPONSIBILITIES

2.0 Standard Specifications and Details

The City operates under the latest revision of the 2020 edition of the Uniform Standard Specifications for

Public Works Construction, published by the Maricopa Association of Governments (MAG) as adopted and amended by the City and is herewith incorporated by reference and made a part hereof. The adopted

MAG Standard Specifications and City amendment to the Standard Specifications may be downloaded from the City’s web site at: www.cityofkingman.gov. The City also operates under the latest revision of the 2020 edition of the Uniform Standard Details as published by the Maricopa Association of

Governments as adopted and amended by the City. The adopted MAG Standard Details and City amendment to the Standard Details may be obtained on the City’s web site referenced above. Where reference is made on the project drawings and specifications to MAG details, they shall be to the City of

Kingman amended specifications and details, or where the City of Kingman has not adopted an amended specification, to the latest revision to the 2020 edition of the Uniform Standard Specifications for Public

Works Construction and Uniform Standard Details.

2.1 General Services

2.1.1 CMAR’s Representative shall be available to City and shall have the necessary expertise and experience required to supervise the Work. CMAR’s Representative shall communicate regularly with the

City but not less than once a week and shall be vested with the authority to act on behalf of the CMAR.

CMAR’s Representative may be replaced only with the written consent of the City.

2.2 Government Approvals and Permits

2.2.1 The CMAR shall obtain all necessary permits for the Work, except these listed below, and pay all applicable fees. The CMAR is specifically notified of the need to obtain the necessary environmental permits or file the necessary environmental and regulatory permit notices.

2.2.2 City shall be responsible for obtaining all required permits from the Arizona Department of

Environmental Quality (ADEQ).

2.3 Pre‐construction Conference

2.3.1 Prior to the commencement of any Work, the City will schedule a Pre‐construction conference.

2.3.2 The purpose of this conference is to establish a working relationship between the CMAR, utility firms, and various City departments. The agenda will include critical elements of the work schedule, submittal schedule, cost breakdown of major lump sum items, Payment Requests and processing, coordination with the involved utility firms, and emergency telephone numbers for all representatives involved in the course of construction.

2.3.3 The Notice to Proceed shall be issued in accordance with MAG Section 108.

2.3.4 The CMAR shall provide a schedule of values based on the categories used in the buyout of the Work.

The schedule of values shall not be greater than the approved GMP and shall identify the CMAR’s

Contingency. The schedule of values will subdivide the Work into all items comprising the Work.

2.3.5 Minimum attendance by the CMAR shall be the CMAR’s Representative, who is authorized to execute and sign documents on behalf of the firm, the job superintendent, and the CMAR's safety officer.

2.4 Control of the Work

2.4.1 Unless otherwise provided in the Contract Documents to be the responsibility of the City or a separate contractor, CMAR shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start‐up, material, equipment, machinery, temporary utilities and other temporary facilities to permit CMAR to complete the Work consistent with the Contract Documents.

2.4.2 CMAR shall perform all construction activities efficiently and with the requisite expertise, skill and competence to satisfy the requirements of the Contract Documents. CMAR shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction.

2.4.3 CMAR or the CMAR’s Superintendent shall be present at the Site at all times that work under this contract is taking place.

2.4.3.1 All elements of the Work shall be under the direct supervision of a foreman or his designated representative on the Site who shall have the authority to take actions required to properly carry out that particular element of the work.

2.4.3.2 In the event of noncompliance of this section, the City may require the CMAR to stop or suspend the Work in whole or in part.

2.4.4 Where the Contract Documents require that a particular product be installed and/or applied by an applicator approved by the manufacturer, it is the CMAR’s responsibility to ensure the Subcontractor employed for such work is approved by the manufacturer, and to so demonstrate if requested.

2.4.5 Before ordering materials or doing work, the CMAR and each Subcontractor shall verify measurements at the Site and shall be responsible for the correctness of such measurements. No extra charge or compensation will be allowed because of differences between actual dimensions and the dimensions indicated on the drawings; differences, which may be found, shall be submitted to the City for the City’s resolution before proceeding with the work.

2.4.6 The CMAR shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to the CMAR with the Contract

Documents before commencing activities. Errors, inconsistencies or omissions discovered shall be reported to the City at once.

2.4.7 The City will establish all building and construction grades, lines, levels, and bench marks, and shall be responsible for accuracy and protection of same. The CMAR shall preserve and protect the construction survey stakes and marks for the duration of their usefulness. If construction survey stakes are lost or disturbed and need to be replaced, the cost for such replacement will be deducted from CMAR’s most recent pay request.

2.4.8 CMAR shall be responsible for the proper performance of the work of Subcontractors and any acts and omissions in connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between City and any Subcontractor or

SubSubcontractor, including but not limited to any third‐party beneficiary rights.

2.4.9 CMAR shall coordinate the activities of all Subcontractors. If the City performs other work on the

Project or at the Site with separate contractors under City’s control, CMAR agrees to cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in an orderly and coordinated manner without unreasonable disruption.

2.4.10 Where the respective sections of the specifications contain detailed requirements for materials testing and inspections to be performed by an approved testing laboratory. All costs incurred for testing laboratory services will be paid by the City at no cost to the CMAR. However, should retesting be required due to CMAR’s failure to comply with the plans and specifications, the CMAR shall pay all costs for retesting.

2.5 Control of the Work Site

2.5.1 The Contract Documents indicate the lands upon which the Work is to be performed and those rights‐of‐way and access easements furnished by City. Easements for permanent structures or for permanent changes in existing facilities will be obtained by City, unless otherwise stated.

2.5.2 CMAR shall obtain, at no increase in Contract Price or Contract Time, any additional lands, rights‐of‐ way and easements that CMAR, in its sole discretion, requires for temporary facilities, ingress and egress, storage, disposal of spoil or waste material or any other purpose. CMAR shall obtain (a) all required permits from the U.S. Government, the State, railroad, and any Political Subdivision or public utility with jurisdiction, and (b) permission by written agreement if private property. CMAR shall submit copies of all permits and written agreements to City, and shall be responsible for insurance and security at any temporary facilities, on or off‐site, that the CMAR requires to complete the Project.

2.5.3 City shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights‐of‐way and easements for access thereto, and such other lands which are designated for the use of CMAR. Upon reasonable written request, City shall furnish CMAR with a correct statement of record legal title and legal description of the lands upon which the Work is to be performed and City's interest therein as necessary for giving notice of or filing a mechanic's lien against such lands in accordance with applicable Laws and Regulations. City shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which CMAR will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by City, unless otherwise provided in the Contract Documents. CMAR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.

2.5.4 Throughout all phases of construction, including suspension of Work, CMAR shall keep the Site reasonably free from debris, trash and construction wastes to permit CMAR to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas. Prior to Final

Acceptance of the Work, or a portion of the Work, CMAR shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit City to occupy the Project or a portion of the Project for its intended use.

2.5.5 CMAR shall take whatever steps, procedures or means necessary to prevent dust nuisance due to construction operations. The dust control measures shall be maintained at all times to the satisfaction of the City.

2.5.6 CMAR shall maintain ADA and ANSI accessibility requirements during construction activities in any occupied building or facility. ADA and ANSI accessibility requirements shall include, but not be limited to, parking, building access, entrances, exits, restrooms, areas of refuge, and emergency exit paths of travel.

2.5.7 Only materials and equipment used directly in the Work shall be brought to and stored on the Site by the CMAR. When equipment is no longer required for the Work, it shall be removed promptly from the

Site. Protection of construction materials and equipment stored at the Site from weather, theft, damage and all other adversity is solely the responsibility of the CMAR.

2.6 Quality Control, Testing and Inspection

2.6.1 All materials used in the Work shall be new and unused, unless otherwise noted or specifically approved by the City, and shall meet all quality requirements of the Contract Documents.

2.6.2 All construction materials to be used on the Work or incorporated into the Work, equipment, plant, tools, appliances or methods to be used in the Work may be subject to the inspection and approval or rejection by the City. Any material rejected by the City shall be removed immediately and replaced in an acceptable manner.

2.6.3 The procedures and methods used to sample and test material will be determined by the City. Unless otherwise specified in the Project Drawings and Specifications, samples and tests shall be made in accordance with the following: Project Specifications, MAG 700 Series and the standard methods of

AASHTO or ASTM as referenced in the MAG 700 Series, or as determined by the City.

2.6.4 The CMAR will select a pre‐qualified City or Independent Testing Laboratory and will pay for Quality

Control testing. City will provide Quality Assurance (QA) testing at its own expense where and as it deems necessary. Copies of all Quality Control test reports shall be provided to the City contemporaneously with their presentation to the CMAR or subcontractor to the CMAR. Quality Control testing schedule will be provided in the Project Specifications for earthwork, concrete, special coatings, and other work as determined by the City and the Design Professional.

2.6.4.1 When the first and subsequent tests (including Quality Assurance testing) indicate noncompliance with the Contract Documents, the cost to correct that noncompliance and any further testing demonstrating compliance after correction shall be paid for by the CMAR.

2.6.4.2 When the first and subsequent tests indicate noncompliance with the Contract Documents, all retesting shall be performed by the same testing agency.

2.6.5 The CMAR will cooperate with the Owner’s selected QA testing laboratory and all others responsible for testing and inspecting the work and shall provide them access to the Work at all times.

2.6.6 At the option of the City, materials may be approved at the source of supply before delivery is started.

2.6.7 Code compliance testing and inspections required by codes or ordinances, or by a plan approval authority, and which are made by a legally constituted authority, shall be the responsibility of the CMAR to coordinate and to comply, unless otherwise provided in the Contract Documents.

2.6.8 CMAR’s convenience and quality control testing and inspections shall be the sole responsibility of the CMAR and paid by the CMAR.

2.7 Project Record Documents

2.7.1 During the construction period, the CMAR shall maintain at the jobsite a set of blueline or blackline prints of the Construction Document drawings and shop drawings for Project Record Document purposes.

2.7.1.1 The CMAR shall mark these drawings to indicate the actual installation where the installation varies appreciably from the original Construction Documents. Give particular attention to information on elements that will be concealed, which would be difficult to identify or measure and record later. Items required to be marked include but are not limited to:

Dimensional changes to the drawings.

Revisions to details shown on Drawings

Locations and depths of underground utilities

Revisions to routing of piping and conduits.

Revisions to electrical circuitry.

Actual equipment locations.

Locations of concealed internal utilities.

Changes made by Change Order.

Details not on original Contract Drawings.

2.7.1.2 The CMAR shall mark completely and accurately Project Record Drawing sets of Construction

Documents.

2.7.1.3 The CMAR shall mark Project Record Drawings sets with red erasable colored pencil.

2.7.1.4 The CMAR shall note request for information (RFI) Numbers and Change Order numbers, etc., as required to identify the source of the change to the Construction Documents; however actual changes including dimensions, materials, arrangement and any other information needed to accurately depict the change shall be included on the drawings. If necessary, additional drawing sheets shall be provided for this purpose.

2.7.1.5 The CMAR shall submit Project Record Drawing sets and Shop Drawings to the City or its representative for review and comment.

2.7.2 Upon receipt of the reviewed Project Record Drawings from the City, the CMAR shall correct any deficiencies and/or omissions to the drawings and submit the final original of the Project Record Drawings to the City prior to Final Acceptance and as a condition of Final Acceptance. Final approved Project Record

Drawings shall be provided to the City in hard copy (full‐size drawings) and electronic form.

2.7.3 The City Representative will review the Project Record Drawings monthly prior to the date established for the Payment Request and shall be the sole judge of acceptance of these drawings.

2.8 Project Safety

2.8.1 These Construction Documents, and construction covered by this agreement are to be governed, at all times, by applicable provisions of the federal laws, including but not limited to, the latest amendments of the following: a. Williams‐Steiger Occupational Safety & Health Act of 1970, Public Law, 91‐596. b. Part

1910 and Part 1926 ‐ Occupational Safety and Health Standards, Chapter XVII of Title 29, Code of Federal

Regulations. c. Part 1518 ‐ Safety and Health Regulations for Construction, Chapter XIII of Title 29, Code of Federal Regulations.

2.8.2 The CMAR is responsible for safety of the job site for employees of CMAR as well as for members of the general public and others who may drive or walk through or be in the job site.

2.8.3 CMAR recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on‐Site or off‐Site, and (iii) all other property at the

Site or adjacent thereto.

2.8.4 CMAR assumes responsibility for implementing and monitoring all safety precautions and programs related to the performance of the Work.

2.8.5 The CMAR shall provide a “competent person” as required by O.S.H.A. regulations. The “competent person” shall be identified at the preconstruction conference with the City advised in writing of any changes.

2.8.6 The “competent person” shall make routine daily inspections of the Site and shall hold weekly safety meetings with CMAR’s personnel, Subcontractors and others as applicable.

2.8.7 CMAR and Subcontractors shall comply with all legal and regulatory requirements relating to safety, as well as any City‐specific safety requirements set forth in the Contract Documents, provided that such

City‐specific requirements do not violate any applicable legal and regulatory requirement.

2.8.8 CMAR will immediately report in writing any safety‐related injury, loss, damage or accident arising from the Work to City’s Representative and, to the extent mandated by Legal Requirements, to all government or quasi‐government authorities having jurisdiction over safety‐related matters involving the

Project or the Work.

2.8.9 CMAR’s responsibility for safety under this Section is not intended in any way to relieve

Subcontractors and Sub‐Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury, losses, damages or accidents resulting from their performance of the Work.

2.8.10 Nothing in this agreement shall relieve the CMAR of his responsibility to maintain traffic, structures, etc., as noted on the plans, specifications, and Special Provisions. The CMAR is responsible to provide all necessary shoring, bracing and trench support as is necessary to maintain traffic structures, etc., as stipulated in the plans, specifications, and Special Provisions. If the stability of adjoining building, walls, roadways, etc., is endangered by the CMAR's excavation, shoring, bracing, or underpinning shall be provided as necessary to ensure project safety. Cost for shoring, bracing, underpinnings, and trench support shall be included in the appropriate items listed in the GMP, and no additional payment shall be made for this work

2.9 Warranty

2.9.1 CMAR warrants to City that the construction, including all materials and equipment furnished as part of the construction, shall be new unless otherwise specified in the Contract Documents or approved by the City, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship.

2.9.2 The date of Final Acceptance and the beginning of the Warranty period shall be the date upon which the City indicates final completion and acceptance of the work. The date will represent the completion date for each phase of the project irrespective of early completion by some subcontractors of their work.

Final Acceptance will not be issued until all items of work of each phase, including punch list items, have been completed. The CMAR shall furnish extended warrantees for facilities placed in service before Final

Acceptance and that expire no earlier than one year beyond Final Acceptance except as otherwise required in the specifications.

2.9.3 CMAR’s warranty obligation shall be in accordance with MAG Specifications.

2.9.4 Nothing in this warranty is intended to limit any manufacturer’s warranty which provides City with greater warranty rights than set forth in this section or the Contract Documents. CMAR will provide City with all manufacturers’ warranties prior to Final Acceptance.

2.10 Correction of Defective Work

2.10.1 CMAR agrees to correct any Work that is not in conformance with the Contract Documents, including that part of the Work subject to Section 2.9, within a period of one year from the date of Final

Acceptance of the Work, or within such longer period to the extent required by the Contract Documents.

A progress payment, or partial or entire use or occupancy of the Project by the City, shall not constitute acceptance of Work not in accordance with the Contract Documents.

2.10.2 CMAR shall, take immediate steps to commence correction of nonconforming Work subject to

Section 2.9 above, within fourteen calendar days of receipt of written notice from City in accordance with

MAG Specifications. This includes the correction, removal or replacement of the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If defects develop which are determined by the City to be an emergency, the City shall notify the CMAR, via the most expeditious means regarding the nature and condition of the defects. In turn, the CMAR shall immediately dispatch necessary forces to correct the defect or the emergency condition in accordance with MAG Specifications.

2.10.3 The one‐year period referenced in Section 2.10.1 above applies only to CMAR’s obligation to correct nonconforming Work and is not intended to constitute a period of limitations for any other rights or remedies that the City may have regarding CMAR’s other obligations under the Contract Documents.

ARTICLE 3 ‐ CITY’S SERVICES AND RESPONSIBILITIES

3.0 City’s Representative and Inspector

3.0.1 City’s Representative is responsible for providing City‐supplied information and approvals in a timely manner to assist CMAR to fulfill its obligations under the Contract Documents.

3.0.2 City’s Representative will also provide CMAR with prompt notice if it observes any failure on the part of CMAR to fulfill its contractual obligations, including any default or defect in the project or nonconformance with the drawings and specifications.

3.0.3 The City may utilize field inspectors to assist the City’s Representative during construction in observing performance of the CMAR. The inspector is for the purpose of assisting the City’s Representative and should not be confused with an inspector with a regulatory agency or with an inspector from a City‐ contracted independent laboratory pursuant to Division 2.6.4. The City will provide Special and Electrical

Inspection, and may provide other inspection personnel as the City deems appropriate.

3.0.3.1 The inspector is authorized to inspect all Work and materials furnished. Such inspection may extend to all or part of the Work and to the preparation, fabrication or manufacture of the materials to be used.

3.0.3.2 The inspector is not authorized to issue instructions contrary to the Construction Documents or to act as foremen for the CMAR.

3.0.3.3 The inspector shall have the authority to reject work or materials until any questions at issue can be decided by the City’s Representative.

3.0.3.4 The furnishing of an inspector by the City shall not make the City responsible for or give the City control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs or responsibility for the CMAR’s failure to perform the work in accordance with Contract

Documents.

3.1 Design Professional Services

3.1.1 The City may contract separately with one or more Design Professionals to provide construction administration of the project. The Design Professional's contract scope as well as other firms hired by the

City shall be furnished to the CMAR. The CMAR shall not have the right to limit or restrict or reject any contract modifications that are mutually acceptable to the City and Design Professional.

3.2 City’s Separate Contractors

3.2.1 City is responsible for all work performed on the Project or at the Site by separate contractors under

City’s control. City shall contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, CMAR in order to enable CMAR to timely complete the Work consistent with the Contract Documents.

3.3 Permit Review and Inspections

3.3.1 If requested by the CMAR, the City’s Representative will provide assistance and guidance in obtaining necessary reviews, permits and inspections.

3.3.2 The regulating agencies of the City such as Engineering Services, Developmental Services, Fire and

Planning Departments, enforce Legal Requirements. The enforcement activities of the City are independent and separate from this Agreement.

ARTICLE 4 ‐ CONTRACT TIME

4.0 Contract Time

4.0.1 Contract Time shall start with the Notice to Proceed (NTP) and end with the last phase Final

Acceptance.

4.0.2 Contract Time shall be for the completion of all Work. Contract time for the construction shall be as follows: The Project shall be completed within _______days of the NTP.

4.0.3 CMAR agrees that it will commence performance of the Work and achieve the Contract Time.

4.0.4 All of the times set forth in this Article 4 shall be subject to adjustment in accordance with Article 6.

4.1 Final Acceptance

4.1.1 Upon receipt of written notice that the Work or identified phases of the Work is ready for final inspection and acceptance, City and CMAR will jointly inspect to verify that the remaining items of Work have been completed. There shall be no partial acceptance. Final Acceptance shall not be issued until all items of work on each phase, including punch list items, have been completed to the City’s satisfaction.

The City understands for the purpose of assessing liquidated damages that Final Acceptance and

Completion punch list will allow for warranty work (ongoing for 1 year) and miscellaneous minor punch list, as approved by the City.

4.2 Liquidated Damages

4.2.1 For this project, time is of the essence. Therefore, there will be liquidated damage assessment made for each calendar day, on each phase, the project is not completed after the specified completion date.

For each and every calendar day that work of any phase shall remain incomplete after the time specified for the completion of the work in the GMP, or as adjusted by the City, the sum per calendar day shown in

Table 108‐1 of the MAG Specifications, shall be deducted from monies due to the CMAR, not as a forfeit or penalty, but as liquidated damages and added expenses including administrative, inspectors' cost and loss of facility revenue. This sum is fixed and agreed upon between the parties, because the actual loss to the City caused by delay in completion will be impractical and extremely difficult to ascertain and determine.

4.2.2 Final Acceptance means the completion of all items of work, including punch list items subject to

Section 4.1.1.

4.2.3 Permitting the CMAR to continue and finish the work or any part of it after the time fixed for its completion, or after the date to which the time fixed for its completion may have been extended, does not operate as a waiver by the City of any rights under this contract.

4.2.4 The CMAR acknowledges and agrees to the amount of liquidated damages, specified in Section 4.2.1.

4.3 Project Schedule

4.3.1 The Project Schedule approved as part of a GMP shall be updated and maintained throughout the contract period.

4.3.2 The Project Schedule shall be revised as required by conditions and progress of the Work, but such revisions shall not relieve CMAR of its obligations to complete the Work within the Contract Time, as adjusted in accordance with the Contract Documents.

4.3.3 An updated Project Schedule shall be submitted monthly to the City as part of the Payment Request.

The monthly submittal shall include updated resource loading and one full size plot of the entire schedule and one computer disk containing the schedule in a format acceptable to the City.

4.3.4 CMAR shall provide City with a monthly status report with each Project Schedule detailing the progress of the Work, including: (i) if the Work is proceeding according to schedule, (ii) any discrepancies, conflicts, or ambiguities found to exist in the Contract Documents that require resolution, and (iii) other information detailing items that require resolution so as not to jeopardize the ability to complete the

Work as presented in the GMP and within the Contract Time.

4.3.5 With each Project Schedule submittal, the CMAR shall include a transmittal letter including the following: • Description of problem tasks (referenced to field instructions, requests for information (RFIs), as appropriate. • Current and anticipated delays including: o Cause of the delay o Corrective action and schedule adjustments to correct the delay o Known or potential impacts and their delay on other activities, milestones, and their impact date of Final Completion. o Changes in construction sequence • Pending items and status thereof including but not limited to: o Time Extension requests o Other items • Final

Completion date status: o If ahead of schedule, the number of calendar days ahead. o If behind schedule, the number of calendar days behind. • Other project or scheduling concerns.

4.3.6 City’s review of and response to the Project Schedule serves to ensure for general conformance with the scheduling requirements of the Contract Documents. The review shall not relieve the CMAR from compliance with the requirements of the Contract Documents or be construed as relieving the CMAR of its complete and exclusive control over the means, methods, sequences and techniques for executing the

Work.

4.3.7 The Project Schedule shall include a Critical Path Method (CPM) diagram schedule showing the sequence of activities, the interdependence of each activity and identifies the Critical Path.

4.3.8 The CPM diagram schedule shall be in Days and indicate duration, earliest and latest start and finish dates for all activities, and total Float times for all activities except critical activities. The CPM diagram shall be presented in a time scaled graphical format for the Project as a whole.

4.3.9 The CPM diagram schedule shall indicate all relationships between activities.

4.3.10 The activities making up the schedule shall contain sufficient detail to assure that adequate planning has been done for proper execution of the Work and such that it provides an appropriate basis for monitoring and evaluating the progress of the Work. Individual activities shall not exceed 30 days in length.

4.3.11 The CPM diagram schedule shall be based upon activities, which coincide with the schedule of values.

4.3.12 The CPM diagram schedule shall show all submittals associated with each work activity and the review time for each submittal.

4.3.13 The project schedule shall show milestones, including milestones for Owner‐furnished information, and shall include activities for Owner‐furnished equipment and furniture and construction by other contractors when those activities are interrelated with the CMAR activities.

4.3.14 The Project Schedule shall consider the City’s and the tenants’ occupancy requirements showing portions of the Project having occupancy priority, and Contract Time.

4.3.15 Float time shall be as prescribed below;

4.3.15.1 The total Float time within the overall schedule, is not for the exclusive use of either the City or the CMAR, but is jointly owned by both and is a resource available to and shared by both parties as needed to meet contract milestones and the Project completion date.

4.3.15.2 The CMAR shall not sequester shared Float time through such strategies as extending activity duration estimates to consume available Float, using preferential logic, or using extensive crew/resource sequencing, etc. Since Float time within the schedule is jointly owned, no time extensions will be granted nor delay damages paid until a delay occurs which extends the Work beyond the Final Acceptance date.

4.3.15.3 Since Float time within the schedule is jointly owned, it is acknowledged that City‐caused delays on the Project may be offset by City‐caused time savings (i.e., critical path submittals returned in less time than allowed by the contract, approval of substitution requests and credit changes which result in savings of time to the CMAR, etc.). In such an event, the CMAR shall not be entitled to receive a time extension or delay damages until all City‐caused time savings are exceeded and the Contract Time is also exceeded.

ARTICLE 5 ‐ CONTRACT PRICE

5.0 General

5.0.1 The CMAR agrees at his own proper cost and expense, to do all Work as aforesaid for the construction of said improvements and to completely construct the same and install the material therein, as called for by this Agreement free and clear of all claims, liens, and charges whatsoever, in the manner and under the conditions specified within the time, or times, stated in the approved Guaranteed

Maximum Price.

5.1 Contract Price

5.1.1 The Contract Price will be as approved in the Guaranteed Maximum Price proposal attached as

Exhibit A an amount of $___________________.

5.1.2 Guaranteed Maximum Price is composed of the not‐to‐exceed lump sum amounts defined in Exhibit

A. The CMAR is at risk to cover any additional Project costs.

5.1.2.1 The Cost of the Work is lump sum. The Guaranteed Maximum Price shall be based on the GMP

Plans and Specifications. The GMP Plans and Specifications shall consist of the documents and agreed upon design clarifications listed in exhibits to the Approved GMP Proposal. The CMAR Contingency shall be broken down into separate amounts for each phase. When the CMAR receives final, permitted plans and specifications for all phases and final bids from suppliers and subcontractor, the CMAR shall reconcile his Cost of Work for all phases with the GMP. Should the Cost of Work based on the final, permitted plans and Specifications for all phases exceed the Cost of Work in the GMP for all phases combined, the CMAR shall utilize its CMAR Contingency to fund any overage. Should the Cost of Work based on the final, permitted plans and Specifications for all phases combined, be less than the Cost of Work in the GMP for all phases, the CMAR shall provide a deductive Change Order to the Contract for this amount.

5.1.2.2 The General Conditions Costs and the Construction Fee are firm fixed lump sums.

5.1.2.3 CMAR’s Contingency is a fund to cover cost growth during the project used at the general discretion of the CMAR, with City approval, usually from costs that result from project circumstances.

5.1.2.3.1 At the time that CMAR’s Contingency is used by the CMAR, the appropriate markups for overhead and profit will be applied.

5.1.2.3.2 When the CMAR utilize CMAR’s Contingency funds, the CMAR shall make the appropriate changes to the schedule of values with the next regular progress payment request. The CMAR shall deduct the amount of CMAR’s Contingency funds used from the CMAR’s Contingency line item and adding the same amount to the line item on the schedule of values where the funds were used. If the CMAR’s

Contingency funds are used for a new line item that was not given with the original schedule of values, a revised schedule of values shall be submitted to document this.

5.1.2.4 Taxes are deemed to include all sales, use, consumer and other taxes which are legally enacted when negotiations of the GMP were concluded, whether or not yet effective or merely scheduled to go into effect. Taxes are actual costs and are a firm fixed lump sum.

5.1.3 Owner’s Contingency funds to be used at the sole discretion of the City. Owner’s Contingency will be added to the Contract Price to cover any increases in Project costs that result from City directed changes or unforeseen site conditions. At the time that Owner’s Contingency is used, the appropriate markups per Article 6 will be applied.

5.1.4 The GMP is subject to adjustments made in accordance with Article 6 and by Change Orders to this

Agreement.

5.1.4.1 GMP Change Orders are cumulative except for contingency.

5.1.4.2 If the GMP requires an adjustment due to changes in the Work, the cost of such changes is determined subject to Article 6. The markups that shall be allowed on such changes shall be no greater than the markups delineated in Section 6.6.

ARTICLE 6 ‐ CHANGES TO THE CONTRACT PRICE AND TIME

6.0 Delays to the Work

6.0.1 The Contract Times may only be changed by a Change Order or a Written Amendment. Any claim for an adjustment of the Contract Times shall be based on written notice delivered by the party making the claim to the other party and to City promptly (but in no event later than ten days) after the occurrence of the event giving rise to the claim and stating the general nature of the claim.